Monday, March 19, 2012

Follow-Up on "Bon Victoire" Post

Every so often, someone reads my blog. Here's a response I received from one of the attorneys in the Bon Jovi case that I reported on about a month ago. (The email is reprinted in its entirety, with permission from the author.)

Mr. Pink – I tried to post a comment on your fine blog, but apparently went over the word limit, so rather than cut it down, I’m only e-mailing it to you, at least for now.

(Attempted) post is below.

Warm regards,


Mr. Pink:

I represent Mr. Steele in the cases discussed in this post. Snarky comments aside (in reality, Mr. Bongiovi has a long and well-documented history of “steal[ing]” other people’s songs), you have your facts – and the law of the case – flat wrong.

I know it’s a lot to ask to read the file, briefs, or anything other than the First Circuit’s three or four sentence-long “judgments” prior to posting, but your failure to do so here renders your analysis meaningless (other than your self-explanatory quotes from non-First Circuit decisions).

First, as to proving defendant copied the work, defendants in the district court actually admitted access to Steele’s work no later than October 2004, over four years prior to Steele filing suit.

Second, the district court – in a break from First Circuit precedent and practice – issued an order, at defendants’ urging, prohibiting any discovery as to probative similarity, i.e., “actual copying.” The district court instead limited the scope of discovery – and the dispositive issue at summary judgment – to expert analysis of “substantial similarity.” An aside: Mr. Steele faced Skadden pro se during the entirety of the initial district court proceedings.

Nonetheless, Mr. Steele alleged and argued direct copying in the form of digital reproduction in the district court. As several of the defendants know from their own infringement prosecutions, where digital reproduction – for example, downloading a song from a file-sharing site like Napster – can be proven, it is the beginning and end of the infringement analysis.

Mr. Steele argued that defendants duplicated his song and used it as a temp track in their video editing suites, specifically those of TBS Studios and/or MLB Advanced Media, L.P. (which happens to own and run Bon Jovi’s website, among many other non-baseball digital properties). Defendants – in three and a half years of litigation – have never denied using Mr. Steele’s song as a temp track, likely because the evidence of temp-tracking here is impossible to refute (read Mr. Steele’s complaint and/or briefs on appeal for the evidence on this).

Funny thing: MLB Advanced Media, L.P. – the target defendant, being the claimed copyright owner to the infringing work - was properly served but willfully defaulted in Steele’s first (pro se) case. Another funny thing: An unserved entity, Major League Baseball Properties, Inc., voluntarily appeared, claiming – falsely (this is undisputed) – to be MLB Advanced Media, L.P. Unsurprisingly, the pro se Steele didn’t catch this. Nor did he catch that defendants filed a false version of the infringing work in the district court, from which MLB Advanced Media, L.P.’s copyright notice had been deleted (also undisputed).

But I digress. It is, however, worth noting that these cases long ago stopped being about infringement – again, never denied or disputed – and instead have revealed Skadden’s multi-year, multi-jurisdiction, and jaw-droppingly brazen fraud on the court.

Back to infringement. The district court’s strange order precluding discovery – and adjudication – of access and copying put Mr. Steele in the difficult situation of trying to prove defendants’ digital duplication of his song for use as an audiovisual temp track by showing that defendants’ audiovisual work was substantially similar to Mr. Steele’s song. As you may know, there are no published decisions on temp-tracking, though it is universally acknowledged – where the temp track is used without the owner’s permission – to constitute infringement.

So, while your citations and quotations are no doubt accurate, you leave out that the district court failed to follow those decisions (or, more accurately, similar decisions in the First Circuit). Skadden successfully pushed for this truncated analysis knowing that discovery of digital files from defendants’ video editing suites would quickly confirm infringing duplication. On the other hand, Steele would face an uphill battle in showing substantial similarity between his song and defendants’ audiovisual.

The district court’s decision leaves no doubt that Skadden succeeded: the district court’s attempted song-audiovisual substantial similarity analysis is confusing and, where it addresses synchronization rights, not only legally incorrect, but nonsensical. The much simpler route would have been to follow the well-established two-step analysis of probative similarity followed by substantial similarity. Here – as in illegal downloading cases – the first step would likely have been dispositive of actual copying (duplication) and, therefore, of infringement. Such “direct evidence” of copying is, I submit, no longer “rare,” as described by numerous decisions, including in the First Circuit, at least in cases of digital infringement.

Temp-tracking is a secretive process because it often involves infringement. Accordingly, evidence of probative similarity (direct evidence of copying) in such cases would not only provide conclusive evidence of infringement, but possibly the only evidence. Mr. Steele was instead forced to prove digital duplication through the unnecessarily circuitous route of expert testimony as to substantial similarity between his song and defendants’ audiovisual.

The First Circuit’s “own independent review” finding that no reasonable juror could find probative similarity was, therefore, necessarily limited, if not impossible because such evidence was specifically forbidden from the district court proceedings. Nonetheless, the record was replete with evidence of substantial similarity – despite the district court’s limited discovery order – including, among other things, that both works were identical in length (to the tenth-second); that 96% of defendants’ audiovisual’s frame “cuts” were beat- or tempo- matched to Mr. Steele’s song (irrefutable – and, in any event, undisputed - evidence of temp-tracking); and that over a dozen affiants had sworn to the works’ similarities and/or being confused upon viewing the audiovisual for the first time, believing it to be a derivative of Steele’s song.

There is much more to this story, if you care to take the time to read the papers. If you do, I think you would agree that “knowledgeable counsel” would have, as I have, continued to “press on.”

You suspect correctly: It is not over yet.

Christopher A.D. Hunt

The Hunt Law Firm LLC

10 Heron Lane

Hopedale, MA 01747

(508) 966-7300

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