@unite4copyright: Google v. Oracle: Supreme Court Hears Oral Arguments in “Copyright Case of the Decade”

Terrica Carrington at the Copyright Alliance brings us a must-read first rate analysis of oral argument before the Supreme Court in the Google’s appeal of its loss to Oracle in the Federal Circuit. (Full disclosure, I co-wrote an amicus brief supporting Oracle in the case on the fair use question.)

Read the post on the Copyright Alliance blog.

Bear in mind that the now-eight Justices on the Supreme Court will meet today (October 9) to vote on the cases like Google v. Oracle that were argued before the Court on Tuesday and on Wednesday (when the Oracle case was argued). After the vote, the most senior Justice in the majority (or one side in case of a tie) will assign the task of writing the opinion for the majority, and the most senior Justice in the dissent (or the other side in the case of a tie) will do the same among the dissenters. Concurrence opinions assign themselves essentially.

Opinions in the decided cases for the 2020-21 term will probably be released in mid-June 2021.

If confirmed, Judge Amy Coney Barrett will not vote on the Oracle case because the vote will have already occurred before she is seated. That means that there could be a split decision in Oracle which would probably mean that the Federal Circuit ruling below in Oracle’s favor will be affirmed by the tie vote. (There actually were two rulings by the Federal Circuit in Oracle’s favor, so both would likely be binding on Google.)

This would probably bind Google to the $5,000,000,000 payment to Oracle required by the Federal Circuit decision(s), but likely will not be binding precedent in other cases including other cases yet to be brought against Google or otherwise.

If they lose or there is a tie vote, Google will almost certainly engage in their usual lawfare shenanigans to get another bite at the apple. One manifestation of Silicon Valley rage might be to ask for a rehearing on the merits before the Supreme Court if the current vacancy is filled before the ruling is handed down in (presumably) June 2021.

It would be unusual for the Court to grant a rehearing on the merits (as opposed to denying an appeal on a per curium opinion or a writ of certiorari which is the more common rationale for requesting a rehearing). It would be particularly unusual when the case had been fully briefed and argued before the Court as is the case with Oracle.

There is a long line of similarly situated cases where a rehearing was requested after the death or illness of a Justice that created the vacancy–and most were denied. The Court often held the subject case over the Court’s summer recess, holding oral arguments months later which obviously did not happen in Google v. Oracle. (See Halliburton Oil Well Cementing Co. v. Walker, 327 U.S. 812 (1946), 329 U.S. 1 (1946); MacGregor v. Westinghouse Elec. & Mfg. Co., 329 U.S. 402 (1947); Baltimore & Ohio R.R. v. Kepner, 314 U.S. 44 (1941); Home Ins. Co. v. New York, 122 U.S. 636 (1887) (granting rehearing February 7, 1887), and 134 U.S. 594 (1890) (reargument March 18-19, 1890); Selma, Rome & Dalton R.R. v. United States, 122 U.S. 636 (1887) (granting rehearing March 28, 1887), and 139 U.S. 560 (1891) (reargument March 25-26, 1891).

However, since the Oracle case was fully briefed and argued and then some, requesting a rehearing seems a fruitless exercise, which of course, doesn’t mean Google won’t pull up their big-boy fruitless of the looms and give it the old Silicon Valley try. Granting rehearings on the merits because of a vacancy would not be a good precedent for the Court as there are going to be lots of cases in a procedurally similar situation, and they’ll all want it just as a matter of drill.

Rule 44 of the Rules of the Supreme Court of the United States provides:

Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time. The petitioner shall file 40 copies of the rehearing petition and shall pay the filing fee prescribed by Rule 38(b), except that a petitioner proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2. The petition shall state its grounds briefly and distinctly and shall be served as required by Rule 29. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). A copy of the certificate shall follow and be attached to each copy of the petition. A petition for rehearing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.

Spotify’s Got Another Artist Relations Issue: Joe Rogan

Remember when Spotify bought Joe Rogan’s podcast and signed him to deliver futures? Big money, big press release. Big chuckles in some quarters, why? Welcome to the world of artist relations, Mr. Ek.

Here’s a suggestion. When you sign an artist who you know is controversial going in, expect…you know…controversy. Is that really so hard to figure out? And understand that whatever that artist does, their brand is potentially going to be wrapped around your brand.

In Spotify’s case, there are plenty of controversial recording artists who have been distributed by Spotify. None of that has blown back on Spotify. In Joe Rogan’s case, however, Spotify is essentially the label. Remember all that guff from Daniel Ek about middlemen and gatekeepers? Well, guess what? Spotify is ostensibly Joe Rogan’s gatekeeper, but nobody told Joe Rogan. Which is problem #1 for Daniel Ek.

I seriously doubt that Mr. Rogan gives a hoot what Mr. Ek or any of his employees think of Mr. Rogan. I’m not a listener, so I have no idea how genuine the outrage is, but even if it is the most genuine outrage, Daniel Ek signed up for this. Daniel Ek paid lots of the shareholders’ money for this. Daniel Ek has the company’s governance structure rigged so he’s both president for life and also controls the board. Which is problem #2 for Daniel Ek–he brought this on himself.

So here’s a little unsolicited advice. When your artist comes to you with a recording that you simply cannot bring yourself to release, what you don’t do is tell them to change it. What you don’t do is censor them. That is, as we say in the trade, a chickenshit move. And I don’t care which or how many employees are offended.

What you do is you offer the artist one of two options, both of which are financially painful but ethically healing. First, you have a frank conversation with the artist where you explain that you are not putting out their record but you respect their right to say what they want to say. And if you don’t actually believe that, then you are in the wrong business and you have problem #3.

Then you tell the artist, I will let you go and you don’t owe me anything. This is the clean break option.

If the artist doesn’t want to leave–and notice that money has not come into the conversation and isn’t going to–you tell them they are free to take the record somewhere else and Godspeed and you’ll work with them on their next record. You want nothing more than to preserve your relationship with the artist whether on or off the label. You should want this because if you thought highly enough of them to sign them in the first place, and if they thought highly enough of you to sign with you in the first place, then that relationship is what matters, not the cash.

The cash is rarely significant and soon will be forgotten…well, you’ll definitely take grief from the bean counters, but screw them. What people remember is how you conducted yourself in the situation. That’s what matters.

And that is what seems to be lost on Mr. Ek. Be honest–are you surprised?

Save the Date: MusicBiz Law & Tech: Buyer Beware: What does the legal future hold for TikTok?

Save the date! September 25, 2020 at 1:35 pm ET Chris Castle will moderate a panel for the Music Business Association Entertainment & Technology Law Conference, an online event. Registration is required at the even site.

Panelists are Rick Lane, CEO, Iggy Ventures, LLC, Gwendolyn Seale, Attorney, Mike Tolleson & Associates, David Sterns, Partner, Sotos Class Actions, and Trent Teyema, Principal, Global Threat Management and former FBI Special Agent.

The panel will cover:

1.  TikTok Data Functionality:  Trent and Chris

2.  The TikTok Executive Orders:  Rick and Chris

3.  Copyright Infringement on TikTok: Chris and Gwen

4.  Copyright Infringement Class Actions in the US and Canada: Chris and David

Facebook’s New Livestreaming Rules

[Editor Charlie sez:  This is a cut and past of the rules that Facebook posted here.]

Music Guidelines

These supplemental terms apply if you post or share any videos or other content containing music on any Facebook Products.
You are responsible for the content you post

People use our Products to share content with their family and friends. Keep in mind you remain solely responsible for the content that you post, including any music that features in that content. Nothing in these terms constitutes any authorization by us with respect to any use of music on any of our Products.

Use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained appropriate licenses.

You may not use videos on our Products to create a music listening experience

We want you to be able to enjoy videos posted by family and friends. However, if you use videos on our Products to create a music listening experience for yourself or for others, your videos will be blocked and your page, profile or group may be deleted. This includes Live.

Unauthorized content may be removed

If you post content that contains music owned by someone else, your content may be blocked, or may be reviewed by the applicable rights owner and removed if your use of that music is not properly authorized.

You may not be able to post or access videos containing music in every country of the world

We want you to be able to share videos with your family and friends wherever they are, but any music in your video, if it is allowed at all, may not be available in all countries of the world.

Press Release: @SoundExchange Praises European Union Court Decision On Equal Treatment for Creators

Sep 08, 2020

In Affirming “National Treatment” Principle, European Court of Justice Rejects Unfair Treatment of Music Creators Based on Nationality

Washington, DC – September 8, 2020 – SoundExchange praised the European Court of Justice’s ruling ordering European Union countries to treat music creators equally regardless of their nationality, recognizing this as an important milestone in the fight to ensure music fairness.

The ECJ ruling stemmed from a case in Ireland regarding whether US music creators should be paid royalties when their music is played on Irish radio or in places such as restaurants or bars. Some countries deny foreign music creators royalties for the use of their work even though royalties are otherwise paid to artists who are nationals of those countries.

The ruling has broad implications for music creators around the world. By adopting the principle of “national treatment” – that a country should provide foreign entities the same benefits and protections as it would its own citizens – the ECJ is setting the stage for all artists to be paid royalties when their music is played on EU radio broadcasts and public performances.

“Today’s decision by the European Court of Justice reflects a growing global recognition that countries should treat all music creators the same, regardless of their nationality. The ECJ reaffirmed equal treatment as a fundamental principle of how nations engage with one another,” said SoundExchange President and CEO Michael Huppe.

“We appreciate the leadership of Ireland’s RAAP in advancing the cause of fairness within the global community of music creators. We urge EU member states to quickly follow suit so that ALL musicians and labels, from whatever territory, can be properly respected for the benefits they provide beyond their home country,” added Huppe.

The ruling comes as the United States and United Kingdom undertake negotiations on a post-Brexit trade agreement. A broad spectrum of organizations representing artists, publishers, musicians and managers have urged negotiators to insist that national treatment be included in the final US-UK trade agreement.

Unfair treatment denies US music creators an estimated $330 million in direct global royalty payments a year. For more information on the Fair Trade of Music campaign, please go to www.fairtradeofmusic.com.