Unintended Consequences of “Patent Reform”: The Customer Suit Exception

The following post first appeared on the Center for the Protection of Intellectual Property (CPIP) blog, and it is reposted with permission here.

In the last two weeks, the House and Senate Judiciary Committees marked up wide-ranging patent legislation ostensibly aimed at combating frivolous litigation by so-called “patent trolls.” But while the stated purpose of the House and Senate bills—H.R. 9 (the “Innovation Act”) and S. 1137 (the “PATENT Act”), respectively—is to combat abusive litigation, a closer look at the actual language of the bills reveals broad provisions that go far beyond deterring frivolous lawsuits. This far-reaching language has raised concerns in the innovation industries that, instead of curbing ambulance-chasing patentees, Congress is preparing to fundamentally weaken the property rights of all inventors, emboldening patent infringers in the process.

The “customer suit exception” or “customer stay” provisions that appear in both bills are particularly troubling. These provisions direct courts to stay patent infringement suits against “retailers” and “end users” in favor of suits involving manufacturers higher up the supply chain. While the basic idea makes sense—we’ve all heard stories of coffee shops being sued for patent infringement because of the Wi-Fi routers they used—the provisions are drafted so broadly and inflexibly that they invite abuse and gamesmanship by infringers at the expense of legitimate patent owners.

Both the Innovation Act and the PATENT Act provide that “the court shall grant a motion to stay at least the portion of the action against a covered customer” that relates “to infringement of a patent involving a covered product or covered process” if certain conditions are met. The first condition in both bills is that the “covered manufacturer” must be a party to the same action or to a separate action “involving the same patent or patents” related to “the same covered product or covered process.” In other words, so long as the manufacturer is challenging the patentholder, the customer is off the hook.

The two main problems here are that (1) the definition of “covered customer” in both bills is exceedingly broad, such that almost any party can claim to be a “customer,” and (2) the provisions leave the courts no discretion in deciding whether to grant a stay, forcing them to halt proceedings even when it’s not warranted.

Both bills define “covered customer” as “a retailer or end user that is accused of infringing a patent or patents in dispute.” “Retailer,” in turn, is defined as “an entity that generates” its “revenues predominantly through the sale to the public of consumer goods and services,” and it explicitly excludes “an entity that manufactures” a “covered product or covered process” or “a relevant part thereof.” Thus, a “retailer” is a “customer,” but a “manufacturer” is not.

This language is far broader than necessary to achieve the stated purpose of protecting downstream retailers and end users. The Senate’s section-by-section breakdown of the PATENT Act claims that the “customer stay is available only to those at the end of the supply chain.” But the actual definitions in both bills are so broad that almost any entity in the supply chain would be eligible for a mandatory stay. This is so because almost all manufacturers are also retailers of other manufacturers; that is, almost all manufacturers could claim to be a “customer.”

Take, for example, a smartphone company that sources its components from a third-party manufacturer. If the smartphone company were sued for patent infringement over a component, it could claim to be a “covered customer” under both bills. Many smartphone companies generate “revenues predominantly through the sale to the public of consumer goods and services,” and they would not be considered “an entity that manufactures” the component. As a “retailer,” the smartphone company would be entitled to a mandatory stay, even though it’s nothing like the mom-and-pop coffee shop the customer stay provisions are designed to help. A district court would be forced to grant the stay, even if doing so hampered a legitimate patentholder’s ability to enforce its property right.

Against this backdrop, it’s important to keep in mind that the decision to stay proceedings has historically been left to the discretion of judges. Sometimes there are indeed good reasons to grant a stay, but each case is unique, and courts frequently weigh many factors in deciding whether a stay is appropriate. Instead of recognizing this dynamic, the Innovation Act and the PATENT Act mandate a one-size-fits-all solution to an issue that is best determined on a case-by-case basis. In effect, the bills tie the hands of district court judges, forcing them to stay suits even when the equities dictate otherwise.

While in some cases a manufacturer may be the more appropriate party to litigate a patent suit, it is not always true that efficiency or justice dictates staying a suit against a customer in favor of litigation involving the manufacturer. Courts generally balance several factors, such as convenience, availability of witnesses, jurisdiction over other parties, and the possibility of consolidation, when deciding whether to grant a stay. Courts consider whether the stay will lead to undue prejudice or tactical disadvantage, and they examine whether it will simplify the issues and streamline the trial. The decision to stay involves an extensive cost-benefit analysis for both the court itself and the litigants.

The Supreme Court has often emphasized the importance of judicial discretion in deciding whether a stay is warranted. As Justice Cardozo wrote for the Court in 1936, the decision to stay “calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Justice Cardozo warned that the judiciary “must be on our guard against depriving the processes of justice of their suppleness of adaptation to varying conditions.” In the patent law context, Justice Frankfurter, writing for the Court in 1952, declared: “Necessarily, an ample degree of discretion, appropriate for disciplined and experienced judges, must be left to the lower courts.”

The problem with the House and the Senate bills is that they take away this important “exercise of judgment” and threaten to remove much-needed flexibility and adaptation from the litigation process. The customer stay provisions take the “ample degree of discretion,” which is “appropriate for disciplined and experienced judges,” and place it into the hands of the alleged infringers. Infringers are not likely to be motivated by important notions of efficiency or justice; they’re likely to be motivated by self-interested gamesmanship of the system to their own advantage.

The proponents of the customer stay provisions claim that they’re necessary to help the little guy, but the provisions in both bills just aren’t drafted like that. Instead, they’re drafted to tie the hands of judges in countless cases that have nothing to do with small-time retailers and end users. The courts already have the power to stay proceedings when the equities tip in that direction, but these bills disrupt the judicial discretion on which the patent system has long depended. Customer stays certainly have their place, and that place is in the hands of judges who can take into account the totality of the circumstances. Judges should not be forced to make the important decision of whether to grant a stay based on overbroad and inflexible statutory language that goes far beyond its stated purpose.

CloudFlare Enjoined From Aiding Infringers: Internet Unbroken

The following post first appeared on the Center for the Protection of Intellectual Property (CPIP) blog, and it is reposted with permission here.

Just how far does a court’s power to enjoin reach into cyberspace? It’s clear enough that those directly posting or hosting infringing content are subject to an injunction. But what about a company such as CloudFlare that provides content delivery network and domain name server services? Does an injunction under Rule 65 against anyone acting in “active concert or participation” with an online infringer apply to an internet infrastructure company such as CloudFlare? CloudFlare recently argued that its service is “passive” and untouchable, but a district court vehemently—and rightly—disagreed.

The controversy started with the shutdown of the Grooveshark music streaming service pursuant to a settlement agreement with the major record label plaintiffs this past April. Back in September of 2014, Grooveshark and its two founders were found directly and indirectly liable for copyright infringement. After the district court held that their infringement was “willful,” thus subjecting them to potential statutory damages exceeding $736 million for the 4,907 works-in-suit, they consented to paying $50 million in damages and shutting down the grooveshark.com site rather than risk it with a jury.

But the demise of Grooveshark was short-lived, and just days after publicly apologizing for failing “to secure licenses from right holders,” two copycat sites popped up at different top-level domains: grooveshark.io and grooveshark.pw. The record label plaintiffs filed a new complaint and obtained ex parte relief, including a temporary restraining order (TRO), against the new sites. Upon receipt of the TRO, Namecheap, the registrar for both sites, disabled the .io and .pw domain names. When another copycat site was established at grooveshark.vc, the domain name was quickly disabled by Dynadot, the registrar, after it received the TRO.

Undeterred, the defendants publicly taunted the plaintiffs and registered yet another copycat site at grooveshark.li. Rather than continuing this global game of domain name Whac-A-Mole, the plaintiffs served the TRO on CloudFlare, the service utilized by the defendants for each of the infringing domains. And this is where things got interesting. Rather than swiftly complying with the TRO, as the domain name registrars had done, CloudFlare lawyered up and contended that it was beyond the court’s reach.

In its briefing to the court, CloudFlare argued that it played merely a passive role for its customers—including the defendants and their copycat site—by resolving their domain names and making their websites faster and more secure. CloudFlare disavowed the ability to control any content on the copycat site, and it denied that it was in active concert or participation with the defendants:

Active concert requires action, and CloudFlare has taken none. Participation means assisting a defendant in evading an injunction. CloudFlare has not so assisted defendants and, in fact, has no ability to stop the alleged infringement. Even if CloudFlare—and every company in the world that provides similar services—took proactive steps to identify and block the Defendants, the website would remain up and running at its current domain name.

CloudFlare did not deny that the defendants utilized its services; it instead argued that the TRO would not remove the infringing site from the internet. Thus, CloudFlare’s position hinged on its own passivity and on the futility of enjoining it from providing services to the defendants.

A moment’s reflection reveals the superficiality of this position. The fact that CloudFlare had no control over the content of the copycat site was not dispositive. The question was whether CloudFlare aided the defendants, and there was no doubt that it did. It was not only the defendants’ authoritative domain name server, it also optimized and secured their copycat site. That the defendants could have used other services did not erase the fact that they were using CloudFlare’s services. And once CloudFlare was served with the TRO and made aware of the copycat site, its continued provision of services to the defendants constituted active concert or participation.

CloudFlare’s policy arguments were similarly unpersuasive. It suggested that the TRO “would transform a dispute between specific parties into a mandate to third parties to enforce” the plaintiffs’ rights “against the world in perpetuity.” Of course, that is not what happened here. The question was not who else in the world the TRO reached; the question was whether the TRO reached CloudFlare because it aided the defendants.

CloudFlare further argued that it could not be enjoined because “Congress explicitly considered and rejected granting such authority to the courts with respect to Internet infrastructure providers and other intermediaries for the purpose of making a website disappear from the Internet.” To enjoin it, CloudFlare proposed, would be to pretend that the Stop Online Piracy Act (SOPA) “had in fact become law.” This argument, however, completely ignored the fact that courts have long been empowered to enjoin those in active concert or participation with infringers.

In reply, the record label plaintiffs rebuffed CloudFlare’s claim that it was not aiding the defendants: “CloudFlare’s steadfast refusal to discontinue providing its services to Defendants – who even CloudFlare acknowledges are openly in contempt of this Court’s TRO – is nothing short of breathtaking.” They pointed to how CloudFlare continued to aid the defendants, even after being on notice of the TRO: “[T]he failure of an Internet service provider to stop connecting users to an enjoined website, once on notice of the injunction, readily can constitute aiding and abetting for purposes of Rule 65.”

In the real world, CloudFlare markets the benefits of its services to its customers. It touts its content delivery network as delivering “the fastest page load times and best performance” through its “34 data centers around the world.” It boasts having “web content optimization features that take performance to the next level.” It offers robust “security protection” and “visitor analytics” to its customers. And its authoritative domain name server proudly serves “43 billion DNS queries per day.” But when it came to the defendants’ copycat site, it claimed to be a “passive conduit” that in no way helped them accomplish their illicit goals. This disingenuousness is, to borrow the plaintiffs’ term, “breathtaking.”

District Judge Alison J. Nathan (S.D.N.Y.) made short work in rejecting CloudFlare’s shallow denials. She noted that there was no factual question that CloudFlare operated the defendants’ authoritative domain name server and optimized the performance and security of their copycat site. The question was whether these acts were passive such that CloudFlare was not in “active concert or participation” with the defendants. Judge Nathan held that the services CloudFlare provided to the defendants were anything but passive:

CloudFlare’s authoritative domain name server translates grooveshark.li as entered in a search browser into the correct IP address associated with that site, thus allowing the user to connect to the site. Connecting internet users to grooveshark.li in this manner benefits Defendants and quite fundamentally assists them in violating the injunction because, without it, users would not be able to connect to Defendants’ site unless they knew the specific IP address for the site. Beyond the authoritative domain name server, CloudFlare also provides additional services that it describes as improving the performance of the grooveshark.li site.

Furthermore, Judge Nathan dismissed CloudFlare’s argument that it was not helping the defendants since they could simply use other services: “[J]ust because another third party could aid and abet the Defendants in violating the injunction does not mean that CloudFlare is not doing so.” And to CloudFlare’s concern that the TRO was overly broad, Judge Nathan reasoned that the issue before her was CloudFlare’s own actions, not those of other, possibly more attenuated, third parties: “[T]he Court is addressing the facts before it, which involve a service that is directly engaged in facilitating access to Defendants’ sites with knowledge of the specific infringing names of those sites.”

This TRO wasn’t about the “world at large,” and it wasn’t about turning the companies that provide internet infrastructure into the “trademark and copyright police.” It was about CloudFlare knowingly helping the enjoined defendants to continue violating the plaintiffs’ intellectual property rights. Thankfully, Judge Nathan was able to see past CloudFlare’s empty and hyperbolic position. Protecting intellectual property in the digital age is difficult enough, but it’s even more challenging when services such as CloudFlare shirk their responsibilities. In the end, reason trumped rhetoric, and, best of all, the internet remains unbroken. In fact, it’s now even better than before.

Further reading: Leo Lichtman, Copyright Alliance, Bringing Accountability to the Internet: Web Services Aiding and Abetting Rogue Sites Must Comply With Injunctions

Ninth Circuit Gives “Short Shrift” to First Amendment in Garcia v. Google

The Ninth Circuit, sitting en banc, released its long-awaited opinion in Garcia v. Google this past Monday. I assume readers are familiar with the facts, but the gist is that Garcia claimed copyright ownership over her five-second performance within a fourteen-minute trailer for a film. The filmmaker uploaded the trailer to YouTube, and Garcia sent Google several DMCA takedown notices to have it removed. When those notices were ignored, Garcia sued Google and sought a preliminary injunction. The district court denied that relief, but a panel of the Ninth Circuit reversed and issued a temporary injunction. The en banc court has now dissolved the panel’s injunction and affirmed the district court below.

In an earlier post, I looked at Google’s claim that an injunction against it would constitute a prior restraint violative of the First Amendment. The Ninth Circuit panel, in an opinion by then-Chief Judge Alex Kozinski, brushed aside Google’s prior restraint argument with a single paragraph. That analysis was quite simple: Since the context was Google’s public performance of somebody else’s copyrighted work, and since Google had not argued that its performance was excused by the fair use doctrine or the idea/expression dichotomy, it could not be a prior restraint. The prior restraint doctrine is only concerned with suppressing speech that may turn out to be protected. Without either of the two First Amendment-based defenses in play, it was a simple matter for the panel to determine that its injunction would not suppress protected speech.

In Monday’s opinion, the en banc court takes issue with the panel’s injunction: “The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. It also gave short shrift to the First Amendment values at stake.” I don’t think this criticism is fair. The prior restraint argument was a nonstarter since Google hadn’t raised any First Amendment defenses. What’s more, after complaining of the panel’s curt analysis, the en banc court then proceeds to give its own “short shrift” to the First Amendment:

Although the intersection between copyright and the First Amendment is much-debated, [n.14] the Supreme Court teaches that copyright is not “categorically immune from challenges under the First Amendment.” Eldred, 537 U.S. at 221 (internal citation omitted). To be sure, this is not a case of garden-variety copyright infringement, such as seeking to restrain the use of copyrighted computer code. The panel’s takedown order of a film of substantial interest to the public is a classic prior restraint of speech. Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) ( “Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.”). Prior restraints pose the “most serious and the least tolerable infringement on First Amendment rights,” Hunt v. NBC, 872 F.2d 289, 293 (9th Cir.1989) (citation omitted), and Garcia cannot overcome the historical and heavy presumption against such restraints with a thin copyright claim in a five-second performance.

[n.14: See, e.g., Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies?, 67 Wash. & Lee L.Rev. 831 (2010); Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998).]

The cite to Eldred is curious. There, the Supreme Court did indeed say that copyright laws are not “categorically immune” to First Amendment challenges. However, the context was a substantive challenge to the CTEA, not a procedural challenge like here with Google’s prior restraint argument. The issue in Eldred was whether the CTEA should be analyzed under heightened First Amendment scrutiny. The Court held that, since the CTEA and the First Amendment were balanced at the definitional level through the fair use doctrine and the idea/expression dichotomy, there was no need to apply heightened scrutiny. Mere rational basis scrutiny would suffice. Importantly, the level of scrutiny applicable to such a substantive challenge tells us nothing about whether an injunction is a prior restraint.

The en banc court pays lip service to the First Amendment by declaring the trailer to be of “substantial interest to the public,” and it claims that the panel’s injunction is “a classic prior restraint of speech.” This makes little sense, however, given the context of Garcia’s copyright claim. Of course, the trailer itself is protected speech, but that First Amendment protection isn’t the same for the copyright owner as it is for Google. Google can’t violate the copyright owner’s public performance right simply because the public finds the trailer interesting. The First Amendment only protects Google’s use of the copyrighted trailer if that use is excused by the fair use doctrine or the idea/expression dichotomy, but Google never argued either defense.

As noted in the law review article by Professors Mark Lemley and Eugene Volokh, cited by the en banc court in the footnote quoted above, “preliminary injunctions are granted pretty much as a matter of course” in copyright cases. The reason such injunctions aren’t prior restraints is because, at least in run-of-the-mill cases of nontransformative copying, there is no risk that the speech will turn out to be protected by the First Amendment. Professors Lemley and Volokh explain why this is so:

The danger of preliminary injunctions is that they may temporarily suppress speech that ultimately proves to be protected. If a judge can, at the time of the preliminary injunction hearing, make a reliable finding that the speech is constitutionally unprotected, rather than just that it might be unprotected, then there should be no problem with issuing the preliminary injunction.

This could happen whenever the defendant has made identical or nearly identical copies of the plaintiff’s works, and there is no claim of fair use but only some other copyright defense (such as that defendant has a supposedly valid license, or that plaintiff’s copyright wasn’t properly renewed, or something along those lines). Most cases alleging outright piracy, as well as most claims that the defendant has exceeded the boundaries of its license, would fall within this category.

In this situation, the defendant’s conduct is not constitutionally protected speech, even if the defendant ultimately proves that it’s not a copyright infringement.

Google is able to publicly perform copyrighted works because copyright owners grant it licenses when the works are uploaded to the YouTube platform. While the works themselves are protected by the First Amendment, Google’s public performance of those works is protected only by the licenses it is granted. It needs those licenses because the First Amendment doesn’t otherwise protect its performance of the copyrighted works. It’s a simple matter for a court to “make a reliable finding that the speech is constitutionally unprotected,” especially where, as here, Google never argued that either of the First Amendment-based defenses applies to its performance.

The en banc court’s invocation of the prior restraint doctrine thus misses this point. Garcia’s claim was anything but run-of-the-mill, but there was never any doubt that Google’s public performance of the trailer was not protected by the First Amendment. It may have been protected by the license granted by the filmmaker when he uploaded the trailer, but then it’s the license that protects Google’s performance, not the First Amendment. By ignoring the context of Garcia’s copyright claim, and by ignoring the fact that Google’s use could only be protected by a license, the en banc court itself gives “short shrift” to the First Amendment. Assuming Garcia is not the copyright owner, the case should simply be thrown out for lack of standing. There’s no need to wax poetic on the prior restraint doctrine when Google’s performance of the trailer isn’t protected by the First Amendment in the first place.

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© 2015 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

The Turtles, the Lone Ranger, & the Attack of the Zombie Copyrights

Flo & Eddie, Inc., owned by two founding members of “The Turtles,” has scored another victory in its ongoing efforts to protect its pre-1972 sound recordings. Last October, Flo & Eddie sued Pandora, stating four separate claims for relief against the internet radio service. The first claim was that Pandora had violated its statutory rights under Section 980(a)(2) of the California Civil Code, which provides: “The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership therein until February 15, 2047, as against all persons . . . .” The remaining three claims, alleging misappropriation, unfair business practices, and conversion, were grounded on its statutory rights under Section 980(a)(2) as well as its common law rights. The existence of Flo & Eddie’s rights, whether statutory or common law, has been a central issue in its litigation efforts.

The case was originally assigned to District Judge Otis D. Wright, II, of the Central District of California, but it was shortly thereafter transferred to District Judge Philip S. Gutierrez, who had been assigned Flo & Eddie’s earlier case against Sirius XM. As I wrote about in an earlier post, Judge Gutierrez held in Sirius XM that Flo & Eddie has the exclusive right to publicly perform its sound recordings in California under Section 980(a)(2). Despite this seemingly insurmountable holding to the contrary, Pandora filed a motion to strike each of Flo & Eddie’s claims for relief under California’s Anti-SLAPP statute. In its memorandum, Pandora argued that it had a “First Amendment right” to publicly perform Flo & Eddie’s sound recordings as the latter’s purported rights “simply do not exist[.]” In other words, Pandora told Judge Gutierrez that he had gotten it completely wrong in Sirius XM, handed down just months earlier.

To its credit, Pandora made an argument that Sirius XM had not. Section 980(a)(2) was enacted in 1982, many years after Flo & Eddie had sold and broadcasted its sound recordings. Prior to that, Section 980(a), which was enacted in 1947, provided: “The author or proprietor of any composition in letters or art has an exclusive ownership in the representation or expression thereof as against all persons . . . .” The subject matter was narrowed from “any composition in letters or art” in 1947 to “a sound recording” in 1982 because the intervening Copyright Act of 1976 preempted most everything else. Just as important here was Section 983(a), also from 1947, which provided: “If the owner of a composition in letters or arts publishes it the same may be used in any manner by any person, without responsibility to the owner insofar as the law of this State is concerned.” Thus, prior to 1982, the statutory rights gained under Section 980(a) were lost upon publication under Section 983(a).

The Ninth Circuit looked at Sections 980(a) and 983(a) in its Lone Ranger v. Program Radio opinion from 1984. Lone Ranger involved original scripts for radio programs about the fictional Western hero, “The Lone Ranger,” as well as sound recordings of performances of the scripts. The scripts were all protected under the Copyright Act of 1909, but the sound recordings were not. The plaintiff sued for copyright infringement and conversion. Even though the sound recordings were not copyrightable, the Ninth Circuit nonetheless held that the defendant’s use of them was copyright infringement as they were derivative works of the underlying copyrighted scripts. On the conversion claim, the Ninth Circuit held that there was an “intangible property interest in the performances on tape from the time of their recording” under California law that had been converted.

The defendant in Lone Ranger argued that the plaintiff’s statutory rights in the sound recordings under Section 980(a) were lost upon publication under Section 983(a). The plaintiff contended that it had not actually published the sound recordings within the meaning of Section 983(a), but the Ninth Circuit disagreed: “California law appears to the contrary.” The fact that the plaintiff had lost its statutory rights, however, was not fatal to its claim for conversion, as “the conversion . . . claim lies outside copyright.” The Ninth Circuit held that the loss of the plaintiff’s statutory rights had no effect on its common law rights, and as such, “protection against conversion of an intangible property right in the performances embodied in its tapes is unaffected by notions of copyright.” Having found that the plaintiff did in fact have common law rights in the sound recordings, the plaintiff’s conversion claim was affirmed.

The Ninth Circuit’s opinion in Lone Ranger formed the centerpiece of Pandora’s motion to strike: “Plaintiff’s section 980(a)(2) cause of action fails because California law divested its sound recordings of state copyright protection when the Turtles deliberately sold those recordings in stores in the 1960s.” Pandora argued that whatever rights Flo & Eddie had in its sound recordings under Section 980(a) were lost under Section 983(a) when the recordings were published. Despite the enactment of Section 980(a)(2) in 1982, which on its face protects sound recordings fixed prior to 1972, Pandora contended that it only maintained statutory protection for works that had not been published theretofore: “[T]hat revision did not, and could not, have the effect of flipping the copyright status of the entire corpus of all sound recordings ever published in California, by newly putting them back under copyright protection until 2047.”

Just as the plaintiff in Lone Ranger had lost its statutory protection when it published its sound recordings, Pandora claimed that Flo & Eddie had too. Pandora pointed out that the Ninth Circuit had not held that the newly-enacted Section 980(a)(2) “resurrected protection previously vitiated under section 983(a),” for if it had, “the case should have come out the other way on the state copyright issue.” This misstated the issue in Lone Ranger. As mentioned above, the copyright claim was based on the federal Copyright Act. There was no “state copyright issue.” The issue under state law was conversion, and the Ninth Circuit held that the plaintiff did indeed have common law rights that had been converted. Given this holding, Pandora’s claim that the Ninth Circuit thought there was “no cognizable” rights “at all” was simply incorrect. Moreover, Section 980(a)(2) did not apply to the plaintiff’s claims as the case was filed before the statutory amendments in 1982.

Pandora was correct that the Ninth Circuit did not hold that the plaintiff’s statutory rights “came back to life,” but what it conveniently failed to note was that the plaintiff did not ground its rights on the statute. The plaintiff never argued that Section 980(a)(2) resurrected its statutory rights, so the fact that the Ninth Circuit didn’t address that argument is irrelevant. Nevertheless, Pandora argued that, regardless of what the Ninth Circuit said in Lone Ranger, there was no reason to think that Section 980(a)(2) created “zombie copyrights.” The purpose of Section 980(a)(2) was to “maintain rights and remedies,” not create them anew. To hold otherwise, Pandora suggested, would be “altogether unworkable” as it would create “an impossible-to-administer system of rights.” Given all this, Pandora concluded that there was simply “no state law copyright protection today for Turtles recordings” sold and broadcasted “in the 1960s.”

In its memorandum in opposition, Flo & Eddie took Pandora to task for misrepresenting the holding in Lone Ranger. Then it proffered misstatements of its own. Rather than embrace the notion of “zombie copyrights” under Section 980(a)(2), Flo & Eddie made three arguments for why Section 983(a) did not strip its sound recordings of statutory protection: (1) it “was repealed and, by law, must be treated as if it never existed,” (2) it, “by its own plain language, did not apply to sound recordings” as it “only applied to ‘composition[s] in letters or art,’” and (3) “[p]re-1972 recordings were not ‘published’ by their sale or broadcast.” The purpose of Section 983(a), Flo & Eddie contended, was to mark the point where state statutory protection ended and federal statutory protection began—publication. But since the Copyright Act of 1976 “moved the point of federal protection from ‘publication” to ‘fixation,’” Section 983(a) “ceased to have a purpose.” As such, it was repealed “in its entirety,” and “its obliteration negated any case law dependent on it, including Lone Ranger.”

Flo & Eddie further argued that Section 983(a) would be of no help to Pandora, even if it had not been repealed. It drew a distinction between “the underlying musical compositions embodied in sound recordings,” which were “composition[s]” under Section 983(a), and the sound recordings themselves, which were not. The purpose of Section 983(a) was “to draw a bright line” between state and federal protection, but since there was no federal protection for sound recordings at the time, there was “no need to draw a dividing line” for sound recordings. Flo & Eddie pointed out that Pandora’s read of Section 983(a) would make the protections of Section 980(a)(2) “entirely illusory,” since “virtually all pre-1972 recordings” would be previously published and thus in the public domain. This was not so, Flo & Eddie urged, as “the protections provided by § 980(a)(2) were in addition to” those of the common law.

Lastly, Flo & Eddie argued that its “sound recordings were not ‘published’ under the law,” as “publication (in the legal sense) is a concept that is not applicable to recordings.” If “the sale of even one copy of a pre-1972 recording” was a publication that “divested” the owner “of its rights,” as Pandora contended, then “no one would have ever sold recordings.” According to Flo & Eddie, “traditional notions of publication simply do not apply to pre-1972 recordings.” Furthermore, Flo & Eddie maintained that Lone Ranger was not inapposite, as the Ninth Circuit “was referring to the compositions” in its discussion of Section 983(a), not the sound recordings. If the Lone Ranger court had held “that the performances embodied in the recordings ceased to be protectable upon publication, it would not have affirmed liability for conversion.”

I don’t think Flo & Eddie’s arguments concerning Section 983(a) hold water. The fact is that Section 983(a) was in force between 1947 and 1982—the same time period when Flo & Eddie sold and broadcasted its sound recordings in California. Flo & Eddie tried to bypass Sections 980(a) and 983(a) by arguing that those statutes did not apply to sound recordings. It didn’t want to admit the possibility that it had statutory rights that had been lost, but that’s exactly what the Ninth Circuit held in Lone Ranger. The Ninth Circuit also held that the loss of the statutory rights didn’t matter as the plaintiff still had its common law rights. These property rights weren’t statutory, and they weren’t nominally copyright rights, but they were nonetheless exclusive rights to prevent copying without permission. Sounds a lot like copyright, no?

The fact that published sound recordings were protected under California common law demonstrates that courts treated sound recordings differently than other subject matter. Publication was traditionally the line between state and federal protection, but with sound recordings, there was no federal protection—not until 1972. The reason for treating publication as the right-shedding event under state law simply did not exist for sound recordings, and courts implicitly acknowledged this by protecting such works after they had been published. Given this jurisprudential backdrop, the legislative history to the 1982 statutory amendments makes sense. It stated that the purpose was to “maintain rights and remedies in sound recordings fixed prior to February 15, 1972,” and it accomplished this in two ways. First, it added Section 980(a)(2) to explicitly grant statutory rights to sound recordings, and second, it deleted Section 983(a), which had provided that the statutory rights were lost upon publication. The 1982 amendments “maintain[ed]” the status quo by protecting sound recordings both pre- and post-publication.

In his order issued this past Monday, Judge Gutierrez sided with Flo & Eddie—but not before rejecting each of its arguments as to Section 983(a). Judge Gutierrez wholeheartedly adopted the theory of “zombie copyrights” that Pandora had argued was absurd and that Flo & Eddie had attempted to avoid. The problem with “Pandora’s theory,” he wrote, was that it made Section 980(a)(2) “an impotent law that protects only the tiniest class of sound recordings.” Pandora’s read of Section 980(a)(2) would only “protect decade-old sound recordings that were never sold to the public or played on the radio,” and it “would have been strange for the legislature to use such expansive language to cast a law of exceedingly limited scope.” Furthermore, he continued, the fact remained that California courts recognized exclusive rights in sound recordings that had been published. “Pandora’s misstep,” Judge Gutierrez held, was that “it ignores the California common law’s role in maintaining property rights.”

Looking at Flo & Eddie’s arguments concerning Section 983(a), Judge Gutierrez rejected the notion that its repeal meant that it never had any operative effect on Flo & Eddie’s sound recordings. He noted that Pandora’s “logic is sound” in that “the state of the law prior to 1982 is significant.” As to Flo & Eddie’s contention that Section 983(a) never applied to its sound recordings, or if it did, that the sales and broadcasts of those recordings were not publications, Judge Gutierrez noted that Lone Ranger foreclosed any such thinking. Nevertheless, he held that it didn’t matter as the Lone Ranger court “maintained that plaintiff had ‘an intangible property interest in the performances on tape from the time of their recording’ and found defendant liable for conversion.” Pandora’s arguments simply could not be reconciled with the case law, including Lone Ranger:

The case law indicates that sound recordings never dropped into the public domain so that people could freely exploit them. Regardless of whether §§ 980 and 983(a) applied to sound recordings, and regardless of whether sale of recordings “published” them, California still protected these recordings post-publication through the common law. See Lone Ranger, 740 F.2d at 726 (explaining that plaintiff could still make property-based claims regarding sound recording ownership, even if the protections of §§ 980 and 983(a) were no longer available).

While Flo & Eddie had attempted to distinguish Lone Ranger, Judge Gutierrez embraced it. Even if the statutory rights in the sound recordings had been lost upon publication, the common law still recognized property rights in the published sound recordings. And given this nonstatutory protection for sound recordings that had been published, Judge Gutierrez found that Section 980(a)(2) was “consistent with a legislative intent to maintain rights and remedies in pre-1972 sound recordings.” Judge Gutierrez “reject[ed] Pandora’s contention that the legislature did not intend the expansively-phrased protections of § 980(a)(2) to apply to pre-1972 sound recordings that had been previously released to the public,” because otherwise, that “law would cover practically nothing.” Thus, Judge Gutierrez held that Section 980(a)(2) did indeed grant statutory protection to sound recordings that had lost their statutory protection under Section 983(a). These “zombie copyrights” were not problematic as the common law never ceased to protect the sound recordings, even those that had been published.

Recall that Flo & Eddie stated four claims for relief. The first claim was based on a direct violation of its statutory rights under Section 980(a)(2). The remaining three claims were based on its rights under Section 980(a)(2) and its common law rights. Judge Gutierrez rejected Pandora’s motion to strike based only on Flo & Eddie’s statutory rights under Section 980(a)(2), and he reserved the question of whether Flo & Eddie has any common law rights separate and apart from its statutory rights. Pandora has already appealed to the Ninth Circuit—one advantage of a motion to strike under California’s Anti-SLAPP statute is that it’s immediately appealable. Whether the Ninth Circuit accepts Judge Gutierrez’s embrace of “zombie copyrights” is anyone’s guess. Based on the undeniable existence of post-publication rights in sound recordings under California common law, it seems to me that Flo & Eddie will score yet another victory on appeal.

Follow me on Twitter: @devlinhartline

© 2015 Devlin Hartline. Licensed under the Law Theories Public License 1.0.

Fox v. Dish Revisited or: How I Learned to Stop Worrying About Aereo and Love the Cloud

On January 15th, the news broke that Fox and Dish had settled their carriage dispute, and Dish will now carry Fox’s news and business channels as part of its satellite service. That same day, the parties jointly requested that District Judge Dolly M. Gee put their copyright and contract battle on hold. They told Judge Gee that it’s “highly likely” that they will be able to reach an agreement later this year. Just three days earlier, Judge Gee had issued her decision on the parties’ cross-motions for summary judgment. That opinion, in redacted form, was made public last Tuesday. On the copyright front, Dish was found to have infringed Fox’s reproduction rights with its “Quality Assurance” copies. These were internal copies Dish made to manually mark the beginning and end of programming segments for its AutoHop commercial-skipping feature. Judge Gee brushed aside Dish’s argument that fair use excused its copying: “The QA copies are not transformative.”

On the rest of the copyright claims, however, Dish came out smelling like roses. Judge Gee held that Dish’s Hopper Transfers feature, which let users download recordings from their set-top boxes, its PrimeTime Anytime feature, which let users record the entire primetime lineup of the four major broadcasters, and its AutoHop feature, which let users skip commercials when watching their PrimeTime Anytime recordings, were all noninfringing. Judge Gee also held that Dish’s Hopper with Sling set-top box and Dish Anywhere feature, which let users stream live and recorded content from their set-top boxes over the internet to their personal computers and devices, did not infringe Fox’s public performance rights. For this latter determination, Judge Gee relied heavily on the Supreme Court’s opinion in Aereo from last year.

I wrote about Fox’s public performance claim in an earlier post, and I argued that Dish’s Hopper with Sling combined with the Dish Anywhere feature is noninfringing under the Supreme Court’s reasoning in Aereo. After the Court granted certiorari in Aereo, there was a lot of concern about how a decision against Aereo would affect the public performance analysis, particularly with respect to the cloud. Many of Aereo’s supporters maintained that Aereo’s service was indistinguishable from other cloud computing services, such as Dropbox. During oral argument before the Supreme Court, the cloud once again took center stage as the jurists opined about the broader repercussions of a decision against Aereo. In the Aereo opinion itself, Justice Scalia in dissent complained that the majority’s test “will sow confusion for years to come.” Despite these doomsayers and naysayers, Judge Gee quite easily applied Aereo to find that Dish did not infringe Fox’s public performance rights. Moreover, she did so in a way that provides robust support for the cloud.

The public performance test from Aereo has two elements: (1) whether the service performs, and (2) whether that performance is public. Unless both elements are met, the service does not publicly perform. The test is particularly simple to apply because of the second element. In a typical case, such as here with Fox and Dish, it’s easy to determine whether a performance is public or private—even if we don’t know who is doing the performing. Performances are private, Aereo teaches, when they are transmitted “to individuals in their capacities as owners or possessors” of copies of the underlying works. Performances are public, by contrast, when they are transmitted to those “who lack any prior relationship to the works.” If the performances are private, it doesn’t matter who performs them—whether the service or its users—as either way they are noninfringing.

While the second element is easily applied, the first element proves a bit trickier. The Supreme Court in Aereo reasoned that Aereo performed by analogizing its service to a cable system: Aereo received and retransmitted broadcasts, just like a cable system, and since a cable system performed, Aereo did too. Here, the Court’s analogy to a cable system works exceedingly well for Dish’s initial satellite transmissions to its users. There’s no doubt that Dish publicly performs as it beams down content to its users in the first instance. Dish has licenses for these transmissions, of course, and consequently they were not at issue here. Instead, Fox’s claims were directed at transmissions that occurred after the users had already obtained the content from the earlier satellite transmissions. The identity of the performer in this context turned on the volitional conduct test, which looks at who caused the transmissions to occur.

In his Aereo dissent, Justice Scalia argued that the majority’s two-factored test really had but one element: Once the Supreme Court determined that Aereo performed, that performance was necessarily public. On his view, the second factor collapsed into the first. If anything, however, I think the reverse is likely true—especially in close cases. Whether the service causes the transmissions to occur turns, in no small part, on whether the service is transmitting content to which the user has a “prior relationship.” In other words, if the performances are public, they’re presumably performances caused by the service provider—it’s the one supplying content to members of the public in the first place. Moreover, this holds true no matter who pushes any button.

Perhaps proving Justice Scalia’s broader point, Judge Gee determined that Dish did not perform because it did not “receive programs that have been released to the public and then carry them by private channels to additional viewers in the same sense that Aereo did.” The streaming enabled by Dish’s Hopper with Sling and Dish Anywhere feature “takes place after the user has validly received it,” Judge Gee noted, “whereas Aereo transmitted its programming to users directly, without a license to do so.” The license, of course, was irrelevant to whether Aereo performed, but Judge Gee rather astutely recognized that the Aereo majority applied its own version of the volitional conduct test when it analogized Aereo to a cable system:

The Aereo majority’s analysis can be reconciled with the volitional-conduct requirement for direct infringement. The Aereo Court distinguishes between an entity that “engages in activities like Aereo’s” and one that “merely supplies equipment that allows others to do so.” Id. at 2504. The Court held that a sufficient likeness to a cable company amounts to a presumption of direct performance, but the distinction between active and passive participation remains a central part of the analysis of an alleged infringement.

The Aereo Court cited three points of comparison that established Aereo’s “overwhelming likeness” to traditional cable providers: (1) Aereo sold a service that allowed subscribers to watch television programs almost as they were being broadcast; (2) Aereo used its own equipment, housed in a centralized warehouse, outside of its users’ homes; and (3) by means of its technology (antennas, transcoders, and servers), Aereo’s system received programs that had been released to the public and carried them by private channels to the additional viewers. 134 S. Ct. at 2506.

Judge Gee nailed it. The Supreme Court’s comparison of Aereo to a cable system was its way of telling which side of the active-passive line Aereo was situated, that is, whether Aereo’s volitional conduct was sufficient such that it was directly performing. Dish’s technologies weren’t transmitting content to “additional viewers,” Judge Gee reasoned, so Dish wasn’t another Aereo. Note, however, that these “additional viewers” were simply members of the public, and they had no “prior relationship” to the particular content being streamed. This is the second element seeping into the first: She knew that Aereo performed, while Dish did not, based in part on whether the transmissions were “to the public” under the Transmit Clause. The volitional conduct turned, at least in part, on the publicness of the transmissions. Whether Dish performed was a function of whether the performances were public.

As computing moves further into the cloud, distinctions drawn on whose-hardware-did-what and who-pushed-what-button become harder to discern. Figuring out who caused a transmission to occur when it involves hardware and software utilized by both the service and its users takes on a metaphysical dimension. This is especially true as courts are wont to say it’s one party and not the other. The Aereo majority at least had a known quantity—a cable system—to compare with Aereo. Usually, the volitional conduct analysis is far less certain, and courts end up analogizing to other fact-patterns gleaned from the decisional common law. This is exactly what Judge Gee did. After first applying the specific cable-system-lookalike version of the volitional conduct test from Aereo, she then turned to its more general form. This was necessary because the Aereo test is merely sufficient for determining whether a service directly performs, but it’s not necessary. Other services may directly perform as well, even if they’re not just like a cable system.

The trick is figuring out where to draw the line, and this is where Judge Gee’s analysis got a tad wonky. She first acknowledged that the “process depends to some extent” on Dish’s involvement. She then concluded that Dish didn’t engage in sufficient volitional conduct to be a direct performer, because “it is the user who initiates the process, selects the content, and receives the transmission.” Of course, the user initiated the process, selected the content, and received the transmission in Aereo, but that didn’t mean that Aereo didn’t directly perform. I initiate the process, select the content, and receive the transmission when I use YouTube, but that doesn’t mean that YouTube doesn’t directly perform. The difference between Dish and Aereo or YouTube is not so much who causes what to occur—with all three, it’s a combination of both the service and the user. The difference is that with Aereo and YouTube, the user obtains content in the first instance, but with Dish, the user does not. In other words, it turns on whether the user has a “prior relationship” to the particular content being streamed.

Judge Gee held that Dish didn’t publicly perform because its volitional conduct was somehow insufficient as a matter of law. She could have reached the same conclusion by simply looking at whether the performances-by-transmission at issue were public or private. If private, Dish couldn’t be directly liable for violating Fox’s public performance rights. Since Fox also had argued that Dish was secondarily liable, Judge Gee needed to determine if the performances she had held to be caused by the users were public or private anyway—Dish couldn’t be an indirect infringer unless the users were direct infringers. Judge Gee could have found Dish not liable, either directly or indirectly, by pointing out that the performances were private. There was no need to look at who caused them, much less to say it was the users and not Dish. The problem with her approach is that, down the road, other services can point to this opinion and argue that they aren’t directly performing either, even if the performances are public in that they are supplying content to the users in the first instance.

Judge Gee adopted one of the broader versions of the volitional conduct test, which essentially turns on who pushes the button. The idea is that, no matter what the service does, users cause the copying to occur because they initiate things with the click of a virtual button. This test makes sense, at least somewhat, when it’s the reproduction right at issue. I think the service and the user often both cause the copy to be made, but it’s reasonable to pin it solely on the user since the service can be on the hook for violating some other right. For example, if a user downloads content from a service, the user reproduces and the service distributes. There is little problem in saying that only the user causes the reproduction since the service is still responsible for the distribution—if it is public in that it supplies the content to the user in the first place.

It’s the same thing with Dish. Judge Gee held that the users made the reproductions on their Hopper with Sling set-top boxes. She thought Dish’s volitional conduct was insufficient for it to be the direct cause of the copying. I don’t agree with this approach—especially with the PrimeTime Anytime recordings, which were individually programmed by Dish and which could not be stopped by the users. In the end, though, I don’t think it matters, as Dish would still be potentially on the hook for its satellite transmissions that supplied the users with the content in the first place. These transmissions were public performances, and they were, of course, licensed. Furthermore, Judge Gee held that the reproductions made from these transmissions were themselves fair use, as were the copies of these recordings made with the Hopper Transfers feature. In this way, Judge Gee upheld both time-shifting and space-shifting of the copies that were legally created as a result of Dish’s licensed public performances.

The problem with the who-pushes-the-button flavor of the volitional conduct test comes in saying that only the user causes the distribution, display, or performance when that user obtains content from the service in the first instance. Judge Gee’s intuition that only the user, and not Dish, caused the transmissions to occur with the Dish Anywhere feature was reasonable, but it only failed to be problematic because the content had already been legally obtained by the user. In other words, there was no problem because the performances-by-transmission were not “to the public.” Here, the content was transmitted from the Hopper with Sling set-top box to the user’s personal computer or device. There was some dispute about the extent to which Dish had its hand in things—for example, whether the content ever touched Dish’s servers. But, for the most part, the transmissions were accomplished using equipment in the user’s possession—at least insofar as the sending and receiving devices.

Splitting such hairs, however, can only take us so far. Our intuition may also tell us that the location of the equipment should be of little relevance. Think Cablevision with its DVRs in the cloud. What if Dish’s Hopper with Sling were a cloud-based DVR? What if the playback signal indubitably originated from Dish’s servers? This is where I think the public-private distinction under Aereo can do the heavy lifting. There is no need to figure out who causes the distribution, display, or performance when the content is stored in the cloud. Instead of beginning with the first element of the Aereo test, which looks at whether there is sufficient volitional conduct on the defendant’s part, it’s better to start with the second element, which asks whether the distribution, display, or performance at issue is public or private. If it’s private, then it doesn’t matter who causes it since it’s noninfringing. If it’s public, however, then it implies that the service, which is supplying content to the user in the first instance, is directly causing that distribution, display, or performance to occur.

On its face, Judge Gee’s opinion said nothing about the cloud. Underneath, by contrast, it told us all that we need to know. It’s the first opinion post-Aereo—that I’m aware of—that properly applied the Supreme Court’s public-private distinction under the Transmit Clause. Though, there was some confusion in Judge Gee’s treatment of ownership vs. possession:

DISH subscribers are not “owners” of the copyrighted programming. DISH has expressly disclaimed any ownership rights in the underlying programming, and agreed to various restrictions on its use of the material as a condition of the license. DISH is a licensee, and therefore cannot transfer title or ownership to its subscribers.

DISH subscribers are, however, valid “possessors” of the copyrighted works that are stored in the STB in their home. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 456, 104 S. Ct. 774, 795, 78 L. Ed. 2d 574 (1984); see also Vernor v. Autodesk, Inc., 621 F.3d 1102, 1112 (9th Cir. 2010) (noting that some users “rightfully possess, but do not own, a copy of copyrighted [material].”).

The first paragraph discussed ownership of the copyright, not the copies. Dish couldn’t “transfer title” to the copyright because it was a nonexclusive licensee—it had no title to transfer. The second paragraph, by contrast, discussed possession of the copies, not the copyright. Judge Gee inadvertently slipped from the copyright to the copies as she switched her focus from ownership to possession. Even if the users had no license under the copyright to make the copies, they ultimately didn’t need one. They were legal possessors of the copies because fair use excused the time-shifting or place-shifting whereby the copies had been made in the first place. The users had neither ownership nor possession of the copyright itself—nor did Dish for that matter. But the issue here was ownership or possession of the copies, not the copyright.

The Supreme Court made the same mistake in Aereo: “Neither the record nor Aereo suggests that Aereo’s users receive performances in their capacities as owners or possessors of the underlying works. This is relevant because when an entity performs to a set of people, whether they constitute ‘the public’ often depends upon their relationship to the underlying work.” The phrase “underlying work” is used in copyright law to refer to the copyrighted work itself—that is, the intangible work that exists the moment it’s fixed in a tangible medium. Neither Aereo nor its users—nor Dish nor its users—had any ownership or possessory interest in the “underlying work.” That was never the issue in either case.

What the Supreme Court really meant to discuss was ownership or possession of copies of the “underlying work.” As Professor Jane C. Ginsburg noted:

The court’s reference to “owners or possessors” is very imprecise; the service’s customer is unlikely to be an owner of “the work” because “the work” is the incorporeal object whose “owner” is the author or other copyright owner. Presumably, the court was positing the request by a customer of a remote storage service to play back a digital copy that she was entitled, by express or implied license, or under the fair use doctrine, to deposit in a digital storage locker.

This is exactly what the Supreme Court meant in Aereo, and it’s exactly what Judge Gee meant here with Dish: The users’ preexisting possessory interests in the copies were what made the subsequent performances private. As Judge Gee elaborated:

When an individual DISH subscriber transmits programming rightfully in her possession to another device, that transmission does not travel to “a large number of people who are unknown to each other.” The transmission travels either to the subscriber herself or to someone in her household using an authenticated device. This is simply not a “public” performance within the meaning of the Transmit Clause.

The users’ possessory interests in the copies were easy to ascertain with Dish’s Hopper with Sling set-top boxes. This was because the users each had actual possession of a copy once that copy had been created for the first time. Under the Supreme Court’s test in Aereo, however, even if these copies were stored remotely, such as with a cloud storage service, the users would still have possessory interests in the copies such that subsequent distributions, displays, or performances would be private. And this is why I think Aereo makes the cloud safer than ever: We can tell whether a distribution, display, or performance is “to the public” based on whether the user has a “prior relationship” to the source copy. Judge Gee got it right because she realized that Aereo controls the public-private distinction analysis.

This realization was lost on the district court in the MP3tunes decision that I wrote about last October. The judge there thought that the number of source copies is what matters. It doesn’t. What matters is the “prior relationship” of the user to the content at issue. The number of source copies is irrelevant, and a service can even utilize one master copy that is served to multiple users. Such deduplication is permissible so long as each user has a preexisting possessory interest in the content. There will no doubt be hard cases where the limits of these possessory interests will be tested, but the doctrine post-Aereo is nevertheless clearer than ever. So long as the user has a “prior relationship” to the content at issue, its subsequent distribution, display, or performance back to that user will be private—whether the service directly causes it or not. The cloud has never been safer, thanks to Aereo.

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© 2015 Devlin Hartline. Licensed under the Law Theories Public License 1.0.