Amicus Curiae Brief — Baltimore Ravens, Inc. v. Bouchat

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Text

No. 00-1494

In The

Supreme Court of the United States

BALTIMORE RAVENS, INCORPORATED

AND NATIONAL FOOTBALL

LEAGUE PROPERTIES, INCORPORATED,

Petitioners,

Vv.

FREDERICK E. BOUCHAT,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

BRIEF BY AMICI CURIAE MOTION PICTURE

ASSOCIATION OF AMERICA, INC.,

RECORDING INDUSTRY ASSOCIATION

OF AMERICA, INC. AND AMERICAN FILM

MARKETING ASSOCIATION IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

Louis P. PetricH

(Counsel of Record)

Davip ARONOFF

Leopoip, PetricH & Smith, P.C.

2049 Century Park East, Suite 3110

Los Angeles, California 90067-3274

(310) 277-3333

Attorneys for Amici Curiae

Motion Picture Association of

America, Inc., Recording Industry

Association of America, Inc. and

American Film Marketing Association

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

STATEMENT PURSUANT TO RULE 29.6

None of the amici associations has issued shares to

the public.

TABLE OF CONTENTS

Page

TNFR Fence ces ea 1

Il. INTERESTS OF THE AMICI... 0.6 i0ssccsdeas 8

III]. REASONS WHY THE PETITION SHOULD BE

GRANTEE «ok kn vivax nieie ene eeren eau 10

A. The Fourth Circuit’s Decision Has So

Reduced The Standard To Prove “Access”

As To Threaten All Future Attempts To

Dispose Of Unmeritorious Claims As A

Wheto CE LANE ccd bess ome 11

1. The Decision Is A Dangerous Expan-

sion Of The Corporate Receipt Doc-

i errr rere eT nt rae 14

2. The Decision Improperly Allows

Inferences Of “Access” That Are Con-

tradicted By Direct Denials Of Receipt

And Practices Preventing Receipt To

Constitute Substantial Evidence Of

ee SER ee er reer 16

B. The Fourth Circuit’s Alternative Holding

That “Striking Similarity” Raises An Infer-

ence Of Access And Of Copying Is Bad

Science And Threatens To Eliminate

“Copying” As An Element of Copyright

ee err rer rr ore ee tee 17

TV. CONCLUMUNS ocacnkdscuscegunkoubemencen nee 20

iii

TABLE OF AUTHORITIES

Page

Cases:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .... 13

Baxter v. MCA, Inc., 812 F. 2d 421 (9th Cir.), cert.

denied sub nom., Williams v. Baxter, 484 U.S. 954

CROP cic c nb bt veiecannsgwongaes Guabseneenesas 18

Benson v. Coca-Cola Co., 795 F. 2d 973 (11th Cir.

SEER: 60s 6:00.00 0096s edeesees alien levees 10, 17

Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) ..4, 13

Bouchat v. Baltimore Ravens, 241 F. 3d 35 (4th Cir.

EGE ba cVcvawlecirctediusdecntaccebstsednacecthes 1

Bouchat v. Champion Prods., Dkt. No. MJG-99-1576

Es NED Soc cccct cuesceucecuadebes Ghecedechses 4

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

Ee SE a via caged seoke cdeuueueues 11, 18, 19

Dimmie v. Carey, 88 F. Supp. 2d 142 (S.D.N.Y. 2000) .... 15

Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.

eg fa errr rrr rrr errr ee 6

Ellis v. Diffie, 177 F. 3d 503 (6th Cir. 1999) .......... 17

Feist Pubs, Inc. v. Rural Telephone Service Co., 499

of Be 2s. | errr rrr rr errr rT Terr errr. 12

Ferguson v. National Broadcasting Co., 584 F. 2d 111

go Re PPMTSTPTTTITeTTErree eee 10, 17, 18

Financial Information, Inc. v. Moody's Investors Ser-

OEE, Fk Ti ae Sek CO CAE BEGG. ccc cccwnssccess 19

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)........-. 7,9

Goldhirsh Group, Inc. v. Alpert, 107 F. 3d 105 (2d

Cir. 1997)

TABLE OF AUTHORITIES - Continued

Page

Granite Music Corp. v. United Artists Corp., 532 F.

we Ft ee PPP erererrerrrrertr rr 12

Grubb v. KMS Patriots, L.P., 88 F. 3d 1 (1st Cir.

Pes bc ca eaad aves dtaeens eee eee 10, 15, 16, 18

Herzog v. Castle Rock Entertainment, 193 F. 3d 1241

te. Eee Ree rn ee oer 10, 17

Jason v. Fonda, 698 F. 2d 966 (9th Cir. 1982) ......... 10

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ..... 4

Kamar Intl., Inc. v. Russ Berrie & Co., 657 F. 2d 1059

OE CERES ETTE ESP LO ET EEC TT OTe ETT TEETE 14

Keeler Brass Co. v. Continental Brass Co., 862 F. 2d

Be OE Ge Gee Ha ob ns ao eekcuciwensdaias 17

Keene v. Wheatley, 14 F. Cas. 180 (C.C.E.D. Pa.

Sy SU, FEE bok ot cone beh cake cans acaeares 18

Kongisberg Intl., Inc. v. Rice, 16 F. 3d 355 (9th Cir.

PPE eee pee ie Pepe eye rr eerie 6

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) .... 18

Mazer v. Stein, 347 U.S. 201 (1954) ........ t, 22, 17,

Meta-Film Assocs., Inc. v. MCA, Inc., 586 F. Supp.

SI We ee so 46 Radpackcacsendiar iG, Bay Be

Mills Music v. Snyder, 469 U.S. 153 (1984) ............ 7

Moore v. Columbia Pictures Indus., Inc., 972 F. 2d

ee ft | Ber rr re eres 14

Morrissey v. Procter & Gamble Co., 379 F. 2d 675 (1st

Ck Es nck ndceeandencks cans xcdaoeen cans ‘cReeaak 15

Morse v. Fields, 127 F. Supp. 63 (S.D.N.Y. 1953)...... 13

TABLE OF AUTHORITIES - Continued

; Page

New York Times Co. v. Tasini, Dkt. No. 00-201, cert.

granted, 69 U.S.L.W. 3316 (11/6/2000).............. 7

Newton v. National Broadcasting Co., 930 F. 2d 622

(9th Cir. 1990), cert. denied, 502 U.S. 866 (1991) .... 13

Novak v. National Broadcasting Co., 752 F. eer: 164 .

(BIIICY TOR oc cccccccccscesssacgectestscenehiay ee

Peel & Co., Inc. v. Rug Market, 238 F. 3d 391 (5th

CMe DODD) ao vc cnccnccccctecvessansekesnessaens@sae 17

Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 333

(i) er Peery ry Prete reser rrr Terre rE 16

Repp v. Webber, 858 F. Supp. 1292 (S.D.N.Y. 1994),

reversed on other grounds, 132 F. 3d 882 (2d Cir.

1997), cert. denied, 525 U.S. 815 (1998).......... 10, 16

Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F. 2d

co, Ee OE. : Ep rye Fy rer rye ye 6

Selle v. Gibb, 741 F. 2d 896 {7th Cir. 1984)...10, 12, 17, 18

Takeall v. Pepsico, Inc., 809 F. Supp. 19 (D. Md.

1992), aff'd, 14 F. 3d 596 (4th Cir. 1993), cert.

Gomted, S12 US. TAO CGR). 6 acs nknssvessiiteie 10, 16

Tisi v. Patrick, 97 F. Supp. 2d 539 (S.D.N.Y. 2000) .... 15

Towler v. Sayles, 76 F. 3d 579 (4th Cir. 1996)...... 10, 16

Warner Bros. v. American Broadcasting Cos., 720 F.

Ol SFE GEG GM NOM is oi ben tie ciicsb cee ceneeens ccs 11

Zacchini v. Scripps-Howard Broadcasting Co., 433

Soa Ue CPOE oo 60 shri s cha eeednceasedrevaciouenes -

i: ABLE OF AUTHORITIES - Continued

Rutes AND STATUTES:

U.S. Constitution, article I, § 8, clause 8 ............. 2

17 U.S.C. §§ 101, et seq.

17 USC. § 101... 2. eee eed cece eee eect eee ee ee eeee 6

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Ty WSK 6 FOG 6d ck vcccacecdscuavccntclceueeue 6

yeik (oe § 6)6cPMIT TIP riri ce er 4

Supeeme Court Rude S76 ...cccccctcccccccccscsscvess 1

TREATISES:

Paul Goldstein, Copyright (2d Ed. 1996)

DF ihc 5 0skcccecsccsosesseédeeesewakeeteanennaaan 13

SFist ¢ 0:9.000000650000000000b0sh000000 Run eee aeeeee 5

Melville & David Nimmer, Nimmer on Copyright (2000)

Vol. 1:

BE. ooo. 00000000 400000055060000eeheaneeeeuneeee 2

Vol. 3:

ek + Pr rrrrr rrr Ter rr yy TT yi 5, 10

Dy PFI s sc ccccecccccsdcvscutewsssesusenedseas 5, 10

Vol. 4:

DBRS occ ccccccsccsvesescuesscseavecde 5, 10, 11, 12

D TREE 060605600000 seneceseccsedseuunesteuneereta 18

DS TD 6066s ccccncccceseseccedéeesiicnedacesneres 19

William Patry, Copyright Law and Practice (1994)

oben 6ec0cckteescc eters deeccesanadetutes ee

Vii

TABLE OF AUTHORITIES - Continued

MISCELLANEOUS:

Alan Latman, “Probative Similarity As Proof of

Copying: Toward Dispelling Some Myths in

(RODED « ccccccccccccseesedsssescenuneneenenanne

GROGED « ccccccccccesessscedbescssneceaseeauwanel

G.-Moran, “Tears in Tinseltown,” California Law-

yer, Pp. Zi (ARE. 2000) occ ccccccccccccccsesscens

Robert Osterberg, “Striking Similarity and the

Attempt to Prove Access and Copying in Music

Plagiarism Cases,” 2 J. Copyright, Ent. & Sports

a OT sere

Eugene Volokh & Brett McDonnell, “Freedom of

Speech and Independent Judgment Review in

Page

“Harry Potter and the Court Battle Over Cre-

ativity”, N.Y. Times, National section, pp. 1, 22

CEs RS GUOEE 0.5 cv ncbv cs cheencnsasduandngheecanees

I. INTRODUCTION

The Motion Picture Association of America, Inc.

(MPAA), the Recording Industry Association of America,

Inc. (RIAA) and the American Film Marketing Associa-

tion (AFMA) (“amici”)! support the petition for a writ of

certiorari to review the October 3, 2000 split decision by a

panel of the United States Court of Appeals for the

Fourth Circuit, as amended December 28, 2000 (repro-

duced in the petitioner’s Appendix A at 1a-28a) and

reported, as corrected, at 241 F. 3d 35 (4th Cir. 2001).*

This case raises important questions concerning the

proper gatekeeping role of courts in setting benchmarks

for what constitutes substantial evidence of “actual copy-

ing” in a copyright infringement case - a requirement

that “has, surprisingly, resulted in considerable confu-

sion.”? The decision below conflicts with decisions of this

Court and other circuits, by effectively abandoning any

legal standard of proof to infer “access” and by allowing

juries to use unsupported inferences to prove copying in

the face of uncontradicted evidence to the contrary.

In Mazer v. Stein, 347 U.S. 201, 218 (1954), this Court

held that despite any similarities, “absent copying, there

can be no infringement.” Now, this Court is called upon

to determine whether alleged similarity alone may prove

the act of copying. By adopting a “controversial method”

to prove copying by a “striking similarity” doctrine

* All parties have given their written consents to the filing

of this Brief, which consents will be filed with the Court.

1 As required by Sup. Ct. R. 37.6, amici represent that none

other than the amici have made a monetary contribution to the

preparation or submission of this brief, and no counsel for any

party has authored any part of this brief.

21 W. Patry, Copyright Law and Practice at 690 (1994)

(“Patry”).

3 1 Patry, at 700.

which is a disguised example of “bad science,” the deci-

sion below would allow liability to be imposed without

substantial evidence of access and copying. Such a result

would work a “radical upheaval in all of copyright doc-

trine’* — transforming copyright law into patent law,

where a defendant must prove its work is “novel” to

obtain protection and avoid liability.

Because there are so many reasons other than copy-

ing why two works might be similar,> copyright law

cannot fulfill its mission tc “ . . . promote the Progress of

Science and useful Arts...” U.S. Const., art. I, § 8, cl. 8,

unless lower courts are given clear direction as to what

evidence is required to satisfy the threshold showing of

access and actual copying. The decision below subverts

the rights of authors to be free from specious claims of

infringement based upon nothing more than similarity

and speculation about access.

In particular, the Fourth Circuit’s affirmance of the

jury verdict poses a risk to the multi-billion dollar copy-

right industries in this country by essentially holding that

individuals and companies have no means to avoid an

inference of “access” or “actual copying” by insulating

creative personnel from unsolicited submissions. The evi-

dence below was undisputed that petitioner NFLP had a

written policy of isolating its designers from receipt of

unsolicited submissions and that the alleged provider of

the copyrighted work to NFLP - the petitioner Ravens -

similarly had a policy that all outside submissions of

created work were to be returned to the sender. Further,

41M. &D. Nimmer, Nimmer On Copyright § 2.01 at 2-8 to -9

(2000).

> Alexander Lindey, Plagiarism and Originality (1952) at 25

(listing 15 reasons such as the use by each work of the same or

similar theme, that common themes carry common accessories,

the use of stereotypes, the use of hackneyed ingredients, the

imperatives of convention, use of common source material, and

the existence of conventions.

the testimony was uncontroverted that the alleged pro-

vider of the plaintiff’s work to the Ravens - attorney

Moag - had a policy that no outside submissions should

ever be forwarded to the Ravens. All hypothetical recip-

ients of the submission denied receipt, and no contrary

evidence of receipt existed. If the undisputed existence of

these policies at three points in the alleged chain of

“access” and denials of receipt does not prevent treating

contrary “inferences” as substantial evidence of access

and copying, then the artists and companies which insti-

tute and follow such policies will nevertheless be sub-

jected to an increased number of baseless claims.

The decision below® holds that proof of access by a

Company (A) having contacts with a law firm (B), which

is in the same building as defendant corporation (C) in

Maryland proves that creators (D) working in the New

York office of defendant corporation (E) had access to

plaintiff’s work. In the context of the motion picture and

recording industries, such a rule of inferences — in the

face of contrary direct denials and firewall practices that

contradict the inferences — would effectively eliminate the

requirement of access, and functionally change the appli-

cable legal doctrine from “copyright” to “similarity

right.” This would fundamentally transform copyright

6 Although Respondent’s Opposition Brief, at 1-6, asserts a

number of evidentiary facts not disclosed or relied upon by the

Fourth Circuit’s decision, it is of course the Fourth Circuit’s

express rationale that will have the adverse effect about which

amici are concerned. Published opinions about the minimum

evidence necessary to raise an inference of “access” set

benchmarks that impact motions for summary judgment, for

directed verdict, for judgment as a matter of law and appellate

review. See E. Volokh & B. McDonnell “Freedom of Speech and

Independent Judgment Review in Copyright Cases”, 107 Yale L.

J. 2431 at 2455-60 (1998).

law (which only prohibits copying) into the law of pat-

ents (which prohibits equivalent matter, irrespective of

independent creation). See note 4, supra.

It is not surprising that commercially successful

songs, recordings, movies and television series attract

of the Copyright Act” - damages, disgorgement of profits,

injunctive relief, destruction and attorneys fees — offer a

powerful incentive for suits. Nor should it be surprising

that the threat of protracted litigation® and large jury

verdicts can serve to chill investment of creative efforts

and money.

Songs, motion pictures, television programs and

books are “speech” entitled to First Amendment protec-

- tions. See Zacchini v. Scripps-Howard Broadcasting Co., 433

U.S. 562, 578 (1977) (“there is no doubt that entertain-

ment, as well as news, enjoys First Amendment protec-

tion”). In areas other than copyright, such as defamation

law, where tort law liability rules put speech at risk, the

Courts have fashioned special substantive and procedural

rules: burdens of proof are shifted, substantive rules are

changed to expand the risk-free sphere of speech, sum-

mary adjudication is encouraged, and verdicts are sub-

jected to independent review on appeal. See Bose Corp. v.

Consumers Unien, 466 U.S. 485, 502-511 (1984); E. Volokh

& B. McDonnell, “Freedom of Speech and Independent

7 Copyright Act of 1976, as amended, §§ 502-05; 17 U.S.C.

§§ 502-05.

8 On June 3, 1999, respondent commenced a companion

case against more that 400 defendants —- some of them members

of amici - who are alleged somehow to have used the same logo

in sales, broadcasts, displays, etc. Bouchat v. Champion Prods.,

Dkt. No. MJG-99-1576 (D. Md. 1999).

9 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952)

(books, newspapers, magazines and movies are forms of

expression that do not lose their First Amendment protections

because they are sold for profit).

Judgment Review in Copyright Cases,” 107 Yale L.J. 2431,

2439-41 (1998) (“Volokh” hereafter).

Courts have evolved some rules to accommodate free

speech interests with copyright law.?° Thus, the circuit

courts have generally agreed that meritless claims could

be dismissed as a matter of law where plaintiff failed to

show (1) that the subject works w~ce substantially the

same in their protectible expression, or (2) that any

actionable similarities arose from actual copying. A plain-

tiff might attempt to prove the latter element, “actual

copying,” by circumstantial?! evidence that similarities

existed that indicated copying (“probative similarity”)?

and that the creator of defendant’s work had a reasonable

opportunity to read or hear plaintiff’s work (“access”) by

reason of wide public dissemination or through inter-

mediaries. See 3 M. & D. Nimmer, Nimmer On Copyright,

§ 12.10[B][2] & [3] (2000) (“Nimmer”). In that case, a lack

of “access” would be fatal to the claim.

The decision below threatens to undermine those

salutary rules and the nationwide benchmarks adduced

by the caselaw regarding the sufficiency of evidence.

Although the Fourth Circuit purported to render a nar-

row, fact-specific decision (App. A at 5a-7a), it also con-

ceded that it was deciding a legal issue: whether the

10 See Volokh, 107 Yale L.J. at 2439-41.

11 Although courts routinely state that direct evidence is

rarely available, at least one commentator disagrees. A. Latman,

“Probative Similarity As Proof of Copying: Toward Dispelling

Some Myths In Copyright Infringement”, 90 Colum. L. Rev. 1187,

at 1214 (1990).

12 For years, courts used the term “substantial similarity”

to refer to similarities that indicated both (1) unlawful copying

and (2) actual copying. The term “probative similarity” is now

the preferred term to analyze the “actual copying” inquiry. 4

Nimmer, § 13.01[B] at 12-12; 2 P. Goldstein, Copyright § 7.2.1.2 at

7:12 & n. 16 (2d ed. 2000) (“Goldstein”); 1 W. Patry, Copyright Law

and Practice 692 & n. 779 (1994) (“Patry”).

inferences of access and copying may arise in the face of

undisputed direct evidence to the contrary. Id. It thus

lowered or obliterated the threshold for access and

thereby exposed authors’ reputations and incomes to

unreviewable decisions by juries allowed to speculate

about access and copying.

The stakes in assuring the courts’ roles as gate-

keepers are high. The decision below can have significant

economic consequences. For example, sound recordings

comprise a $12.5 billion domestic industry, and the for-

eign sales of U.S. recorded music amount to more than

$12 billion, representing approximately sixty percent of

the world’s consumption of music. Similarly, motion pic-

tures, through theatrical, television and home video

exploitation comprise a $32 billion domestic industry, and

the foreign sales of U.S. produced motion pictures

amount to more than $14 billion, annually.

The composers, authors and other creative artists

whose works form the backbone for these burgeoning

segments of the economy should not be made to labor

under the chilling effect created by standard-free findings

of “access” that allow juries to assume the creators of new

works have unlawfully “copied” materials, which they

never heard or saw.

Such a lax “standard” stands in stark contrast to such

tion 101 which requires a writing to confirm certain

work-for-hire situations, and section 204(a) which

requires writings to validate transfers of copyright -

because of the paramount interest in making ownership

of copyright clear and definite to make such property

readily marketable.15 The special evidentiary require-

ments to protect authors of inadvertent transfers seem

13 Eden Toys, Inc. v. Florelee Undergarment Co., 697 F. 2d 27,

36 (2d Cir. 1982) (§ 204a); Schiller & Schmidt, Inc. v. Nordisco

Corp., 969 F. 2d 410, 412 (7th Cir. 1992) (§ 101); Kongisberg Intl.,

Inc. v. Rice, 16 F. 3d 355, 357 (9th Cir. 1994) (§ 204a).

——_-

hollow if jurors can, on a hunch, “transfer” a defendant

author’s copyright rights to a stranger who only claims to

have faxed a submission to an office of a company that is

related to another firm that is in the same building as a

company which is affiliated to the author’s employer ina

distant city.14

The adverse ramifications of the decision below are

substantial, national in scope, harmful to the creative

process and chilling to the speech interests of creative

artists and their distributors. By deferring to the jury’s

unbounded speculation about “access,” the decision may

deter district courts from ruling as a matter of law that

meritless claims rest on mere conjecture. An additional

rule that would permit a jury to infer access from unprin-

cipled “expert” opinions as to whether similarities com-

pel an inference of actual copying would eliminate

“copying” as an element of a copyright claim. Forum-

shopping will be encouraged.15 The Fourth Circuit thus

directly contradicts this Court’s admonition that “it is

peculiarly important that the boundaries of copyright law

be demarcated as clearly as possible.” Fogerty v. Fantasy,

Inc., 510 U.S. 517, 526 (1994).

14 The recent play and film entitled “Six Degrees of

Separation” were based on the conceit that everyone is

separated from everyone else in the world by only six

acquaintances. The Fourth Circuit’s decision would allow a jury

to reduce the number to four and to infer all necessary contacts.

15 Although the conflict in the circuits created by the Fourth

Circuit’s decision itself merits review, this Court has granted

review on important copyright issues even in the absence of

such conflicts. E.g., New York Times Co. v. Tasini, Dkt. No. 00-201,

cert. granted, 69 U.S.L.W. 3316 (11/6/2000) (where recent circuit

decision threatens to disrupt settled publishing practices); Mills

Music v. Snyder, 469 U.S. 153 (1984) (holding that publisher was

entitled to share in royalties from derivative works under terms

of grant from author; petitioner alleged no conflict in the

circuits).

II. INTERESTS OF THE AMICI

The Motion Picture Association of America, Inc.

(“MPAA”), is a not-for-profit corporation founded in 1922

as the trade association of the American film industry.

MPAA promotes the interests of the motion picture

industry in the United States by seeking to protect the

rights of copyright owners; serving as the advocate for

the major producers and distributors of motion pictures,

television programs and home video; directing an anti-

piracy program to protect U.S. films, television program-

ming and home video throughout the United States; and

helping the industry maintain high standards and public

goodwill. MPAA represents seven of the largest pro-

ducers and distributors of filmed entertainment for theat-

rical, television and home video .distribution.1© MPAA

members distribute motion pictures in some eighty coun-

tries throughout the world and have been prime benefici-

aries of the protections afforded by copyright.

The Recording Industry Association of America

(“RIAA”) is a trade association representing more than

300 recording companies, including BMG Entertainment,

EMI Recorded Music, Sony Music Entertainment, Inc.,

Warner Music Group, and Universal Music Group. Mem-

bers of the RIAA manufacture, produce, and/or distrib-

ute approximately 90 percent of all legitimate sound

recordings in the United States and own the copyrights in

those works. One of the RIAA’s principal objectives is to

support and promote the creative, artistic, free speech,

and financial interests of recording artists and the RIAA’s

member companies. Because piracy of copyrighted works

costs artists, producers, songwriters, and others in the

16 The members of the MPAA are Universal Studios, Inc.,

Paramount Pictures Corporation, Sony Pictures Entertainment,

Inc., The Walt Disney Co., Warner Bros., Twentieth Century Fox

Film Corp., and Metro-Goldwyn-Mayer, Inc.

recording industry hundreds of millions of dollars annu-

ally, the RIAA considers the prevention of illegal copying

and distribution of copyrighted sound recordings to be

one of its most important tasks.

AFMA is a trade association representing over 150

independent producers and distributors of motion pic-

_ tures and television programming as well as 27 affiliated

financial institutions that provide funding for indepen-

dent production. AFMA members include: NBC Enter-

prises, HBO Enterprises, USA Films, Viacom Pictures/

Showtime Networks, Miramax International, Saban Pic-

tures International, New Line Cinema, RKO Pictures,

Shooting Gallery, and United Artists Films Limited.

Many members of the amici are authors.!” 17 U.S.C.

§ 201(a) & (b). As producers and distributors, they are

also frequent targets of infringement claims and suits

involving unsolicited submissions!® to persons not

involved in the creative process. Creative and financial

investments are immediately threatened by the decision

below that indulges fictions of “corporate receipt”, infer-

ences of access in the face of denials of receipt, and the

17 In Fogerty v. Fantasy, Inc., 510 U.S. 517, 524, 526 (1994) this

Court reminded that defendants in copyright infringement

cases are often themselves copyright owners, and that “the

policies served by the Copyright Act are more complex, more

measured, than simply maximizing the number of meritorious

suits for copyright infringement.”

18 As standards of proof decline, litigation is encouraged.

In Los Angeles County alone, in 1999, over 100 lawsuits were

reportedly filed claiming infringement. See G. Moran, “Tears in

Tinseltown,” California Lawyer, p. 21 (Apr. 2000). See also,

“Harry Potter and the Court Battle Over Creativity”, N.Y. Times,

National section, pp. 1, 22 (4/1/ 2001) (“Legal challenges

. over the originality of creative works have proliferated

steadily over the last 20 years, partly because of the soaring

value of intellectual property in a media-saturated culture.”).

fictive substitute for “access” said to arise from “bad

science” expert opinions of “striking similarity”.

III. REASONS WHY THE PETITION SHOULD BE

GRANTED

The circuits have developed case law allowing dis-

missal of claims as a matter of law where plaintiff failed

to show (1) that the works were substantially the same in

their protectible expression? or (2) that any actionable

similarities arose from actual copying. Actual copying

may be direct, or it may be circumstantial evidence that

certain similarities indicated copying (“probative sim-

ilarity”)?° and that the creator of defendant’s work had a

reasonable opportunity to read or hear plaintiff’s work

(“access”) by reason of wide public dissemination?! or

through intermediaries.?2

193M. & D. Nimmer, Nimmer On Copyright (“Nimmer”),

§ 12.10[B)[3], at 12-151 to -156; 4 Nimmer, § 13.01[B] at 13.8 to

-14.

20 3 Nimmer, § 12.10[B][2] at 12-148 to -151; 4 Nimmer,

§ 13.01[B], at 13-10 to -13.

21 See, e.g., Repp v. Webber, 858 F. Supp. 1292, 1301-03

(S.D.N.Y. 1994), reversed on other grounds, 132 F. 3d 882 (2d Cir.

1997), cert. denied, 525 U.S. 815 (1998); Takeall v. Pepsico, Inc., 809

F. Supp. 19, 21 (D. Md. 1992), aff'd, 14 F. 3d 596 (4th Cir. 1993),

cert. denied, 512 U.S. 1236 (1994); Ferguson v. National

Broadcasting Co., 584 F. 2d 111, 112-13 (5th Cir. 1978); Selle v.

Gibb, 741 F. 2d 896, 901 (7th Cir. 1984); Benson v. Coca-Cola Co.,

795 F. 2d 973, 975 (11th Cir. 1986); 4 Nimmer, § 13.02[A] at 13-20

to -21; 1 Patry, at 697-98.

22 See, e.g., Grubb v. KMS Patriots, L.P., 88 F. 3d 1, 3-5 (1st Cir.

1996); Towler v. Sayles, 76 F. 3d 579, 582-83 (4th Cir. 1996); Jason v.

Fonda, 698 F. 2d 966, 967 (9th Cir. 1982); Herzog v. Castle Rock

Entertainment, 193 F. 3d 1241, 1249 (11th Cir. 1999); Meta-Film

Assocs., Inc. v. MCA, Inc., 586 F. Supp. 1346, 1355-59 (C.D. Cal.

1984) (cited in many circuits); 4 Nimmer, § 13.02[A] at 13-19 to

-20; 1 Patry, at 698-99.

The decision below gives juries the unfettered power

to decide what constitutes evidence of access, when

access (combined with evidence of probative similarity)

raises an inference of copying in fact, and even when

some indeterminate degree of similarity substitutes for

evidence of copying. Because jurors have no common

experience in making such determinations, and the law

provides them no firm calculus, the possible impairment

of free speech imposes on courts the responsibility of

determining the outer limits of the jury’s surmise. See

Warner Bros. v. American Broadcasting Cos., 720 F. 2d 231,

245 (2d Cir. 1983) affirming summary judgment and hold-

ing that:

“[t]he ‘substantial similarity’ that supports

an inference of copying sufficient to establish

infringement of a copyright is not a concept famil-

lar to the public at large. . . . Courts have an

important responsibility in copyright cases to moni-

tor the outer limits within which juries may deter-

mine reasonably disputed issues of fact” (emphases

added).

A. The Fourth Circuit’s Decision Has So Reduced

The Standard To Prove “Access” As To

Threaten All Future Attempts To Dispose Of

Unmeritorious Claims As A Matter Of Law

Copying in fact, or derivation, focuses on “the factual

question whether the defendant, in creating its work,

used the plaintiff’s material as a model, template, or even

inspiration.” 4 Nimmer, § 13.01[B] at 13-8. Copyright law

protects only against unlawful copying of a plaintiff's

*3 And, as shown below at n. 37, “similarity experts” are

better at advocacy than they are at creating a foundation for

their opinions, juries are easily misled to defer to experts. See

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593

(1993) (describing “good science”.)

work: “Proof of copying is crucial to any claim of copy-

right infringement because no matter how similar the two

works may be (even to the point of identity), if the defen-

dant did not copy the accused work, there is no infringe-

ment.”24 See Mazer v. Stein, 347 U.S. 201, 218 (1954)

(“Absent copying, there can be no infringement.”)

Accordingly, the issue of derivation is critical.

Courts have been imperceptibly lowering the stan-

dard of proof of copying over the years. Some earlier

decisions held that the actual viewing and knowledge of

plaintiff's work by the person who composed defendant's

work was needed. More recent authority has held that the

“reasonable opportunity to view or to copy” raises an

inference of “access”. 4 Nimmer, § 13.02[A] at 13-17 (stat-

ing that “the opportunity to copy” approach “is perhaps

the more prevailing definition of access”); 1 Patry, at

696-97. The decision below has reduced the threshold of

proof even further, indeed, eliminated it, by reducing

“the opportunity to copy” to what is a mere physical

possibility. Thus, access and even copying are becoming a

fictional requirement of copyright infringement. Sim-

ilarity is all.

What the “opportunity to copy” definition of access

allows, however, is the construction of an inference upon

an inference: from evidence of defendant's “opportunity”

to view plaintiff's work, the jury may infer that the

defendant actually viewed it, and from this inference may

24 Selle v. Gibb, 771 F. 2d 896, 901 (7th Cir. 1984); accord

Granite Music Corp. v. United Artists Corp., 532 F. 2d 718, 720 (9th

Cir. 1976); see also Feist Pubs., Inc. v. Rural Telephone Service Co.,

499 U.S. 340, 361 (1991); 4 Nimmer, § 13.01[B] at 13-10.

further infer (with additional proof of substantial or pro-

bative similarity) that the defendant actually copied it.

Such inferential proof of copying is really a matter of

statistical probabilities:

The rationale for the inference [of copying in

fact] is that access gave the defendant the

opportunity to copy the plaintiff’s work, and

that the similarities between the two works indi-

cate that the defendant in fact seized the oppor-

tunity. Copying in these cases is a question of

probabilities. The point of the plaintiff's proof is to

demonstrate that, in light of the defendant's access to

plaintiff's work and the similarities between the two

works, it is more probable than not that the defen-

dant copied from the plaintiff's work. .

2 P. Goldstein, Copyright, § 7.2.1 at 7:6 to 7:7 (2d ed. 2001)

(emphasis added).

One issue raised by the Petition - the sufficiency of

the evidence presented by plaintiff as a matter of law to

support the “access” finding of the jury — presents not a

factual “credibility” issue but a legal issue, which is

reviewed under the same standard applicable to a motion

for summary judgment. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251-52 (1986). Ultimately, whether the evidence in

this case was sufficient presented a policy issue for judges,

suitable for determination as a matter of law. Thus, the

25 See Morse v. Fields, 127 F. Supp. 63, 66 (S.D.N.Y. 1953)

(characterizing as “double circumstantial evidence” the fact that

the “availability of plaintiff's work is merely some

circumstantial evidence of access, and access is merely

circumstantial evidence of copying”).

26 A trier’s disbelief of a defendant’s denial of access does

not constitute affirmative substantial evidence of access. See

Bose Corp. v. Consumers Union, 466 U.S. 485, 512 (1984); Goldhirsh

Group, Inc. v. Alpert, 107 F. 3d 105, 109 (2d Cir. 1997); Newton v.

National Broadcasting Co., 930 F. 2d 662, 680 (9th Cir. 1990). cert.

denied, 502 U.S. 866 (1991).

Fourth Circuit’s decision will almost certainly be trum-

peted as the standard for what access evidence is sufficient

to create a triable issue in the context of a motion for

summary judgment and judgment as a matter of law, and

on appeals from bench trials as well as jury verdicts.

Entertainment business companies - and individual

artists - are regularly stalked by persons intent on mak-

ing unsolicited submissions.?” Although it is difficult to

create a bright line test concerning “access”, courts do

create benchmarks on a case by case basis that guide

authors, their attorneys, and potential plaintiffs. See Vol-

okh, 107 Yale L.J. at 2455-59. The Fourth Circuit’s decision,

lowering the threshold for liability, exemplifies three con-

tinuing sources of confusion and irreconcilable results in

the case law regarding the access issue.

1. The Decision Is A Dangerous Expansion Of

The Corporate Receipt Doctrine

Where a company is involved as a defendant or even

as an intermediary in a hypothetical chain of access, the

plaintiff often argues that proof that a submission was

received at the company acts as a virus which raises an

inference that everyone in the company - no matter how

large the company, or how far flung its facilities, or

differentiated its activities - may be deemed to have

promptly received it. See 4 Nimmer, § 13.02[A] at 13-17.

The circuits and the leading cases are split on this subject

with some circuits (and the Fourth Circuit in this case),

App. A, at 23a-24a, apparently adopting the doctrine?®

27 Unsolicited submissions arrive — or are allegedly sent —

by fax, by mail, by personal delivery, or are supposedly sent like

a message in a bottle, through friends, relatives and business

associates.

28 See Moore v. Columbia Pictures Indus., Inc., 972 F. 2d 939,

942 (8th Cir. 1992); Kamar Intl., Inc. v. Russ Berrie & Co., 657 F. 2d

1059, 1060, 1062 (9th Cir. 1981).

and others resisting it.2? An often-cited district court

decision, Meta-Film Assocs., Inc. v. MCA, Inc., 586 F. Supp.

1346, 1355-57 (C.D. Cal. 1984) explained the fallacy in

applying the doctrine to a claim based on submission of

an unsolicited script sent to a movie studio that later

produced “Animal House”. ;

[I]n such a business [film production],

countless unsolicited scripts are submitted to

numbers of individuals on studio lots everyday.

Under these circumstances, it is clearly unrea-

sonable to attribute the knowledge of any one

individual . . . to every other individual just

because they occupy offices on the same studio

lot.

In this case, the majority relies on the doctrine in

three of the four steps in the supposed chain of circum-

stances, assuming (1) that a faxed submission to MSA

"was received by someone at MSA who took a cue from

the fax to pass it on to Moag’s law office; (2) that alleged

receipt by Moag’s office meant actual receipt by Moag; (3)

that because the Baltimore Ravens had an office in the

same building (on a different floor) as Moag, there is a

“building receipt” doctrine that caused everyone in the

building including the Ravens presumptively to have

received the submission; (4) that the Ravens’ Baltimore

office received the submission and sent the design to the

NFLP office in New York; and (5) then, everyone at

NFLP’s New York office including the designers saw it.

App. A, at 17a-22a.

As the dissent pointed out, the majority allowed

inferences of corporate receipt to constitute substantial

evidence even in the face of (1) denials of receipt by

29 Grubb v. KMS Patriots, L.P., 88 F. 3d 1, 3-5 (1st Cir. 1996);

Morrissey v. Procter & Gamble Co., 379 F. 2d 675 (1st Cir. 1967);

Dimmie v. Carey, 88 F. Supp. 2d 142, 146-49 (S.D.N.Y. 2000); Tisi v.

Patrick, 97 F. Supp. 2d 539, 547-48 (S.D.N.Y. 2000); Novak v.

National Broadcasting Co., 752 F. Supp. 164 (S.D.N.Y. 1990).

MSA’s office, by Moag, by Moag’s office, by the Ravens,

by the NFLP office, by the NFLP designers, and (2) the

existence of a practice by Moag not to forward materials

to the Ravens, and direct evidence that the Ravens sent

no materials to NFLP during the relevant period. See

App. A at 17a-22a.%°

2. The Decision Improperly Allows Inferences

Of “Access” That Are Contradicted By

Direct Denials Of Receipt And Practices

Preventing Receipt To Constitute Substan-

tial Evidence of Copying

There is no reason to change the laws of evidence for

tion that inferences may not be indulged in the face of

uncontradicted direct evidence that contradicts the pro-

posed inference, Pennsylvania R.R. Co. v. Chamberlain, 288

U.S. 333, 341 (1931), should have been determinative of

the outcome below. This case then illustrates a continuing

problem where a jury is allowed to draw inferences of

access that are flatly contradicted either because of a

direct denial of a receipt of a submission or because of

practices that prevented the fact assumed by the infer-

ence, in this case acceptance and transmittal of submis-

sions in contradiction to firewalls intended to prevent

any such access. Not only does the Fourth Circuit's

approach contradict this Court’s rule on the permissible

of inferences, note 30, supra, but it creates conflicts with

established case law of other circuits.31 This issue is

30 Indulging such inferences in the face of uncontradicted

evidence conflicted with a decision of this Court. Pennsylvania

R.R. Co. v. Chamberlain, 288 U.S. 333, 341 (1931).

31 Grubb v. KMS Patriots, L.P., 88 F. 3d 1, 3-5 (1st Cir. 1996);

Repp v. Webber, 858 F. Supp. 1292, 1301-03 (S.D.N.Y. 1994),

reversed on other grounds, 132 F. 3d 882 (2d Cir. 1997); Towler v.

Sayles, 76 F. 3d 579, 582-83 (4th Cir. 1996); Takeall v. Pepsico, 809

obviously important to amici who are encouraged to cre-

ate such firewalls and are discouraged to learn that some

courts ignore them.

B. The Fourth Circuit’s Alternative Holding That

“Striking Similarity” Raises An Inference Of

Access And Of Copying Is “Bad Science” And

Threatens To Eliminate “Copying” As An Ele-

ment of Copyright Infringement.

It is a fundamental tenet of copyright that similarity

does not alone create liability; there is no infringement in

the absence of copying. Mazer v. Stein, 347 U.S. at 218. Yet,

the decision below held, in the alternative, that evidence

of “striking similarity” may create an inference of access,

which would support a finding of copying, even where

there is no other evidence of access. App. A, at 8a-9a. In

doing so, the Fourth Circuit purported to distinguish

itself from the Fifth {ircuit which allows copying to be

proven without a showing of access where striking sim-

ilarity precludes the possibility of independent creation.32

F. Supp. 19, 21 (D. Md. 1992), aff'd, 14 F. 3d 596 (4th Cir. 1993);

Peel & Co., Inc. v. Rug Market, 238 F. 3d 391, 394-95 (5th Cir. 2001);

Ferguson v. National Broadcasting Co., 584 F. 2d 111, 113 (5th Cir.

1978); Selle v. Gibb, 741 F. 2d 896, 901 (7th Cir. 1984); Meta-Film

Assocs., Inc. v. MCA, Inc., 586 F. Supp. 1346, 1355-59 (C.D. Cal.

1984) (followed in many circuits); Herzog v. Castle Rock

Entertainment, 193 F. 3d 1241, 1251, 1256 ([1th Cir. 1999); Benson

v. Coca-Cola Co., 795 F. 2d 973, 975 (11th Cir. 1986). And, see Ellis

v. Diffie, 177 F. 3d 503 (6th Cir. 1999) (no “clear error” in rejecting

speculative evidence of access through intermediary record

executive).

32 Accord: Since “independent creation” simply means that

defendant did not copy from plaintiff’s work, Keeler Brass Co. v.

Continental Brass Co., 862 F. 2d 1063, 1066 (4th Cir. 1988); Latman,

at 704-05, this is of course tautological and reduces the rule to an

assertion that some types of similarity implicitly must have

resulted from copying plaintiff's work.

App. A at 8a, citing Ferguson v. National Broadcasting Co.,

584 F. 2d 111, 113 (5th Cir. 1978).53 But, even though the

Fourth Circuit states that “access remains an indispens-

able part of a copyright infringement claim”, the Fourth

Circuit, just like the Fifth Circuit, dispenses with the need

to prove “access” by simply stating that similarity —- one

half of the equation creating an inference of actual copy-

ing - is one way to demonstrate access. Ibid.

Decisions of other circuits still require some evidence

of access, no matter how slight, before the “striking sim-

ilarity” doctrine may raise an inference of copying.*4

Even so, the use of “striking similarity” to create an

inference of access remains “a controversial method”. 1

Patry, at 700.

Worse, the doctrine as commonly employed is just

“bad” science. See Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 593 (1993) (describing “good sci-

ence” ).35

An early decision, Keene v. Wheatley, 14 F. Cas. 180,

195 (C.C.E.D. Pa. 1861) (No. 7,644), illustrates the “scien-

tific” rationale for the “striking similarity” doctrine:

33 Accord: Baxter v. MCA, Inc., 812 F. 2d 421, 423-24 & n. 2

(9th Cir.), cert. denied sub nom., Williams v. Baxter, 484 U.S. 954

(1987).

34 4 Nimmer, § 13.02[B] at 13-22; Selle, 741 F. 2d at 902

(emphasis added) (even “striking similarity” cannot create an

inference of copying without “some minimum threshold of proof

which demonstrates that the inference of access is reasonable.”);

accord: Grubb, 88 F. 3d at 5-6. See R. Osterberg, “Striking

Similarity and the Attempt to Prove Access and Copying in

Music Plagiarism Cases,” 2 J. Copyright, Ent. & Sports L. 85

(1983). -

35 Even if the expert opinion were not strictly speaking

about “scientific knowledge,” this Court applies the

gatekeeping function as well to testimony based on “technical”

and other “specialized knowledge.” Kumho Tire Co. v.

Carmichael, 526 U.S. 137 (1999).

[A] prolonged series of thoughts or statements,

each one in itself simple, cannot have been

expressed originally by two persons in the same

words arranged in the same succession. In lan-

guage of a mathematician, such a coincidence is

infinitely improbable. It has, from experience,

been long recognized as absolutely impossible.

Thus, the striking similarity doctrine assumes a sci-

entific basis — statistics - and the assumption that experts

or even laypersons may reach a demonstrably rational

decision about such a conclusion. But, neither in this case

nor in any other case%* where the doctrine has been

invoked, has there been any expert yet to explain for the

trier of fact (1) how many possible differences there could

be in two works produced at the same time about the

same subject matter, and (2) at what point the number or

nature of similarities (and at what level of similarity) one

would conclude with certainty that statistically the sim-

ilarities were other than the result.of coincidence, reliance

of prior common sources or independent creation.3”

Instead, by allowing experts to casually testify about such

statistical judgments, the case law undermines the funda-

mental copyright principle that even if two works are

identical, they are not infringing unless one has been

copied from the other. Mazer v. Stein, 347 U.S. at 218.

36 One possible exception is proof that a defendant has

copied errors in plaintiff’s work. 4 Nimmer, § 13.03[C] at 13-74 to

-75. In Financial Information, Inc. v. Moody’s Investors Service, 751

F. 2d 501, 503, 509 (2d Cir. 1984), the court approved expert

testimony by -a mathematician that defendants’ copying of

planted errors showed a 95% probability of copying.

37 Nor is there any showing by experts that their

“methodology” is reliable, subject to peer review, has a known

or potential error rate or widespread acceptance within a

relevant scientific community. Daubert, 509 U.S. at 593-95. One

result is that experts have learned to sprinkle their testimony

about similarities with the word “striking.”

The decision below did not rely on any finding of

literal copying but rather on the selection, coordination

and arrangement of “several public domain elements

which are not protectible.” App. A at 10a. Indeed, both

drawings involve a shield with a B for “Baltimore” and

some symbols drawn from the Maryland State flag, and

wings no doubt bespeaking the association with a

“raven”. In the face of such commonplace elements, it is

not clear how any expert could plausibly contend that the

similarities could only be the result of copying rather than

reliance on common sources, independent creation or

coincidence.

IV. CONCLUSION

The Fourth Circuit’s decision threatens to subject

creative efforts, speech interests, and substantial invest-

ments to a judicial policy that allows unpredictable and

unprincipled legal decisions, with attendant deleterious

results to a national copyright policy. Too much speech

will be wrongly punished and too many reputations will

be sullied while the Fourth Circuit’s decision percolates

through the federal courts, even if the Fourth Circuit

ultimately tries in later decisions to modify or correct its

misstep. The Petition for a writ of certiorari should be

granted.

DATED: April 27, 2001

Respectfully submitted,

Louts P. Petricu

Davip ARONOFF

LEopoLpD, PETRICH & SMITH

Attorneys for Amici Curiae

Motion Picture Association of

America, Inc., Recording Industry

Association of America, Inc., and

American Film Marketing Association

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