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December 5, 2014

Week in Review

By Chris Helsel

German Collector Seeks Return of Art Looted by East German Police; New York Collector Sues to Retain Ownership

It appears that the Nazis were not the only German authorities guilty of stealing precious works of art.

A New York family has brought suit in German court, asking a judge to affirm its rightful ownership of a still life masterpiece allegedly stolen in 1982 by East German police. The painting, a 1705 still life by the Dutch artist Adriaen Coorte depicting four chestnuts, is one of approximately 2,000 that were stolen from Dresden art collector Helmuth Meissner in a police raid ordered by government authorities. Prior to the commencement of litigation, attorneys representing the Meissners had sought to resolve the situation amicably. When negotiations broke down, attorneys representing the late June D. Weldon, a New York philanthropist, filed suit in Munich, claiming the painting was purchased in good faith and that no evidence definitively established Mr. Meissner's ownership claim. Further, the suit alleges, even if the painting were taken from Mr. Meissner, its seizure was the lawful action of the government in power at the time.

The East German police force, known as the Stasi, reportedly seized more than 200,000 objects from collectors between 1973 and 1989 as part of a broad government effort to secure Western currency through the sale of art. The program aimed to bolster the Soviet-backed Communist state's sluggish economy by re-selling the art through brokers in Western Europe because the East German currency, the Mark, held little value in foreign trade. At the time, East German authorities declared that numerous art collectors were "dealers" who had not paid the required taxes on their art. The seizures were therefore done under the supposed color of law as sham tax forfeiture proceedings.

German officials are now discussing whether to add Stasi-confiscated items to the country's Lost Art Internet Database alongside the infamous Nazi-looted art.

Records indicate that the seized still life was shipped to Amsterdam in 1988, where it was sold to a Swiss gallery. It was then re-sold to American collector Henry H. Weldon (June D. Weldon's husband). Despite the exacting paper trail left by East German authorities and a 1982 photograph taken during the raid showing the painting hanging on Mr. Meissner's wall, Mrs. Weldon's representatives insist that Mr. Meissner has no right to the piece.


NFL Running Back Ray Rice Wins Appeal of Domestic Violence Suspension, Eligible to Return Immediately

Ray Rice, formerly of the Baltimore Ravens, has successfully appealed his NFL-imposed indefinite suspension. The suspension, which stemmed from a highly publicized domestic violence altercation with his then-fiancée, had been increased from two games to indefinite following the public release of video footage of the incident. Following NFL Commissioner Roger Goodell's decision to increase the suspension (which coincided with the Ravens' decision to terminate his employment contract), Rice and his legal team appealed, claiming that the commissioner had acted arbitrarily in enforcing the league's personal conduct policy.

Rice and his then-fiancée (now wife), Janay Palmer, met with the commissioner in June, following Rice's indictment on charges of third-degree aggravated assault. Charges were ultimately dropped after Rice was accepted into a pretrial diversion program. According to Commissioner Goodell, Rice was not entirely forthcoming at this disciplinary hearing, and the details of the incident were unclear. When security footage of Rice punching Ms. Palmer in the face inside an Atlantic City casino elevator surfaced, the commissioner drastically increased the suspension, alleging that Rice's version of events at the disciplinary hearing was inconsistent with what appeared on the video.

Rice, however, alleged that he confessed to striking his fiancée in the face, and was entirely truthful at the meeting. The league office, Rice argued, knew full well what had transpired, and overreacted to the public outcry following the video's release by imposing the indefinite suspension. Therefore, Rice argued, he was improperly punished twice for the same act or conduct, without any new substantive evidence. Rice has also filed a grievance against the Ravens for the improper termination of his contract.

Under the 2011 NFL Collective Bargaining Agreement, the commissioner has the sole power to determine discipline under the player conduct policy, as well as to hear any appeal. Here, however, because the commissioner was directly involved in the proceedings and therefore an essential witness, the league and players' union agreed to name a third party neutral arbitrator to hear the appeal.

That neutral arbitrator, former Southern District of N.Y. Judge Barbara S. Jones, released her ruling last Friday. She concluded that the union had carried its burden of showing that Rice did not mislead the commissioner at the disciplinary hearing, and that the commissioner had therefore acted arbitrarily by imposing a second suspension based on the same incident and same known facts. As a result, Rice's indefinite suspension was vacated, and he is free to sign with any NFL team.

Importantly, Judge Jones did not rule that the indefinite suspension was too severe of a punishment - only that the commissioner had overstepped his bounds by disciplining a player twice based on the same conduct and same known facts. In fact, she noted that had the commissioner simply suspended Rice indefinitely from the outset, an arbitrator would have been "hard pressed" to overturn it. According to Judge Jones: "[A]ny failure on the part of the League to understand the level of violence was not due to Rice's description of the event but to the inadequacy of words to convey the seriousness of domestic violence. That the League did not realize the severity of the conduct without a visual record also speaks to their admitted failure in the past to sanction this type of conduct more severely."

Questions abound as to what NFL executives knew, and when. Commissioner Goodell has insisted that he had not seen the elevator video prior to its release, nor knew of its contents. Judge Jones' opinion indicates that she was convinced the commissioner had not seen the video. Former F.B.I. director Robert S. Mueller III is currently in the midst of an independent, NFL-ordered investigation of the league's handling of the matter.


Lincoln Center Decides That Perpetuity Has Its Limits

In 1973, music philanthropist Avery Fisher gave $10.5 million to Lincoln Center for the repair of Philharmonic Hall, with the stipulation that his name would attach to the building in perpetuity. Recent developments, however, have left observers reaching for their dictionaries.

Lincoln Center agreed last month to pay Mr. Fisher's descendants $15 million for permission to expunge his name from the building, in hopes of luring a much larger donor willing to subsidize a proposed $500 million renovation.

"Perpetuity is usually a matter of negotiation now," said Mr. Fisher's attorney, William D. Zabel.

This development raises the ethical dilemma of whether donors should accept a time limit on naming rights, in an effort to be even more charitable. Billionaire businessman and philanthropist David H. Koch, who recently gave $100 million to the New York State Theater and $65 million to the Metropolitan Museum of Art, agreed that his name could be removed after a set number of years with his family retaining the right of first refusal. "A naming opportunity should be a defined length of time to allow the institution to regenerate itself with another round of major fund-raising," Mr. Koch said.


EU Law Says Reproducing Eiffel Tower Night Photos Illegal - Light Display Constitutes "Art Work"

Paris' Eiffel Tower, one of the world's most iconic monuments, is visited and photographed by millions of tourists every year. However, it turns out that an obscure EU copyright law prohibits the reproduction - which includes sharing on social media - of photos of the tower taken at night. The tower, built in 1889, falls within the public domain, so photographs taken during the day are unprotected by copyright. At night, though, the tower's impressive light display constitutes artwork under EU law, and therefore usage of any images of it requires the permission of the Eiffel Tower's operating company, Société d'Exploitation de la Tour Eiffel.

A 2001 EU Information Society directive says that photographs of architectural works in public spaces can be taken and shared free of charge, at any time. The clause is optional, however, and countries including Italy, Belgium and France declined to transpose it into national law. Therefore, sharing photographs of the Eiffel Tower at night without permission can lead to a fine. The Eiffel Tower website states: "Daytime views from the Eiffel Tower are rights-free. However, its various illuminations are subject to author's rights as well as brand rights."

Any readers planning to visit the Roman Coliseum, Trevi Fountain, Leaning Tower of Pisa, or (especially) Eiffel Tower over the holidays, take note.


December 10, 2014

Oral Argument in Authors Guild v. Google, 13-4829-cv, U.S. Court of Appeals for the Second Circuit, December 3, 2014

By Robert J. Bernstein

Robert J. Bernstein practices law in New York City in The Law Office of Robert J. Bernstein. He is a frequent author and lecturer on copyright law and litigation, an Honorary Trustee and past President of the Copyright Society of the U.S.A., a member of the Copyright and Literary Property Committee of the New York City Bar Association, and formerly served as Chairman of the Copyright Law Committee of the American Intellectual Property Law Association and as a member of its Board of Directors. Mr. Bernstein has been co-author of the New York Law Journal bi-monthly "Copyright Law" column for 28 years.

For those of you who could not attend last Wednesday's oral argument in Authors Guild v. Google and do not want to await the transcript/CD, or who have neither the time nor inclination to read or listen to the recording of the 75 minute proceeding, here is a summary of how the argument unfolded in chronological order:

Disclaimer: Your author represents as co-counsel, along with fellow co-counsel Peter Jaszi and lead counsel Daniel F. Goldstein, the National Federation of the Blind and four print-disabled individuals (collectively, the "NFB") in the case of Authors Guild, et al. v. Hathitrust, et al., 902 F. Supp.2d 445 (S.D.N.Y. 2012), affirmed 755 F.3d 87 (2014) ("HathiTrust"). In HathiTrust, although Google was not a party and its liability/fair use was not adjudicated, the Second Circuit held that the digitization by Google of the entire contents of several major university libraries for the purpose of enabling university students and scholars to conduct research, in particular searching for books containing the searched terms without displaying any text from the books, constituted a transformative fair use. The NFB had intervened in the district court proceedings in order to obtain full access to the digitized collections for print-disabled students and scholars under both the fair use doctrine and the Americans with Disabilities Act ("ADA"). The Second Circuit rejected the argument that such full text reading of the digitized text was a transformative use, viewing reading as reading whether via print or digitized text-to-speech software. Nevertheless, applying general fair use principles, and relying in part on the U.S. Supreme Court discussion of fair use for blind individuals in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 455 n.40 (1984), as well as Congressional recognition in the ADA of the public policy benefits of equal access for those with disabilities, the Second Circuit held that the NFB uses constitute fair use. The Second Circuit remanded certain issues relating to preservation uses to the district court, where the case now resides. The remanded issues do not impact the Second Circuit holding with respect to the NFB.

Comment on Disclaimer: Your author recognizes, both as a lawyer and legal commentator, the obligations to disclose any connection that could reasonably be considered to influence the contents of a published writing. However, the readers should also keep in mind that, in this posting, the author will be attempting to report on the unfolding of the oral argument as it happened, in real time, without editorializing. The transcript/CD will appear in due course, so the readers will be able to judge for themselves whether my attempt to report objectively has succeeded.


The Panel: The Second Circuit panel hearing the appeal consisted of the Honorable José A. Cabranes, the Honorable Pierre N. Leval, and the Honorable Barrington D. Parker. Judge Cabranes, as the only active judge on the panel, would normally have presided, but as he was appearing via video from his chambers in Connecticut, the longest-serving senior appellate judge present, Judge Leval, presided. This may be viewed as fitting in view of the fact that Judge Leval introduced the concept of "transformative use" into the fair use lexicon in his 1990 Harvard Law Review article, "Toward A Fair Use Standard," 103 Harv. L. Rev. 1105, which the Supreme Court adopted four years later in its still-governing, but pre-digitization era, fair use decision in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

This same panel had also considered the earlier appeal of the class certification issue in Author's Guild v. Google (hereafter the case will be referred to as "Google," and non-italicized "Google" will refer to the defendant-appellee). In its Order remanding the case to the district court for a determination of the fair use defense, the panel, per curiam, directed the Clerk of the Court to assign any subsequent appeal of the case to the same panel. 721 F.3d 132 (2d Cir. 2013).

Two members of the panel, Judges Cabranes and Parker, were also members of the Second Circuit panel that decided HathiTrust, wherein, in an opinion by the Honorable Barrington D. Parker, the court held, inter alia, that the digitization of the entire contents of the university libraries for the purpose of search and without displaying any text constitutes a transformative fair use.

Prior Proceedings: The long-and-winding road leading to Courtroom 1703 of the Thurgood Marshall U.S. Courthouse is beyond the scope of this report. The only issue before the Court concerned the appeal of the grant of summary judgment to Google on its fair use defense. In his summary judgment opinion, the Honorable Denny Chin (who retained the case in the district court after his appointment to the Second Circuit) held that Google's digitization of the university libraries collections, and its own use of that corpus for purposes of enabling users of Google Books to search the database for books containing the searched terms (search function) and for reading "snippets" displayed on the Google Books website (display function), both constitute fair uses; and that Google's provision to the university libraries of copies of the digitized databases from each library's own collection, alleged by the Authors Guild to infringement the distribution right, also constitutes a fair use because it enabled the libraries to engage in the fair uses approved by the Second Circuit in Hathitrust. Google, ___ F.Supp.2d ___ , 2013 WL 6017130 (S.D.N.Y. Nov. 14, 2013).

Further Background: Readers interested in articles summarizing the decisions referred to above may find the following New York Law Journal (NYLJ) "Copyright Law" columns of interest: R. Bernstein and R. Clarida, "Fair Uses of Hathitrust Digital Library," June 18, 2014, p. 3; R. Bernstein and R. Clarida, "Google Granted Summary Judgment on Fair Use Defense," NYLJ, December 20, 2013, p.3; and D. Goldberg and R. Bernstein, "The Supreme Court Balances the Act," NYLJ, March 18, 1994, p. 3.


Judge Leval prefaced the proceedings by stating that due to the complexity and importance of the issues presented, the Court would disregard the 15-minute posted limits and instead allow each side 30 minutes, with the possibility of additional time if needed. As it turned out, the total time elapsed was close to 75 minutes. No other cases were on the docket at this 2:00 p.m. sitting.

The author will now report on the arguments, questions, comments and rebuttals as they unfolded chronologically. The names of the participants are boldfaced to indicate who is speaking. Quotation marks are only used when I am reasonably confident that I was able to capture the actual words in my notes Generally, but with many exceptions, each new paragraph starts when a different speaker enters the dialogue.

For Appellant the Authors Guild (Paul M. Smith, Jenner & Block, LLP [arguing]; and Edward R. Rosenthal, Frankfurt Kurnit Klein & Selz, PC):

Mr. Smith opened with the necessary acknowledgment that HathiTrust is the law of the Second Circuit, while reserving the right to challenge the holding in other circumstance (referring, sub silentio, to the possibility of a request for Supreme Court review). He then immediately introduced the reasons why the Authors Guild ("AG") contended that Google's uses were qualitatively different from those in HathiTrust, and why those differences mandated a holding of infringement rather than fair use. He stated that Google's uses are "quintessentially commercial," engaged in by a for-profit company to preserve its key asset - maximizing visits to its website in order to increase advertising revenues.

Judge Leval commented that, in his view, notwithstanding a distinction between commercial and noncommercial uses, classic holdings of fair use have involved commercial uses (that is, the user was at least significantly motivated by potential profit), and that he "would be surprised if [AG] win[s] on that basis."

Mr. Smith rejoined by stating that this case was different due to the enormity of the commercial use, leading Judge Leval to ask whether his proferred distinction was between "big profits" and "little profits," followed by this query: "If Google does not cause any harm" to the copyrighted works, what difference does it make how much profit it derives from the use?

Mr. Smith then turned to what he argued is the second determinative difference from the uses in HathiTrust: Google displays text (referred to as "snippets" to indicate their brevity), whereas no text was displayed in the libraries' uses. He stated that such displays harm an existing and emerging market to license books for digitization and related uses, which he characterized as "derivative uses" [referring to the copyright holder's exclusive right to create derivative works based on the copyrighted work]. Here, he cited a 1992 decision by then-district-court Judge Leval holding that photocopying of scientific articles by Texaco scientists was not a fair use. American Geophysical Union v. Texaco, Inc., 802 F.Supp. 1 (S.D.N.Y. 1992), aff'd, 60 F.3d 913 (2d Cir. 1994).

Judge Leval stated that he did not consider his opinion in Texaco to be of guidance here due to "big differences" between Texaco's and Google's uses, noting that, in Texaco, 80 in-house scientists made multiple copies of entire articles in order to have convenient access to them rather than purchasing additional journal subscriptions. In reply, Mr. Smith asserted that the test applied in Texaco - whether the use is one for which a license exists or is likely to emerge - is relevant to the emerging digitization marketplace.

Judge Leval responded that whether a market for the use is likely to emerge "is not a very useful test" with respect to transformative works because, no matter how transformative the use, someone at some price would be willing to license it to avoid the cost of litigation. Mr. Smith averred that a distinction should be made between uses that a copyright owner might never license, such as parody or criticism, and uses that the owner would be prepared to license for the right price, a proposition as to which Judge Leval asked if Mr. Smith had any case authority.

Mr. Smith also argued that it should be a policy decision for Congress whether "new derivative uses," which, in his view, include digitization, should be free of a license.

At this point, Judge Leval introduced two issues that he stated were of concern to him: (i) what limitations, if any, are there on what the libraries can do with the digitized collections provided to them by Google; and (ii) what vulnerabilities do libraries have to hacking and piracy? In this regard, Judge Leval asked: Even if we decide that Google's use is fair use, "if the upshot is the multiplication of copies and greater potential for hacking," how does that impact the analysis? He further asked whether this could be a particular concern with respect to "hot properties", such as a new Harry Potter book.

Rather than respond commenting immediately on these concerns, Mr. Smith initially directed his response to their predicate ("even if we decide Google's use is fair"). Thus, Mr. Smith argued that Google's use was not fair, inter alia, because, in providing copies of the digitized collections to the libraries, Google was using those copies as "currency" - a form of barter in lieu of monetary compensate in exchange for Google's access to and use of the books for digitization. Judge Leval stated that he "was not following" that point.

Mr. Smith than turned to another reason why he contends that Judge Leval's predicate ("assuming that we find fair use") to his stated concerns was faulty, arguing that in evaluating fair use, only the conduct and purpose of the initial user/defendant is relevant, but not those of downstream users or third parties (such as, in Mr. Smith's characterization, the libraries). For that reason, he contended, Google should not be entitled to rely on the fair use holding in HathiTrust to justify its own use.

Mr. Smith then addressed Judge Leval's stated concern about the vulnerability of digitized collections within library databases to hacking and piracy - arguing that in Google's agreement with the Stanford Library (which is not part of the consortium of university libraries constituting Hathitrust and was not a party in HathiTrust), students are not restricted from simultaneously reading entire texts online).

Judge Leval asked: "Is it Google's responsibility to be sure that Stanford's use is fair?" To which Mr. Smith replied: "Google assumed responsibility" for the library uses of the digital databases it provided to them. Judge Leval asked: "What do you mean?," and Mr. Smith responded: "If Google tries to ride on the libraries' uses," they should be responsible for the consequences.

Judge Parker then turned to a different issue, asking: "Are there any provisions in the documents that restrict the contours of what Google is doing? What keeps them from changing?"

Mr. Smith stated that nothing in the arrangements would prevent Google from expanding or otherwise changing its practices, and posited a multiplier effect: "What if everyone could do this? Isn't this a policy decision for Congress?"

Judge Leval observed that displaying 8 pages rather than snippets would be a different case, and Judge Parker posed his own rhetorical question: "You aren't seriously suggesting that we wait for Congress to Act?"

At which point Mr. Smith changed direction to focus on the "limited" remedies the AG was seeking. He articulated a bifurcated approach to Google's past and future conduct. He assured the court that AG was only seeking monetary damages for past alleged infringements, and was not requesting that the already existing database be undone. As to future digitization and related uses, AG seeks the imposition of a licensing requirement, but not injunctive relief.

Judge Leval then asked whether the present arrangements preclude digitization of a hot new book. Mr. Smith replied that most new books are already licensed in Google's Partners Program with publishers, which led Judge Leval to ask: "Are you saying that hot new books aren't part of the case?"]. Mr. Smith then clarified his position by responding that, "on the contrary," because not all publishers are part of Google's Partners Program and because authors can opt out of Google Books, many hot new books could be affected.

Judge Parker then asked: "What precisely is the mechanism" for an author to opt out? Mr. Smith stated that when an author opts out, the work is no longer displayed in snippets, but he understood that the work would still remain in the database, and may (he was not certain) still be available for search.

Mr. Smith then turned to AG's argument that the display of snippets itself causes harm, explaining, by way of example, that certain types of books are often referred to only for limited purposes and discrete information, and that snippet display could satisfy those readers' needs, resulting in the loss of a sale. Yet Judge Leval observed that dictionaries, for example, were excluded from snippet use. Mr. Smith rejoined by stating that other types of books, for example history books, may be used for short bits of information that could be obtained by viewing a series of snippets rather than purchase.

Mr. Smith then turned to an evidentiary point, contending that Judge Chin articulated no evidentiary basis for his rejection of the AG's argument that snippet displays cause market harm. [Questions of the proper allocation of burden of proof on this point were not addressed in any detail at the argument, but merely averted to].

Judge Cabranes posed a procedural question concerning the reasons why certain portions of the appendix were redacted. Mr. Smith referred to the protective order entered in the district court which required confidential treatment, but in response to further queries by Judge Cabranes and Leval, the parties agreed to advise the court whether there was any portion of the redacted materials which the parties still requested be redacted from any published opinion.

At this point, Google's counsel presented his case.

For the Appellee Google, (Seth P. Waxman, Wilmer Cutler, Pickering, Hale and Dorr LLP [arguing]; and Joseph C. Gratz, Durie, Tangri LLP):

Mr. Waxman commenced by enumerating what he characterized as three fundamental points: (i) Google's and the libraries' uses "quintessentially" promote progress in the arts in furtherance of copyright's constitutional purpose; (ii) all of these uses are products of a collaboration between Google and the libraries which allow each to engage in transformational uses that neither one could accomplish alone; and (iii) there is no evidence in the record of any market harm to authors.

Judge Leval immediately asked whether, even if there is no evidence of harm to any particular books, there is harm to a market for licensing digitization rights? In response, Mr. Waxman made two points: (i) HathiTrust, which is Second Circuit law, rejected that argument; and (ii) in any event, there is no evidence that any such market exists or is emerging.

Judge Leval then asked about record evidence of licensing digitization rights in Europe, to which Mr. Waxman replied: the European licenses grant the right to reproduce and display the entire book which is a materially different type of market.

Judge Parker asked how much Google has spent on the project, to which Mr. Waxman replied, over $120,000,000. In further colloquy it was stated that there is nothing in the record demonstrating the extent to which Google may have derived profits (direct or indirect) from the uses.

Judge Cabranes then asked a series of questions about the commerciality (or not) of the uses: "Is this only a charitable enterprise by Google? Is it solely designed for eleemosynary purposes?" "Is any part of the Google project for profit?" Judge Leval supplemented this inquiry by asking whether advertising is displayed in connection with the uses?

In response, Mr. Waxman noted that no ads are displayed on pages responding to search requests or on pages displaying snippets, and that Google makes no money from referring sales to third parties.

Judge Parker asked: "What keeps Google from changing the way it operates," such as by lengthening its display of text? Mr. Waxman replied that [presumably significant] changes would have to be evaluated separately under the fair use factors.

In further response, Mr. Waxman argued that if Google derives profit from the use, it would not distinguish this case from numerous fair use cases. He continued: "If Google didn't expect to make some return on this, it may never have engaged in this incredibly transformative use."

Judge Parker noted that in the class certification appeal, Google argued that fair use must be evaluated as to each individual book, but that on this appeal Google argues that fair use may be considered as to the entire corpus of digitized works, suggesting an apparent inconsistency between these two positions. Mr. Waxman replied that there was no inconsistency because in the class certification appeal Google did argue that the entire Google Book Project should be found to be fair use, but that, if the court did not conclude fair use as to the entire project, then questions of infringement would have to be evaluated one book at a time.

On the subject of the libraries' uses, Mr. Waxman noted that Google's agreements with each library required that any use by the library be consistent with copyright law. Judge Leval queried whether, even if the libraries complied with copyright law, weren't the digital copies stored on the libraries' databases vulnerable to hacking and the resulting infringing conduct of others?

In response, Mr. Waxman noted again that HathiTrust is Second Circuit law and that it determined that AG's security concerns did not make the uses unfair. Judge Leval stated that the finding in HathiTrust was merely that, on the record there, the possibility of a security breach was speculative.

Mr. Waxman replied that there is no evidence in the Google record to support AG's security risk argument. He asserted that there is no record of any instance of hacking into the libraries' digitized collections in the years since they were created. He further argued that there is good reason for a record devoid of hacking into the library corpus - digital copies of more recent and commercially popular books are already available on the Internet through, for example, Amazon. He asserted that, in contrast to Google's agreements with HathiTrust member libraries, the standard Amazon contract with publishers does not require Amazon to take security measures.

Judge Leval then asked: Are you saying that digital copies are more easily available elsewhere than from within the libraries' digital corpus? Mr. Waxman replied that, as a matter of policy, Google does not digitize books for search and snippet display until two years after their initial publication, which further reduces any possible substitutive effect.

Returning to a point raised earlier by Judge Parker, Judge Leval asked whether that policy could change? Mr. Waxman did not, at that point, address the possibility of change, but instead emphasized that the point of the Google Books is to allow users to find books, "and nothing else."

Judge Leval then asked: "Is the two-year blackout in the record as a characteristic that the court can base its fair use analysis on," and, if so, requested a record cite. Judge Leval later repeated this query, and Mr. Waxman undertook to reply "anon" (the archaic form of "soon").

Judge Leval then returned to his question regarding the impact of Google's agreement with Stanford, which contains no restrictions on the Stanford library's full text display of digital copies which could be read by students simultaneously. Mr. Waxman replied that under that agreement, Stanford is still obligated to only make such uses as are consistent with copyright law, and, in any event, even if Stanford were to breach its agreement with Google, that would not render Google's own use unfair.

Mr. Waxman then focused on the "copy-shop" cases relied on by AG, in which commercial copy shops created and sold coursepacks to students. He argued that this use was the polar opposite of Google's transformative use because the copy shops packaged and sold the coursepacks to students as substitutes for their purchase.

Judge Cabranes then stated: "Let us follow the dollars (even if ultimately it may not matter)". Toward that end, he engaged in an extended colloquy with Mr. Waxman that ended with this stipulation: Mr. Waxman: "I will stipulate, arguendo, that Google had [has] a profit motive because [the Google Books Project] would bring more eyes to Google." However, he qualified this stipulation in two ways, stating that (i) there is no evidence in the record that Google provided digital copies to the libraries to avoid paying for access to the libraries' hard copies; and (ii) that, on its most fundamental level, Google and the libraries were engaged in a collaborative project designed to make millions of books available for search by the public. With respect to the latter point, Mr. Waxman quoted from the agreement between Google and the University of Michigan which is prefaced with a statement of their joint purpose.

The Authors Guild Rebuttal (by Mr. Smith):

In a brief rebuttal argument, Mr. Smith made the following points:

(i) this case was decided by the district court on summary judgment, and therefore a holding of fair use cannot be based on any genuinely disputed material facts;

(ii) Google has the burden of proof on its fair use defense, and therefore, where proof is absent or insufficient, inferences must be taken in AG's favor;

(iii) the court should weigh in the balance the allegedly anti-competitive conduct of Google in allegedly using the digitization of library collections to maintain and increase its dominant market position in book digitization vis-à-vis Amazon and others; and

(iv) it would be inappropriate to impose on AG an impossible burden of proving that the display of particular snippets led to lost sales of particular books.

At this point in the rebuttal, Judge Cabranes interjected with this question: "What is the decree of court that you are seeking from us?" He observed that, in its brief, AG's requests broad relief, but that, in the oral argument, it appears that AG is seeking less.

In response, Mr. Smith repeated the remedies he outlined during his main argument, while elaborating by citation to the Supreme Court opinion in eBay, Inc. v. Mercexhange, L.L.C., 547 U.S. 388 (2006). [There, the court held that before issuing injunctive relief, a court must make findings of fact on four separate factors, rather than merely apply presumptions. For an excellent discussion of the impact of eBay in fair use cases, see R. Dannay, "Copyright Injunctions and Fair Use: Enter eBay -- Four-Factor Fatigue or Four-Factor Freedom?" 37th Annual Brace Memorial Lecture, Journal of the Copyright Society of the U.S.A.,Vol. 55, No. 4 (Summer 2008), p. 449-468)].

Summarizing, Mr. Smith stated that in light of (i) eBay; (ii) the passage of time; and (iii) the value of the database, "we do not request an injunction but monetization and licensing for future scanning."

Judge Cabranes then asked: "Do you think the case could be resolved by a sum certain?" Mr. Smith replied; "Yes," suggesting that the numbers could be worked out with the aid of expert testimony and computer software, and proffering the example of the recent settlement between Viacom, et al. and YouTube, in which he represented the plaintiffs against Google's YouTube subsidiary.

Judge Cabranes asked whether discovery is over, to which Mr. Smith replied "yes."

As a final point, Mr. Smith revisited the alleged risk of a security breach, citing by way of example the massive hacking of the JSTOR database of scholarly articles and journals by a proponent of the "research-must-be-free" point of view.

Judge Leval then declared the case submitted for resolution by the panel and adjourned the proceedings.

December 12, 2014

Week in Review

By Chris Helsel

NFL Announces New Player Conduct Policy, Stronger Penalties for Domestic Violence

On Wednesday, National Football League (NFL, League) Commissioner Roger Goodell announced sweeping changes to the NFL's personal conduct policy, which include strong penalties for any League employees involved in domestic violence. The commissioner told reporters that a new conduct committee would oversee the policy and make changes when necessary, relying on the advice of outside experts. Importantly, the League will no longer rely primarily on the criminal justice system in determining when and how to penalize players. Instead, NFL investigators themselves will determine when fines and/or suspensions are to be issued.

This action comes in the wake of numerous headline-grabbing scandals involving domestic abuse by NFL players, and the League's inconsistent and, some say, insensitive handling of them.

Perhaps the most surprising change to the policy is the role of the commissioner himself. Previously, as outlined in the 2011 Collective Bargaining Agreement (CBA), the commissioner had the sole power to determine discipline under the player conduct policy, as well as to hear any appeal. Under the new policy, the commissioner will cede disciplinary authority to a new special counsel whom he will appoint. However, the commissioner retains the authority to hear any appeal. The new policy is effective immediately.

The players' union (NFLPA) has expressed concerns that the new policy was not collectively bargained, but rather enacted by the League office unilaterally. The NFLPA further said in a statement that it had not even "been offered the professional courtesy" of seeing the NFL's new policy prior to its enactment.

To the contrary, League officials contend that the NFLPA was involved in the process throughout, and that the NFL sought opinions from lawyers, law enforcement experts, women's groups and advocates for victims of domestic violence, as well as the union. Further, the League contends that under its bylaws and the CBA, the personal conduct policy falls under League control and does not need to be collectively bargained. According to NFL general counsel Jeff Pash, "The union knows and has repeatedly recognized that this is something that the commissioner can do."


Judge Upholds Beast(ies)'s Victory Over Monster

A federal judge has refused to void a $1.7 million jury verdict awarded to the Beastie Boys in June against Monster Beverage Corp., over the energy drink company's unauthorized use of the group's music in a promotional video. The video in question was a four-minute "megamix" promoting Monster energy drinks and included excerpts from five Beastie Boys songs, without permission.

Judge Paul Engelpayer of the Southern District of New York ruled that there was "ample basis" to believe the video could confuse viewers into believing incorrectly that the Beastie Boys endorsed Monster drinks, and that jurors could infer Monster intended to deceive viewers and benefit from apparent association with the Brooklyn-based Rock and Roll Hall of Fame hip-hop group.

Monster, which conceded before trial that it was liable for copyright infringement, argued that the amount awarded was excessive and "shocked the conscience." The judge disagreed, and Monster has indicated that it intends to appeal the ruling.


Oscar-Winning Actress Forbidden From Selling Oscar To Benefit Charity

Actress Joan Fontaine, who died last year at age 96, bequeathed the entirety of the proceeds from the sale of her estate to the Society for the Prevention of Cruelty to Animals Monterey County (SPCA). The estate includes her 1941 Oscar for Best Actress, which she won for her portrayal of a timid wife in Alfred Hitchcock's Suspicion, alongside Cary Grant. Fontaine was the only actor to win an Oscar in a film directed by Hitchcock, and was the youngest-ever Best Actress winner at the time of her award. The Oscar was expected to fetch between $200,000 and $300,000 at Christie's in New York.

However, since 1950, the Academy of Motion Picture Arts and Sciences has required Oscar winners, their heirs or estates not to sell an Oscar without first offering it back to the Academy for $1. Academy representatives assert that this rule applies to Fontaine's 1941 Oscar, and have vowed to sue if the sale goes forward. Representatives of the estate have removed the Oscar from the estate sale, declaring, "We feel that to fight this promised legal suit against the estate (and SPCA), everyone except the lawyers would lose."

The Academy explained its rule in a statement: "The Academy, its members and the many film artists and craftspeople who've won Academy Awards believe strongly that Oscars should be won, not purchased."

Fortunately for the SPCA, the Fontaine estate also includes her $3 million Carmel mansion, along with the contents of the property including fine art, silver and furniture - all of which will be sold at auction to benefit the charity.


Oklahoma Judge Declines to Don Referee's Stripes

An Oklahoma state court judge has dismissed an action brought by the Oklahoma City public school district that sought to have a high school football game wholly or partially replayed following an egregious mistake by a referee.

On November 28th, rural Locust Grove High School defeated Frederick A. Douglass High School of Oklahoma City in a state quarterfinal matchup by the score of 25-20. With shortly over a minute remaining, Douglass appeared to take the lead with a 58-yard touchdown pass. However, during the play a Douglass coach accidentally interfered with a referee, drawing a penalty flag. The foul, which was correctly called, should have resulted in a 5-yard penalty assessed on the extra point or ensuing kickoff. Instead, the referees disallowed the touchdown, and Locust Grove won the game, ending Douglass's season.

Following the game, the Oklahoma Secondary Schools Activities Association apologized for the referees' error, calling it "inexcusable." Despite the obvious error, the Association denied Douglass's request to restore the touchdown or replay the game in whole or part, citing league rules which prohibit protests of a referee's call.

The Oklahoma City school district sued, and Judge Bernard M. Jones II issued a temporary restraining order, preventing Locust Grove from playing its scheduled semifinal game until the case was resolved. The case quickly gained national attention, with former University of Oklahoma and Dallas Cowboys coach Barry Switzer publicly declaring that the game should be replayed.

On Thursday, Judge Jones denied the request to replay the game. While he acknowledged that the referees' error "could be considered by many as a tragedy," he concluded that judicial intervention would be improper because both teams agreed to be bound by state activities association rules. He noted that there was no precedent allowing a court to order the replay of a high school game, and expressed concern that a "slippery slope of solving athletic contests in court instead of on campus will inevitably usher in a new era of robed referees and meritless litigation due to disagreement with or disdain for decisions of gaming officials."

The Oklahoma City public school district has indicated that it will not appeal.


Senators Warn NFL to Drop Blackout Rule, or Risk Losing Antitrust Exemption

Since the 1970s, the NFL has employed a rule which bars the broadcast of its games in a local market if that team has failed to sell out its stadium that week. Originally intended to boost ticket sales, the rule has long outlived its usefulness, say U.S. senators from both parties. According to lawmakers, because NFL games now routinely sell out, and only smaller markets like Buffalo and Cincinnati are potentially affected, the rule unfairly benefits the NFL at the expense of the League's loyal fans.

While the Federal Communications Commission voted last year to discontinue enforcement of the NFL's blackout policy, the blackouts continue because the rule is written into the League's private contracts with broadcast and cable companies. As a result, Senators Richard Blumenthal (D-Conn.) and John McCain (R-Ariz.) have proposed a bill that would revoke the League's lucrative antitrust exemption if the blackout rule is not removed.

Lawyers for the NFL argue that the rule is necessary for League to maintain "the complex business and legal structure that allows the NFL to be the only professional sports league that offers all of its regular-season games to viewers at no charge" through over-the-air broadcasts. While games are rarely actually blacked out, many local markets have been saved in recent years by local businesses purchasing hundreds of tickets at the last minute to ensure the game reached the airwaves.

The NFL contends that revoking the blackout rule would likely cause game broadcasts to migrate from free broadcast TV to pay TV, such as cable and satellite. It further argues that the blackout rule distinguishes the NFL from other programming by virtually guaranteeing a mass audience at a fixed time. Without such an assurance, they say, advertisers may not be willing to spend as much money to sponsor NFL games.

The aforementioned antitrust exemption, which the senators have threatened to revoke, allows the League to "pool" the rights of all 32 teams to conclude exclusive broadcast contracts with national providers. The enacting legislation, which was passed in 1961, recognizes that professional sports teams, while competitors on the field, are in fact interdependent partners in a business sense.

The antitrust exemption was previously challenged in 2006 by Senator Arlen Specter (D-Penn.) following the launch of NFL Network, a cable network available only in a limited number of homes. However, Senator Specter's proposed legislation failed to pass, largely because games aired nationally on NFL Network were simultaneously shown on broadcast television in the markets of participating teams.


Buffalo Bills Cheerleaders' Wage Theft Lawsuit Persists

Five former Buffalo Bills cheerleaders sued the team in April, alleging flagrant violation of minimum wage laws after the women completed hundreds of hours of uncompensated work. The cheerleaders are not paid a salary and receive only occasional tips and appearance fees - yet are required to pay $650 out of pocket for their uniforms. They further allege that they are not reimbursed for travel and other expenses, and are subjected to "degrading sexual comments and inappropriate touching" at promotional events.

The club classifies the cheerleaders, known as the Buffalo Jills, as independent contractors in an effort to avoid paying the state's $8 per hour minimum wage. However, the suit alleges that the team exercised complete control over the women, dictating everything from the uniforms to the dance moves to the color of their hair and how they handled their menstrual cycle. NFL Commissioner Roger Goodell wrote in an affidavit that he had no knowledge of the Jills' "selection, training, compensation and/or pay practices." The contract that laid out the cheerleaders' terms of employment, however, contained the commissioner's signature. League attorneys assert the signature was affixed by stamp, and the Bills maintain that the Jills are neither League nor team employees.

The squad's subcontractor, Stejon Productions, disagrees. The company's attorney, Dennis Vacco, said, "The Bills control everything...(they) have a long history of wanting their cake and eating it too."

New York State Supreme Court Justice Timothy Drury has denied the club's motions to dismiss, holding that the team set the terms and approved contracts for the Jills. "These facts are further indication of the control the Bills exercised over the Jills," he wrote. The judge is now considering whether the NFL should be brought into the litigation, because the League office signed off on the contracts.

Amidst the pending litigation, the Bills disbanded the Jills for the 2014 season. A recent settlement between the Oakland Raiders and their former cheerleaders in a similar case (the Raiders agreed to pay minimum wage and overtime) sparked hope that the Bills and Jills may come to terms, but as of this writing the two sides have been unsuccessful in attempting to schedule a mediation session. The case is due back in court next week, and no trial date has been set.


December 19, 2014

Week In Review

By Chris Helsel

Sony Drops "The Interview" Following North Korean Hack; U.S. Vows To Respond

In late November, anonymous hackers calling themselves the Guardians of Peace conducted a massive cyberattack on Sony's computers, resulting in the release of thousands of private email exchanges and Social Security numbers, and crippling the studio's computer systems. The hacking was a direct response to the Sony's comedy "The Interview," which depicts the assassination of North Korean leader Kim Jong-Un by two bumbling American journalists.

Following the hacking, Sony Pictures Entertainment received a terror threat from the hackers, who vowed to strike at "the very times and places" where the film would be shown in theaters. The threat also called upon Sony to "Remember the 11th of September 2001." The nation's four largest theater chains soon dropped the film, leaving Sony virtually no choice but to cancel its release.

Earlier today, the FBI officially linked the hacking to the North Korean government. Despite the isolated nation's history of making false threats against the U.S., Sony decided to play it safe and pull the $44 million film. Sony, as well as the cinema chains, feared that they would be liable in the event that an attack took place during a showing of the film. One major cinema chain, Cinemark, has defended lawsuits stemming from the 2012 Aurora, Co. shootings by arguing that the incident was unforeseeable - an argument that clearly would fail in this case, following the public release of the explicit terrorist threats.

A new email sent by the hackers to Sony executives last night credited the studio for its "wise decision" to pull the film, and vowed to cease the cyberattack if Sony prevents the movie from ever being released in any form - including online, DVD, or video. The hackers further demanded that Sony somehow remove the full movie or any trailers from any website hosting them immediately. Essentially, the North Koreans have taken Sony's data security hostage in exchange for erasing any evidence that "The Interview" ever existed.

President Obama responded to the crisis today, declaring, "We cannot have a society in which some dictator someplace can start imposing censorship here." He said that he thinks Sony "made a mistake" in pulling the film, and vowed that the U.S. will respond to the North Koreans "in a place and manner and time that we choose."


FIFA Chief Ethics Investigator Resigns in Protest

Michael J. Garcia, an American attorney responsible for a recently concluded two-year investigation into alleged corruption in the bidding process for the 2018 and 2022 World Cups, has resigned from his post as chief ethics investigator for soccer's world governing body, FIFA.

In 2010, the FIFA Executive Committee awarded the 2018 and 2022 World Cup tournaments to Russia and Qatar, respectively, amid considerable controversy. Almost immediately, allegations of bribery and vote trading surfaced, and numerous FIFA dignitaries resigned or were forced out of office in shame. In 2012, FIFA president Sepp Blatter initiated broad anti-corruption reforms, including the appointment of Mr. Garcia as chairman of the investigative branch of the FIFA Ethics Committee.

Over the next two years, Mr. Garcia traveled to all bidding countries (with the exception of Russia, which refused him entry due to his part in prosecuting a Russian arms smuggler) and conducted a thorough investigation of the World Cup bidding process. Mr. Garcia, a former U.S. Attorney for the Southern District of N.Y., sent his 450-page report to FIFA in September, but FIFA Ethics Committee adjudication chamber Chairman Hans-Joachim Eckert announced that the FIFA rules prohibited the report from being released publicly. Instead, Mr. Eckert prepared a 42-page summary that, according to Mr. Garcia, contained "numerous materially incomplete and erroneous representations of the facts and conclusions."

Members of the FIFA Executive Committee, which will ultimately decide whether Russia and Qatar retain their rights to host the upcoming World Cups, have only read Mr. Eckert's summary. This summary concluded that although Russian officials had destroyed their computer systems, and multiple FIFA Executive Committee members had been accused of accepting bribes from Qatari officials, both Russia and Qatar were cleared of any wrongdoing during the World Cup bidding process.

Mr. Garcia filed an internal appeal to rebut Mr. Eckert's claim that any rules violations by World Cup bidding countries were "very limited in scope," but the appeal was denied on Monday. Mr. Garcia, along with numerous Executive Committee members and observers around the world, has called for the public release of the full report. The Executive Committee meets in Morocco this week, and could amend FIFA's ethics code to make part of the report public - this measure is not expected to pass, however.

Yesterday, following his unsuccessful appeal, Mr. Garcia resigned. He declared that Mr. Eckert's limited and inaccurate summary caused him to "lose confidence in the independence" of Mr. Eckert. Mr. Garcia's resignation statement further charged that his investigation had uncovered "serious and wide-ranging issues" regarding the bidding and selection process for the upcoming World Cups that were omitted from Mr. Eckert's summary. Mr. Garcia also took special care to criticize FIFA's "lack of leadership," and posit that the scandal-plagued organization was incapable of reforming itself from within.


Apple Wins iTunes Software Update Antitrust Suit

A California federal jury determined this week that Apple iTunes software updates issued between 2006 and 2009 were in fact used to improve aging products and offer enhanced security from hackers - and not to secure a monopoly over the digital music market. The class action plaintiffs alleged that the updates were actually intended to block any songs downloaded from Apple's competitors by utilizing a copyright management system to force consumers to purchase iPods, rather than less expensive music players, in violation of antitrust law.

Apple argued, successfully, that the blocking of competitors' songs was merely a side effect of the necessary safety precautions. These security enhancements were necessary, argued the late Steve Jobs and other Apple executives, to protect iTunes music from hackers, which ensured that Apple did not violate its contracts with music labels by allowing the labels' music to be illegally accessed.

Additionally, Apple's attorneys repeatedly reminded the jury that the plaintiffs could not produce any actual iPod customers claiming they were harmed; and in an embarrassing moment, two named plaintiffs were dropped on the eve of trial after it was discovered neither of them had purchased an iPod in the relevant time period.


Fighters File Antitrust Suit Against UFC, Seek Class Certification

Mixed martial arts (MMA) fighters have brought a federal antitrust action against Ultimate Fighting Championship (UFC), alleging monopolistic behavior and wage suppression. According to the suit, the UFC has achieved a monopoly in the MMA arena by buying up rival circuits and including unlawfully restrictive language in its contracts with fighters, promoters and venues. This anticompetitive behavior, the suit alleges, has allowed the UFC to control 90% of "all revenue generated by MMA events" in the U.S. and abroad. The plaintiffs contend that UFC fighters "are paid a fraction of what they would earn in a competitive marketplace" and the company holds the exclusive rights to fighters' names and likenesses in perpetuity, even beyond a fighter's death.

The suit, which seeks class action status to include all fighters who have ever fought in or had their identities used to publicize a UFC-promoted bout, was filed in San Jose by fighters Nate Quarry, Cung Le, and Jon Fitch against UFC and its parent company, Zuffa LLC. At a news conference, attorneys for the plaintiffs did not reveal the damages sought or what changes they would make to the current system.


Eight Years After His Death, James Brown's Estate Still in Dispute

Legendary singer James Brown, the "Godfather of Soul," died in 2006 at age 73. Mr. Brown's will called for the creation of a trust to provide scholarships for needy children in South Carolina and Georgia. Nearly eight years later, due to a highly contentious probate battle, the trust has not yet distributed a cent.

Mr. Brown signed his will in 2000 and explained the scholarship fund's purpose on an audiotape recorded contemporaneously. The will left $2 million in scholarships for his seven grandchildren, and divided his personal property, worth another $2 million or so, between his six recognized children. The bulk of the estate was left to the scholarship trust. The will also called for the disinheritance of any heir who challenged it.

That no-contest clause did not stop numerous heirs from challenging the will, however. Following his death, several of Mr. Brown's children filed suit, alleging that the singer had been improperly influenced by lawyers and managers who stood to gain from the creation of the charitable trust. They allege that Mr. Brown, who had a history of drug problems, was in diminished mental state and therefore did not create a valid will.

Today, the estate remains mired in lawsuits with no end in sight. Mr. Brown's appointed executors have all resigned, replaced by two South Carolina estate lawyers by order of the state district court. The state attorney general stepped in in 2008, proposing a settlement with the family and seeking to include Mr. Brown's most recent wife, whom he left out of the will. The settlement called for the removal of the court-appointed executors, one of whom has been accused of grossly overstating the estate's value in order to earn a higher fee.

The settlement never materialized, though, as it was tossed out by the South Carolina Supreme Court last year. The court found no evidence that Mr. Brown had been unduly influenced and chastised the attorney general's attempts to "dismember" the carefully-crafted estate plan and resurrect it "in a form that grossly distorts his intent." The court ordered the district court to appoint a new panel to oversee the estate. Eighteen months later, that panel does not yet exist.

Proponents of the proposed settlement argued that it represented a win-win scenario that resolved the "labyrinth created by the entangling lawsuits filed by everybody against everybody." On the other hand, critics contend that Mr. Brown's intentions were clear, and simply disregarding a testator's wishes would set a dangerous precedent.


NFL Lineman Released Following Sexual Assault Accusation, After Receiving Team Support Following Earlier Domestic Abuse Arrest

The San Francisco 49ers released starting defensive end Ray McDonald from his contract on Wednesday after learning of his involvement in an alleged sexual assault.

Earlier this year, McDonald had been arrested on suspicion of domestic violence against his fiancée. At the time, amid the NFL domestic violence scandal (Ray Rice, Adrian Peterson, Greg Hardy, etc.), the 49ers stood behind McDonald and allowed him to remain on the active roster as the legal process played itself out. Last month, the Santa Clara Country district attorney's office announced that it lacked sufficient evidence to charge McDonald, and the player remained with the team.

Now, however, the 49ers have cut ties with McDonald before he has even been arrested, let alone charged. On Tuesday morning, a woman - who was not McDonald's fiancée - arrived at a Santa Clara hospital and reported a possible sexual assault from the previous night. A preliminary investigation found McDonald to be the main suspect, and the 49ers announced his release on Wednesday. The differences in how the club handled McDonald's two brushes with the law - and the fact that the 49ers were eliminated from playoff contention this past weekend - has struck some observers as dubious.

McDonald and a teammate also broke up a fight at a bar this month. 49ers General Manager Trent Baalke addressed the team's decision, stating, "While this organization has a strong belief in due process and has demonstrated that over time, Ray has demonstrated a pattern of poor decision-making that has led to multiple distractions for the organization and this football team that really can no longer be tolerated."

The obvious question, then, is whether the club truly believed McDonald was innocent of the earlier domestic violence accusation - otherwise, what constitutes a "pattern of poor decision-making"?

"All of it adds up...I'll leave it at that," said Baalke.


NCAA Women's Hockey Coach Fired for Making Too Much Money, Mulls Title IX Lawsuit

University of Minnesota-Duluth women's hockey coach Shannon Miller, who has won five national championships in her 16 years at the school, has been informed that she and her assistant coaches will not be returning next season. Ms. Miller earns $207,000 per year, making her the highest-paid women's hockey coach in the country. The next-highest paid coach earns $164,000.

The school points to its $6 million budget deficit, and the fact that women's hockey - unlike men's hockey - is a financial burden on the public institution. The men's coach at the school earns $265,000, which is about average for Division I men's hockey coaches, and the university spent $533,322 on the men's team last year, compared to $259,590 on the women's team. However, the university justifies this discrepancy by pointing out that the men's hockey program "pays for itself," while the women's squad costs the school (and therefore the state) money every year.

While she has not officially announced that she will bring a legal action, Ms. Miller said that she and her staff plan to finish out the season and that she has retained an attorney who specializes in Title IX and gender-equity cases.

Ms. Miller says that she was open to discussing a pay cut in light of the school's budget challenges, but was shocked to learn that she was being let go. School officials suggested that she retire, and she refused. She informed her team - who is in the midst of a successful season, winning 12 of their previous 13 games and ranking #6 nationally - of the school's decision last Friday, just before the commencement of final exams.


December 26, 2014

Week in Review

By Chris Helsel

FSU Quarterback Jameis Winston Cleared of Conduct Code Violation for Alleged Sexual Assault, Could Still Face Lawsuit

Florida State University (FSU) quarterback Jameis Winston has been cleared of violating the school's conduct code after a hearing involving an alleged 2012 sexual assault.

The incident occurred in December 2012, prior to Mr. Winston's freshman football season, during which he would win the Heisman Trophy (the nation's most outstanding football player) and lead his team to an undefeated record and national championship. While FSU was aware of the allegations as early as January 2013, Mr. Winston was not asked to discuss the case until following that season, in January 2014. He declined. In April, State Attorney William Meggs announced that his office lacked sufficient evidence to pursue criminal charges, and acknowledged the shortcomings of the Tallahassee police investigation.

Although Mr. Winston was cleared of criminal charges, under Title IX the university was required to conduct a hearing to determine whether the alleged assault constituted a violation of its code of conduct. Retired Florida Supreme Court chief justice Major B. Harding was tabbed to oversee the school's internal investigation and hearing. Justice Harding ultimately determined that insufficient evidence existed to satisfy the preponderance of the evidence standard required to establish a violation of the conduct. Justice Harding noted that Mr. Winston and his accuser offered radically different accounts of what transpired that night, and that the only two eyewitnesses supported Mr. Winston's version of the events (it should be noted that both men were Mr. Winston's FSU teammates). The justice also pointed to the medical exam evidence and testimony of the nurse who treated the accuser, both of which he deemed "inconclusive."

In a letter to Mr. Winston, he said, "I cannot find with any confidence that the events as set forth by you, [your accuser], or a particular combination thereof is more probable than not as required to find you responsible for a violation of the Code... In sum the preponderance of the evidence has not shown that you are responsible for any of the charged violations of the Code."

Mr. Winston's accuser retains the right to appeal, or file a civil suit. An appeal of the FSU conduct code hearing can only succeed on three very narrow grounds: 1) fundamental due process error, 2) hearing officer biased, or 3) newly discovered evidence. Given Justice Harding's status as a highly-respected former state chief justice, and the fact that the accuser did not object to his appointment as hearing officer, it seems unlikely that an appeal will succeed on bias grounds. Additionally, because the alleged attack occurred over two years ago, both witnesses were friends and teammates of Mr. Winston, and the only video recording of the event has been deleted, it does not appear likely that any new evidence will surface.

Further, from a timing perspective, an appeal would be effectively moot. If he were found to be in violation of the conduct code, Mr. Winston faced expulsion from FSU. His accuser has five "class days" to file an appeal, but because the school is currently on winter break, the deadline is not until January 14th. Under the code of conduct, an appeal hearing would be scheduled within 10 class days of the school receiving the request, with a decision to be communicated within 15 class days after the hearing. Given this timeline, the earliest that Mr. Winston could conceivably be expelled from FSU would be late January or early February of next year. FSU is scheduled to play in the national semifinal game on January 1st, and then possibly the national championship 11 days later. After these games, Mr. Winston is expected to drop out of school and enter the NFL draft, rendering any subsequent expulsion moot.

However, Mr. Winston's accuser may well file an appeal, regardless. Hearing records are evidence that the accuser could use against Jameis Winston in a lawsuit - they are subject to the privacy of education records, but are subject to subpoena. Therefore, despite the mootness of any potential punishment from the school, Mr. Winston's accuser is expected to appeal in order to create a record.

From there, she could file a civil lawsuit. The evidence and witness testimony would be similar, but civil courts operate under different procedural and evidentiary rules than university hearings and it is possible that a jury of her peers could be more sympathetic than a retired state chief justice. Further, Mr. Winston's accuser can raise additional claims in a civil suit, like intentional infliction of emotional distress, which are not available under the FSU code of conduct.

It certainly appears that a lawsuit represents Jameis Winston's accuser's only real chance of success. Her attorney, John Clune, echoed the sentiments of many observers with his comments following the announcement that Mr. Winston had been cleared: "There are certainly glaring bases for appeal, but at some point we have to recognize that Florida State (University) is never going to hold Jameis Winston responsible."


Experts Call For Far-Reaching New Laws Regulating Sale of Antiquities

History, as they say, has a habit of repeating itself. For as long as nations have waged war against one another, the collateral damage has nearly always included invaluable art and cultural artifacts. This is no different in the modern world from when the Ancient Romans carried home obelisks from their conquest of Egypt. In fact, according to one official with the International Museum Conference in Paris, perhaps 95% of dealings in the international antiquities market are to some extent illicit.

In Berlin last week, 250 antiquities experts met to discuss ways to help war-torn Middle Eastern nations protect their cultural property amidst the continuing violence that plagues the region. Iraq, Syria and Afghanistan have been especially vulnerable to looting in recent years. While many nations have enacted laws restricting the illicit trade of antiquities, the experts gathered in Berlin now call for a greater universal effort to police these illegal dealings.

The first international attempt to regulate the trade of antiquities was enacted at the Unesco conference of 1970, which is now applied by 127 countries. Unesco, the United Nations' organization for education, science and culture, has also joined the fight against illicit trafficking and destruction of priceless art and other cultural artifacts. This month, the organization's director, Irina Bokova, called for a complete ban on such trade with Syria and Iraq, in light of the ongoing violence and political turmoil in those countries.

However, any such international action is only as effective as the measures taken by the national governments that must enforce it. Russia, for instance, has steadfastly refused to return German art treasures seized by Soviet troops as they raced toward Berlin in the later days of the Second World War.

At the Berlin conference, officials representing New York's Metropolitan Museum of Art, the Louvre, the Berlin Pergamon Museum and the British Museum, among others, called on national governments to implement more stringent laws and regulations. Until now, the United States, to its credit, has been called the "most advanced" in curbing illicit trade in cultural goods, after enacting 5-year renewable agreements with about a dozen affected countries. This year, however, the Germans are looking to take the lead. Proposed new legislation would require documented provenance for any object entering or leaving the country. For imports, under the new law, dealers would be required to produce a valid export permit from the source of a piece's origins before legal entry into Germany.

This new legislation would represent a major step in the fight against the illicit trade of cultural goods. As described by Neil Brodie, an antiquities expert at the Scottish Center for Crime and Justice Research, under the new law one would now "just have to prove something is not guilty, but show that it is innocent."


American Artist Accused of Copyright Infringement for a Fifth Time

For the fifth time in three decades, American pop artist Jeff Koons has been accused of copyright infringement. Of the four suits brought against him before, he has lost three. The current accusation arises from a piece included in his "Banality" sculpture series, currently on display at the Musée National D'art Moderne in the Centre Pompidou in Paris, the French national museum for modern art. The sculpture, which depicts a pig and two penguins approaching a female mannequin lying on her back, is eerily similar to a 1985 advertisement for French clothing retailer Naf Naf. The Koons' sculpture dates to 1988, and sold at auction in 2007 for $3.7 million. Both the Koons' sculpture and the Naf Naf advertisement are titled "Fait d'hiver."

The creator of the Naf Naf campaign, Franck Davidovici, has accused Koons of stealing his idea. In light of the allegations, Centre Pompidou has removed the sculpture from the exhibit. However, the Centre's president, Alain Seban, has defended Koons and the museum's display of the piece, arguing that the Banality sculpture series' "very principle... is to draw on objects bought in shops or images seen in the press." Mr. Seban emphasized that the piece was withdrawn only upon request of the lender.

In a previous similar case, Mr. Koons was sued for copyright infringement over a sculpture depicting a couple holding a row of blue puppies that resembled a photo taken by photographer Art Rogers for greeting cards. In that case, Mr. Koons argued that his sculpture was a parody, and therefore protected from attack under copyright law. The Second Circuit rejected that argument. Rogers v. Koons, 960 F.2d 301 (2d. Cir. 1992).


About December 2014

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in December 2014. They are listed from oldest to newest.

November 2014 is the previous archive.

January 2015 is the next archive.

Many more can be found on the main index page or by looking through the archives.