LOYOLA OF LOS ANGELES

ENTERTAINMENT LAW REVIEW

Volume Thirty-Two

2011–2012

Number 1

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LOYOLA

OF LOS ANGELES

ENTERTAINMENT

LAW REVIEW

Volume 32

2011-2012

Number 1

TABLE OF CONTENTS

ARTICLE

PROTECTIONS FOR VIRTUAL PROPERTY: A MODERN RESTITUTIONARY APPROACH

by Jordan L. Ludwig

SELECTIONS FROM THE GRAMMY FOUNDATION ENTERTAINMENT LAW INITIATIVE 2010 WRITING COMPETITION

THE ROBOT’S RECORD: PROTECTING THE VALUE OF INTELLECTUAL PROPERTY IN MUSIC WHEN AUTOMATION DRIVES THE MARGINAL COST OF MUSIC PRODUCTION TO ZERO

by William P. Jacobson

VIRAL VIDEOS: MEDICINE FOR RECORD LABELS IN THE FIGHT AGAINST COPYRIGHT TERMINATION?

by Jay Patel

RECORD LABELS, FEDERAL COURTS, AND THE FCC: USING UNCERTAINTY IN COMMUNICATIONS LAW TO FIGHT ONLINE COPYRIGHT INFRINGEMENT

by Brian Pearl

RUNNING ON EMPTY: THE PROBLEM WITH POLITICIANS AND STEALING (MUSIC)

by Maral Vahdani

NOTE

BLOOD, BRAINS, AND BLUDGEONING, BUT NOT BREASTS: AN ANALYSIS AND CRITIQUE OF BROWN V. ENTERTAINMENT MERCHANTS ASSOCIATION

by Margaret E. Jennings

LOYOLA OF LOS ANGELES

ENTERTAINMENT LAW REVIEW

Please cite this issue as: 32 LOY. L.A. ENT. L. REV. — (2012).

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Copyright © 2012

Loyola of Los Angeles Entertainment Law Review

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PROTECTIONS FOR VIRTUAL PROPERTY: A MODERN RESTITUTIONARY APPROACH

“Why would anyone pay $50,000 for a virtual property?”[1]

Jordan L. Ludwig[*]

Virtual online worlds have become a staple of modern society. Through an avatar, individuals may enter into virtual worlds, where they can do anything from completing epic quests to speculating on virtual “real estate.” Many virtual worlds have unique currencies, which have real-world value because of the high demand for in-game property. Disputes over virtual property, however, remain mostly, if not entirely, ungoverned by any body of law. This Comment seeks to address how to handle conflicts that arise over virtual world property. It concludes that the reemerging law of restitution, as promulgated in the Restatement (Third) of Restitution and Unjust Enrichment, provides the breadth and flexibility necessary to properly resolve legal disputes that have, and will continue to arise over virtual property in virtual worlds.

I. INTRODUCTION

As foreign as they may seem, virtual worlds[2] have become an increasingly potent economic force.[3] For example, economists estimated that in 2007, the total gross domestic product of virtual worlds surpassed seven billion dollars.[4] The proliferation of virtual worlds has attracted an immense and continually growing population of users.[5] The global video game market, which was worth around $56 billion in 2010, is now “twice the size of the recorded music industry,” and sales are expected to rise to $82 billion by 2015.[6]

Perhaps the most surprising feature to those unfamiliar with virtual worlds is the vast commercial economy present in each game. Each world’s currency fluctuates with the American dollar from day to day based on rates of supply and demand—no different from the euro or the British pound.[7] Like in the real world, almost any item a user is willing to pay for is available for purchase.[8] This item becomes the user’s virtual property. However, unlike tangible personal property and real property, virtual property does not exist.[9] Herein arises the problem this Comment seeks to address.

In their current state, exchanges between individual gamers in virtual worlds are “relatively ungoverned under the laws of most countries.”[10] Contributing to this problem is the fact that it is difficult to equate “a bundle of mathematic algorithms . . . simulat[ing] the look and utility of a real-world good” with something one would purchase in a real-world store.[11] Nevertheless, it is indisputable that virtual property, both real and personal, is valuable to at least a segment of the population.[12] As such, protections must be in place to ensure that peoples’ rights are protected.

This is not the first comment to propose protections for virtual property rights.[13] However, most prior scholarship has focused on applying the common law of property or contracts to virtual worlds.[14] By contrast, this paper argues that the reemerging law of restitution and unjust enrichment should be used to protect virtual property rights until state legislatures or courts take the opportunity to craft their own unique laws. Part II of this Comment provides a background into virtual worlds and disputes over virtual property. Part III discusses the current governance of virtual worlds, past proposals to reform this governance, and the deficiencies of the current model and proposed models. Part IV provides an overview of the law of restitution and unjust enrichment, using the Restatement (Third) of Restitution and Unjust Enrichment (“Restatement (Third)”)[15] and various federal and state cases, in addition to courts’ interpretation of this complex and misunderstood body of law. Part V discusses a proposed application of restitution and unjust enrichment principles to virtual property rights. Lastly, Part VI contains concluding remarks on the matter.

II. BACKGROUND: VIRTUAL WORLDS AND VIRTUAL PROPERTY

A. Video Games vs. Virtual Worlds

As many readers may be unfamiliar with what exactly constitutes a virtual world, some background will be helpful. First, virtual worlds must be distinguished from typical video games. Video game law scholars Lipson and Brain identify two discernible characteristics:

(1) [A] “game” is static in the sense that nothing happens in the world once “Game Over” appears, whereas virtual worlds are active 24/7 and constantly change, even when a particular player is not in them; and (2) virtual worlds allow for interaction among all the many thousands of users [or more] who may be logged on at the same time.[16]

This distinction raises the question: what attracts users to dedicate so much time and money to virtual worlds when there is no clear objective or endgame involved?

In an influential article, authors F. Gregory Lastowka and Dan Hunter suggest such enjoyment lies in the “rich social interaction” that virtual worlds provide.[17] While some virtual worlds resemble a traditional video game, in that they contain elements of completing quests and adventures, others center on the social interactions between users.[18] For example, in one world known as There, users can have a drink at a tiki bar or hike a volcano.[19] It is easy to see how this opportunity could appeal to someone who lacks the wherewithal to enjoy this vacation in the real world or to someone who is simply looking for a new social scene.

B. Economic Implications of Virtual Worlds

Virtual worlds do not simply provide their users with social opportunities and other intangible benefits, such as exploring an exotic place.[20] Like the real world, virtual worlds offer fertile ground for business ventures.[21] This fact is perhaps the most intriguing aspect of virtual worlds, as it may be perplexing to grasp how one can earn an income from participating in something that essentially is intangible.

Virtual worlds such as Second Life have become so popular that “it is now possible to work in a fantasy world to pay rent in reality.”[22] For example, one Michigan resident, while unemployed for three and a half years, earned a sole income of approximately $25,000 per year by trading artifacts in the virtual world Ultima Online.[23] In Ultima Online, virtual goods range from a $5 pair of sandals to a $150 battle axe to a $750 fortress.[24] Much more uncommon, but still in existence, are people who have amassed a vast amount of wealth participating in virtual worlds.

A 2006 study reported that at least ten users of Second Life earned over $200,000 from in-game commercial activity.[25] For example, “Anshe Chung” is the first virtual world millionaire.[26] Chung amassed approximately one million dollars in assets in Second Life and other virtual worlds.[27] Chung, the avatar of Ailin Graef (CEO of Anshe Chung Studios), obtained this fortune by selling virtual real estate.[28]

Regrettably, the prospect of money inevitably invites crime and fraud.[29] Like the real world, virtual worlds have become home to fraudulent investment schemes that swindle users out of substantial amounts of money.[30] The tolerance of this deceit, the considerable latitude given to players in perpetrating these schemes, and the impunity that accompanies it, account for a large part of the problem of virtual worlds.

C. The Real World Consequences of Having

No Virtual Property Protections

The following incidents will serve as baseline paradigms for the remainder of this Comment to help illustrate important principles articulated within. The first set illustrates the types of conflicts that can arise among users of virtual worlds. The second describes a district court case that will serve as a paradigm for conflicts between users and developers.

1. Paradigm 1: Conflicts Among Users

Several financial scandals have precipitated conflict among virtual world users.[31] One notable scandal occurred in EVE Online[32] when the EVE Investment Bank defrauded its investors of $125,000.[33] One avatar, known as “Cally,” created the Eve Investment Bank, which promised large-scale investors a yield of nine percent interest.[34] Cally collected hundreds of billions of Inter Stellar Kredits (the in-game currency) over a nine-month period and eventually vanished, taking all of the investors’ money.[35] The disappearance of such an immense sum of money from market circulation “sent shockwaves through the virtual economy and threw the EVE Online community into chaos.”[36]

A similar situation resulted with the Ginko Financial Bank in Second Life.[37] Ginko Financial promised an exorbitant forty-four percent annual return on investments.[38] “Nicholas Portocarrero,” the avatar who ran the bank, would not reveal his investments.[39] After two major financial events occurred in Second Life, investors panicked and tried to withdraw more funds than Ginko Financial had available.[40] Eventually, Ginko Financial declared itself to be insolvent, and Portocarrero ceased logging into Second Life.[41] Many analysts agree that Ginko Financial was a Ponzi scheme.[42] Overall, Ginko Financial Bank owed approximately $740,000 in obligations to its investors.[43]

Unfortunately, the consequences of disputes among virtual world users can be far more tragic than financial loss.[44] In June 2005 Qiu Chengwei, a Legend of Mir III player, murdered another player over an in-game property dispute.[45] Qiu had lent the victim a rare, enchanted in-game sword, which the victim then sold for approximately $870.[46] After Qiu contacted the authorities, who “refused to take any steps to redress the injury,” Qiu tragically and fatally took matters into his own hands.[47]

These scenarios illustrate why protections providing for the recovery of virtual property are essential. The avatar who ran Ginko Financial Bank was able to leave Second Life with impunity, leaving “no trail for authorities to follow, if there had been any authorities.”[48] Furthermore, in the aftermath of the Ginko incident, a Los Angeles Times article reported: “There have been some calls for the government to step in, but Washington is pretty much scratching its head right now. ‘Most members of Congress don’t understand what this is all about . . . .’”[49]

2. Paradigm 2: Conflicts Between Users and Developers

Bragg v. Linden Research, Inc. became the first case to test virtual property rights in an American court.[50] Marc Bragg’s avatar, “Mark Woebegone,” was “a moderately successful nightclub owner and inventor in Second Life.”[51] Bragg also invested in virtual land—an investment he claims was “induced” by representations made by the operators of Second Life, Linden and its CEO Philip Rosedale.[52] Bragg purchased a parcel of land, known as “Taessot,” by “exploiting a loophole within Second Life’s auction software.”[53] After Linden learned of this improper purchase, it froze Bragg’s account, which “effectively confiscat[ed] all of the virtual property and currency that he maintained . . . [in] Second Life.”[54] Linden did not compensate Bragg and intended to resell his land and nightclub to another user.[55] Bragg brought suit under several causes of action, including “violations of the Pennsylvania Unfair Trade Practices and Consumer Protection law, fraud, conversion, intentional interference with contractual relations, breach of contract, unjust enrichment, and tortious breach of the covenant of good faith and fair dealing.”[56] Linden, pursuant to Second Life’s Terms of Service (“TOS”), moved to compel arbitration.[57]

Unfortunately, the court did not rule on any issue other than the arbitration clause of the TOS.[58] One commentator called Bragg a “missed opportunity.”[59] The court merely held that the compulsory arbitration clause was unconscionable, and thus, unenforceable.[60] Bragg and Linden ultimately settled out of court, leaving the question of virtual property rights in the United States unanswered.[61] The U.S. courts and legislatures are no further along in regulating virtual property than many years ago, when the virtual world industry was first emerging.[62] It is in this context that my proposal is rooted. However, a discussion of relevant law must come first.

III. THE LAW OF VIRTUAL WORLDS

This section is broken down into two parts. The first part discusses the contracts between users and developers that are currently the only source of governance of virtual worlds, in addition to past proposals that other authors have posited. The second part discusses the current inadequacies of the existing system and the flaws of prior proposals.

A. Current and Proposed Protections for Virtual Property

1. Terms of Service and End User Licensing Agreements as

Governing Devices

Because of the failure of Bragg v. Linden Research, Inc. to articulate any law governing virtual property,[63] the sole source of governance over virtual worlds and virtual property lies in the software’s Terms of Service (“TOS”) or End User License Agreements (“EULAs”).[64] These agreements create a contract[65] between the software developer and the user, which enumerate specific rights and prohibitions that accompany game-play. If users decline to agree to the TOS or EULA, they are prohibited from entering the “world.”[66] Professor Balkin provides the following explanation of the typical TOS and EULA:

[G]ame designers can control what goes on in the game through contract. In most cases, in order to participate in virtual worlds, players must agree to the platform owner’s Terms of Service . . . or End User License Agreement . . . . The EULA covers features of proper play and decorum that cannot easily be written into the code. Game designers enforce social norms in the game space by kicking out (or threatening to kick out) people who violate the EULA.[67]

Another commentator claims that the purpose of the EULA is to “protect the investments of the world-makers, to curb liability, and to allow game developers to retain a measure of control over the goings-on in the virtual world.”[68] In short, the TOS and EULA appear to favor the rights of the developer over the rights of the user. With this in mind, the following paragraphs will examine the role of the TOS and EULA in the arena of virtual property.

At a virtual world’s creation, the developer has property rights to everything in it.[69] The development of a virtual world is obviously an exacting task. However, conflicts over ownership are bound to arise, as they did in Bragg,[70] when users are permitted to bring their own objects into, or create objects within, the developer’s world.[71] If users devote their time and effort to creating or acquiring unique items, it would seem apparent that they should have a claim of ownership to those items. Rather than deferring to “default notions of copyright to decide ownership rights,” game developers have placed these rights in their respective EULAs and TOS agreements.[72]

Unsurprisingly, these TOS and EULAs insulate, or are at least written to insulate, game developers from any suit regarding virtual property. For example, while users maintain the intellectual property rights to their original content submissions to Second Life,[73] the TOS state, “[y]ou agree that Linden Lab has and may exercise the right in its sole discretion to pre-screen, refuse, or delete any Content or services from the Service or disable any user’s access to the Service without notice or liability . . . .”[74] Other virtual world TOS and EULAs contain similar provisions.[75]

From these various TOS and EULA provisions, there is a trend toward developer omnipotence over virtual property rights. This trend holds true even if users retain intellectual property rights to their creations, as they do in Second Life. As seen in Bragg and the Second Life TOS,[76] a user can invest time and money into creating or maintaining property, only to lose it with no compensation or justification. This model is unsustainable in a rapidly growing industry. In 2004, Lastowka and Hunter suggested: “We will likely see courts rejecting EULAs to the extent that they place excessive restrictions on the economic interests of users . . . . [W]e can expect a large number of lawsuits rooted in these property-rights disputes.”[77] Surprisingly, Bragg is the only suit to have come to light thus far. However, this fact does not reflect virtual world participants’ demand for rights.[78] For instance, one virtual world theorist proposed a “Declaration of the Rights of Avatars,” modeled after the French Declaration of the Rights of Man and the U.S. Bill of Rights.[79]

Regrettably, players do not have a similar doctrine of rights.[80] Rather, as one author argues, it is the EULAs that “function as a mix between a constitution and a holy book.”[81] Scholars criticize this model, whereby players remain bound by the strict terms of the TOS or EULA of their respective worlds.[82] The next section explores several past proposals providing alternatives to the status quo.

2. Prior Proposals to Protect Virtual Property

This subsection briefly discusses scholarship concerning protections for virtual property, including (a) the application of the common law of property and (b) the application of the common law of contract to virtual worlds.

a. Property law

Scholars advocate for the application of common law property to virtual property interests, which is perhaps the most obvious answer to the problem of the lack of virtual world property rights.[83] On a theoretical level, several articles extensively discuss the application of the very foundations of property theory to virtual property ownership and interests.[84] Other scholars take a more practical approach, advocating that the common law of property be used to provide protections for virtual property interests.[85]

For example, one commentator argues, “certain virtual property shares many of the characteristics [of] actual property, and should not be excluded from legal protection as property simply because it initially seems unfamiliar.”[86] Thus, applying the common law of property to virtual worlds would provide adjudicative bodies with a set of predictable and equitable rules.[87] Another author suggests the possibility of implementing an adverse possession standard in virtual worlds.[88] Yet another interesting article analyzes whether various aspects of the common law of property, such as the laws of finders, gifts, abandonment, and adverse possession, apply within Second Life.[89] Although some of these traditional property concepts, such as the law of gifts, actually apply within virtual worlds, the authors are careful to note that the applicability of these concepts is limited in scope.[90] The foregoing are a few examples of the common law of property’s application to virtual worlds; several other scholars have made similar suggestions. Still, other authors have suggested applying contract law to protect virtual property rights.[91]

b. Contract law

Because contracts (in the forms of TOS and EULAs) are the only governing feature of virtual worlds, a relatively large body of scholarship addresses contract law’s application to virtual worlds.[92] Much is written on the deficiencies of TOS and EULAs governing virtual worlds,[93] but less is written on applying contractual remedies to facilitate virtual property protection.[94] The two, however, are inextricably linked, causing some authors to apply contractual remedies to virtual worlds.[95]

Kurt Hunt, author of a leading article on the topic, argues that virtual world users have the potential to assert contractual defenses of unconscionability, misrepresentation, and promissory estoppel in response to the “EULA problem.”[96] Regarding unconscionability, Hunt asserts that in order for the court to “void[] any part of a virtual world EULA,” it must issue a holding of substantive unconscionability—a holding he believes is possible.[97] Similarly, in his view, misrepresentation may be utilized to allow a user to recover “without ever having to reach the question of property rights in virtual property.”[98] Lastly, Hunt states that there may be a potential cause of action under the doctrine of promissory estoppel.[99] For example, a court may find that game creators induced players to invest real money in the game based upon “the apparent ‘realness’ of their in-game money.”[100]

While these arguments are persuasive, their application is limited by their own very nature and by that of current virtual world governance and functionality.[101] In contrast, the law of restitution and unjust enrichment, which will be discussed in later sections, provides the breadth and flexibility that traditional property and contract law do not.[102]

B. The Lack of Virtual World Protections

Because of this issue’s novelty, there is very little case law or statutory authority to critique. Even so, the current state of the law is arguably imperfect. Part 1 of this subsection discusses the inadequacies of TOS and EULAs to govern virtual worlds, and Part 2 discusses the shortcomings of other authors’ proposals.

1. EULAs and TOS Are Insufficient to Govern Virtual Worlds

As discussed above,[103] the creators of virtual worlds use TOS and EULAs as substitutes for the law that governs real-world activity.[104] These contracts, however, are insufficient governing mechanisms. As virtual worlds become more advanced and more closely reflect the real world, a contract, no matter how sophisticated and detailed, will simply be unable to handle the gamut of scenarios that will inevitably arise.[105] One author writes, “[p]roperty and tort systems are good examples of the kind of background, default rules that communities need but that contracts cannot cheaply provide. Protection of private property and protection of personal and dignitary interests are . . . critical to online communities . . . .”[106] The law is not restricted to contract because contract is limited in scope—namely, protecting against the unjust breach of a promise.[107] As seen in the EVE Online and Second Life financial scandals, the injuries that users can sustain in virtual worlds extend beyond the scope of contract law.[108]

The United States lags behind other nations in enforcing virtual property rights.[109] For example, South Korea applies its criminal law to enforce virtual world norms. Chinese courts apply labor law to virtual worlds, stating that a “game service provider must return virtual property to [a] player who has worked to obtain it.”[110] Likewise, the Hong Kong police instituted a Technology Crimes Division, whose province includes virtual world property theft.[111] By contrast, U.S. courts have taken no action to resolve the problem of virtual property disputes.[112] Furthermore, this author knows of no agency that specializes in, or even responds to, disputes in virtual worlds. Accordingly, as of this writing, virtual worlds in the United States are governed solely by “private law contract.”[113]

Regrettably, the contracts that govern virtual worlds do not provide adequate protection for even the most basic property interests.[114] For example, the developers of EVE Online took no action against the avatar known as Cally who perpetrated the scandal.[115] The reason given for failing to take punitive action against the avatar was that she had not violated any rule of the game.[116] However, one author, after having read and analyzed the EVE Online TOS and EULA, concluded that the “TOS clearly forbids . . . any form of pyramid scheme . . . .”[117] This exemplifies a fundamental problem of contractual governance of virtual worlds; users and developers can interpret the governing contracts in completely different ways. In the EVE Online investment scandal, the developer did not discipline the user because the developer believed no violation of the TOS occurred; however, a legal scholar reached the opposite conclusion.[118]

It is also worth noting that had the developer reached the conclusion that Cally violated the TOS, terminating Cally’s account was the only remedy available to injured players.[119] While this remedy might provide some vindication for injured players, it clearly will not leave them financially whole. Based on the foregoing paragraphs, contract law cannot solely sustain the governance of virtual worlds. While contract law may be appropriate in some instances, the field is not broad enough to protect the rights of users on its own.

2. Current Proposals Cannot Effectively Protect Virtual World Users’ Virtual Property Rights

a. Property law

Proposals to treat virtual property as real property (meaning tangible real-world property, not land), and, therefore, provide it with common law property protections, are persuasive.[120] In fact, over the past two centuries, traditional property law has evolved to provide far greater protections for intangible property interests—namely, in the area of intellectual property.[121] Despite this shift, property law is likely insufficient to fully protect virtual property interests.[122]

First, there is a serious question whether courts will consider property that is acquired in the virtual world. In Bragg v. Linden Research, Inc., the Pennsylvania District Court had the opportunity to recognize a virtual property right in Marc Bragg’s virtual real estate and personal property,[123] but chose not to rule on the issue.[124] It is reasonable to believe that other courts may follow a similar path of avoidance.[125]

Furthermore, courts may be hesitant to apply doctrines such as adverse possession to virtual worlds.[126] Adverse possession “generally creates an absolute title to real property in fee simple, which is as good as title by patent from the state or title by deed from the record owner . . . .”[127] There is no “title” involved in the acquisition of virtual real property. Moreover, there are no virtual world equivalents to recording systems or title assurance—items traditionally associated with real property acquisition.[128] Consequently, judges may be unable to apply this doctrine to virtual property. Lastly, issues exist regarding conferring virtual real property in “fee simple.” If, for instance, the developer went out of business and was forced to shut down its servers, the shutdown would effectively deny virtual real property owners of a true fee simple absolute.

Applying property law to the paradigms listed in the background section of this Comment further demonstrates its inadequacy to govern virtual worlds.[129] First, in a conflict among users, such as the EVE Online and Second Life Ponzi schemes, property law likely offers no remedy.[130] Because disputes of this variety often focus on virtual currency,[131] virtual currency first must be classified as a type of property. A virtual personal property classification makes the most sense in this instance. Even so, there are no clear property principles that would provide recovery in this context. While an aggrieved user may sue for conversion or trespass to chattels, these are causes of action in tort, and recovery in property would be difficult.

Recovery might be easier under the Bragg paradigm. Recall that in Bragg, virtual real property was confiscated from the plaintiff.[132] It is possible that the plaintiff in such a paradigm may be able to successfully assert a wrongful taking argument.[133] Some governments have the power of eminent domain that allows “a governmental entity to take privately owned property and convert it to public use.”[134] A plaintiff might creatively argue that game developers are effectively the government of the virtual world that they created. Therefore, under the U.S. Constitution, if developers take privately owned land, the taking must be for public use, or just compensation is required.[135] Although a stretch, it is not inconceivable that a court would hold developers to this standard.[136] However, this argument only applies to conflicts between users and developers and provides no remedy to users in conflict with other users. Consequently, while there are compelling arguments for applying traditional property law to virtual worlds, judges may feel uncomfortable doing so.

b. Contract law

As discussed in Part III.B.1, existing TOS and EULAs provide inadequate protections for virtual world property rights. This short subsection explains why several more specific doctrines of contract law also do not provide the necessary protections for virtual world users.

One author has suggested using the doctrines of unconscionability, misrepresentation, and promissory estoppel to protect virtual world users by voiding existing EULAs and TOS.[137] These arguments are persuasive, yet they suffer from one flaw that renders them insufficient to provide adequate virtual property protections: these doctrines provide virtually no protections in the first paradigm of this paper—conflicts between users.

When users enter a virtual world, they enter into a “clickwrap” agreement with the developer.[138] While this clickwrap agreement may be an enforceable contract governing conduct in a virtual world, it is not an agreement between users. In the event of a legal dispute between users, there is no contract between the two parties (unless the users entered into a private contract, or an implied contract existed). In effect, the contract doctrines of unconscionability, misrepresentation, and promissory estoppel would be irrelevant in most conflicts of this variety.

On the other hand, these doctrines might be relevant for the Bragg paradigm. The Bragg court held that the arbitration provision of the EULA in question was procedurally and substantively unconscionable.[139] There are compelling reasons, many of which have been mentioned in this Comment, explicating why a court may hold a TOS or EULA term substantively unconscionable. Terms that allow developers to confiscate or remove user content (property) at any time and for any reason[140] almost beg a holding of substantive unconscionability. Nevertheless, one significant problem with using contract law remains: contractual uncertainty.

Therefore, while contract law may provide some protections in the case of a conflict between a virtual world user and a developer, the existing state of TOS and EULAs limit the protections contract law is capable of providing when the conflict is between users. The last two parts of this Comment explore an alternative that provides superior protection to virtual property rights than property and contract law. This alternative is the law of restitution and unjust enrichment.

IV. RESTITUTION AND UNJUST ENRICHMENT

The law of restitution and unjust enrichment is a vast and complex area of the law. The goal of Subpart A is to provide a concise and cohesive background to the guiding principles of restitution and a few specific areas of the law that pertain to the problem at hand. Subpart B provides a critique of modern courts’ misapplication of this area of law.

A. The Law of Restitution and Unjust Enrichment

1. Defining Restitution and Unjust Enrichment

The basic principle of restitution and unjust enrichment appears simple on its face. Section 1 of the Restatement (Third) of Restitution and Unjust Enrichment (“Restatement (Third)”) states, “[a] person who is unjustly enriched at the expense of another is liable in restitution to the other.”[141] Despite this apparent simplicity, scholars, judges, and lawyers remain uncertain about the law.[142] As Professor Kull, a leading scholar in the field, argues, “[s]ignificant uncertainty shrouds the modern law of restitution.”[143] This uncertainty exists notwithstanding the fact that restitution is a “fundamental part of our law.”[144]

A vigorous and ongoing academic debate surrounds the definition of restitution and unjust enrichment.[145] The broadest controversy surrounding the law of restitution focuses on whether restitution is a body of law in itself, or whether it is merely remedial.[146] Restatement (Third) controversially adopts the former approach, stating:

A more important misconception is that restitution is essentially a remedy, available in certain circumstances to enforce obligations derived from torts, contracts, and other topics of substantive law. On the contrary, restitution . . . is itself a source of obligations, analogous in this respect to tort or contract. A liability in restitution is enforced by restitution’s own characteristic remedies, just as a liability in contract is enforced by what we think of as contract remedies. . . . .[147]

In short, restitution, according to the Restatement (Third), is an independent substantive body of law, no different from tort or contract law, containing its own rights and remedies.[148]

The concept of restitution as an independent substantive body of law may seem foreign to many in the legal community.[149] It is not often that one hears of a claimant suing in restitution.[150] For example, if a person steals a hundred-dollar bill from another, the injured party may elect to sue in tort, perhaps for conversion, instead of restitution.[151] However, as Professor Kull notes, this wrong both “simultaneously injures the plaintiff and enriches the defendant.”[152] Accordingly, two separate bases for liability exist—unjust loss and unjust enrichment—and the plaintiff may pursue whichever method he or she pleases.[153] In the majority of cases, however, the distinction between types of recovery is merely in name, as the plaintiff will ultimately have the hundred dollars returned, regardless of the avenue chosen.[154]

2. The Substantive Law of Restitution

Restitution is a body of law where “(1) substantive liability is based on unjust enrichment, (2) the measure of recovery is based on defendant’s gain instead of plaintiff’s loss, [or] (3) the court restores to plaintiff, in kind, his lost property or proceeds.”[155] This perspective is the same as that reflected in the Restatement (Third).[156]

First, comment a to Section 1 of the Restatement (Third) states, “[t]he source of liability in restitution is the receipt of an economic benefit under circumstances such that its retention without payment would result in the unjust enrichment of the defendant at the expense of the plaintiff.”[157] Professor Kull’s second component is reflected in section 2(1), which states, “Liability in restitution is based on and measured by the receipt of a benefit . . . .”[158] This concept is, of course, contrary to “damages, which measures the remedy by the plaintiff’s loss . . . .”[159] Nevertheless, it is important to remember that the receipt of a benefit alone does not necessarily induce liability in restitution; the enrichment must be one the law treats as unjust.[160] Lastly, Professor Kull’s third component of restitution is seen in Section 4 of the Restatement (Third), which states, “[t]he function of remedies in restitution is to prevent or redress the unjust enrichment of one or more persons at the expense of the plaintiff.”[161] This may be accomplished by a “reformation of instruments,” a monetary judgment that removes any unjust enrichment, or the court may confer a superior right to a piece of property, fund, or other item in dispute by the plaintiff.[162]

The above are merely a few provisions contained in the Restatement (Third), and it is important to note that the provisions are part of a discussion draft. As such, they are subject to change. However, in the seven tentative drafts published since the project began in 2000, the introductory sections (1–4) have remained unchanged.[163] Although there are more than four sections to the Restatement (Third), the majority are irrelevant to this Comment.[164] However, several of the relevant provisions will now be discussed. A leading treatise states:

Cases in which there is no tort or relevant contract are often the most difficult cases for determining unjust enrichment. We can see that the unjust enrichment conception of restitution will be most important in dealing with cases where title reasoning does not readily work—especially in cases in which the benefit to the defendant derives from services, money or other intangibles. . . . . [165]

This concept is extremely important to this Comment. Since it is debatable whether virtual property is governed by traditional property law; whether one can be compensated for a virtual tort (if that even exists); or whether TOS or EULAs allow for recovery in contract, a body of law applicable to situations falling within gray areas of the law is particularly useful. Professor Sherwin argues that “unjust enrichment as a legal principle . . . encourages judicial creativity.”[166] It is this judicial creativity upon which my argument is predicated.

The Restatement (Third) contains many provisions inducing liability in restitution.[167] First, section 6 states, “[p]ayment of money resulting from a mistake as to the existence or extent of the payor’s obligation . . . gives the payor a claim in restitution . . . .”[168] Perhaps more important is section 9, stating in pertinent part, “[a] person who confers on another, by mistake, a benefit other than money has a claim in restitution as necessary to prevent the unjust enrichment of the recipient.”[169] This provision is particularly important, as it directly recognizes and allows for recovery in restitution for conferred benefits other than money. This language is broad and will play an important role in this Comment’s proposal. Lastly, section 13 provides a third relevant provision, stating, “[a] transfer induced by fraud or by an innocent, material misrepresentation is subject to rescission at the instance of the transferor or a successor in interest.”[170] Rescission under this section includes a claim to the recovery of benefits conferred.[171] In short, this section allows recovery in the event a transaction for money, goods, or any other benefit, was induced by fraud or misrepresentation.

B. Courts’ (Mis)Application of Restitution

Courts have not handled restitution with a deft hand.[172] In fact, one commentator complains that two courts’ handlings of restitution and unjust enrichment were “little short of gibberish.”[173] These words are neither used often nor lightly in describing judicial opinions. However, they are often warranted in commenting on many courts’ handling of restitution.

Unless the Restatement (Third) is incorrect in its assertion that restitution is an independent substantive body of law, a surprising number of courts handle restitution erroneously.[174] For example, the Alaska Supreme Court wrote, “[u]njust enrichment is not itself a theory of recovery. ‘Rather, it is a prerequisite for the enforcement of the doctrine of restitution; that is, if there is no unjust enrichment, there is no basis for restitution.’”[175] This statement accurately reflects the Restatement (Third)’s view of restitution and unjust enrichment.[176] The court continues, however, stating, “[r]estitution also is not a cause of action; it is a remedy for various causes of action.”[177] The misconception that restitution is merely a remedy is a common one.[178]

Although restitution and unjust enrichment often overlap with contract and tort law, such overlap does not justify misapplying the principles of restitution and unjust enrichment.[179] There are many instances where contract, property, tort, and other areas of law overlap; however, in none of those cases is property considered the sole remedy. Perhaps the most egregious error involving restitution came in a Connecticut Appellate Court opinion. There, the court correctly cited a Restatement (Third) provision, but the citation incorrectly included the word “contracts”: “Restatement (Third), Contracts, Restitution and Unjust Enrichment, § 2(d) (Discussion Draft March 31, 2000).”[180] Recall that the Restatement (Third) states that restitution is an independent body of law, analogous to contract, not dependent on it.[181]

Although the Connecticut Appellate Court’s error is particularly egregious, it is by no means the only error courts have made implementing the law of restitution. There are too many instances to name, but even with the advent of the Restatement (Third), courts have been slow to correctly apply the law of restitution.[182] Accordingly, courts must learn the law of restitution, and must begin to apply it correctly if the law of restitution has any hope of legitimization.

V. PROPOSAL

Finally, with an understanding of virtual worlds, restitution, and unjust enrichment, and their current shortcomings in the law, the confluence of this emerging legal issue with this flexible remedial body of law—the heart of this paper—may now be discussed. This section correctly applies the law of restitution, as articulated in the Restatement (Third) of Restitution and Unjust Enrichment (“Restatement (Third)”), to the two paradigms employed throughout this paper. This application demonstrates the superiority of restitution over contract law and property law in protecting virtual property rights. Before proceeding to this application, a brief summary of overarching restitution principles is warranted.

A. Brief Redux

Restitution is particularly useful for protecting virtual property because of its flexibility and general principle of preventing unjust enrichment.[183] It emerged “to avoid unjust results in specific cases—as a series of innovations to fill gaps in the rest of the law.”[184] Although the Restatement (Third) has attempted to unify a series of principles that result in unjust enrichment, the general principle that “unjust enrichment must be disgorged” still remains.[185]

Professor Kull noted, “[t]he central problem of the law of restitution is to identify those instances of enrichment that the law regards as unjust; in other words, to distinguish benefits that have to be paid for from those that we can retain without payment.”[186] One cannot reasonably argue that the perpetrators of the financial schemes discussed in the background section of this Comment can justly retain the virtual currency they obtained through their fraud. This conclusion is amplified by applying both Professor Kull’s three-pronged analysis of restitution and the Restatement (Third). These three central components of restitution will now be applied to both paradigms.

B. Restitution Under Paradigm 1

Recall that Professor Kull’s first component of restitution, which is reflected in Restatement (Third) section 1, is that a person who is unjustly enriched is liable in restitution.[187] This is the most basic example of restitution and can be clearly applied to the first paradigm concerning virtual property disputes.[188] The perpetrators of the Second Life and EVE Online scandals, and the Legend of Mir III sword thief, were unjustly enriched by any sense of the definition. These individuals took advantage of innocent users who entrusted their virtual currency or personal property with others.[189] The users’ trust was then violated by the perpetrators’ deceptive acts.[190]

Opponents of this proposal might cite comment b of section 1, which states, “[i]n reality, the law of restitution is very far from imposing liability for every instance of what might plausibly be called unjust enrichment.”[191] However, the scope of what this Comment is meant to address is outside the current problem. Comment b provides the following instances as examples where unjust enrichment does not apply: (1) “the performance of a valid contract that was too hard a bargain”; and (2) “profits made through another’s misfortune.”[192] The first example is inapplicable in the financial scheme cases, unless a contract between users existed, and none did. The second example is also inapplicable because the perpetrators of these schemes did not profit through anyone’s misfortune; they profited through fraud and misrepresentation.

Fraud and misrepresentation are covered under section 13 of the Restatement (Third).[193] The Second Life and EVE Online victims have a strong case under section 13(1), which states, “[a] transfer induced by fraud . . . is subject to rescission . . . . Rescission under this section includes a claim to the recovery of benefits conferred.”[194] In the case of financial schemes, fraud induced the transfer of virtual currency.[195] Users would not have transferred their virtual currency had they known the transferee would simply flee with it. Furthermore, the Legend of Mir III player who transferred his sword to his friend surely intended for it to be returned; otherwise, he would not have murdered this friend.[196] Had the player been allowed to recover the value of the sword, or the sword itself, this tragic crime may have been prevented. In short, in disputes between virtual world users, where no contract exists, section 13 provides a compelling means of recovery. This is not to say that this section provides the exclusive means for recovery under restitution—far from it. However, until more disputes arise in virtual worlds, any other hypothetical is purely conjectural.

Professor Kull’s second component of restitution and section 2 of the Restatement (Third) both state that liability in restitution is measured by the defendant’s gain, rather than by the plaintiff’s loss.[197] This section is far more straightforward to apply than the previous section. The only determination to be made here is the amount by which the defendant was unjustly enriched. This can be calculated by measuring the in-game market value of the virtual property wrongfully confiscated. In the cases of the financial scandals or the virtual sword, restitution can be measured by using current virtual currency exchange rates to calculate the U.S. dollar amount of virtual currency wrongfully obtained. For example, the Legend of Mir III player who sold the sword was unjustly enriched by the amount for which he sold the sword, approximately $870.[198]

Lastly, Professor Kull’s third component of restitution and section 4 of the Restatement (Third) is that the court will restore to plaintiff the amount necessary to eliminate the unjust enrichment of the defendant.[199] This amount will be determined the same way as the amount in the preceding paragraph—by using virtual currency rates or the in-game market value of the virtual property in question. Using the Legend of Mir III example, if the court found that the defendant was unjustly enriched $870 by wrongfully selling another individual’s sword, it could then award the plaintiff $870 in restitution.

C. Restitution Under Paradigm 2

As observed several times throughout this Comment, a different dynamic exists when the dispute is between a virtual-world developer and a virtual world user, such as the conflict that occurred in Bragg v. Linden Research, Inc.[200] Chapter 4 of Part II of the Restatement (Third) contains instances of liability in restitution arising when two parties have formed a contract.[201] For example, section 31 allows for restitution where a contract fails for indefiniteness or fails “to satisfy an extrinsic requirement of enforceability such as the Statute of Frauds.”[202] Comment a of section 31 states that “[t]here are . . . numerous additional reasons why [a] . . . contract might be . . . ‘unenforceable[,]’” such as improper contract formation.[203] Comment a states that these other grounds for unenforceability are covered by Section 9.[204] Recall that Section 9 allows for recovery when a benefit other than money is unjustly conferred on a recipient.[205]

Applying these rules to the Bragg case,[206] it is possible that had the court employed the Restatement (Third), Bragg would have been compensated for his virtual property.[207] Because the court ruled that part of the EULA was unconscionable, the court could have potentially invalidated the contract or specific provisions of the contract.[208] Therefore, even if Bragg had violated the contract first, if the contract was unenforceable, Bragg’s violation should not matter. The virtual real property and personal property in question should be classified as a benefit conferred other than money. Linden Lab would have been unjustly enriched by its retention and resale of Bragg’s virtual property. Therefore, under sections 2 and 4 of the Restatement (Third), Linden would be required to compensate Bragg under the law of restitution.[209]

The situation that occurred in Bragg is obviously not the only dispute that might potentially arise between users and developers.[210] Fortunately, the breadth of the law of restitution would likely provide for recovery in the event a user is wrongfully deprived of virtual property.[211] The analysis in the foregoing paragraph regarding the enforceability of contracts in sections 31 and 9 would remain applicable.[212] Therefore, incorporating the analysis of prior commentators, if plaintiffs could successfully argue misrepresentation or other contractual protections by a developer,[213] they could recover in restitution under sections 31 and 9.[214] This further demonstrates the span and flexibility of restitution in incorporating other areas of more traditional law, which a court may not feel comfortable applying to protect interests in virtual property.

The analysis under this paradigm for Professor Kull’s second and third components of restitution is the same as under the first paradigm.[215] In brief, the court would determine how much the plaintiff was unjustly enriched and subsequently compensate the plaintiff for that amount. This concept can be easily illustrated by applying the Bragg paradigm.[216] A court would simply take the value that Linden Lab, or any other developer involved in a dispute, earned by selling Bragg’s confiscated land and award Bragg this value in restitution, assuming, of course, that this action constituted unjust enrichment.

VI. CONCLUSION

Virtual worlds continue to increase in number and popularity.[217] If the technology and sophistication of virtual worlds continues to progress, more and more disputes will inevitably arise. The issue can only avoid litigation for so long, and a court will eventually be forced to rule on it. Accordingly, courts must begin to consider the manner in which they will adjudicate claims over virtual property. If applied correctly, restitution and unjust enrichment could provide the protections long overdue for virtual property. Restitution has the breadth and elasticity necessary to cover both paradigms articulated in this Comment.[218] Regardless of whether a court chooses to adopt property, contract, tort, restitution, or any other body of law, it is indisputable that protections for virtual property are necessary.

1. Regina Lynn, Stroker Serpentine, Second Life’s Porn Mogul, Speaks, Wired (Mar. 30, 2007), http://www.wired.com/culture/lifestyle/commentary/sexdrive/2007/03/sex_drive0330.

* J.D., Loyola Law School, 2011; B.A., University of Maryland, College Park, 2008. The author would like to give special thanks to Professor Bob Brain for his extremely helpful guidance in selecting and narrowing this topic to a manageable level. Additionally, the author would like to thank the staff of Volumes 31 and 32 of the Loyola of Los Angeles Entertainment Law Review for its hard work editing this article. Particular gratitude is owed to Chief Production Editors Matt Carter and Jenna Spatz, as well as to Jackie Lecholtz-Zey and Jay Jeffrey Fragus.

2. See infra Part II.A.

3. Bobby Glushko, Note, Tales of the (Virtual) City: Governing Property Disputes in Virtual Worlds, 22 Berkeley Tech. L.J. 507, 507 (2007); see also Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds, 90 Va. L. Rev. 2043, 2043–44 (2004) (stating that video games are becoming increasingly lucrative).

4. Glushko, supra note 3, at 507.

5. Alisa B. Steinberg, Note, For Sale—One Level 5 Barbarian for 94,800 Won: The International Effects of Virtual Property and the Legality of Its Ownership, 37 Ga. J. Int’l & Comp. L. 381, 385 (2009).

6. All the World’s a Game, The Economist (Dec. 10, 2011), http://www.economist.com/node/21541164.

7. See Ashley Saunders Lipson & Robert D. Brain, Computer and Video Game Law: Cases, Statutes, Forms, Problems & Materials 511 (2009).

8. See id. (listing items available for purchase, such as clothes, cars, property, concerts, and VIP rooms in clubs).

9. Id. at 509.

10. Steinberg, supra note 5, at 384.

11. Theodore J. Westbrook, Comment, Owned: Finding a Place for Virtual World Property Rights, 2006 Mich. St. L. Rev. 779, 780 (2006).

12. See, e.g., Farnaz Alemi, An Avatar’s Day in Court: A Proposal for Obtaining Relief and Resolving Disputes in Virtual World Games, 11 UCLA J.L. & Tech. 1, 4–5 (2007).

13. See, e.g., Steinberg, supra note 5, at 412–19; Westbrook, supra note 11, at 804–11.

14. See, e.g., Steinberg, supra note 5, at 395–98; Westbrook, supra note 11, at 801–04.

15. Restatement (Third) of Restitution & Unjust Enrichment (Discussion Draft 2000).

16. Lipson & Brain, supra note 7, at 505–06.

17. F. Gregory Lastowka & Dan Hunter, The Laws of the Virtual Worlds, 92 Calif. L. Rev. 1, 6 (2004) (noting that the average player of EverQuest, a popular virtual world, “spends about twenty hours a week within the . . . world”).

18. Glushko, supra note 3, at 509–10.

19. Lastowka & Hunter, supra note 17, at 8–9.

20. See, e.g., id. at 1.

21. See Alemi, supra note 12, at 2–4.

22. Lastowka & Hunter, supra note 17, at 11.

23. Alemi, supra note 12, at 4–5.

24. Lipson & Brain, supra note 7, at 512.

25. Id. at 513.

26. Joshua A.T. Fairfield, The God Paradox, 89 B.U. L. Rev. 1017, 1051 n.221 (2009).

27. Id.

28. Kurt Hunt, Note, This Land Is Not Your Land: Second Life, CopyBot, and the Looming Question of Virtual Property Rights, 9 Tex. Rev. Ent. & Sports L. 141, 143 (2007).

29. See, e.g., srfto, Stealing in Virtual Worlds Is a Real Crime, Gossip Gamers (Jan. 20, 2009, 2:59 PM) http://www.gossipgamers.com/stealing-in-virtual-worlds-is-a-real-crime/ (recounting the story of a young boy defrauded of his in-game items by an adult scammer).

30. See infra Part II.B.1.

31. Glushko, supra note 3, at 521–22.

32. See id. at 521–23 (describing the EVE Online scandal).

33. Id. at 521.

34. Id.

35. Id.

36. Id. at 522.

37. See Amanda J. Penick, Comment, Legal Recourse When Virtual-World Banks Pack Up Their Toys and Go Home, 77 U. Cin. L. Rev. 233, 237–40 (2008) (describing Ginko Financial Bank’s economic status).

38. Id. at 237–38.

39. Id. at 238.

40. See id. at 239–40.

41. Id. at 240.

42. Id.

43. Penick, supra note 37, at 240.

44. Westbrook, supra note 11, at 789 (explaining that the events in virtual life have real-world consequences).

45. Id.

46. Id.

47. Id.

48. Alana Semuels, Virtual Bank’s Second Life Scheme Raises Real Concerns, L.A. Times, Jan. 22, 2008, at C1.

49. Id. (quoting Dan Miller, a senior economist with the Congressional Joint Economic Committee).

50. Steven J. Horowitz, Note, Competing Lockean Claims to Virtual Property, 20 Harv. J.L. & Tech. 443, 449 (2007); see Steinberg, supra note 5, at 406, 410 (describing two previous lawsuits that did not go to trial).

51. Glushko, supra note 3, at 524.

52. Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 596–97 (E.D. Pa. 2007).

53. Steinberg, supra note 5, at 411; Bragg, 487 F. Supp. 2d at 597.

54. Bragg, 487 F. Supp. 2d at 597.

55. Glushko, supra note 3, at 525.

56. Steinberg, supra note 5, at 411.

57. Bragg, 487 F. Supp. 2d at 603.

58. Steinberg, supra note 5, at 411–12.

59. Id. at 412.

60. Id. at 411–12.

61. Id. at 412.

62. See id. at 384–85.

63. See generally Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007).

64. See Joshua A.T. Fairfield, Anti-Social Contracts: The Contractual Governance of Virtual Worlds, 53 McGill L.J. 427, 429 (2008) [hereinafter Anti-Social Contracts].

65. There is a circuit split regarding the enforceability of contracts of this type (known also as “clickwrap” or “shrinkwrap licenses”). For example, in the well known case of ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996), Circuit Judge Easterbrook wrote, “[s]hrinkwrap licenses are enforceable unless their terms are objectionable on grounds applicable to contracts in general (for example, if they violate a rule of positive law, or if they are unconscionable).” In contrast, in Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 20 (2d Cir. 2002), then-Circuit Judge Sotomayor wrote that these agreements were unenforceable if “a reasonably prudent Internet user in circumstances such as these would not have known or learned of the existence of the license terms before responding to defendants’ invitation . . .”

66. For example, the preface to the Second Life TOS provides:

This agreement (“Agreement” or the “Terms of Service”) describes the terms on which Linden Research, Inc. and Linden Research United Kingdom, Ltd. (collectively “Linden Lab”) offer you access to Second Life . . . . This offer is conditioned on your agreement to all of the terms and conditions contained in the Terms of Service, including the policies and terms linked to or otherwise referenced in this Agreement.

By using Second Life, you agree to and accept these Terms of Service. If you do not so agree, you should decline this Agreement, in which case you are prohibited from accessing or using Second Life.

Terms of Service, Second Life, http://secondlife.com/corporate/tos.php (last visited Mar. 15, 2012) [hereinafter Second Life TOS].

67. Balkin, supra note 3, at 2049.

68. Westbrook, supra note 11, at 788–89.

69. Lipson & Brain, supra note 7, at 510. This is consistent with John Locke’s labor-desert theory, which states that if an individual (in this case, the developer) has invested time and labor into developing and acquiring possessions, that individual deserves property rights. Horowitz, supra note 50, at 450–54. Horowitz discusses two compelling claims in his article. First, under Locke’s theory, users should have property rights as they have “invested time and effort in developing their avatars and acquiring in-world possessions . . . .” Id. at 450. In contrast, developers have a similar claim as the development and maintenance of virtual worlds requires a vast amount time and effort as well. Id. The author concludes that in Lockean terms, game developers have a strong claim to their world and the products they create; however, their claim to user-created goods is “much weaker.” Id. at 453–54.

70. Bragg, 487 F. Supp. 2d 593.

71. Lipson & Brain, supra note 7, at 510.

72. Id.

73. Second Life TOS, supra note 66, § 7.1.

74. Id. § 4.3.

75. For example, the EVE Online EULA states,

[y]ou have no interest in the value of your time spent playing the Game, for example, by the building up of the experience level of your character and the items your character accumulates during your time playing the Game. Your Account, and all attributes of your Account, including all corporations, actions, groups, titles and characters, and all objects, currency and items acquired, developed or delivered by or to characters as a result of play through your Accounts, are the sole and exclusive property of CCP, including any and all copyrights and intellectual property rights in or to any and all of the same, all of which are hereby expressly reserved.

End User License Agreement, § 11(B), EVE Online, http://www.eveonline.com/pnp/eula.asp (last visited Feb. 21, 2012); see also World of Warcraft Terms of Use, § 7, Blizzard.com, http://us.blizzard.com/en-us/company/legal/wow_tou.html (last visited Feb. 21, 2012).

76. Bragg, 487 F. Supp. 2d 593; Second Life TOS, supra note 66, § 4.3.

77. Lastowka & Hunter, supra note 17, at 50–51.

78. Id. at 51 (stating that some believe avatars should have a political voice).

79. See id.

80. Id. at 52–53 (arguing that rights for virtual worlds are controversial).

81. Glushko, supra note 3, at 516.

82. See Anti-Social Contracts, supra note 64, at 429 (arguing that EULAs are not the “best tool” for governing virtual worlds); see also Fairfield, supra note 26, at 1022 (arguing that game creators should not exert so much control over users).

83. Lastowka & Hunter, supra note 17, at 50.

84. See Lipson & Brain, supra note 7, at 509–10 (applying traditional property laws to virtual worlds). See generally Horowitz, supra note 50 (arguing that users have strong property rights in virtual worlds); Lastowka & Hunter, supra note 17, at 44–50 (applying utilitarian and personality theories of property, in addition to the Lockean theory).

85. See Hunt, supra note 28, at 172 (arguing that virtual worlds should be entitled to protection under common property laws).

86. Id.

87. Id.

88. Steinberg, supra note 5, at 420.

89. See Elizabeth Townsend Gard & Rachel Goda, The Fizzy Experiment: Second Life, Virtual Property and a 1L Property Course, 24 Santa Clara Computer & High Tech. L.J. 915, 935–40 (2008).

90. See id. at 957.

91. See Anti-Social Contracts, supra note 64, at 432 (stating that contract law governs online communities).

92. See, e.g., id. at 435–38.

93. See supra Part III.B.1.

94. See Anti-Social Contracts, supra note 64, at 438 (stating that there is a significant literature gap in examining the application of contract law to virtual worlds).

95. See id. (arguing that people erroneously believe that contract law has unlimited ability to govern virtual worlds).

96. Hunt, supra note 28, at 153.

97. Id. at 154.

98. Id. at 155.

99. Id. at 155–56.

100. Id. at 155.

101. See generally supra Part III.A.1.

102. See generally infra Part IV.

103. See supra Part III.A.1.

104. See generally Anti-Social Contracts, supra note 64, at 429.

105. See id. at 429–30.

106. Id.

107. Emily Sherwin, Restitution and Equity: An Analysis of the Principle of Unjust Enrichment, 79 Tex. L. Rev. 2083, 2108 (2001).

108. Glushko, supra note 3, at 520–22; Penick, supra note 37, at 237–40.

109. See Anti-Social Contracts, supra note 64, at 430 (stating that the U.S. relies on private contract law to govern virtual worlds, while many other countries favor public legislation).

110. Id.

111. See Steinberg, supra note 5, at 409.

112. See id. at 410–12 (stating that Bragg was a “missed opportunity” for U.S. courts and quoting game developer Raph Koster: “The [virtual world] industry has once again managed to dodge legal questions regarding ownership of ‘virtual property.’”).

113. See Anti-Social Contracts, supra note 64, at 430.

114. See, e.g., Glushko, supra note 3, at 527–28 (stating that existing EULAs are inadequate to govern virtual worlds, which will become increasingly apparent as those virtual worlds continue to grow).

115. See Hannah Yee Fen Lim, Who Monitors the Monitor? Virtual World Governance and the Failure of Contract Law Remedies in Virtual Worlds, 11 Vand. J. Ent. & Tech. L. 1053, 1063 (2009); see supra Part II.B.1.a.

116. See Lim, supra note 115, at 1063.

117. Id. at 1064.

118. See id.

119. Id. at 1064 (noting that neither the EULA nor TOS for EVE Online contains a clause to recompense players who have been defrauded).

120. See Anti-Social Contracts, supra note 64, at 452 (noting that a real property-type system would be a “significant step forward” in providing legal rights for virtual world members).

121. Lastowka & Hunter, supra note 17, at 40–41.

122. See Anti-Social Contracts, supra note 64, at 451–52 (noting that work is required before property law can be applied to online property).

123. Bragg, 487 F. Supp. 2d at 595.

124. Steinberg, supra note 5, at 410–12 (explaining that because Bragg settled, courts were unable to “make a strong statement for the existence of virtual property as legally protected property”) (emphasis added).

125. See id. at 412 (noting that when the virtual worlds industry has confronted the issue of the existence of legally protectable virtual property in the courts, the industry takes measures to dodge the legal question).

126. Id. at 412–17.

127. 3 Am. Jur. 2d Adverse Possession § 1 (2009).

128. See e.g., Second Life TOS, supra note 66, § 7.

129. See supra Part II.B.1.

130. Glushko, supra note 3, at 528 (suggesting that EULAs are not sufficient to invest property rights in players); Penick, supra note 37, at 237.

131. Glushko, supra note 3, at 521–22; Penick, supra note 37, at 237.

132. Bragg, 487 F. Supp. 2d at 597.

133. See Glushko, supra note 3, at 529.

134. 26 Am. Jur. 2d Eminent Domain § 2 (2004).

135. See U.S. Const. amend. V.

136. See generally Glushko, supra 3 note, at 529 (analogizing the act of developers deleting accounts to the act of governments taking property); Anti-Social Contracts, supra note 64, at 1058 (comparing constitutional and federal causes of action to the state of remedies available to “denizens of virtual worlds”).

137. Hunt, supra note 28, at 153–56.

138. See Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 21–22 (2d Cir. 2002) (discussing how users would enter into such an agreement).

139. Bragg, 487 F. Supp. 2d at 611.

140. Second Life TOS, supra note 66, § 4.3.

141. Restatement (Third) of Restitution & Unjust Enrichment § 1 (Discussion Draft 2000) (defining in the comments the terms “restitution” and “unjust enrichment” and explaining that they are inextricably linked with each other. First, comment a states that liability in restitution is “the receipt of an economic benefit under circumstances such that its retention without payment would result in the unjust enrichment of the defendant at the expense of the plaintiff.” Comment b addresses unjust enrichment as a “term of art” and states, “[t]he substantive part of the law of restitution is concerned with identifying those forms of enrichment that the law treats as ‘unjust’ for purposes of imposing liability.”).

142. Andrew Kull, Rationalizing Restitution, 83 Calif. L. Rev. 1191, 1191 (1995); see John P. Dawson, Unjust Enrichment: A Comparative Analysis 7 (1951) (arguing that the rule of unjust enrichment, like a mathematic equation, appears easy to apply, but, in reality, the concept changes throughout history along with cultural norms); see also Doug Rendleman, Restating Restitution: The Restatement Process and Its Critics, 65 Wash. & Lee L. Rev. 933, 936 (2008) (“Many lawyers, judges, and professors misunderstand and misstate basic restitution principles.”).

143. Kull, supra note 142, at 1191; see Douglas Laycock, The Scope and Significance of Restitution, 67 Tex. L. Rev. 1277, 1277 (1989) (“Few law schools teach a separate course in restitution [and] no restitution casebook is in print . . . .”); see also Rendleman, supra note 142, at 936 (stating “many smaller American states lack a decision on particular restitution points” and that states of all sizes have “muddled restitution analysis or have made just plain incorrect restitution decisions”).

144. Hanoch Dagan, Unjust Enrichment: A Study of Private Law and Public Values 1 (James Crawford & David Johnston eds., 1997).

145. See Kull, supra note 142, at 1193 (“[A] threshold problem confronting the American law of restitution . . . is one of definition.”).

146. Sherwin, supra note 107, at 2108 (arguing that there are three different ways to understand restitution law: (1) providing correction to unjust results, (2) solving restitution problems, and (3) expressing a common theme); see also Kull, supra note 142, at 1191 (arguing that restitution should not be viewed as a remedial option).

147. Restatement (Third) of Restitution & Unjust Enrichment § 1 cmt. h (Discussion Draft 2000) (emphasis omitted).

148. Id.

149. See Kull, supra note 142, at 1222 (commenting that case books and treatises describe restitution as a remedy and not as an independent source of liability).

150. See id. (arguing that plaintiffs sue to recover damages and do not distinguish between whether restitution is a remedy for a wrong in another area of substantive law or an independent source of liability).

151. Id. at 1225 (citing an example from Laycock, supra note 143, at 1283).

152. Id.

153. Chaim Saiman, Restating Restitution: A Case of Contemporary Common Law Conceptualism, 52 Vill. L. Rev. 487, 500–01 (2007); see also Kull, supra note 142, at 1225.

154. Saiman, supra note 153, at 501.

155. Kull, supra note 142, at 1224 (quoting Laycock, supra note 143, at 1293) (emphasis omitted).

156. See Restatement (Third) of Restitution & Unjust Enrichment § 1 cmt. h (Discussion Draft 2000).

157. Id. § 1 cmt. a.

158. Id. § 2(1).

159. Dan B. Dobbs, Law of Remedies: Damages—Equity—Restitution 369 (2d ed. 1993).

160. Restatement (Third) of Restitution & Unjust Enrichment § 2 cmt. a (Discussion Draft 2000).

161. Id. § 4(1).

162. Id. § 4(2).

163. See Restatement (Third) of Restitution & Unjust Enrichment Reporter’s Introductory Memorandum (Tentative Draft No. 1, 2001) (“The four sections of Chapter 1 will be revised and submitted for approval only at the completion of the rest of the project.”); see also Restatement (Third) of Restitution & Unjust Enrichment §§ 1–4 (Tentative Draft No. 7, 2010).

164. See Restatement (Third) of Restitution & Unjust Enrichment § 5 (Discussion Draft 2000) (discussing instances that give rise to liability in restitution).

165. Dobbs, supra note 159, at 375; see also Saiman, supra note 153, at 491 (“[R]estitution is shown to be a body of positive law that accounts for recoveries not captured by traditional contract and tort doctrine.”) (emphasis added).

166. Sherwin, supra note 107, at 2113.

167. See, e.g., Restatement (Third) of Restitution & Unjust Enrichment §§ 6(2), 9(1), 13(1) (Discussion Draft 2000).

168. Id. § 6(2).

169. Id. § 9(1) (emphasis added).

170. Id. § 13(1).

171. Restatement (Third) of Restitution & Unjust Enrichment § 15 (Tentative Draft No. 1, 2001).

172. Kull, supra note 142, at 1195 (noting the uncertainty in this area of law).

173. James Steven Rogers, Restitution for Wrongs and the Restatement (Third) of the Law of Restitution and Unjust Enrichment, 42 Wake Forest L. Rev. 55, 56 (2007).

174. See generally Kull, supra note 142, at 1195–96 (discussing how modern courts’ and counsels’ lack of familiarity with restitution law affects case outcomes).

175. Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1143 n.17 (Alaska 1996) (quoting Alaska Sales & Serv., Inc. v. Millet, 735 P.2d 743, 746 n.6 (Alaska 1987)).

176. Restatement (Third) of Restitution & Unjust Enrichment § 1 cmt. b (Discussion Draft 2000).

177. Reeves, 926 P.2d at 1143 n.17 (citing Alaska Sales & Serv., Inc., 735 P.2d at 746) (emphasis added).

178. See Kull, supra note 142, at 1195–96 (noting that if restitution continues to be neglected, it will return to its pre-Restatement status where it was largely classified as remedial).

179. See Laycock, supra note 143, at 1283–90 (discussing this overlap and distinguishing restitution as a source of liability and a measure of recovery).

180. United Coastal Indus., Inc. v. Clearheart Constr. Co., 802 A.2d 901, 906 (Conn. App. Ct. 2002) (emphasis added).

181. Restatement (Third) of Restitution & Unjust Enrichment § 1 cmt. h (Discussion Draft 2000); see also Sherwin, supra note 107, at 2108 (noting that tort law is based on “unjust harm,” contract law is based on “unjust breach of promise,” and restitution is based around “unjust enrichment”).

182. Courts in various jurisdictions have misapplied the law of restitution. See, e.g., Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1167 (9th Cir. 1996) (“[U]njust enrichment is an action in quasi-contract . . . .”); Allstate Ins. Co. v. Administratia Asigurarilor de Stat, 948 F. Supp. 285, 312 (S.D.N.Y 1996) (stating that unjust enrichment and quantum meruit “‘are related theories that are best addressed as a whole[,] since the latter is merely the means by which the former is remedied’”) (quoting Newman & Schwartz v. Asplundh Tree Expert Co., 917 F. Supp. 265, 270 (S.D.N.Y. 1996)); Williams v. Nat’l Hous. Exch., Inc., 949 F. Supp. 650, 653 (N.D. Ill. 1996) (stating that “[u]njust enrichment is a quasi-contractual theory of recovery” and that if an express contract existed between the parties in dispute, there could be no claim for unjust enrichment); Melchior v. New Line Prods., Inc., 131 Cal. Rptr. 2d 347, 357 (Ct. App. 2003) (citing Dinosaur Dev. Inc. v. White, 265 Cal. Rptr. 525, 527 (Ct. App. 1989)) (stating that unjust enrichment is “synonymous” with restitution and that this is not a theory of recovery).

183. Sherwin, supra note 107, at 2108.

184. Laycock, supra note 143, at 1278.

185. Id.

186. Kull, supra note 142, at 1226.

187. Id. at 1224 (quoting Laycock, supra note 143, at 1293); see also Restatement (Third) of Restitution & Unjust Enrichment § 1 (Discussion Draft 2000).

188. See supra Part II.B.1.a.

189. Westbrook, supra note 11, at 789.

190. Id.

191. Restatement (Third) of Restitution & Unjust Enrichment § 1 cmt. b (Discussion Draft 2000).

192. Id.

193. Restatement (Third) of Restitution & Unjust Enrichment § 13(1) (Tentative Draft No. 1 2001).

194. Id.

195. See supra Part II.B.1.a.

196. Westbrook, supra note 11, at 789.

197. Kull, supra note 142, at 1224 (quoting Laycock, supra note 143, at 1293); see also Restatement (Third) of Restitution & Unjust Enrichment § 2 (Discussion Draft 2000).

198. Westbrook, supra note 11, at 789.

199. Kull, supra note 142, at 1224 (quoting Laycock, supra note 143, at 1293); see also Restatement (Third) of Restitution & Unjust Enrichment § 4 (Discussion Draft 2000).

200. Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007).

201. Restatement (Third) of Restitution & Unjust Enrichment ch. 4, pt. II, introductory note (Tentative Draft No. 3, 2004).

202. Id. § 31(1)(a)–(b).

203. Id. § 31 cmt. a.

204. Id.

205. Restatement (Third) of Restitution & Unjust Enrichment § 9(1) (Discussion Draft 2000) (“A person who confers on another, by mistake, a benefit other than money has a claim in restitution as necessary to prevent the unjust enrichment of the recipient.”) (emphasis added).

206. Bragg, 487 F. Supp. 2d.

207. See Restatement (Third) of Restitution & Unjust Enrichment § 31(1)(a)–(b) cmt. a (Tentative Draft No. 3, 2004); Restatement (Third) of Restitution & Unjust Enrichment § 4(1)–(2) (Discussion Draft 2000).

208. See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996).

209. Restatement (Third) of Restitution & Unjust Enrichment §§ 2(1), 4(1)–(2) (Discussion Draft 2000).

210. See Bragg, 487 F. Supp. 2d at 595.

211. See, e.g., Restatement (Third) of Restitution & Unjust Enrichment § 31(1)(a)–(b) (Tentative Draft No. 3, 2004).

212. Id.; Restatement (Third) of Restitution & Unjust Enrichment § 9(1) (Discussion Draft 2000).

213. See Hunt, supra note 28, at 155.

214. Restatement (Third) of Restitution & Unjust Enrichment § 31(1)(a)–(b) (Tentative Draft No. 3, 2004); Restatement (Third) of Restitution & Unjust Enrichment § 9(1) (Discussion Draft 2000).

215. Kull, supra note 142, at 1224.

216. Bragg, 487 F. Supp. 2d at 595.

217. See supra Part I.

218. See generally Restatement (Third) of Restitution & Unjust Enrichment § 31(1)(a)–(b) (Tentative Draft No. 3, 2004); Restatement (Third) of Restitution & Unjust Enrichment § 9(1) (Discussion Draft 2000).

19

THE ROBOT’S RECORD: PROTECTING THE VALUE OF INTELLECTUAL PROPERTY IN MUSIC WHEN AUTOMATION DRIVES THE MARGINAL COST OF MUSIC PRODUCTION TO ZERO

William P. Jacobson[*]

Technologies such as the Internet and MP3 file format have taken their toll on the traditional business models used by entities like record labels and music retailers. Now, technological innovations such as open-sourcing, crowdsourcing, and compusourcing are resulting in a democratization of music production that threatens to end the monopoly skilled musicians enjoy in the music-creation marketplace. These innovations are also driving the generation of an increasing supply of music with few or no reserved copyrights and a potential decline in the average value of intellectual property in music. This Comment explores the threat computer-generated music poses to the music industry. It further proposes that a “Natural Talent” certification mark may provide a way for musicians to certify their works as “authentic” and differentiate their music from that produced by computers.

I. INTRODUCTION

Information technologies and the Internet are game-changing forces within the music industry.[1] Virtually any conversation on this topic includes words and phrases such as “Napster,” “iTunes,” “going viral,” “digital rights management,” “streaming,” “peer-to-peer downloads,” and “piracy.”[2] Discussions primarily pertain to the consumer end of the music supply chain, the segment that includes the activities of marketing, distribution, and retailing―the stages just prior to the moment of consumption.[3] This segment witnessed fundamental changes in the mid- to late-nineties, such as the standardization of the MP3 file format in 1993[4] and the release of the Napster peer-to-peer file downloading system in 1999.[5] These developments transformed the relationship between music fans and record labels and resulted in huge financial losses for businesses in the recording industry due to piracy.[6] The public’s adoption of new ways of finding, sharing, purchasing, and listening to music caused a major shift in bargaining power among players in the music industry.[7]

However, the forces of digitization also loom large at the opposite end of the supply chain—where music is created—and continue the assault on traditional business models.[8] This second front has received far less attention from experts, despite its potential to be the origin of some of the most transformational changes the music industry has thus far endured: the end of the monopoly that skilled musicians currently enjoy over the creation and the release of massive quantities of music with few or no reserved copyrights.[9] This Comment explores the threat computer-generated music poses to the music industry. It further proposes the introduction of a “Natural Talent” certification mark to mitigate the erosion of the value of intellectual property in music by appealing to consumers’ preference for the authenticity inherent to music created through genuine human talent.

II. OPEN-SOURCING, CROWDSOURCING, AND COMPUSOURCING, OH MY!

Just as technology makes it easier for consumers to obtain music, technology also makes it easier for musicians to create music.[10] Musicians can set up professional-quality recording studios in their homes, while commercial studios are closing and sound engineers are hard-pressed to find employment.[11] Sophisticated music and audio production software that was once prohibitively expensive and complicated for most musicians,[12] like industry-standard Avid’s Pro Tools, can now be purchased for as little as $699 and run on a standard personal computer.[13] Digital sound libraries and component plug-ins that are several gigabytes in size can now fit easily on inexpensive hard drives,[14] replacing thousands of dollars worth of hardware synthesizers, samplers, sequencers, mixers, and physical instruments.[15] Even the human voice can be filtered and sanitized of imperfections by software like Antares’ Auto-Tune, a tool that was cutting-edge when Cher used it in her 1998 song “Believe” but is now used routinely by both amateur and Grammy Award-winning singers alike.[16] This expanding computer music software market grew from nearly $150 million in 1999 to approximately $425 million in 2008.[17] Empowered by new tools that boost their productivity, more musicians (and non-musicians) are creating music than ever before.[18]

A. Open-Sourcing

In 1998, several prominent leaders in the software industry met in Silicon Valley, California and coined the term “open-source” to refer to a philosophy of transparency, collaboration, innovation, and “free software” among computer programmers.[19] Musicians participate in open-sourcing by offering lyrics, music tracks, sound samples, and entire songs under an artistic license such as Creative Commons (“CC”), which allows musicians to explicitly and automatically give certain rights to licensees (likely, anyone who accesses their work), while reserving certain other rights to themselves.[20] The Federal Circuit Court has upheld these licenses, stating that copyright holders who engage in open-source licensing are entitled to injunctive relief under copyright law, beyond the monetary damages authorized if open-source licenses were recognized as mere contracts.[21] Musicians post their creations on websites like Opsound.org, which encourages visitors to the site to “download, share, remix, and reimagine.”[22] Respected artists such as Rivers Cuomo of Weezer, The Roots, John Legend, Yo Yo Ma, and Nine Inch Nails have each uploaded stems (vocal, drum, and guitar tracks) under CC licenses from which others can create new music.[23]

Perhaps more significant than the free sharing of simple audio files (such as MP3s), is the sharing of the underlying session files generated by different production software. Session files expose the individual notes of melodies and chords, parameters defining instrument properties and special effects, tempo settings, and the sequence of tracks.[24] With these files and the software that supports them, a user can replace a Steinway D grand piano with a Yamaha C7 in a score with a few simple clicks of a mouse.[25] Some of the best software available for this type of music development work is itself open-source, and available free of charge.[26]

Creative Commons estimates that there were approximately 350 million CC-licensed works in 2009, an increase from 4.7 million licensed in 2004.[27] This number will likely continue to increase as more individuals with varying degrees of musical ability embrace the open-source philosophy by sampling, remixing, and modifying countless nth generation derivative works and uploading them to the Internet where they will, no doubt, be fruitful and multiply.[28]

B. Crowdsourcing

Crowdsourcing is the strategy of utilizing the relatively inexpensive labor of a large group of people to accomplish tasks traditionally completed by a much smaller group of more specialized individuals, such as employees.[29] In recent years, the Internet has dramatically increased the ability of people to collaborate and communicate.[30] Such decentralized communication has resulted in a slew of crowdsourcing projects, many of which have been promoted as contests.[31] Even the United States government took notice of the potential for crowdsourcing when Congress passed the America COMPETES Reauthorization Act of 2010, which empowers Federal Agencies to “carry out a program to award prizes competitively to stimulate innovation.”[32]

Music production is well suited for a crowdsourcing model.[33] First, music has very broad appeal, and thus there are vast numbers of individuals interested in its creation.[34] Second, because an individual song can be as short as a couple of minutes, even those with limited musical experience consider themselves up to the challenge.[35] Third, as discussed previously, the open-source movement has made music building blocks and construction tools both inexpensive and accessible.[36] Finally, music is easily stored in digital form, allowing for its dissemination across the Internet.

Many organizations have emerged to foster crowdsourced music, and perhaps the most popular is Indaba Music.[37] Indaba Music, found at IndabaMusic.com, is an organization that facilitates over 600,000 music collaboration projects among its 525,000 members across more than 100 countries.[38] Another example is Aviary’s Music Creator, an online application offering thousands of songs licensed under CC for both commercial and non-commercial use.[39] Aviary allows users to choose instruments and compose melodies,[40] and the application automatically tracks which works are derivatives of others.[41]

Crowdsourcing allows the power of social networking to be applied to creating music.[42] The television program American Idol utilizes the wisdom of the crowd to create music celebrities by having viewers call in to vote for their favorite performers.[43] Another paradigm shift will occur when enough people discover that the crowd can simply create its own music too.

C. Compusourcing

Perhaps the most extreme and far-reaching development facing the music industry is computer-generated music. As computing capability increases, few endeavors have remained immune from the steady replacement of brain power with processing power, and music development is no exception. Accordingly, it seems likely that soon, no human intervention, even with regard to creative decision-making, will be required in order for computers to compose a piece of music.

A substantial portion of the required technology to produce computer-generated music already exists and it is rapidly improving. For example, Zenph Sound Innovations is a company using the “power of computer engineering to understand exactly what musicians do as they play.”[44] Zenph has developed software that translates existing recordings into malleable data, which can then be used in new ways.[45] In a nationally televised concert with famous violinist Joshua Bell, Zenph’s software played the part of classical pianist Sergei Rachmaninoff on a Steinway piano.[46] Sony Classical and RCA have recorded and released three CDs with Zenph featuring “re-performances” of three famous deceased artists: jazz pianist Art Tatum and classical pianists Glenn Gould and Sergei Rachmaninoff.[47] Zenph is now developing the technology for other instruments besides piano and the human voice.[48] Ultimately, Zenph technology could be used to dissect performances and extract musicians’ artistic DNA, which users could then apply to new music to imitate a musician’s style.[49]

The software that musicians use to produce music is becoming increasingly user-friendly and is providing features that substitute for a user’s lack of professional skills or training.[50] New applications allow relative novices to create professional-sounding menu-driven music by selecting options from a program menu and adjusting parameters on a digital control panel.[51] UJAM is an online application that allows users to sing or hum a tune directly into their computer’s microphone.[52] The application then analyzes the melody and produces complex harmonies, drum tracks, bass lines, and more.[53] Moreover, users can apply different sound effects and change chords, and the application simultaneously predicts if changing individual notes will have positive or negative effects on the music.[54] Yamaha has developed another software application called Vocaloid that is amazingly adept at synthesizing singing from sounds, words, and melody.[55] As software becomes more sophisticated, it is easy to imagine that it will continue to take on increasing amounts of the technical and creative control associated with music production.

Indeed, many software programs today are capable of generating music without any human musician’s expertise, but instead rely solely on a human audience’s expertise.[56]

Software such as DarwinTunes and Evolectronica utilize a programming strategy called genetic algorithms, which generates samples of music from strings of nearly random notes.[57] Obviously, this initial “generation” does not sound much like music. Soon, however, hundreds, and sometimes thousands of listeners across the Internet rate the music samples, and those that are the most popular are allowed to “reproduce” with one another.[58] The process involves taking portions from one popular song and combining them with another while adding some random mutations such as instrument substitutions; chord, note, tempo, and volume changes; and sequential track swaps.[59] The resulting “offspring” are typically better sounding than their “parents.”[60] The software then releases this next generation of music, and the listener-feedback process repeats.[61] Eventually, some rather remarkable music evolves.[62] This same process, or one involving different technology—like neural networks[63]—can be used to develop prose, poetry, and lyrics.[64]

Some software can even “learn” the very subtle characteristics that make particular music preferable to specific individuals. Pandora’s Music Genome Project (“Pandora”) exemplifies this type of technology.[65] By identifying nearly 400 attributes associated with a certain song, including its melody, harmony, instrumentation, rhythm, vocals, and lyrics, Pandora can respond to user feedback and adjust its delivery of music so as to stream only music that a listener is likely to enjoy.[66]

Although Pandora does not create music, it should be possible to apply the technology underlying its filtering and selection software to improve the overall quality of computer-generated music. The culmination of these technologies will enable the creation of systems capable of generating music on-demand, without any human intervention other than the initial request for music and occasional feedback thereafter. The perfection of this technology will result in the greatest act of disintermediation that the music industry has thus far experienced: no longer will skilled musicians be the exclusive source of music.[67]

While it is true that outsourcing and crowdsourcing may vastly increase the amount of music available with few or no reserved copyrights, compusourcing may produce large quantities of music not subject to copyright at all. To be eligible for copyright, a work must be both original and fixed in a tangible medium of expression.[68] Works may be fixed directly by the author or with the aid of a machine or device.[69] Certainly, original “musical works including any accompanying words” created by a human author are protected by copyright.[70] Nevertheless, even a piece created solely by a computer likely exceeds the low threshold of originality required to be copyrightable.[71] Yet, the United States Constitution only affords copyrights to authors,[72] and it seems unlikely that a computer could be considered an “author” under current copyright law.

There is substantial evidence that authors must be human beings to be eligible for protections under the Copyright Act.[73] For example, the duration of a copyright is defined as “the life of the author and 70 years after the author’s death.”[74] In the legislative history for the Copyright Act, Congress also refers to the life and death of a work’s author as well as the author’s sex.[75] In 1979, the Final Report issued by the National Commission on New Technological Uses of Copyrighted Works (“CONTU”) also suggested that human intervention was required for a work to be copyrightable.[76]

However, no court has yet definitively accepted or rejected the possibility that a computer could be an author, and modern commentators are split on the issue.[77] Some have noted the enormous practical complexities of allocating copyrights among possible owners including software developers, software users, and the software itself.[78] This issue is made more complex by the marvels of outsourcing and crowdsourcing, which multiply and obfuscate issues of ownership enormously.[79] Further, others have also observed that the incentive-based purpose for copyright protection, “[t]o promote the Progress of Science and useful Arts,”[80] is inapplicable to computer-generated works because computers do not require an incentive to create.[81]

Given this reasoning, it seems unlikely that music created solely by computers will fall within the protection of intellectual property law.[82] However, the allocation of copyrights should be of less concern to existing human musicians than the fact that computers will be dramatically out-producing them. Given the massive oversupply of music that full-scale democratization will bring, it seems that the average value of any one work will rapidly approach zero.[83]

III. THE “NATURAL TALENT” CERTIFICATION MARK

It seems that if there is not already too much music, there soon will be, and most of it will cost almost nothing to create and will be available to consumers for free. Absent scarcity or production cost, very few business models, including pay-per-use,[84] subscription,[85] ad-supported,[86] or “freemium,”[87] can be profitable. One solution is to reintroduce scarcity and barriers to entry through differentiation. Musicians creating copyrighted works for profit must differentiate their music from the excess of free and un-copyrightable material and convince consumers the distinction is worth a price premium. It may be that one of the lesser-known forms of intellectual property, a “Natural Talent” certification mark,[88] is best suited to provide this differentiation.

The Natural Talent certification mark is a means to appeal to a consumer’s desire for authenticity.[89] The premium that consumers place on authenticity is evident in the prices of commodities, including original artwork, ethnic food, travel souvenirs, and brokerage advice.[90] Even sports performances augmented by steroids and growth hormones are disdained because they are perceived as artificial.[91] The demand for authenticity has grown since the industrial revolution and has intensified now that technology can so effectively simulate it.[92] Producers in other industries have recognized this fact, and many certification marks have been used to differentiate products by virtue of their “mode of manufacture,” whether they are handcrafted,[93] produced in a specific place,[94] produced by people possessing a specific trait,[95] or produced by people adhering to a specific standard.[96] The Natural Talent certification mark would certify music as having been produced substantially through the practiced skills of one or more human beings without the use of corrective technology or technology that substitutes for human creativity, originality, or talent. For the Natural Talent mark to remain effective, it must be administered by a central organization capable of enforcing the standard required by the certification, and it must be available for use by anyone who meets the standard.[97]

There is already evidence that both music fans and the musicians they admire are ready for a Natural Talent certification mark. Lip-syncing is a popular form of technology-assisted cheating: stars like Ashlee Simpson, Britney Spears, Madonna, Milli Vanilli, and even little Lin Miaoke, the nine-year-old girl who lip-synced “Ode to the Motherland” at the opening ceremony of the 2008 Beijing Olympics, have been identified as partaking in the practice and have felt the scorn of fans for having faked their performances.[98] Currently under attack are Auto-Tune and its brethren of performance-fixing tools that eliminate any trace of authenticity.[99] In 2002, Allison Moorer released the CD titled Miss Fortune with a label that read, “[a]bsolutely no vocal tuning or pitch correction was used in the making of this record.”[100] Other artists have also pledged never to use pitch-correction in their works.[101] At the 51st Grammy Awards in 2009, the band Death Cab for Cutie wore blue ribbons to raise awareness of “Auto-Tune abuse.”[102] Also in 2009, the rapper Jay-Z released the song titled “Death of Auto-Tune,” calling on other rappers to return to the “raw basics,” while Christina Aguilera has been seen wearing a T-shirt with the slogan “Auto-Tune is for pussies.”[103] Blogs and forums are brimming with scathing comments from listeners about the overuse of Auto-Tune in the industry.[104]

Most music fans like to believe that the musicians they pay to hear can actually play their instruments and sing with their real voices. People respect talent and hard work. No one likes to be made a fool of, and technology like Auto-Tune makes consumers feel that musicians and record labels are trying to “trick them.”[105] Today, technology in the music industry mainly corrects pitch and timing problems.[106] However, as computer-generated music becomes more common, entire songs—including lyrics, vocals, and instrumentals—will be produced and released to an unknowing public, who will be unable to distinguish between music created with authentic human talent and works synthesized by machine.[107]

IV. CONCLUSION

The universal appeal of music is attributable to more than just the sound that fills our ears. Consumers also value intangibles such as the emotional connection they have with a musician’s back-story—his or her personal history, hopes, fears, and experiences with fame and adversity.[108] Though these factors cannot be automated through open-sourcing, crowdsourcing, or compusourcing, it will become virtually impossible for all but the very tiny fraction of uber-famous musicians to compete with the flood of free, artificially-produced music to garner the attention necessary to make these intangibles relevant to their success.[109] Musicians, labels, and distributors could use the Natural Talent certification mark on websites, CDs, and promotional material, and as selection criteria in music streaming services as a means to combat the challenges these new technologies pose.[110] Such certification would allow consumers to discover and connect with musicians who offer authenticity in their music. Musicians with natural talent could then stand a chance to earn economic rewards from their copyrights because they agree to “keep it real.”

* J.D. Candidate, Charlotte School of Law, 2012; M.B.A, M.S.I.M. Arizona State University, 2002; B.S., Electrical Engineering, University of Wisconsin, Madison, 1997. The author would like to thank his wife Amanda and his daughters, Sebine and Ashelynn, for their support and inspiration as the author continues his education—again. The author would also like to thank the GRAMMY Foundation, the Entertainment Law Initiative, and the Loyola of Los Angeles Entertainment Law Review for their support of the ELI Writing Competition and for being such gracious hosts.

1.See generally Eamonn Forde, The Digital Decade, Music Week, Dec. 12, 2009, at 18; Patrick Wikstrom, The Music Industry: Music in the Cloud (Polity Press 2009); Mark Bender, The Impact of Digital Piracy on Music Sales: A Cross-Country Analysis, 84 Int’l Soc. Sci. Rev. 157 (2009).

2.Id. Anecdotally, a LexisNexis search of magazine and newspaper stories written in the past decade revealed that 565 of the 1871 articles that contained the term “music industry” in the same segment as “information technology” also contained at least one of the example words or phrases listed.

3.See Supply Chain Definition, Dictionary.com, http://dictionary.reference.com/browse/supply+chain?s=t (last visited Mar. 15, 2012).

4.About mp3, mp3licensing.com, http://mp3licensing.com/mp3/ (last visited Mar. 12, 2012).

5.Spencer E. Ante, Inside Napster: How the Music-Sharing Phenom Began, Where It Went Wrong, and What Happens Next, Bus. Week, Aug. 14, 2000, at 113.

6.See Stephen E. Siwek, The True Cost of Sound Recording Piracy to the U.S. Economy, Inst. for Pol’y Innovation, Pol’y Rep. 188, 5 tbl.1 (Aug. 2007), http://www.ipi.org/IPI%5CIPIPublications.nsf/PublicationLookupFullTextPDF/51CC65A1D4779E408625733E00529174/$File/SoundRecordingPiracy.pdf?OpenElement (quantifying losses to the music industry as a result of piracy, both physical and downloaded).

7.See Jennifer Beauprez, Defiance Propels Music Trading: Web Means ‘Free’ to File Sharers, Denver Post, Sept. 1, 2003, at C1 (discussing the pressure music labels face to lower prices and conciliate consumers as a result of consumers’ capacity and willingness to download music for free).

8.See infra Part II.

9.See David Sarno, Need A Drummer? No Problem: Collaborative Music Sites Make Finding Bandmates Easier Than Ever, L.A. Times, Aug. 19, 2007, at E14 (“Music recording, once the province of professionals and hard-core amateurs, has now become so easy that anyone with a computer can do it.”); see infra Part II.

10.Sarno, supra note 9 (“Music recording, once the province of professionals and hard-core amateurs, has now become so easy that anyone with a computer can do it.”).

11.Nathan Olivarez-Giles, Studios Left Out of the Mix: Inexpensive Software Shifts Music-Recording to the Home, L.A. Times, Oct. 13, 2009, at B1.

12.See Dawn M. Norfleet & Monique R. Brown, A Sound Investment, Black Enterprise, Dec. 1, 1999, http://www.blackenterprise.com/1999/12/01/a-sound-investment/ (noting that in around 1999, “[a]t $20,000 for just the software and some basic accessories, ProTools is currently the most expensive recording program on the market”).

13.Pro Tools 10, Avid, http://www.avid.com/US/products/pro-tools-software/?intcmp=AV-MM-S1 (last visited Mar. 15, 2012).

14.See, e.g., Reason Pianos ReFill, Propellerhead, https://www.propellerheads.se/shop/index.cfm?fuseaction=product_detail&ID=10182&Cat=4000 (last visited Mar. 15, 2012) (advertising that the Propellerhead Reason Pianos Refill provides three “hypersampled” acoustic pianos as a downloadable file for $129 that is 631 MB or 1.45 GB, depending on sample frequency).

15.Reason 6, Propellerhead, https://www.propellerheads.se/shop/index.cfm?fuseaction=product_detail&ID=10726&Cat=1000 (last visited Mar. 15, 2012) (advertising that the $449 Reason 6 software is equipped with “all the instruments, sounds and effects you could ever dream of for writing, recording, remixing and producing great-sounding tracks”).

16.Sasha Frere-Jones, The Gerbil’s Revenge: Auto-Tune Corrects a Singer’s Pitch, New Yorker (Jun. 9, 2008), http://www.newyorker.com/arts/critics/musical/2008/06/09/080609crmu_music_frerejones?currentPage=all.

17.Nat’l Assoc. Music Merchants, NAMM Global Report 28 (Ken Wilson ed., 2009), available at http://www.nxtbook.com/nxtbooks/namm/2009musicusa/#/0.

18.See Neil McCormick, Is There Too Much Music?, Daily Telegraph, Apr. 9, 2009, at 33 (arguing that the sheer volume of music being released on Internet sites like YouTube, MySpace, iTunes, and Spotify by amateurs and professionals alike is overwhelming consumers).

19.History of the OSI, Open Source Initiative, http://opensource.org/history (last visited Mar. 15, 2012).

20.About the Licenses, Creative Commons, http://creativecommons.org/about/licenses/ (last visited Mar. 15, 2012) (describing the four types of CC licenses: Attribution, ShareAlike, NonCommercial, and NoDerivatives).

21.See Jacobsen v. Katzer, 535 F.3d 1373, 1381–82 (Fed. Cir. 2008).

22.Opsound: Free Love, Free Music, http://opsound.org/index.php (last visited Mar. 15, 2012); see also What Is Jamendo?, Jamendo, http://www.jamendo.com/en/about (last visited Mar. 15, 2012) (exemplifying a second popular website for open-source music released under a CC license).

23.Jason Feehan & Randy Chertkow, Q&A: Eric Steuer, Electronic Musician, Nov. 1, 2009, at 40, 42 (interviewing Eric Steuer, the creative director at Creative Commons about opportunities for music under a CC license); Jon Pareles, Music Ripe To Remix, N.Y. Times, Mar. 10, 2008, at E1 (stating that Trent Renzor of Nine Inch Nails has “encouraged listeners to remix, ‘mutilate or destroy’ the Nine Inch Nails catalog, even providing some separate instrumental parts. Now, with [the band’s new album] ‘Ghosts,’ he’s virtually inviting other people’s voices.”).

24.Andrea Pejrolo, Creative Sequencing Techniques for Music Production: A Practical Guide to Logic, Digital Performer, Cubase and Pro Tools 69 (2005).

25.See, e.g., Reason Pianos: What Is It?, Propellerhead, http://www.propellerheads.se/products/refills/rpi/index.cfm?fuseaction=get_article&article=what_is_it (last visited Mar. 15, 2012).

26.See Peter Kirn, Making Music with Free and Open Source Software: Top Picks from Red Hat, Dave Phillips (April 20, 2011), CreateDigitalMusic.com, http://createdigitalmusic.com/2011/04/making-music-with-free-and-open-source-software-top-picks-from-red-hat-dave-phillips/.

27.History, Creative Commons, http://creativecommons.org/about/history/ (last visited Mar. 15, 2012).

28.See nth Definition, Dictionary.com, http://dictionary.reference.com/browse/nth (last visited Mar. 15, 2012) (“[B]eing the latest, or most recent: This is the nth time I’ve told you to eat slowly.”).

29.See Jon Swartz, Online Talent Scouts Pay Off: Companies Use “Crowdsourcing” to Find Cheap Help, Expertise, USA Today, Apr. 1, 2010, at 6A.

30.See Brian Morrissey, Brands’ Mass Appeal, Adweek (May 31, 2010), http://www.adweek.com/aw/content_display/news/digital/e3if3584cb6d538b8e11437b1dcf8866519.

31.Id. (describing crowdsourcing projects such as Netflix’s $1 million prize for improving movie recommendations and Pillsbury’s $10,000 prize for developing the best ad for its crescent rolls).

32.See America COMPETES Reauthorization Act of 2010, H.R. Doc. No. 111-4785116 (2010) (allowing agencies to target entities other than corporations and professionals to submit solutions to a problem for a chance to win a prize, rather than employing a traditional request-for-proposal-and-bid model).

33.See Eliot Van Buskirk, Finally, the On-Demand, Online Garage Band Gets Real, Wired (Apr. 30, 2007), http://www.wired.com/entertainment/music/commentary/listeningpost/2007/04/listeningpost_0430 (stating that the combination of “social networking apps and web-based audio tools . . . will do for music creation what technology has already done for music consumption: remove barriers of time, space and scarcity.”).

34.See, e.g., Janelle Gelfand, Almost Famous, As Musicians, Cin. Enquirer (Ohio), Jan. 14, 2007, at 1J (“[M]ore schools of higher learning than ever are turning out increasing numbers of accomplished musicians.”). See generally Company of the Year: M-Audio: Proven Ability to Anticipate the Needs of “Computer-Centric” Musicians Commands a $174 Million Purchase Price, Music Trades, Apr. 1, 2005, at 124(2).

35.See id.

36.Supra Part II.A.

37.Eric Steuer, Group Effort, Wired, Jul. 2009, at 60 (describing the top ten sites for participating in “virtual jam sessions” including Indaba Music, SoundCloud, JamGlue, and WeMix).

38.See The Colbert Report: Dan Zaccagnino (Comedy Central television broadcast Feb. 2, 2009), available at http://www.colbertnation.com/the-colbert-report-videos/217342/february-02-2009/dan-zaccagnino (interviewing Dan Zaccagnino, co-CEO and founder of Indaba Music); see also Max Willens, With Relaunch, Indaba Goes Major, We All Make Music (Aug. 30, 2010), http://weallmakemusic.com/with-relaunch-indaba-goes-major/; Van Buskirk, supra note 33 (providing examples of five crowdsourced songs from a recent competition facilitated by Indaba Music).

39.See Music Creator, Aviary.com, http://www.aviary.com/tools/music-creator (last visited Mar. 15, 2012); Aviary Launches Music Creator!, Aviary.com (June 10, 2010, 12:50 PM), http://blog.aviary.com/aviary-launches-music-creator.

40.Aviary Launches Music Creator!, supra note 39.

41.Frequently Asked Questions, Aviary.com, http://support.aviary.com/entries/188913-frequently-asked-questions (last visited Mar. 15, 2012).

42.See Bernardo A. Huberman, Daniel M. Romero & Fang Wu, Crowdsourcing, Attention, and Productivity, Social Sci. Res. Network, Sept. 12, 2008, at 2, http://ssrn.com/abstract=1266996 (follow “One-Click Download” hyperlink).

43.Chris Satullo, Crowdsourcing: Idea Power from the People, Phila. Inquirer, Sept. 14, 2008, at A03.

44. Company, Zenph, http://www.zenph.com/company (last visited Mar. 15, 2012).

45. Technology, Zenph, http://www.zenph.com/company/technology (last visited Mar. 15, 2011).

46.See Justin Davidson, Bionic Overload: Can Machine-Made Music Sing Without a Composer?, N.Y. Mag., Feb. 8, 2010, at 64 (stating that man and machine played the second movement of Grieg’s Sonata No. 3 for violin and piano); Vivien Schweitzer, A Little Get-Together for Stage and Television, N.Y. Times, Jan. 23, 2010, at C3.

47.See Blair Jackson, Art Tatum, Mix, Sept. 2008, at 56; Shop, Zenph, http://www.zenph.com/shop.html (last visited Mar. 15, 2012).

48.Id.

49.See generally Zenph, http://www.zenph.com (last visited Mar. 15, 2012).

50.See, e.g., UJAM, http://www.ujam.com (last visited Mar. 15, 2012); Propellerhead, http://www.propellerheads.se/ (last visited Mar. 15, 2012).

51.See, e.g., UJAM, supra note 50; Propellerhead, supra note 50.

52.Amy Dusto, Be a Stay-at-Home Rock Star, If Ujam, Discovery News (Dec. 29, 2010, 10:11 PM), http://news.discovery.com/tech/be-a-stay-at-home-rock-star-if-ujam.html; UJAM, supra note 50.

53.Jon Stokes, An App that Jams with You, Wired, Jan. 2011, at 91.

54.UJAMVIDEO, UJAM Trailer December 2010, YouTube (last visited Feb. 5, 2012), http://www.youtube.com/watch?v=TyK2mmFvutk (demonstrating the capabilities of UJAM).

55.See Vocaloid Demos and Tryout Software, Zero-G, http://www.zero-g.co.uk/index.cfm?Articleid=802 (last visited Mar. 15, 2012) (providing several songs sung by three different, shockingly realistic computer-generated voices: MIRIAM, LEON, and LOLA).

56.Jo Marchant, Sci Foo: Evolution of Music and a Dancing Cockatoo, NewScientist CultureLab (Aug. 2, 2010, 4:27 PM), http://www.newscientist.com/blogs/culturelab/2010/08/the-experimental-evolution-of-music-and-snowball-the-dancing-cockatoo.html.

57.See id.; DarwinTunes, http://darwintunes.org/ (last visited Mar. 15, 2012); Evolution + Electronica = Evolectronica, Evolectronica, http://evolectronica.com/about (last visited Mar. 15, 2012); Genetic Algorithm Definition, Oxford Eng. Dictionary, http://www.oed.com/ view/Entry/77550?redirectedFrom=%22genetic%20algorithm%22#eid3065220.

58.Marchant, supra note 56.

59.Id.

60.Audio Snapshots, Darwin Tunes, http://darwintunes.org/audio-snapshots (last visited Mar. 15, 2012) (comparing thirty examples of a musical track recorded between generation 0 and 3,060 during the music’s evolution).

61.Let’s Evolve Music, Darwin Tunes, http://darwintunes.org/evolve-music (last visited Mar. 15, 2012) (“When the system receives your rating, it is used to determine whether or not the loop will reproduce and have baby loops, which will eventually be streamed to you for rating.”).

62.See 600 Generations, Darwin Tunes, http://darwintunes.org/600-generations (last visited Mar. 15, 2012) (providing a sound clip of music evolved after 600 generations).

63.Neural Network Definition, Oxford Eng. Dictionary, http://www.oed.com/view/Entry/126355?redirectedFrom=neural%20network#eid34662156 (last visited Mar. 15, 2012) (“[A]n interconnected system inspired by the arrangement of neurons in the nervous system; a program, configuration of microprocessors, etc., designed to simulate this.”).

64.See, e.g., Tal Vigderson, Comment, Hamlet II: The Sequel? The Rights of Authors vs. Computer-Generated “Read-Alike” Works, 28 Loy. L.A. L. Rev. 401, 402–03 (1994) (describing an example of computer-generated prose).

65.See About Pandora, Pandora Radio, http://www.pandora.com/corporate/ (last visited Mar. 15, 2012).

66.Id.

67.See supra Part II.A–B.

68.17 U.S.C. § 102(a) (2010).

69.Id.

70.Id. § 102(a)(2).

71.See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (“To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice.”); see also Pamela Samuelson, Allocating Ownership Rights in Computer-Generated Works, 47 U. Pitt. L. Rev. 1185, 1199 (1986) (arguing that computer-generated works could meet the originality bar).

72.U.S. Const. art. I, § 8, cl. 8.

73.See, e.g., 17 U.S.C. § 201(b) (2010) (providing the express statutory allowance that employers are considered authors of “works made for hire”); H.R. Rep. No. 94-1476, at 121 (1976).

74.17 U.S.C § 302(a) (2010) (changing the standard for works created on or after January 1, 1978).

75.See generally H.R. Rep. No. 94-1476, at 137 (“Computing the term from the author’s death . . . .”), 120 (“[I]f each of the authors prepared his or her contribution . . . .”).

76.Nat’l Comm’n on New Technological Uses of Copyrighted Works, Final Report, at 45 (1979), available at http://digital-law-online.info/CONTU/contu17.html (“The eligibility of any work for protection by copyright depends not upon the device or devices used in its creation, but rather upon the presence of at least minimal human creative effort at the time the work is produced.”).

77.See 5-5 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 5.01[A] (Matthew Bender & Co. ed. 2010) (stating that in light of the creation of entire novels and books of poetry by computers, “rivers of ink are spilt” in the secondary literature on whether computers can be considered authors for copyright purposes); Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?, 106 Harv. L. Rev. 977, 1058 (1993).

78.See Ralph D. Clifford, Intellectual Property in the Era of the Creative Computer Program: Will the True Creator Please Stand Up?, 71 Tul. L. Rev. 1675, 1685–86 (1996–1997) (noting that granting a computer authorship rights would imply granting computers the right to transfer copyrights and sue for infringement, as well as violations of Due Process rights under the Fifth and Fourteenth Amendments).

79.See supra Part II.A–B.

80.U.S. Const. art. I, § 8, cl. 8.

81.Miller, supra note 77, at 1066.

82.See Clifford, supra note 78, at 1702.

83.See, e.g., H.M. Robertson & W.L. Taylor, Adam Smith’s Approach to the Theory of Value in 3 Adam Smith: Critical Assessments 71, 75 (John Cunningham Wood ed., Routledge 1996) (1984) (“If the commodity be scarce, the price is raised, but if the quantity be more than is sufficient to supply the demand, the price falls.”), available at http://books.google.com/books?id=B8FY8mo5zX4C&lpg=PA75&pg=PA75#v=onepage&f=false. To the extent that outsourcing, crowdsourcing, and compusourcing results in music with reserved copyrights, the fact that so much music will exist will drive its value downward.

84.See, e.g., What is iTunes?, Apple, http://www.apple.com/itunes/what-is/ (last visited Mar. 15, 2012); Amazon MP3 Store, Amazon, http://www.amazon.com/MP3-Music-Download/b/ref=sa_menu_dmusic2?ie=UTF8&node=163856011 (last visited Mar. 15, 2012) (indicating users pay approximately one dollar per song to download an MP3 file).

85.See, e.g., Rdio, http://www.rdio.com/ (follow “See plans and pricing” hyperlink) (last visited Mar. 15, 2012) (stating that users pay $4.99 per month for unlimited web streaming and $9.99 per month for unlimited web and mobile streaming).

86.Users of Pandora get free access to music streaming, but as with radio, users cannot choose specific songs, only stations. See Is Pandora Free?, Pandora Radio, http://help.pandora.com/customer/portal/articles/24528-is-pandora-free- (last visited Mar. 15, 2012). Users hear advertisements between every few songs unless they upgrade to a subscription model. Id.

87.See, e.g., Neal Pollack, The Celestial Jukebox, Wired, Jan. 2011, at 74, 78; Overview, Spotify, http://www.spotify.com/us/get-spotify/overview/ (last visited Mar. 15, 2012) (stating that users get free, unlimited access to music streaming from a desktop, but pay extra to save music to a computer or access music from a phone).

88.Lanham Act, 15 U.S.C. § 1127 (2010) (noting that a certification mark refers to a type of mark used by a person other than its owner “to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person’s goods or services or that the work or labor on the goods or services was performed by members of a union or other organization”).

89.James H. Gilmore & B. Joseph Pine II, Authenticity: What Consumers Really Want 1–5 (2007) (arguing that increasingly “authenticity has overtaken quality as the prevailing purchasing criterion, just as quality overtook cost, and cost overtook availability”).

90.Kent Grayson & Radan Martinec, Consumer Perceptions of Iconicity and Indexicality and Their Influence on Assessments of Authentic Market Offerings, 31 J. Consumer Res. 296, 296 (2004).

91.See, e.g., Kevin Gilligan & Joseph Copizzi, The Steroid Controversy, Hardball Times (Dec. 16, 2004), http://www.hardballtimes.com/main/article/the-steroid-controversy/ (“A player who excels because of steroids is likely to receive from his peers what the playground cheater receives from his: much disdain and little respect.”).

92.Grayson & Martinec, supra note 90, at 296; see also Shuling Liao & Yu-Yi Ma, Conceptualizing Consumer Need for Product Authenticity, 4 Int’l J. Bus. & Info. 89, 90 (2009).

93.See, e.g., HERBAN ROOTS, U.S. Trademark Application Serial No. 77,942,599 (filed Feb. 23, 2010) (reciting the certification of handcrafted herbal aromatherapy products).

94.See, e.g., PURE CARIBBEAN, U.S. Registration No. 3,755,181 (reciting the certification of goods manufactured and originating in the Caribbean).

95.See, e.g., SERVICE DISABLED VETERAN OWNED SMALL BUSINESS SDVOSB CVE, U.S. Registration No. 4,026,406 (reciting the certification of a business owned by a service-disabled veteran).

96.See, e.g., CERTIFIED ORGANIC BY CERTIFIED CALIFORNIA ORGANIC FARMERS, U.S. Registration No. 4,031,016 (reciting the certification of “goods . . . organically grown, processed and produced in accordance with the California Organic Food Act of 2003 . . . [and whose] grower, processor or producer practices a program of long term ecological soil management and in the case of meat and poultry, practices a program of stress reduction and good nutrition to maximize animal health”).

97.An organization such as the Songwriters Guild of America, the National Academy of Recording Arts & Sciences, the GRAMMY Foundation, or the Recording Industry Association of America could oversee the Natural Talent certification so long as it does not engage “in the production or marketing of any goods or services to which the certification mark is applied.” Lanham Act § 1064.

98.Greg Kot, Little Mic Lies: Everyone Does It; Why Nearly All the Stars Use Recordings at Major Events, Chi. Trib., Feb. 5, 2009, at C1; Meghan Daum, Editorial, From the Mouths of Babes, L.A. Times, Aug. 16, 2008, at A21.

99.See e.g., Tony Sclafani, Oh, My Ears! Auto-Tune Is Ruining Music, MSNBC Today Music (June 2, 2009, 10:01:02 AM), http://today.msnbc.msn.com/id/30969073/ns/today-entertainment/t/oh-my-ears-auto-tune-ruining-music/.

100.Maureen Ryan, What, No Pitch Correction? Raising a Flag on Vocal Effects, Chi. Trib. (Apr. 27, 2003), http://msl1.mit.edu/furdlog/docs/2003-04-28_chitrib_pitch_correction.pdf.

101.Michael McCall, ProTools, Nashville Scene, June 10, 2004, http://www.nashvillescene.com/nashville/pro-tools/Content?oid=1190101 (stating that Martina McBride, Vince Gill, and Trisha Yearwood have pledged not to use pitch-correction technology).

102.James Montgomery, Death Cab for Cutie Raise Awareness About Auto-Tune Abuse, MTV News (Feb. 10, 2009, 1:28 PM), http://www.mtv.com/news/articles/1604710/20090210/death_cab_for_cutie.jhtml.

103.Alex Needham, Front: Pitch Perfect But Lacking Soul?, Guardian, Aug. 23, 2010, at 3.

104.See e.g., Auto-Tune in Glee Songs, Glee, http://www.gleeforum.com/index.php?showtopic=1600 (last visited Feb. 5, 2012) (showing a majority of unfavorable opinions on a Glee fan website regarding the use of Auto-Tune on the show); see also Sclafani, supra note 99.

105.See generally Michiko Kakutani, THE YEAR IN REVIEW; The Idea Was Not to Have a New One, N.Y. Times, Dec. 29, 2002, § 2, at 1 (discussing the growing use of pitch correction and timing adjustment).

106.Ryan, supra note 100.

107.Id.

108.Jon Ostrow, How an Emotional Connection Can Create a Cult-Like Fan Base, Bandzoogle (June 9, 2011), http://bandzoogle.com/blog/blogposts/how-an-emotional-connection-can-create-a-cultlike-fan-base-21828.cfm.

109.See supra Part II.A–C.

110.See supra Part III.

39

VIRAL VIDEOS: MEDICINE FOR RECORD LABELS IN THE FIGHT AGAINST COPYRIGHT TERMINATION?

Jay Patel[*]

As major American record labels continue to tackle online piracy and declining revenues, another potentially devastating battle over some of their most valuable assets is lurking in the very near future. The Copyright Act provides artists with the right to terminate any transfers of copyrights to their works. In order to protect themselves from termination notices in the future, record labels should revamp their business model and commission sound recordings for music videos rather than albums. Doing so is important given current realities in the music industry, and it will allow them to take advantage of the work-for-hire exception to the termination right and thus would allow them to retain ownership of copyrights in sound recordings for the full duration of the term.

I. INTRODUCTION

As major American record labels continue to tackle online piracy and declining revenues, another potentially devastating battle over some of their most valuable assets remains lurking in the near future. Under United States law, copyright initially vests in the author, who may then license or transfer that right to others.[1] However, section 203 of the 1976 Copyright Act, which became effective on January 1, 1978, gives authors an inalienable right to terminate copyright assignments during a five-year window beginning thirty-five years after the date the copyright is granted.[2] Therefore, copyrights in sound recordings created after January 1, 1978 will become eligible for termination in 2013.[3] After termination, these copyrights will revert to the original authors[4]—a group that could include recording artists, producers, and other creative participants.[5]

Because the termination right does not apply to creative works that are deemed to be works made for hire,[6] the Copyright Act provides some hope for record labels wanting to maintain ownership of sound recordings in the future.[7] Whether or not sound recordings fit into the statutory scheme of works made for hire has been the subject of much academic research.[8] Unfortunately for record labels, the current consensus is that the issue is far too unpredictable and requires intensive factual determinations, resulting in costly litigation.[9] Therefore, in order to avoid this uncertainty and costly litigation for future sound recordings, this paper argues that record labels should restructure both their business models and their recording contracts to ensure that they are the legal authors of these future works.

The analysis begins by discussing the current academic consensus on whether sound recordings fit into the statutory works-made-for-hire doctrine. This comment then proposes that, based on current trends, record labels should explore a new business model centered on music videos—allowing them to utilize the works-made-for-hire doctrine and maintain copyright ownership of future recordings. Finally, the Comment evaluates this proposal from the perspective of the recording artists who stand to lose their termination rights under the proposed model and suggests ways of harmonizing the competing interests of both record labels and recording artists.

II. SOUND RECORDINGS AS WORKS MADE FOR HIRE

UNDER THE CURRENT MODEL

Under the Copyright Act, in order for a work to be a work made for hire, it must either be created in an employment context or, alternatively, must fit into one of the Act’s enumerated categories of “specially ordered or commissioned” works.[10] The Copyright Act limits these specially ordered or commissioned works to contributions made to collective works, audiovisual works, translations, supplementary works, compilations, instructional works, tests, answer materials to tests, and atlases.[11] In Community for Creative Non-Violence v. Reid, the Supreme Court used common law factors, including the degree of control enjoyed by the parties, the hired party’s role in hiring assistants, and “the tax treatment of the hired party” to determine the existence of an employment relationship.[12] After applying these factors to the music industry, it is unlikely that courts will find that recording artists are employees of record labels, mainly due to the little control that recording artists have over the final products.[13] Therefore, the only likely strategy for the record labels will be to argue that existing sound recordings fit into one of the enumerated categories.[14]

Unfortunately, however, based on existing case law, it is also unlikely that record labels will succeed in classifying sound recordings into one of the enumerated categories, such as audiovisual works, compilations, collective works, or supplementary works.[15] Thus far, courts have rejected every attempt to fit sound recordings into these enumerated categories.[16] Admittedly, the holdings in many of these cases have been narrow, making it more likely that in future litigation, courts may determine that sound recordings were in fact works made for hire.[17] Indeed, though Congress repealed the 1999 Amendment that added sound recordings to the list of enumerated categories, it never definitively stated that sound recordings could never be deemed works made for hire.[18] Instead, Congress stated that courts should decide the issue as if the 1999 Amendment had neither been enacted nor repealed, thus leaving the possibility open.[19]

Despite Congress’ stance, the academic consensus remains skeptical as to whether pure sound recordings can be classified into one of the above-mentioned categories for specially commissioned works, as pure sound recordings can only reasonably be categorized as either compilations or collective works.[20] While record labels could argue that the albums are compilations, these record labels would likely receive a copyright solely in the arrangement of songs on albums, rather than in the individual recordings.[21] Additionally, the argument that albums should be classified as collective works is weakened by the legislative history of the Copyright Act, which excluded sound recordings in its definition of collective works.[22] Furthermore, the manner in which albums are put together repudiates the argument that they are collective works or compilations because albums consist of an artist’s newest material recorded specifically for the album, rather than a collection of pre-existing works by several artists.[23]

Based on this uncertainty in the work-made-for-hire determination, in addition to preparing for inevitable future litigation, record labels should begin preparing for the very real possibility that they may no longer own the rights to some valuable assets.[24] While some artists might renegotiate with the record labels—once again transferring their copyrights—it is reasonable to assume that many artists may feel empowered by current technology and decide that they no longer require the record label’s services.[25] This situation is especially true for those powerful artists who have an established fan base that would allow them to utilize social networking tools to sell and promote their content.[26]

Due to the limited role the record labels have typically played in the creative process of individual sound recordings under the existing traditional model, perhaps this outcome is justified.[27] Nevertheless, in order to ensure ownership of future recordings for the entire duration of the copyright, record labels will need to change their business model to become more invested in the creative process, thereby ensuring work-made-for-hire status.[28]

III. INCREASED FOCUS ON MUSIC VIDEOS

In order for future sound recordings to qualify as works-made-for-hire, record labels should explore a new business model that revolves around signing recording artists based on specific music videos, as opposed to entire albums.[29] Record labels can use a “self-help” remedy by creating audiovisual works, rather than only pure sound recordings, in order to eliminate the problem of termination rights.[30] For example, if the initial release of a song is in an audiovisual format, then subsequent pure audio versions could be released without losing the work-made-for-hire nature of the song because the recordings would be derivative works based on the underlying audiovisual work.[31] Doing so would create a system similar to that of film studios, which commission composers to write and record scores for a film’s soundtrack that eventually get released separately as audio recordings on albums.[32]

In today’s digital age, record labels can easily follow the release of a music video with audio-only versions. This reality is supported by the fact that there is a near-zero cost of duplication involved in digital files, as well as the fact that videos and digital files can be sold or distributed by the same online outlets, such as iTunes or Amazon.[33] Labels would likely want to sell audio-only versions in order to exploit licensing options and allow fans to listen to the songs through devices and mediums that do not have video capacity. The continued prevalence of audio-only recordings would also protect the public performance royalties of publishers and songwriters, given that only copyright owners of the underlying compositions, and not the owners of sound recordings, are owed royalties when a piece of music is performed publicly by other parties.[34]

Therefore, given the ease with which labels can combine sales of music videos and sound recordings, and based on the current trends in the music industry, the move to a video-centric model is an appropriate way for labels to increase revenues and reach a wider audience.[35] As consumers demand more ways of accessing free music, YouTube has become a medium of choice, even for those seeking audio-only versions of songs.[36]

As major record labels continue to embrace video websites such as YouTube, Vevo, and Guvera,[37] fans now have free access to high-quality, new music videos, while the labels receive revenue through advertising.[38] Furthermore, by tethering revenue from advertisers on these sites, an initial release of a song through one of these websites may generate high returns for the labels.[39] The release of the song would be akin to a box office release of a film. However, here there is an opportunity for an even greater financial impact than a box office release, since fans would be able to watch music videos and listen to songs free of charge, consequently increasing online views and revenues for the labels.[40]

Due to the greater resources that are at their disposal, labels are well positioned to take advantage of rapidly developing technology in order to create exceptionally innovative music videos.[41] While it is certainly possible that an unknown musical act could gain fame by a viral YouTube hit,[42] labels have the resources necessary to produce, distribute, and promote music videos on a global basis and so are more likely to achieve success via viral videos.[43] For instance, the recent success of Arcade Fire’s partnership with Google to produce interactive videos using HTML5 technology[44] exemplifies how superior financial resources combined with access to new technologies can give labels an edge in this department.[45] Conversely, newly formed independent artists and smaller labels are unlikely to have the capital or industry connections to partner with technology giants, such as Google, in order to create and promote big-budget, sensational videos that can redefine the music video experience.[46]

Contrary to the fears of some commentators, a move to audiovisual works does not have to be detrimental to songwriters and their publishing rights.[47] In the typical situation where a record label wishes to record a pre-existing composition that belongs to a publisher,[48] the change to audiovisual works would not pose concern. In the alternative scenario, where a songwriter-performer is specifically hired to write compositions for an audiovisual work, the songwriter-performer can diligently retain a repertoire of pre-existing compositions and only agree to record those songs, thus requiring the label to license the underlying compositions. This latter scenario may be the more preferable solution because record labels would be able to avoid the risks involved in providing the necessary capital to sign an artist for a music video.[49] Since a music video is a bigger investment than an individual sound recording,[50] labels are more likely to invest in a pre-existing composition that they can hear, given the uncertainty involved in signing a deal prior to hearing the composition.

Additionally, it is important to note that publishers and songwriters also benefit because using a composition in a music video would not trigger the compulsory licensing scheme.[51] Such a scheme places a maximum on the licensing fee (nine cents per recording sold) that the record label has to pay the publisher and also forbids the publisher from prohibiting record labels from making sound recordings of the publisher’s compositions.[52] Therefore, publishers and songwriters would instead be able to favorably negotiate synchronization licenses for their compositions, which could potentially yield significant returns.[53]

IV. EQUITABLE CONCERNS FOR RECORDING ARTISTS

While a move toward audiovisual works could solve the problem of termination rights for the record labels, the impact that this proposal would have on the recording artists themselves should not be overlooked. Accordingly, recording artists must have at least some protection as a part of any proposed solution. For example, commentators have expressed fears that labels would only need to produce an enhanced music file that would play simple computer-generated images in order to create audiovisual works, rather than producing full music videos.[54] This outcome is indeed troubling, as it would allow labels to gain works-made-for-hire status for sound recordings without making a sizable investment in the final audiovisual product.[55] However, a closer look at the statutory language reveals that in order for music videos to fall under the definition of audiovisual works, they must possess “a series of related images which are intrinsically intended to be shown by the use of machines . . . together with accompanying sounds . . . .”[56] Based on this statutory language, audiovisual designation, for the purposes of a work-made-for-hire determination, should only be given to those music videos that contain related images that are actually intended to be shown visually.[57] A label should not be allowed to make an end run around the statute by adding a string of meaningless images to a sound recording if it does not actually intend for those images to be seen, and if the sound recordings can still be heard on another audio-only device. Thus, it appears that this language is better suited for music videos, which are more akin to motion pictures, because the producer (the label in this case) intends for them to be enjoyed visually as well as aurally.[58]

Economic theories of property rights support a work-made-for-hire determination that favors centralizing ownership of sound recording copyrights in the hands of record labels.[59] Such centralization would lower transaction costs involved in licensing the sound recordings that have multiple potential owners who could each use their termination right.[60] The works-made-for-hire doctrine would also simplify the difficulties courts would face in determining ownership of sound recordings, avoiding the need for extensive factual determinations.[61] Therefore, given the higher costs associated with music videos and the larger number of participants involved in the production process, it would be appropriate to apply the work-made-for-hire status to those sound recordings that are commissioned in connection with these audiovisual works. However, as the recording artists currently have more creative control over sound recordings, and the cost of individual sound recordings is lower compared to that of films[62] (where producers can claim ownership via the work-made-for-hire doctrine), economic benefits should clearly be balanced against equitable considerations and the rights of the recording artists. For example, given that artists are often more involved in song selection and the arrangement of songs, and are often the lone featured artist on an album (compared to the numerous actors in a film),[63] it is important to take their authorship into account when determining whether sound recordings should be given work-made-for-hire statuses.

While artists may fear that such a move toward works made for hire would relegate them to a situation similar to that of film score composers who do not retain any rights to their compositions, the economics of the music industry make it unlikely that such a situation would occur.[64] Due to the increased unbundling of individual tracks from albums through online retailers such as iTunes, labels and artists can no longer rely solely on sales of complete albums.[65] Therefore, it is the current norm to abstain from negotiating deals on an album basis.[66] Instead, labels could sign artists on a music-video basis, and thus achieve a compromise where the artist would retain termination rights for sound recordings that are not used for music videos. As stated, the costs and risks associated with a music video investment would naturally impose a limit on the number of videos a label would commit to produce.[67] Therefore, in order to maximize profits, labels would incur recording and filming costs only for those compositions that they felt certain would make successful videos. Accordingly, labels would retain ownership rights of those recordings that they commissioned for music videos, and artists would retain termination rights in other sound recordings that were not part of music videos. Limiting compositions in this regard would reward the labels for correctly predicting which compositions would make successful videos, while still providing the recording artist with termination rights in other recordings.

It is also important to remember that the Copyright Act does not automatically designate contributions to an audiovisual work as a work made for hire, as the statute still requires the formality of a written agreement.[68] Hence, recording artists with enough bargaining power could theoretically negotiate deals for music videos that do not automatically make the record labels the authors of the music, because the labels can simply refuse to sign a written agreement that makes the sound recording a work made for hire.[69] Alternatively, these artists could negotiate joint authorship agreements indicating that both parties intended for the video and recorded music to merge into a unitary whole.[70] Recording artists could also try to negotiate royalty payments from music videos calculated by the number of views, or try to carve out a live performance license in order to ensure a revenue stream in exchange for giving up the termination right. In either scenario, giving the work-made-for-hire designation to these music video sound recordings would not contravene the termination right’s policy goal of allowing artists to recapture value from works they may have assigned to labels for nominal amounts.[71] Rather, given the expected budget of a cutting-edge sensational video, copyright should vest in the labels, much like copyrights in films vest in motion picture studios. As there is no widespread concern with regard to studios owning copyrights in their film scores via the works-made-for-hire doctrine, there should be no policy concerns about record labels owning copyrights in sound recordings that are commissioned for music videos.

V. CONCLUSION

Despite falling revenues from sales of recorded music,[72] record labels still have a valuable role to play in the music industry and can contribute value to a recording artist’s career due to their financial resources, global distribution networks, and marketing savvy. As the major labels continue to face difficulties from illegal downloading and other copyright infringements,[73] the complete loss of their valuable assets would be extremely detrimental. Unfortunately, due to the existing case law and the current process of recording music, labels face a costly and highly uncertain legal battle to salvage their rights over existing recordings.[74] Therefore, in the event that they lose the litigation battle, record labels should embrace some revolutionary changes and update their business models to ensure that they can retain ownership of sound recordings for the entire duration of their copyright. By moving toward a model centered around music videos, labels will be able to claim the work-made-for-hire status available for audiovisual works, and could potentially fully exploit the current technological trends and consumer demands for free music.[75] Such a move may not be immediately popular with recording artists, but it would comply with economic theories of property rights and would still allow artists to negotiate protections for themselves in their recording contracts.

* J.D. Candidate, University of Southern California Law School, 2012; B.A., University of Pennsylvania, 2007. The author would like to thank his family for their guidance and support throughout the author’s life. The author would also like to thank University of Southern California Law School Professors Jonathan Barnett, Lance Grode, and Rachel Capoccia for their valuable advice and continuous help with this article. Finally, the author would like to give special thanks to Chief Production Editor Jenna Spatz and the rest of the editors and staffers of the Loyola of Los Angeles Entertainment Law Review for their tireless efforts and help in making this publication possible.

1. 17 U.S.C. § 201(a), (d)(1) (2006).

2.Id. § 203(a)(3).

3.Id.

4.See Mary LaFrance, Authorship and Termination Rights in Sound Recordings, 75 S. Cal. L. Rev. 375, 377 (2002).

5.See id. at 392.

6.17 U.S.C. § 203(a) (“In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright . . . is subject to termination . . . .”).

7.See id.

8.See, e.g., LaFrance, supra note 4, at 377. See generally Ryan Ashley Rafoth, Note, Limitations of the 1999 Work-For-Hire Amendment: Courts Should Not Consider Sound Recordings to Be Works-For-Hire When Artists’ Termination Rights Begin Vesting in Year 2013, 53 Vand. L. Rev. 1021 (2000); Scott Okamoto, Comment, Musical Sound Recordings as Works Made for Hire: Money for Nothing and Tracks for Free, 37 U.S.F. L. Rev. 783 (2003).

9.See, e.g., LaFrance, supra note 4, at 395; Rafoth, supra note 8, at 1052; Okamoto, supra note 8, at 795–96 (“Ambiguity remains within the definition of a work for hire . . . .” ).

10.17 U.S.C. § 101 (2006).

11.Id.

12.See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 749–53 (1989).

13.See LaFrance, supra note 4, at 379; Adam Halston Dunst, Note, “It’s Mine! No, It’s Mine! No, It’s Mine!” Works-Made-For-Hire, Section 203 of the Copyright Act, and Sound Recordings, 7 Vand. J. Ent. L. & Prac. 381, 382 (2005).

14.See LaFrance, supra note 4, at 379.

15.See id. at 383.

16.Id. at 381.

17.Id. at 382.

18.Id. at 379–81.

19.Id. at 379–80.

20.The Copyright Act defines a “collective work” as a work “in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. § 101. It defines a “compilation” as a work “formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Id. It further notes that collective works are a subset of compilations. Id.; see LaFrance, supra note 4, at 386–87.

21.See LaFrance, supra note 4, at 387.

22.See id. at 386–87.

23.See Rafoth, supra note 8, at 1043–44.

24.See id. at 1051–53.

25.See Eliot Van Buskirk, Copyright Time Bomb Set to Disrupt Music, Publishing Industries, Wired Epicenter (Nov. 13, 2009, 3:17 PM), http://www.wired.com/epicenter/2009/11/copyright-time-bomb-set-to-disrupt-music-publishing-industries/ (‘“[The Eagles] don’t need a record company now . . . . You’ll be able to go to Eaglesband.com . . . and get all their songs.’” (quoting attorney Greg Eveline of Eveline Davis & Phillips Entertainment Law)).

26.See, e.g., id.

27.See Rafoth, supra note 8, at 1049–50 (“The level of effort required to compile sound recordings pales in comparison to that required for textbooks and encyclopedias, which are compiled by coordinating thousands of scientists, authors, and artists.”).

28.Despite these realities, the Copyright Act nevertheless provides record labels the exclusive right to negotiate with artists from the time notice of termination is filed until the date of actual termination. 17 U.S.C. § 203(b)(4). Furthermore, the statute allows assignees to continue to exploit derivative works—defined as a “work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, . . . or any other form in which a work may be recast, transformed, or adapted”—that are created pursuant to the grant, thus allowing them to protect some existing revenue streams. Id. §§ 101, 203(b). Therefore, labels, to a degree, may well accept the possibility that they are only given thirty-five years to reap the benefits of transferred copyrights. Id. § 203(a)(3).

29.See generally Donald S. Passman, All You Need to Know About the Music Business (7th ed. 2009).

30.See LaFrance, supra note 4, at 398–400.

31.See id. at 400.

32.See F. J. Dougherty, Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures Under U.S. Law, 49 UCLA L. Rev. 225, 308–09 (2001).

33.See Mark Harris, iTunes Review: A Review of the iTunes Music Store, About.com, http://mp3.about.com/od/digitalmusicdelivery/fr/iTunes_store.htm (last visited Feb. 22, 2012) (referencing the ability to purchase both music and videos from the iTunes store); Help: Amazon MP3 Store: for Web, Amazon, http://www.amazon.com/gp/help/customer/display.html/?nodeId=200593950 (last visited Mar. 15, 2012) (referencing instructions on the ability to and process of buying music and video files from the website).

34.See LaFrance, supra note 4, at 402–03. A public performance royalty is a payment made to the copyright owner whenever the copyrighted work is performed in a public setting. For example, when music is played in restaurants, the restaurant owner must pay the copyright owner a small fee. Passman, supra note 29, at 234.

35.See, e.g., Jefferson Graham, Vevo Music Video Site Turned Free Music Videos into Revenue, ABC News (Dec. 17, 2010), http://abcnews.go.com/Technology/vevo-music-video-site-turned-free-music-videos/comments?type=story&id=12418313#.TxZZtiNWqAZ; Kristi Bohl, Crash Course: Vevo, Unofficial Stan. Blog, http://tusb.stanford.edu/2010/12/crash-course-vevo.html (last visited Mar. 15, 2012).

36.Robert Falden, Listen to Music Online Without the Hassle of Paying or Sacrificing Security, Yahoo! Voices (Feb. 25, 2009), http://voices.yahoo.com/listen-music-online-without-hassle-paying-2744469.html; Ernesto, Is YouTube Killing Music Piracy, Torrent Freak (June 5, 2011), http://torrentfreak.com/is-youtube-killing-music-piracy-110605/.

37.See Graham, supra note 35.

38.See id.; see also Bohl, supra note 35.

39.See Graham, supra note 35; see also Bohl, supra note 35.

40.See, e.g., James Montgomery, Katy Perry’s “E.T.” Video Premieres—Watch It Now! New Clip with Kanye West Is a Big-Budget Spectacle that Takes Perry to the Next Level, MTV.com (Mar. 31, 2011, 2:19 PM), http://www.mtv.com/news/articles/1661051/katy-perry-et-music-video-premiere.jhtml.

41.See, e.g., Antony Bruno, YouTube Stars Don’t Always Welcome Record Deals, Reuters (Feb. 25, 2007, 7:04 p.m.), http://www.reuters.com/article/2007/02/26/us-youtube-idUSN2518918320070226.

42.See, e.g., Videos for Music Labels, Brightcove, http://www.brightcove.com/en/solutions/music-labels (last visited Mar. 15, 2012).

43.See Joe Osborne, Arcade Fire, Google Create First HTML5-Powered Music Video, PCMag (Aug. 31, 2010, 11:17 AM), http://www.pcmag.com/article2/0,2817,2368525,00.asp.

44.See id.

45.See id.; see also Montgomery, supra note 40.

46.See, e.g., LaFrance, supra note 4, at 400–01.

47.See generally Passman, supra note 29.

48.See id. at 144–45, 215–20.

49.Id.

50.Robert G. Martin, Music Video Copyright Protection: Implications for the Music Industry, 32 UCLA L. Rev. 396, 406–07 (1984).

51.Id. at 406–08.

52.See Passman, supra note 29, 241–44 (explaining that a synchronization license is a fee that the producer of an audiovisual work must pay to the owner of a composition in order to feature the song and synchronize it with a video. Unlike the nine-cent fee that producers of sound recordings have to pay, there is no statutory maximum on the synchronization licensing fee; thus, in contrast to their lack of leverage due to the nine-cent ceiling on licensing fees for sound recordings, publishers or songwriters have more leverage when negotiating synchronization licenses for audiovisual works.).

53.See LaFrance, supra note 4, at 398–99.

54.See id. at 399–400.

55.See id.

56.17 U.S.C. § 101 (2006).

57.See id.

58.See Martin, supra note 50, at 427.

59.See Deborah Tussey, What if Employees Owned Their Copyrights?, 2008 Mich. St. L. Rev. 233, 235–36 (2008).

60.See id. at 240–41 (noting that third-party licensees would need to incur transaction costs with multiple parties when trying to negotiate licenses, whereas under the works-made-for-hire system, only one license negotiation is necessary. For example, a television channel would need to secure multiple licenses from multiple parties who all own the copyright to a film and failure to do so would mean that viewers cannot watch the film.).

61.See id. at 242–43 (noting that without the works-made-for-hire system, courts will need to judge the creative efforts of many parties to a collaborative work, such as a film, in order to determine who contributed enough original material to warrant copyright ownership).

62.Compare Passman, supra note 29, at 91 (noting that most artist funds paid by record labels, which include recording costs and advances for the artist, range from $300,000 to $750,000 for mid-level artists, to $1,000,000 for superstars), with Movie Budgets, The-Numbers.com, http://www.the-numbers.com/movies/records/allbudgets.php (last visited Mar. 15, 2012) (showing approximate movie budgets for most major studio films, which can be as high as $300,000,000).

63.See United States Copyright Office and Sound Recordings as Work Made For Hire: Hearing Before the Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary, 106th Cong. (2000) (testimony of Sheryl Crow), available at http://judiciary.house.gov/legacy/crow0525.htm.

64.See The Music Industry’s Unbundling Blues, Harv. Bus. Rev., http://hbr.org/2010/03/the-music-industrys-unbundling-blues/ar/ (last visited Mar. 15, 2012).

65.See id.

66.See Passman, supra note 29, at 108.

67.See infra Part III.

68.17 U.S.C. § 101.

69.See id.

70.See Dougherty, supra note 32, at 309.

71.See H.R. Rep. No. 94-1476 (1976).

72.CD Sales Falling Faster than Digital Music Sales Rise, N.Y. Times, http://www.nytimes.com/2008/06/18/technology/18iht-music.4.13807545.html (last visited Mar. 15, 2012).

73.See id.

74.See LaFrance, supra note 4, at 382–84.

75.See, e.g., Graham, supra note 35; Bohl, supra note 35.

54

RECORD LABELS, FEDERAL COURTS, AND THE FCC: USING UNCERTAINTY IN COMMUNICATIONS LAW TO FIGHT ONLINE COPYRIGHT INFRINGEMENT

Brian Pearl[*]

Illegal downloading continues to plague the music industry. Furthermore, the music industry has little to show for its significant investment in costly, labor-intensive copyright litigation. Federal courts have been increasingly unsympathetic to copyright holders, refusing to let substantial damages awards in several high-profile cases stand. In addition, the Southern District of New York recently ruled that YouTube should not be held liable for widespread copyright infringement on its site in spite of substantial evidence that YouTube had actual knowledge of the infringement. Meanwhile there is great uncertainty in the world of communications law. After the D.C. Circuit thwarted the Federal Communications Commission’s (“FCC”) efforts to stop Comcast from “throttling,” or purposefully slowing, peer-to-peer file-sharing traffic on its network, the FCC drafted a new set of regulations for broadband providers. The new regulations have been challenged from every angle, and will likely be tied up in litigation for years. These legal developments have coincided with the availability of new, legal, online music services such as Spotify and Google Music. This Comment argues that music industry groups such as the Recording Industry Association of America should take advantage of the uncertainty in communications law and attempt to shift consumer behavior away from illegal downloading and toward legal online music services by engaging in a lobbying effort designed to convince Internet service providers to resume throttling peer-to-peer file-sharing services.

I. INTRODUCTION

Illegal downloading of copyrighted content continues to plague the music industry.[1] A recent report commissioned by the British Recorded Music Industry estimates that over three-quarters of the music downloaded in the United Kingdom is obtained illegally.[2] Specifically, the report estimates that 7.7 million British consumers illegally downloaded a staggering 1.2 billion songs in 2010 alone.[3] A 2007 study conducted by the Institute for Policy Innovation estimates that global music piracy results in over $12 billion in economic damages on an annual basis, and a loss of over 70,000 jobs in the United States alone.[4]

Furthermore, it has become painfully clear that costly copyright litigation has been an ineffective weapon in the war against online piracy, yielding minimal results in several high-profile cases.[5] In Sony BMG v. Tenenbaum, Massachusetts District Court Judge Nancy Gertner held that a jury verdict of $675,000 against defendant Joel Tenenbaum for illegally downloading and sharing copyrighted songs was unconstitutionally excessive in light of the Due Process Clause of the United States Constitution.[6] The United States Court of Appeals for the First Circuit recently reversed Judge Gertner’s decision, reinstating the original $675,000 jury verdict.[7] However, the First Circuit remanded the case back to the district court for consideration of common law remittitur, an issue that Judge Gertner declined to decide.[8] Accordingly, the copyright-holder-plaintiffs will likely face a choice between accepting a reduced award or enduring (and paying for) a new trial.[9]

Meanwhile, in Capitol Records Inc. v. Thomas-Rasset, three separate juries found Minnesota resident Jammie Thomas-Rasset liable for copyright infringement. However, District Court Judge Michael Davis refused to let the second jury’s award stand, reducing a $1.92 million award to $54,000 on remittitur grounds.[10] A third jury verdict against Thomas-Rasset, awarding the plaintiffs $1.5 million in damages, is currently on appeal on constitutional grounds.[11] The result in Tenenbaum suggests that Thomas-Rasset’s constitutional argument may find a receptive audience in federal court.

Furthermore, in Viacom International Inc. v. YouTube, Inc., Judge Louis L. Stanton of the Southern District of New York dealt a potentially crushing blow to the copyright-holder plaintiffs.[12] Viacom brought suit against YouTube, alleging that “tens of thousands of videos on YouTube . . . were unlawfully taken from Viacom’s copyrighted works without authorization.”[13] Viacom argued that YouTube had actual knowledge of infringement, and that YouTube was “aware of facts or circumstances from which infringing activity [was] apparent”—so-called “red flag” infringement.[14] Viacom further argued that YouTube’s awareness of this “red flag” infringement precluded YouTube from using the safe harbor of section 512(c) of the Digital Millennium Copyright Act as an affirmative defense.[15] Judge Stanton found Viacom’s arguments unpersuasive, summarily dismissing them in a cursory opinion that effectively rendered the concept of “red flag” infringement a nullity.[16]

Given this disheartening legal landscape, what is the best strategy for the music industry to employ in its perpetual fight against online piracy? Recent developments in communications law may provide an answer. In August 2008, the Federal Communications Commission (“FCC”) issued an order declaring that Comcast’s practice of throttling, or purposefully slowing or blocking peer-to-peer traffic, was impermissible.[17] Comcast filed suit, and in January 2010, the United States Court of Appeals for the District of Columbia Circuit declared that the FCC had failed to justify its exercise of ancillary jurisdiction under the Telecommunications Act when it sought to throttle traffic on BitTorrent, a popular peer-to-peer client.[18] Subsequently, the FCC adopted a report and order titled “In the Matter of Preserving the Open Internet Broadband Industry Practices” on December 21, 2010, which set forth three rules for broadband providers: (1) Transparency (requiring disclosure of network management practices); (2) No blocking (prohibiting blocking of lawful content); and (3) No unreasonable discrimination (prohibiting unreasonable discrimination in the transmission of lawful Internet traffic).[19]

The new FCC regulations have been criticized from various angles.[20] On the one hand, net neutrality proponents claim that the proposed regulations fall far short of President Obama’s campaign promise to achieve true net neutrality.[21] On the other hand, Republicans, who generally oppose government intervention, have vowed to challenge the new FCC regulations during the next Congressional term.[22] In addition, lingering doubts about whether the FCC has statutory authority to regulate the Internet under Title I of the Telecommunications Act make future litigation over the new regulations virtually inevitable.[23] The only thing that can be said with any certainty is that, until all of the various challenges to the new FCC regulations are resolved, it appears impossible to know what the actual operative regulations are.[24] Accordingly, this article will argue that music industry groups such as the Recording Industry Association of America (“RIAA”) should attempt to shift consumer behavior toward legal music services not by appealing to morality, ethics, or the law, but by using technology to make illegal downloading cumbersome and inconvenient. Specifically, this Comment will argue that the RIAA should engage in a lobbying effort to convince Internet Service Providers (“ISPs”) to throttle peer-to-peer services such as BitTorrent, where a significant percentage of illegal downloading occurs.

Part II of the article discusses several recent high profile copyright cases and their adverse results. Part III of the article then discusses the current uncertainty in communication law regarding the FCC’s ability to regulate peer-to-peer Internet traffic. Part III of the article additionally suggests that the RIAA engage in the aforementioned lobbying effort in order to indirectly steer consumers toward new services that provide legal options for downloading and streaming music.

II. THE PROBLEM: FEDERAL COURTS, COPYRIGHT INFRINGEMENT, AND THE INTERNET

A. Statutory Damages Cases

The Recording Industry Association of America officially abandoned the practice of directly suing consumers for illegal file-sharing in 2008.[25] However, two of the most widely known file-sharing lawsuits, Capitol Records Inc. v. Thomas-Rasset, and Sony BMG v. Tenenbaum, are still pending resolution.[26] In both cases, juries found the defendants liable for copyright infringement, awarding damages under the statutory damages provision of the Copyright Act.[27] However, judges in both cases have refused to allow damage awards that were within the statutorily mandated range.[28] Thus, the victories in these two cases have been somewhat hollow. While juries found defendants liable and were willing to award significant damages to the record label-plaintiffs, judges slashed these awards by as much as ninety-seven percent, suggesting implicit hostility towards plaintiffs in cases involving online copyright infringement.[29]

In Sony BMG v. Tenenbaum, several major record labels sued Joel Tenenbaum based on his use of the peer-to-peer file sharing application client Kazaa to illegally download and share thirty copyrighted songs.[30] A Massachusetts jury found Tenenbaum liable for copyright infringement, awarding the plaintiffs $675,000 in statutory damages, or $22,500 per song.[31] Though the damages award was well within the statutory range, Tenenbaum filed a motion challenging the size of the award on both common law and constitutional grounds.[32] The plaintiffs made it clear that they would likely not accept a reduced award based on remittitur.[33] Accordingly, Judge Gertner dedicated most of her sixty-four page opinion to Tenenbaum’s constitutional challenge.[34] After a lengthy analysis of punitive damages jurisprudence, Judge Gertner reached the questionable conclusion that the “guideposts” articulated by the Supreme Court in the seminal punitive damages case BMW of North America, Inc. v. Gore[35] could be properly applied to a statutory damages award under the Copyright Act.[36]

Judge Gertner held that the jury’s award of $675,000 “cannot stand because it is ‘so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.’”[37] Judge Gertner then decided, somewhat arbitrarily, that $2,250 per song “is the outer limit of what a jury could reasonably (and constitutionally) impose in this case.”[38] Not surprisingly, the record labels have filed an appellate brief, arguing that Judge Gertner’s analysis and conclusions are “hopelessly flawed,” manifesting “hostility” toward the record labels based on the court’s opinion that defendants like Tenenbaum were “comparatively venial offenders.”[39]

The First Circuit recently reversed and remanded the case, reinstating the $675,000 damages award against Tenenbaum.[40] However, the court rejected all of Tenenbaum’s substantive arguments, instead reversing Judge Gertner on the narrow basis that the court “declined to adhere to the doctrine of constitutional avoidance on the ground that it felt resolution of a constitutional due process question was inevitable in the case before it.”[41] Accordingly, though the First Circuit reinstated the $675,000 damages award, it also remanded the case back to the district court with instructions to consider reducing the award on common law remittitur grounds (as opposed to Constitutional Due Process grounds).[42] In the likely event the district court does reduce the damages award, the plaintiffs will face the undesirable choice between a reduced damages award and a costly new trial.[43]

In Capitol Records Inc. v. Thomas, several major record labels sued Jammie Thomas-Rasset, a Minnesota resident,[44] who, like Joel Tenenbaum, engaged in illegal file-sharing using the computer software Kazaa.[45] A jury eventually found Thomas-Rasset liable for copyright infringement of twenty-four songs, awarding the plaintiffs $222,000, or $9,250 per song, in statutory damages.[46] Judge Michael Davis ordered a new trial sua sponte on the basis of a faulty jury instruction on the meaning of “distribution” under the Copyright Act.[47] Notably, Judge Davis dedicated the last section of the opinion to the size of the jury’s $222,000 damages award,[48] an issue wholly irrelevant to granting a new trial. Judge Davis implored Congress to amend the Copyright Act and criticized the jury’s $222,000 award, calling it “unprecedented and oppressive.”[49]

On June 18, 2009, a second jury found Thomas-Rasset liable, this time awarding statutory damages in the amount of $80,000 per song, or $1.92 million in total.[50] Judge Davis noted that the record label-plaintiffs had “highlight[ed] valid reasons that Thomas-Rasset must pay a statutory damages award.”[51] However, Judge Davis ultimately concluded that, despite plaintiffs’ arguments “and the [c]ourt’s deference to the jury’s verdict, $2 million for stealing 24 songs for personal use is simply shocking.”[52] Judge Davis ultimately concluded that the damages should be reduced from $1.92 million to a relatively paltry $54,000, or $2,250 per song—only three times the statutory damages minimum of $750 per infringement.[53]

On November 3, 2010, a third jury found Thomas-Rasset liable for copyright infringement, this time awarding $1.5 million, or $62,500 per song infringement, in statutory damages.[54] Thomas-Rasset has since challenged this judgment on constitutional grounds, asking for either a complete removal of the statutory damages award or a reduction of the damages “to an amount that this [c]ourt believes is constitutional.”[55]

Judge Davis reduced the second damages award on common law remittitur grounds.[56] However, given his reaction to damages awards of $222,000 and $1.92 million,[57] it is reasonable to conclude that he will likely follow Judge Gertner’s lead in the Tennenbaum decision, and reduce the $1.5 million award on constitutional grounds.

The Tenenbaum and Thomas-Rasset cases clearly illustrate the considerable difficulties that record labels face in federal courts. In Sony BMG v. Tenenbaum, Judge Gertner purportedly gave appropriate deference “‘to legislative judgments concerning appropriate sanctions for’ copyright infringement” and the jury’s judgment before slashing the jury’s damages award by eigthy-nine percent.[58] As noted above, while the First Circuit reversed Judge Gertner’s decision,[59] it is likely that the plaintiffs will have to accept a reduced award or undergo a new trial. In addition, Judge Davis mentioned that he gave “deference to the jury’s verdict” before reducing the jury’s damages award of $1.92 million by ninety-seven percent.[60] It is difficult to reconcile claims of deference with such drastic action from the bench.

B. Safe Harbor Under Section 512(c) of

the Digital Millennium Copyright Act

Another recent high-profile copyright case, Viacom International Inc. v. YouTube, Inc.,[61] could make litigating against websites that turn a blind eye to rampant copyright infringement even more difficult. In this case, Viacom sued YouTube in a New York federal district court, seeking $1 billion in damages based on allegations that “tens of thousands of videos on YouTube, resulting in hundreds of millions of views, were taken unlawfully from Viacom’s copyrighted works without authorization.”[62] Viacom argued that YouTube was both directly and vicariously liable for blatant copyright infringement.[63] Viacom further argued that YouTube did not qualify for the safe harbors of section 512(c) of the Digital Millennium Copyright Act.[64]

Under section 512(c), a hosting website must remove infringing material in order to qualify for safe harbor from suit for copyright infringement.[65] This obligation is triggered if the host: (1) has actual knowledge of the infringement, or (2) is “aware of facts or circumstances from which infringing activity is apparent.”[66] Judge Stanton relied heavily on legislative history in holding that YouTube did not have the requisite awareness of ongoing infringing activity to negate the application of section 512(c) of the Digital Millennium Copyright Act.[67] Specifically, Judge Stanton claimed that “[m]ere knowledge of prevalence of such [infringing] activity in general is not enough.”[68]

Judge Stanton’s conclusion is troubling for several reasons. First, as one commentator noted, it is almost impossible to know under his opinion “what would actually constitute such ‘red flag’ knowledge.”[69] Second, Judge Stanton’s opinion does little to explain why the mountain of evidence Viacom presented did not constitute “facts or circumstances from which infringing activity [was] apparent.”[70] Viacom appealed Judge Stanton’s decision.[71] However, much like the results in the Tenenbaum and Thomas-Rasset cases, Judge Stanton’s decision in Viacom suggests that copyright-holder plaintiffs like Viacom and major record labels cannot look to the courts for sympathy in cases involving online copyright infringement.

III. THE SOLUTION: TAKING ADVANTAGE OF THE CURRENT UNCERTAINTY IN COMMUNICATIONS LAW

Given the above-referenced judicial skepticism,[72] the music industry will need to take a creative approach and implement alternative strategies in lieu of or in addition to litigation in order to continue its war against online piracy. Uncertainty in communications law may help provide one such strategy.

Net neutrality has been on the Federal Communications Commission’s (“FCC”) agenda since at least February 2004, when former Chairman Michael Powell gave a speech outlining what came to be known as the “Four Open Internet Principles.”[73] According to a policy statement adopted by the FCC on August 5, 2005, consumers are entitled: (1) “to access the lawful Internet content of their choice;” (2) “to run applications and use services of their choice;” (3) “to connect their choice of legal devices that do not harm the network;” and (4) “to competition among network providers, application and service providers . . . [as well as] content providers.”[74] These four principles “are subject to reasonable network management.”[75]

On August 1, 2008, the FCC adopted a Memorandum Opinion and Order in response to complaints that Comcast was throttling peer-to-peer applications.[76] The FCC found that Comcast’s practices “impede[d] Internet content and applications,” and that such practices did not constitute reasonable network management, in violation of the 2008 Policy Statement.[77] Comcast responded with a lawsuit challenging the FCC’s authority to regulate the Internet.[78] On April 6, 2010, Judge David S. Tatel of the District of Columbia Circuit issued an opinion holding that none of the eleven provisions of the Telecommunications Act cited by the FCC actually gave the agency the authority required to make and enforce these regulations.[79]

One month later, on May 6, 2010, FCC Chairman Julius Genachowski announced a plan to reclassify the “transmission component of broadband access service—and only this component—as a telecommunications service,” under Title II of the Telecommunications Act.[80] However, the FCC abandoned this approach, instead adopting a report and order on December 21, 2010, by a 3-2 party-line vote, that asserts authority not through reclassification of broadband Internet, but through claims of ancillary jurisdiction reminiscent of the reasoning rejected by the District of Columbia Circuit in the Comcast decision.[81]

Substantively, the regulations are governed by three main principles: (1) transparency in network management practices; (2) no blocking of lawful content; and (3) no unreasonable discrimination in transmitting lawful network traffic.[82] These three principles are all subject to the “complementary principle of reasonable network management.”[83] However, the regulations are riddled with exceptions.[84] For example, the unreasonable discrimination rule does not apply to mobile broadband providers.[85] Furthermore, it is unclear from the regulations exactly what constitutes lawful or unlawful content.[86] In addition, the reasonability of network management practices will be determined “on a case-by-case basis, as complaints about broadband providers’ actual practices arise.”[87]

The FCC regulations have been attacked from all corners.[88] Net neutrality advocates such as Senator Al Franken have criticized them as “inadequate.”[89] While Democratic FCC Commissioner Michael Copps reluctantly voted in favor of the new regulations, he believes that the FCC “could—and should—have gone further.”[90] Critics on the right, including dissenting FCC Commissioners Robert M. McDowell and Meredith Baker, “vocally opposed the [regulations] as unnecessary and unjustified.”[91] Vows from Congressional Republicans to “push back” and the inevitability of future litigation make it difficult to know with any certainty which regulations, if any, will survive.[92]

Accordingly, the Recording Industry Association of America (“RIAA”) should take advantage of this uncertainty and engage in a lobbying effort designed to convince Internet service providers (“ISPs”) nationwide to engage in exactly the sort of throttling of peer-to-peer traffic that resulted in the Comcast decision.[93] By slowing peer-to-peer traffic, the ISPs, in cooperation with the RIAA, could help indirectly shift consumers toward legal music services. As Google researchers have found, “‘speed matters’ on the Internet.”[94] For example, slowing down the Google search results page by less than half of a second resulted in 0.2% to 0.6% fewer searches.[95] Furthermore, the longer users were exposed to delayed search results, the fewer searches they performed.[96] While use of the Google search engine and illegal file-sharing are hardly exact parallels, it is reasonable to assume that the general principle that speed affects conduct on the Internet is applicable to file sharing.

Consequently, significantly slowing down peer-to-peer traffic could have a tangible impact on online piracy. This is especially true given the ongoing developments in the online music market.[97] While Apple’s iTunes Music Store is still the dominant online music retailer, Amazon.com has emerged as a competitor, “aggressively discounting whole albums,” often selling albums by major artists for as little as $3.99.[98] In addition, other major online marketing developments have recently launched. More specifically, Google Music, a cloud-based service allowing users to purchase new music and store their preexisting collections online, launched on May 10, 2011.[99] Spotify, a cloud-based service wildly popular in Europe, was finally launched in the United States on July 14, 2011.[100] Additionally, Apple released its own cloud-based service on November 14, 2011.[101] Overall, consumers are likely to have an ever-expanding array of choices when it comes to legally obtaining music online.[102] If peer-to-peer traffic can be slowed significantly, it is all the more likely that some consumers who currently choose to engage in illegal file-sharing will instead explore legal alternatives. As noted above, an estimated 7.7 million British consumers were responsible for 1.2 billion illegal downloads in 2010 alone.[103] The number of illegal downloads in the United States is much higher.[104] While it may be impossible to stop all online piracy, this proposed lobbying effort would be worthwhile if even a small percentage of the millions of consumers illegally sharing billions of songs could be rerouted to legal options.

Of course, throttling peer-to-peer traffic could lead to another challenge brought by the FCC. However, an FCC challenge would take a significant amount of time to mount, especially given the challenges that FCC regulations are likely to face in the coming year.[105] Furthermore, even if the new regulations generally survive congressional and judicial scrutiny, there would be a myriad of issues to be litigated on a case-by-case basis. Some of these issues, such as what constitutes unlawful content and whether a particular network management practice is reasonable, may be well worth litigating. Even if it is ultimately determined that throttling peer-to-peer traffic is, in fact, impermissible, much ground would need to be gained in the significant period of time that would elapse before such a determination becomes final.[106] This process would play itself out over months and years.[107] Accordingly, the RIAA should act immediately in order to gain as much traction as possible in the war against online piracy.

IV. CONCLUSION

Costly, time-consuming copyright litigation is simply no longer a viable strategy for the music industry.[108] Furthermore, there is significant uncertainty regarding what FCC-issued regulations regarding net neutrality, if any, the agency will be able to enforce.[109] Accordingly, the Recording Industry Association of America and major record labels would be wise to focus their efforts on lobbying ISPs to throttle peer-to-peer traffic. Doing so is a means of redirecting consumers who might otherwise engage in online copyright infringement to legal online music services that have recently materialized.[110] While it is impossible to completely eliminate online piracy in its entirety, such an effort could have a significant and positive impact on an entertainment industry devastated by its emergence.

* J.D., UCLA School of Law, 2011; B.A., Manhattan School of Music, 1999. The author would like to thank UCLA School of Law Professors Jerry Kang and Doug Lichtman for their advice, guidance and encouragement. The author would also like to give special thanks to Chief Production Editor Jenna Spatz and the rest of the editors and staffers of the Loyola of Los Angeles Entertainment Law Review for their tireless efforts and help in making this publication possible.

1.See, e.g., Press Release, British Recorded Music Indus., New BPI Report Shows Illegal Downloading Remains Serious Threat to Britain’s Digital Music Future (Dec. 16, 2010), http://www.bpi.co.uk/press-area/news-amp3b-press-release/article/new-bpi-report-shows-illegal-downloading-remains-serious-threat-to-britains-digital-music-future.aspx.

2.Geoff Taylor, Digital Music Nation, in Digital Music Nation 2010: The UK’s Legal and Illegal Digital Music Landscape 1 (Dec. 2010), available at https://bpi.co.uk/assets/files/Digital%20Music%20Nation%202010.pdf.

3.Illegal Downloading in the UK on the Rise, NME (Dec. 16, 2010), http://www.nme.com/news/various-artists/54283.

4.Stephen E. Siwek, Inst. for Policy Innovation, The True Cost of Sound Recording Piracy to the U.S. Economy 14 (Policy Report 188 Aug. 2007), available at http://www.ipi.org/IPI%5CIPIPublications.nsf/PublicationLookupFullTextPDF/51CC65A1D4779E408625733E00529174/$File/SoundRecordingPiracy.pdf?OpenElement.

5.See, e.g., Sony BMG Music Entm’t v. Tenenbaum, 721 F. Supp. 2d 85 (D. Mass. 2010); Capitol Records Inc. v. Thomas-Rasset, 680 F. Supp. 2d 1045 (D. Minn. 2010); Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010).

6.Sony BMG Music Entm’t, 721 F. Supp. 2d at 121, aff’d in part, vacated in part, rev’d in part, 660 F.3d 487 (1st Cir. 2011).

7.Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 515 (1st Cir. 2011).

8.Id. at 491, 515.

9.Id.; see also Milton J. Valencia, Court Upholds Fine in Music Download Case, Boston.com (Sept. 20, 2011), http://articles.boston.com/2011-09-20/news/30180976_1_appeals-court-joel-tenenbaum-district-court.

10.Capitol Records Inc., 680 F. Supp. 2d 1045.

11.Record Companies Plan Music Downloading Appeal, Bloomberg Businessweek (Aug. 22, 2011), http://www.businessweek.com/ap/financialnews/D9P9CPV03.htm.

12.Viacom Int’l Inc., 718 F. Supp. 2d 514.

13.Memorandum of Law in Support of Viacom’s Motion for Partial Summary Judgment on Liab. & Inapplicability of the Digital Millennium Copyright Act Safe Harbor Def. at 1, Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010) (No. 1:07-cv-02103).

14.Id.

15.Id. at 3–4.

16.Viacom Int’l Inc., 718 F. Supp. 2d at 529; Ben Sheffner, Viacom v. YouTube: A Disappointing Decision, but How Important?, Copyrights & Campaigns (June 27, 2010), http://copyrightsandcampaigns.blogspot.com/2010/06/viacom-v-youtube-disappointing-decision.html.

17.Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications, 23 FCC Rcd. 13028, 13052 (2008) [hereinafter Formal Complaint].

18.Comcast Corp. v. F.C.C., 600 F.3d 642, 661 (D.C. Cir. 2010) (indicating that Comcast was specifically throttling traffic on BitTorrent, a popular peer-to-peer client). The Telecommunications Act was created with the express purpose of “regulating interstate and foreign commerce in communication by wire and radio.” 47 U.S.C. § 151 (2011). However, the FCC has no express statutory authority to regulate the Internet. Accordingly, the FCC attempted to justify its order declaring Comcast’s practice of throttling impermissible by relying on its ancillary jurisdiction, under which the FCC may issue regulations “reasonably ancillary” to an exercise of statutorily granted authority. See, e.g., United States v. Sw. Cable Co., 392 U.S. 157 (1968).

19.The FCC explained the three rules as follows:

i. Transparency: Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;

ii. No blocking: Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and

iii. No unreasonable discrimination: Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

Preserving the Open Internet Broadband Industry Practices, 25 FCC Rcd. 17905, 17906 (2010); see also Net Neutrality Definition, Oxford Eng. Dictionary, http://www.oed.com/view/Entry/126280?redirectedFrom=net%20neutrality#eid236427655 (last visited Mar. 15, 2012) (“[T]he fact or principle of Internet service providers enabling access to all content and applications regardless of the source or destination, and without favouring [sic] or blocking particular formats, products, web sites, etc.”).

20.Compare Troy Wolverton, New ‘Net Neutrality’ Rules Don’t Go Far Enough, TribLIVE (Jan. 2, 2011), http://www.pittsburghlive.com/x/pittsburghtrib/focus/s_716201.html#, with Brian Stelter, F.C.C. Faces Challenges to Net Rules, N.Y. Times, Dec. 22, 2010, at B1.

21.See Wolverton, supra note 20; see also Roy Mark, Obama Promises Net Neutrality, eWeek (Oct. 30, 2007), http://www.eweek.com/c/a/Mobile-and-Wireless/Obama-Promises-Net-Neutrality (reporting that during the 2008 presidential campaign, then-candidate Barack Obama promised to appoint pro-net neutrality FCC commissioners if elected in order to ensure a “level playing field” on the Internet, such that the “speed with which and quality of” a user’s downloads or links remained consistent regardless of the particular website a user chose to visit).

22.Stelter, supra note 20.

23.See id.; Can the FCC Regulate the Internet?: Transcript, On the Media (Dec. 24, 2010), http://www.onthemedia.org/transcripts/2010/12/24/02 (transcribing an interview with FCC Commissioner Michael Copps about FCC’s authority under Title I of the Telecommunications Act).

24.Compare Stelter, supra note 20, with Can the FCC Regulate the Internet?: Transcript, supra note 23.

25.Sarah McBride & Ethan Smith, Music Industry to Abandon Mass Suits, Wall St. J. (Dec. 19, 2008), http://online.wsj.com/article/SB122966038836021137.html.

26.See Capitol Records, Inc. v. Thomas-Rasset, No. 06-1497 (MJD/LIB), 2011 U.S. Dist. LEXIS 85662 (D. Minn. July 22, 2011); Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487 (1st Cir. 2011).

27.Capitol Records Inc. v. Thomas-Rasset, 680 F. Supp. 2d 1045, 1061 (D. Minn. 2010); Sony BMG Music Entm’t v. Tenenbaum, 721 F. Supp. 2d 85, 121 (D. Mass. 2010) aff’d in part, vacated in part, rev’d in part, 660 F.3d 487 (1st Cir. 2011).

28.Sony BMG Music Entm’t, 721 F. Supp. 2d at 121; Capitol Records Inc., 680 F. Supp. 2d at 1061.

29.Nate Anderson, Judge Slashes “Monstrous” P2P Award by 97% to $54,000, Ars Technica (Jan. 22, 2010, 3:05 PM), http://arstechnica.com/tech-policy/news/2010/01/judge-slashes-monstrous-jammie-thomas-p2p-award-by-35x.ars.

30.Sony BMG Music Entm’t, 721 F. Supp. 2d at 87.

31.Id.

32.Id. at 87–88.

33.Id. at 88.

34.Id.

35.BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) (holding punitive damages in a suit regarding undisclosed repairs to a vehicle would be excessive and thus violate due process, unless the defendant’s conduct gave notice of such penalty, as measured by three “guideposts”).

36.Sony BMG Music Entm’t, 721 F. Supp. 2d at 103.

37.Id. at 116 (citation omitted).

38.Id. at 117.

39.Plaintiffs-Appellants/Cross-Appellees’ Opening Brief at 24 n.5, Sony BMG Music Entm’t v. Tenenbaum, 721 F. Supp. 2d 85 (D. Mass. 2010) (Nos. 10-1883, 10-1947, 10-2052) aff’d in part, vacated in part, rev’d in part, 660 F.3d 487 (1st Cir. 2011).

40.Sony BMG Music Entm’t, 660 F.3d 487.

41.Id. at 508.

42.Id. at 515.

43.Id. It is worth noting that during the damages phase of the district court trial, the Recording Industry Association of America made clear that it would not agree to any reduced figure. Valencia, supra note 9. Accordingly, it is reasonable to expect that a new trial will take place should the district court decide to reduce the damages award on remand from the First Circuit.

44.Ben Sheffner, Third Thomas-Rasset Verdict: $1.5 million, Copyrights & Campaigns (Nov. 3, 2010), http://copyrightsandcampaigns.blogspot.com/2010/11/third-thomas-rasset-verdict-15-million.html.

45.Capitol Records Inc. v. Thomas, 579 F. Supp. 2d 1210, 1212–13 (D. Minn. 2008).

46.Id. at 1227.

47.Id. at 1226–27.

48.Id. at 1227–28.

49.Id.

50.Capitol Records Inc. v. Thomas-Rasset, 680 F. Supp. 2d 1045, 1050 (D. Minn. 2010); see also 17 U.S.C. § 504(c)(2) (2006) (setting maximum statutory damages at $150,000 on the condition that the copyright owner is able to prove the infringement was committed willfully).

51.Capitol Records Inc., 680 F. Supp. 2d at 1053.

52.Id. at 1054.

53.Id. at 1056–57; 17 U.S.C. § 504(c)(1) (“[T]he copyright owner may elect . . . an award of statutory damages for all infringements involved in the action, with respect to any one work . . . in a sum of not less than $750 . . . .”).

54.Sheffner, supra note 44.

55.Motion to Alter or Amend the Judgment and Renewed Motion for Judgment as a Matter of Law at 2, Capitol Records Inc. v. Thomas-Rasset, 680 F. Supp. 2d 1045 (D. Minn. 2010) (No. 06-cv-1497-MJD).

56.Capitol Records Inc., 680 F. Supp. 2d at 1056–57.

57.Capitol Records Inc., 579 F. Supp. 2d at 1227–28 (“Her status as a consumer who is not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.”); Capitol Records Inc., 680 F. Supp. 2d at 1054 (“[D]espite the combination of these justifications and the Court’s deference to the jury’s verdict, $2 million for stealing 24 songs for personal use is simply shocking.”).

58.Sony BMG Music Entm’t, 721 F. Supp. 2d at 89, 12 (quoting BMW of N. Am., Inc., 517 U.S. at 583).

59.Sony BMG Music Entm’t, 660 F.3d 487.

60.Capitol Records Inc., 680 F. Supp. 2d at 1054, 1057.

61.Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010); see Edward Berridge, Google Kicks Viacom in the Nadgers, Inquirer (June 24, 2010), http://www.theinquirer.net/inquirer/news/1687574/google-kicks-viacom-nadgers.

62.Memorandum of Law in Support of Viacom’s Motion for Partial Summary Judgment on Liability and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense at 1, Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010) (No. 1:07-cv-02103).

63.Id. at 38–46.

64.Id. at 47–66.

65.17 U.S.C. § 512(c)(1)(C) (2006).

66.Id. § 512(c)(1)(A)(1)–(2).

67.Viacom Int’l Inc., 718 F. Supp. 2d at 523–24.

68.Id. at 523.

69.Sheffner, supra note 16 (“The statute (and legislative history) clearly indicate that some form of knowledge beyond that imparted via DMCA notices qualifies as knowledge of ‘facts or circumstances from which infringing activity is apparent,’ thus triggering a site’s takedown obligation (on pain of losing the safe harbor). But after reading Judge Stanton’s opinion several times, I simply have no idea what would actually constitute such ‘red flag’ knowledge.”).

70. Id. (noting “[b]oth parties amassed, and cited, thousands of pieces of evidence” that the Court “barely mentioned . . . at all”). In its Statement of Undisputed Facts in Support of its Motion for Partial Summary Judgment, Viacom detailed a multitude of evidence demonstrating that YouTube had specific knowledge of infringement of Viacom works on YouTube’s system, including: (1) acknowledgment of the popularity of clips of the television show South Park on YouTube; (2) e-mails from users regarding the unauthorized posting of clips of the television show Chappelle’s Show on YouTube; and (3) an internal YouTube memo acknowledging that many clips of “well-known shows” including Family Guy, South Park, The Daily Show with Jon Stewart, and Chappelle’s Show could be found on the site. Viacom’s Statement of Undisputed Facts in Support of its Motion for Partial Summary Judgment on Liability and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense ¶¶ 32, 59, 110, Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010) (No. 1:07-cv-02103); see also Naomi Jane Gray, Where’s the Beef? YouTube Opinion Lacks Heft, Shades of Gray (June 30, 2010), http://www.shadesofgraylaw.com/2010/06/30/wheres-the-beefyoutube-opinion-lacks-heft.

71.John Letzing, Viacom Files Appeal in Google-YouTube Case, MarketWatch.com (Dec. 4, 2010, 10:10 AM), http://www.marketwatch.com/story/viacom-files-appeal-in-youtube-litigation-2010-12-03.

72.See supra Part II.

73.Stacey Higginbotham, A Net Neutrality Timeline: How We Got Here, GigaOM (Dec. 21, 2010), http://gigaom.com/2010/12/21/a-net-neutrality-timeline-how-we-got-here/ (referring to a timeline detailing the evolution of the FCC’s net neutrality policy).

74.Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 FCC Rcd. 14986, 14988 (2005).

75.Id. at 14988 n.15.

76.Formal Complaint, supra note 17.

77.Id. at 13052–53.

78.See generally Comcast Corp. v. F.C.C., 600 F.3d 642 (D.C. Cir. 2010).

79.Id. at 644.

80.FCC Chairman Julius Genachowski, The Third Way: A Narrowly Tailored Broadband Framework (May 6, 2010), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-297944A1.pdf.

81.Preserving the Open Internet Broadband Industry Practices, 25 FCC Rcd. 17905 (2010).

82.Id. at 17936–56.

83.Id. at 17906.

84.See, e.g., id.

85.See id. at 17962.

86.See, e.g., id.

87.Preserving the Open Internet Broadband Industry Practices, 25 FCC Rcd. 17905, 17952 (2010).

88.See Hiawatha Bray, FCC OK’s Internet Service Rules; Net Neutrality Backers, Foes Not Happy with Results, Bos. Globe, Dec. 22, 2010, at 7; see also Stelter, supra note 20 (identifying parties with conflicting views on the FCC regulations).

89.Press Release, Al Franken, U.S. Senator from Minn., (Dec. 21, 2010), http://franken.senate.gov/?p=press_release&id=1246; see also Wolverton, supra note 20.

90.Preserving the Open Internet Broadband Industry Practices, 25 FCC Rcd. 17905, 18046 (2010) (concurring statement of FCC Commissioner Michael Copps).

91.Stelter, supra note 20; see also Robert M. McDowell, The FCC’s Threat to Internet Freedom, Wall St. J., Dec. 20, 2010, at A23; Peter Ferrara, Net Neutrality Is Theft, Am. Spectator (Dec. 29, 2010), http://spectator.org/archives/2010 /12/29/net-neutrality-is-theft (“[W]ithout compelling reason, law or even politics on their side, on December 21, on a 3-2 party line vote, the FCC voted to impose its ‘net neutrality’ rules on the Internet.”); Jonathan Gurwitz, Net Neutrality is Anything but Neutral, San Antonio Express-News (Dec. 25, 2010), http://www.mysanantonio.com/opinion/ columnists/jonathan_gurwitz/article/Net-neutrality-is-anything-but-neutral-917994.php.

92.Can the FCC Regulate the Internet?: Transcript, supra note 23 (quoting Copps: “You’re going to go to court no matter what you do around here. I’ve been at this place for ten years now and anything that we do, just about, ends up with some party dragging’ [sic] you into court to, to contest it.”).

93.See Formal Complaint, supra note 17 (noting Comcast’s practice of “selectively target[ing] and interfer[ing] with connections of peer-to-peer (P2P) applications” without disclosing that practice to customers).

94.Jake Brutlag, Speed Matters, Google Res. Blog (June 23, 2009), http://googleresearch.blogspot.com/2009/06/speed-matters.html; see also About Andrew B. King, MSME, WebSiteOptimization.com, http://www.websiteoptimization.com/speed/about (last visited Mar. 15, 2012).

95.Brutlag, supra note 94.

96.Id.

97.See, e.g., Hello America. Spotify Here., Spotify (July 14, 2011), http://www.spotify.com/us/about-us/press/hello-america-spotify-here; Apple - iTunes - Everything You Need to Be Entertained, Apple, http://www.apple.com/itunes/ (last visited Mar. 15, 2012).

98.Ethan Smith & Geoffrey A. Fowler, Amazon Can’t Dent iTunes, Wall St. J., Dec. 17, 2010, at B1.

99.See Google Set to Launch “Music Beta” Service Today (May 10), NME (May 10, 2011), http://www.nme.com/news/various-artists/56567; see also Introducing Google Play, Google Play, https://play.google.com/about/ (last visited Mar. 15, 2012) .

100.See Hello America. Spotify Here., supra note 97.

101.Sarah Perez, iTunes Match Launches Today, TechCrunch (Nov. 14, 2011), http://techcrunch.com/2011/11/14/itunes-match-launches-today/.

102.See, e.g., Hello America. Spotify Here., supra note 97; Apple - iTunes - Everything You Need to Be Entertained, supra note 97.

103.See Illegal Downloading in the UK on the Rise, supra note 3.

104. International Chamber of Commerce, Estimating the Global Economic and Social Impacts of Counterfeiting and Piracy, Annexe 1 (Feb. 2011), available at http://www.iccwbo.org/uploadedfiles/BASCAP/Pages/Global%20Impacts%20-%20Final.pdf (estimating that “around 20 billion songs are illegally downloaded by US consumers”).

105.See Can the FCC Regulate the Internet?: Transcript, supra note 23 (quoting Copps: “You’re going to go to court no matter what you do around here. I’ve been at this place for ten years now and anything that we do, just about, ends up with some party dragging’ [sic] you into court to, to contest it.”).

106.See id.

107.See id.

108.See supra Part II.A.

109.See supra Part III.

110.See id.

68

RUNNING ON EMPTY: THE PROBLEM WITH POLITICIANS AND STEALING (MUSIC)

Maral Vahdani[*]

This Comment explores the legal issues arising from unauthorized use of musical compositions during political campaigns and rallies. Focusing on John McCain’s use of Jackson Brown’s song “Running on Empty” during his political campaign, the article examines why such uses are problematic and proposes remedies for preventing future unauthorized use.

I. INTRODUCTION

Rock and Roll Hall of Fame musician Jackson Browne’s website describes him as an artist who has “defined a genre of songwriting charged with honesty, emotion and personal politics.”[1] In a section of Browne’s website called “Readings,” he offers a glimpse of what those personal politics entail: current articles, book reviews, and essays on topics ranging from nuclear reactors to the United States’ torture of inmates at Guantanamo Bay.[2]

Given Browne’s well known liberal leanings,[3] it seems especially troublesome that Republican John McCain, then in his bid for the presidency, would use Browne’s song “Running on Empty” in a commercial criticizing his opponent Barack Obama.[4] Browne is not only a Democrat, but has also been a public voice of support for Obama.[5] While the unauthorized use of copyrighted music in political campaigns is nothing new,[6] the McCain campaign’s use of copyrighted music created considerably more controversy than similar uses have in previous campaigns.[7] In fact, at least ten artists, including Browne, demanded that McCain stop using their music without permission during his 2008 campaign.[8]

On August 14, 2008, Browne sued McCain alleging copyright infringement.[9] The suit centered on McCain’s use of Browne’s song “Running on Empty” in a Republican Party campaign commercial attacking Obama.[10] During the commercial, the instrumental introduction of Browne’s composition begins playing as the screen displays the words “What’s that Obama plan again?” and continues to play throughout the duration of the commercial.[11]

In his suit, Browne alleged not only copyright infringement, but also vicarious copyright infringement, violation of the Lanham Act for false association or endorsement, and violation of the right of publicity, which is a cause of action stemming from California common law.[12] The claims survived a motion for summary judgment brought by McCain and the Republican National Committee (“RNC”);[13] the parties later settled outside of court for an undisclosed sum.[14] While Browne’s immediate problem was solved, the larger legal issues of such unauthorized use have yet to be answered definitively by the courts.[15]

Artists like Browne are not without recourse, but their options for preventing unauthorized use are currently problematic. This Comment will address two claims an artist can bring in order to protect his or her rights and the likelihood of success of these claims based on existing case law. Part II discusses copyright and trademark protection, and the potential inadequacies of each. Part III proposes a solution to these problems, resulting in the allowance of greater protection to artists, while still maintaining the intended goals of copyright and trademark law.

II. THE COPYRIGHT ACT AND TRADEMARK PROTECTION

A. The Copyright Act and Fair Use

Congress enacted the U.S. Copyright Act[16] under its Constitutional authority to protect authors’ writings.[17] Today, copyright protection extends to architectural design, computer software, graphic arts, motion pictures, and sound recordings.[18] Copyright protection of music applies to both the composition itself as well as to the recording of the song.[19] Pursuant to the Copyright Act, a copyright owner has the “exclusive” right to reproduce the work, prepare derivative works, distribute copies, perform the work publicly, and perform the work by means of a digital audio transmission.[20] While a creator’s rights require protection, the Copyright Act also recognizes the public interest in promoting creativity.[21] In order to achieve the Constitution’s goal of promoting the “Progress of Science and useful Arts,”[22] the Copyright Act balances the right of an author to benefit from his or her work with the public’s need to use that work to create new material.[23]

By applying the “fair use” doctrine, Congress and the Judiciary balance the public interest in using a work with the copyright owner’s right to exclusivity in his or her original creative works.[24] In applying the fair use exception, courts developed a test,[25] now incorporated into the statute, designed to ensure the competing interests are weighed properly.[26] The definitive Supreme Court case on the matter is Campbell v. Acuff-Rose.[27] Using the balancing test laid out in the case,[28] courts evaluate the following four factors: (1) the purpose of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to work as a whole; and (4) the effect of the use upon the potential market for or value of the work.[29]

1. The First Fair Use Factor: Purpose and Character of Use

The first factor in the fair use analysis is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”[30] In Campbell, the respondent, Acuff-Rose Music, Inc., filed suit against petitioners, the members of the rap music group 2 Live Crew and its record company, claiming that 2 Live Crew’s song, “Pretty Woman,” infringed upon Acuff-Rose’s copyright in Roy Orbison’s rock ballad, “Oh, Pretty Woman.”[31] The rap group defended on the ground that its version of the song was a parody entitled to fair use protection under the Copyright Act.[32] The District Court granted summary judgment for 2 Live Crew, holding that its song was a parody that made fair use of the original.[33]

The Court of Appeals reversed and remanded, holding that the commercial nature of the parody rendered it presumptively unfair under the first of the four factors relevant under section 107; “that, by taking the heart of the original and making it the heart of a new work, 2 Live Crew had, qualitatively, taken too much” under the third section 107 factor; and that market harm, for purposes of the fourth section 107 factor, had been established by a presumption attaching to commercial uses.[34]

The Supreme Court, however, concluded that the commercial nature of the song did not render a use presumptively unfair.[35] Instead, a parody’s commercial character is only one element that should be weighed in a fair use inquiry.[36] The Court in Campbell also analyzed the transformative value of the work in question, holding that parody “can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”[37]

Here, McCain’s use of Browne’s music cannot be considered transformative, as he did not do anything new with Browne’s song.[38] Instead, McCain used Browne’s actual composition.[39] Here, McCain’s use was not novel nor did it provide any social benefit, and it may have actually harmed Browne’s artistic integrity.[40] McCain’s use of Browne’s work was not of the type Congress intended to be included in the protection it laid out for new creative works that draw from preexisting ones. Instead, McCain’s conduct is the very type of copyright infringement the Copyright Act seeks to prohibit.

While McCain’s use of Browne’s song and voice is not transformative, this fact alone is not sufficient to defeat McCain’s fair use argument. The first factor of the fair use analysis also focuses on the commercial nature of the use.[41] In this portion of the analysis, courts must determine whether a political campaign advertisement is considered commercial.[42] Courts that have addressed this question have unanimously agreed that they are not.[43] Nonetheless, Browne need not prove that McCain’s use of his song was “commercial” in order for Browne to prevail. While political speech may be presumptively non-commercial, the Browne court specifically stated, “copyright claims based on use of a copyrighted work in a political campaign are not barred, as a matter of law, under the fair use doctrine.”[44]

2. The Second Fair Use Factor: The Nature of the Copyrighted Work

The nature of the potentially infringing use and whether it serves the public interest affects the level of protection courts will afford the copyrighted work.[45] When analyzing this second factor, courts must determine whether greater access to the work “would serve the public interest in the free dissemination of information.”[46] McCain likely used Browne’s song because it is well known and its lyrics are relevant to the point he was trying to make about Obama’s energy plan. However, using the song to criticize Obama is not the same thing as altering the song itself for the purposes of parody, which the Supreme Court has recognized as a fair use.[47] Again, the song was not altered in any way— instead, a recording of the original musical composition was simply played throughout the commercial.

3. The Third Fair Use Factor: Extent of the Use of the Protected Work

The third factor courts analyze under the fair use doctrine considers the extent to which the work was used.[48] Courts consider “how much of the copyrighted work was taken and whether that portion was an essential element of the plaintiff’s work.”[49] Here, at least twenty seconds of the song “Running on Empty,” including the chorus, were included in a commercial that is approximately one minute and twenty seconds long.[50] While the McCain commercial used a little more than ten percent of Browne’s total composition,[51] the parts of the song used were substantial. Specifically, using the chorus of the song, which also includes the song’s title, is more substantial than using, for example, just an instrumental portion.[52] McCain’s use of Browne’s chorus provides a greater likelihood that the song will be recognized by anyone who is familiar with Browne’s work.[53]

4. The Fourth Fair Use Factor:

Impact on Potential Value of the Protected Work

The fourth factor in the fair use analysis requires courts to consider not only market harm the alleged infringer has already caused, but also the future harm.[54] This factor weighs most heavily in support of Browne and other artists in similar situations. McCain’s use of “Running on Empty” without permission resulted in a pecuniary loss equivalent to what it would have cost to license the song’s use.[55] While a single instance of copyright infringement in this case would not yield substantial losses, the losses would be significant if this type of infringement were to continue. Furthermore, if Browne’s music is routinely used to spread a political message that is out of line with the artist’s own political beliefs, it is likely his target audience may lose interest in his original works.

B. Trademark Law and the Lanham Act

Found in Title 15 of the U.S. Code, the Lanham Act (“Act”) contains the federal statutes governing trademark law in the United States.[56] The primary purpose of trademark protection is to avoid public confusion “as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.”[57] Pursuant to this primary goal, whether a trademark has been infringed depends on whether this sort of consumer confusion is likely.[58] The Act was amended in 1996 to include the Trademark Dilution Act.[59] This addition to the Lanham Act protects against dilution, defined as the use of a trademark by someone other than its owner resulting in impairment of the mark’s distinctiveness.[60] Dilution can be found through “blurring,” the process through which an established trademark is whittled away “through its unauthorized use by others upon dissimilar products”[61] or “tarnishment,” which occurs “when the plaintiff’s trademark is linked to products of shoddy quality, or is portrayed in an unwholesome or unsavory context.”[62]

1. Is It “Commercial”?

The Lanham Act, both in section 43(a) and in section 43(c), requires a use “in commerce.”[63] Thus, establishing that a political use is commercial is essential to showing that an artist can recover on a trademark claim. In his trademark infringement defense, McCain argued that his use of Browne’s song was political, and thus not commercial.[64] Addressing McCain’s argument that the Lanham Act does not apply to political speech, the District Court pointed out case law to the contrary stating, “the Lanham Act applies to noncommercial (i.e., political) and commercial speech.”[65] In support of this proposition, the court cited the cases United We Stand America, Inc. v. United We Stand, America New York, Inc.[66] and MGM-Pathe Communications Co. v. Pink Panther Patrol.[67]

2. Is It “In Commerce”?

The court next addressed McCain’s contention that the statute’s use of the phrase “in commerce” required that “the defendant actually used the mark in commerce.”[68] Citing United We Stand, the court explained, “the Act’s reference to use ‘in commerce’ actually ‘reflects Congress’s intent to legislate to the limits of its authority under the Commerce Clause’ to regulate interstate commerce.”[69] The court’s logic is that diminishing the plaintiff’s ability to use the mark is sufficient to establish an effect on interstate commerce, and could accordingly satisfy the “in commerce” requirement.[70] The scope of the commerce requirement, the court explained, is broad.[71]

3. The Federal Trademark Dilution Act

As discussed, under federal law, dilution can be found through “blurring,”[72] or “tarnishment.”[73] Artists like Browne, who are commonly associated with a certain viewpoint, can raise a strong argument for tarnishment under the Dilution Act. Again, the use must be “commercial” and “in commerce.”[74] As referenced, Browne is an artist who has taken a specific political stance, in support of Obama, and for that reason sought association with Obama’s campaign.[75] Accordingly, McCain’s commercial “tarnished” Browne’s image as a Democrat and Obama-supporter in a way that was likely to cause dilution to Browne’s name.

The risk to Browne’s image is clear. The general public who saw Browne performing one week at an Obama rally and next heard Browne’s music in a television commercial aired by Obama’s opponent may have easily believed Browne was willing to lend his voice, and lyrics, to whomever would pay him. This perception may not matter for an artist who freely endorses a wide variety of products and services. For example, Grammy winning pop artist Beyoncé is well known for her endorsement deals ranging from bottled water to video game consoles.[76] If a consumer sees an artist such as Beyoncé drinking Coca-Cola in an advertisement one week and two weeks later promoting Pepsi, they will simply assume her new endorsement contract is with Pepsi. These conflicting endorsements may harm the product, in this case Coca-Cola, but it does not necessarily harm Beyoncé personally.[77] The problem is greater for an artist like Browne, however, who, though well known, is not associated with various commercial products.[78] Browne’s name is infrequently associated with endorsements,[79] and when it is, such as in the context of the McCain commercial, the public is more likely to assume he supports that endorsement. Beyond the possibility of viewing Browne as someone willing to sell his work to the highest bidder, the public is also likely to infer, to Browne’s detriment, that he has now shifted sides and no longer supports Obama. Both possibilities tarnish Browne’s image.

III. PROPOSAL

Escaping the restrictions imposed by copyright and trademark law by claiming non-commercial use provides political figures with too much leeway to use the compositions of any musician or artist of their choosing. While use of a creative work without permission may be troublesome in any context, it is particularly problematic in the political context, where an artist profits not only from his or her musical compositions, but also from the image he or she creates.[80] When an artist’s music is associated in a way that contradicts his or her image, the artist is harmed not only financially, but also in an intangible sense.[81] The solution is to prevent political figures from using an artist’s work by taking the commercial definition of the Trademark Act and applying it to copyright law. It is also essential to recognize that First Amendment protection is for political speech—not speech made by politicians.[82]

A. Copyright Law

To ensure that copyright law adequately protects the works of artists who fear their integrity may be compromised, the first proposal concerns the fair use defense. Under the first fair use factor, the purpose and character of use, courts currently consider both whether the work is transformative and whether it is commercial.[83] Transformative works undoubtedly deserve the highest protection, as they embody the very sort of creativity Congress sought to encourage in recognizing the fair use defense.[84] However, regardless of the purpose and character of the use, whether the use is commercial deserves more attention and, accordingly, should be more clearly defined by the courts. Based on existing law, political speech is currently deemed non-commercial for copyright purposes, yet not all political speech is actually non-commercial.[85] When a politician uses popular copyrighted music in an advertisement intended to raise money, surely he is soliciting the public and engaging in commerce.[86] The Browne court specifically stated, “copyright claims based on use of a copyrighted work in a political campaign are not barred, as a matter of law, under the fair use doctrine.”[87] This judicial stance is important, but carries little weight when discussed only at the summary judgment stage of a case that never went to trial.[88] By defining what qualifies as “commercial” within the statute, further confusion can be avoided and future political, commercial uses prevented.

B. Trademark Law

In addressing McCain’s claim that his speech was political and thus not commercial, the court agreed that political speech is non-commercial but acknowledged that non-commercial speech can fall under the Lanham Act.[89] This stance, although problematic, can be easily remedied. The Lanham Act explicitly states that it applies only to commercial uses in commerce.[90] Instead of avoiding that requirement, case law must recognize that while all non-commercial use can escape the Lanham Act, some types of political speech are commercial. As discussed above, when a politician, or any other individual, uses the channels of commerce to advertise and solicit donations, he or she is entering into the stream of commerce in order to derive commercial benefit.[91] McCain may be a politician, but his commercial was about raising money, rather than just about expressing his political ideas.

IV. CONCLUSION

Unauthorized use of an artist’s work is always problematic, especially when it can affect not only record sales, but also an artist’s credibility and integrity. The Jackson Browne case is only one recent example of the legal issues raised when politicians use music without permission.[92] While Browne’s case did not make it far in litigation before a settlement was reached, it is only a matter of time before a court will have to address these issues once again.

By more clearly defining the terms of the fair use exception to the Copyright Act and the scope of the Lanham Act, courts can clarify the responsibilities of parties on both sides and help deter further infringement. Specifically, artists can gain greater protection by legal recognition that political speech can be commercial, and that such commercial uses are against the Constitution’s original goals of balancing the artists’ rights against the rights of the public.

* J.D., Chapman University School of Law, 2011; B.A., University of California, Santa Barbara, 2005. The author would like to thank Professor Steven G. Krone for his editing, patience, and infinite knowledge on all things entertainment law. The author would also like to thank Professor John Tehranian for his endless support, Nick, Sam, and Ashkan for teaching her everything she knows, and lastly, for everything else, she would like to thank her Mother, Golriz, Yasamine, and Travis.

1.Biography of Jackson Browne, JacksonBrowne.com, http://jacksonbrowne.com/bio (last visited Mar. 15, 2012).

2.Readings, JacksonBrowne.com, http://jacksonbrowne.com/readings (last visited Mar. 15, 2012).

3.See Geoff Boucher, Jackson Browne Sues John McCain over Song Use, L.A. Times Top of the Ticket (Aug. 14, 2008, 12:40 PM), http://latimesblogs.latimes.com/washington/2008/08/jackson-browne.html (“Browne . . . gave Obama $2,000 shortly after he won his Senate seat in 2004 and another $2,300 in March. Browne also has given about $5,500 to MoveOn.org, $5,266 to Rep. Lois Capps of Santa Barbara. And he’s sent $1,000 to Al Franken, the Democratic Senate candidate in Minnesota, $500 to Ned Lamont for his 2006 run for Joe Lieberman‘s Senate seat in Connecticut.”).

4.Browne v. McCain, 611 F. Supp. 2d 1073, 1076 (C.D. Cal. 2009) (“In anticipation of then-Democratic Presidential candidate Barack Obama’s visit to Ohio the week of August 4, 2008, [the Ohio Republican Party], acting as an agent for the [the Republican National Committee] and Senator McCain, created a web video to criticize and comment on Barack Obama’s energy policy and his suggestion that the country could conserve gasoline by keeping their automobile tires inflated to the proper pressure (the ‘Commercial’). During the Commercial, a sound recording of Browne performing the Composition, ‘Running on Empty,’ plays in the background.”).

5. Id. at 1075.

6.See David C. Johnston, Note, The Singer Did Not Approve This Message: Analyzing the Unauthorized Use of Copyrighted Music in Political Advertisements in Jackson Browne v. John McCain?, 27 Cardozo Arts & Ent. L.J. 687, 688–90 (2010) (demonstrating that in each recent presidential election, at least one campaign has been asked to cease unauthorized public performances of an artist’s music, including Bob Dole in 1996 (“Dole Man,” modifying the lyrics of “Soul Man” by Isaac Hayes and David Porter); George W. Bush in 2000 (“Brand New Day” by Sting); Bush again in 2004 (“Still the One” by Orleans); and Mike Huckabee in 2008 (“More Than a Feeling” by Boston). With respect to McCain specifically, at least ten artists have requested or demanded that he stop unauthorized public performances of their music, including Browne; Heart (“Barracuda”); John Cougar Mellencamp (“Our Country” and “Pink Houses”); Van Halen (“Right Now”); Foo Fighters (“My Hero”); Frankie Valli (“Can’t Take My Eyes Off of You”); ABBA (“Take a Chance on Me”); Bon Jovi (“Who Says You Can’t Go Home?”), 28 Survivor (“Eye of the Tiger”); and the owner of the rights to “Gonna Fly Now,” the trumpet anthem from the film Rocky.).

7.Id. at 689–90.

8.Id. at 689.

9.Id. at 687.

10.Browne, 611 F. Supp. 2d at 1075.

11.Id. at 1076.

12.Id. at 1077.

13.Id. at 1081.

14.Johnston, supra note 6, at 690.

15.Id. at 690–91.

16.17 U.S.C. §§ 101–810 (2006).

17.U.S. Const. art. I, § 8, cl. 8 (“The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . .”).

18.See 17 U.S.C. § 101.

19.17 U.S.C. § 106.

20.Id.

21.See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)).

22.U.S. Const. art. I, § 8, cl. 8.

23.See Campbell, 510 U.S. at 575.

24.See 17 U.S.C. § 107 (“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”).

25.See Campbell, 510 U.S. at 577.

26.See id. at 576–77.

27.Id. at 569.

28.Id. at 577.

29.17 U.S.C. § 107.

30.Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v. Am. Heritage Prods., Inc., 508 F. Supp. 854, 860 (N.D. Ga. 1981) (holding unfair use where defendants copied protected work solely for their own financial gain when American Heritage Products unlawfully manufactured and sold plastic busts of Dr. Martin Luther King, Jr. and used words from his copyrighted speeches on its advertisements).

31.Campbell, 510 U.S. at 573.

32.Id.

33.Id.

34.Id. at 574.

35.Id. at 594.

36.Id. at 572; see also Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998) (holding that a photo similar to that of a famed photographer was a parody that did not result in market harm and accordingly fell under fair use).

37.Campbell, 510 U.S. at 579.

38.See Browne v. McCain, 611 F. Supp. 2d 1073, 1076 (C.D. Cal. 2009).

39.See generally id. at 1076–77.

40.See supra Part I.

41.See Campbell, 510 U.S. at 578.

42.See 17 U.S.C. § 107 (2006).

43.See MasterCard Int’l Inc. v. Nader 2000 Primary Comm., Inc., No. 00-CV-6068 (GBD), 2004 U.S. Dist. LEXIS 3644, at *28–29 (S.D.N.Y. Mar. 8, 2004) (holding that defendant’s “use of plaintiff’s trademarks is not commercial, but instead political in nature and that, therefore, it is exempted from coverage by the Federal Trademark Dilution Act”); Am. Family Life Ins. Co. v. Hagan, 266 F. Supp. 2d 682, 697 (N.D. Ohio 2002) (“[I]t is arguable whether [the candidate’s] speech proposes a commercial transaction at all.”); Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957, 958 (D.N.H. 1978) (holding that defendant’s use “of a portion of the plaintiff’s political advertisement is clearly part of a political campaign message [and therefore] noncommercial in nature”).

44.Browne, 611 F. Supp. 2d at 1078 n.2.

45.See Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir. 1966).

46.See id.

47.See Campbell, 510 U.S. 569.

48.See Hustler Magazine Inc. v. Moral Majority, 606 F. Supp. 1526, 1537 (C.D. Cal. 1985).

49.Id.

50.Browne, 611 F. Supp. 2d at 1076.

51. Id. at 1075–76 (stating the original song is 296 seconds. Because the song played from the fifty second mark to the end of the commercial, the commercial uses approximately ten percent of Browne’s song.).

52.See Campbell, 510 U.S. at 587–88.

53.See supra Part I (discussing Browne’s popularity as a political artist).

54.See Campbell, 510 U.S. at 590.

55.Johnston, supra note 6, at 702.

56.15 U.S.C. §§ 1051–1129 (2010).

57.15 U.S.C. § 1125.

58.Id.

59.Id.

60.Id.

61.See Mead Data Cent., Inc. v. Toyota Motor Sales, Inc., 875 F.2d 1026, 1031 (2d Cir. 1989).

62.Deere & Co. v. MTD Prods., Inc., 41 F.3d 39, 43 (2d Cir. 1994).

63.15 U.S.C. § 1125.

64.Browne, 611 F. Supp. 2d at 1079.

65.Id. (emphasis in original).

66.United We Stand Am., Inc. v. United We Stand, Am. N.Y., Inc., 128 F.3d 86, 92–93 (2d Cir. 1997). Here, the mark at issue was “United We Stand America,” a service mark initially used by Ross Perot’s 1992 presidential campaign committee. Id. at 88. Perot’s committee established the United Corporation and assigned its right to the words “United We Stand America” to the plaintiff, the current owner of the mark, in 1992. Id. The trademark became effective in 1994. Id. Defendant, who had previously worked with the campaign, used the mark for his own political activities once he left the campaign. Id. The Court held defendant’s political activities were “services” “in commerce.” Id. at 89–93.

67.MGM-Pathe Commc’ns Co. v. Pink Panther Patrol, 774 F. Supp. 869, 876 (S.D.N.Y. 1991) (issuing an injunction against the defendant-gay activist organization, finding that the plaintiff-film company demonstrated a likelihood of confusion where its trademarked name—“the Pink Panther”—was strong and distinctive, that there was a high degree of similarity between the marks, and that a lack of consumer sophistication existed. Notably, the Court looked to the non-political nature of the work in question to decide that the use by a political group made the infringement more detrimental to the trademark owner. The Court explained, “[plaintiff] MGM has developed this mark to suggest ‘carefree, comedic, non-political fun.’” Accordingly, the defendant’s “use of this very distinctive and famous name will raise questions in the minds of the public, as to whether the promoters of the comic Pink Panther are engaged in sponsoring the Patrol’s cause and efforts.” This type of confusion, the court held, is what “trademark laws are designed to avoid.”).

68.Browne, 611 F. Supp. 2d at 1079.

69.Id. (quoting United We Stand Am., Inc., 128 F.3d 86 at 92); U.S. Const. art. 1, § 8, cl. 3 (“The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”).

70.Browne, 611 F. Supp. 2d at 1079.

71.Id. (relying on the Supreme Court’s decision in Steel v. Bulova Watch Co. Inc., 344 U.S. 280, 286–287 (1952), in which the Court explained, “[i]n the light of the broad jurisdictional grant in the Lanham Act, we deem its scope to encompass petitioner’s activities here. His operations and their effects were not confined within the territorial limits of a foreign nation. He bought component parts of his wares in the United States, and spurious ‘Bulovas’ filtered through the Mexican border into this country; his competing goods could well reflect adversely on Bulova Watch Company’s trade reputation in markets cultivated by advertising here as well as abroad. Under similar factual circumstances, courts of the United States have awarded relief to registered trademark owners, even prior to the advent of the broadened commerce provisions of the Lanham Act.”).

72.See Mead Data Cent., Inc., 875 F.2d at 1031.

73.See id.

74.15 U.S.C. § 1125.

75.See Barack Obama for President, JacksonBrowne.com, http://www.jacksonbrowne.com/readings/barack-obama-president (last visited Mar. 15, 2012).

76.See Lacy Rose, The Best Paid Celebs Under Thirty, Forbes.com (July 6, 2009), http://www.forbes.com/2009/07/02/beyonce-knowles-earnings-business-entertainment-young-stars.html (“The 27-year-old songstress turned actress turned global brand found time to release a double album (I Am . . . Sasha Fierce), star in two films (Cadillac Records and Obsessed), perform at both the Academy Awards and a presidential inaugural ball and embark on a 110-date international tour. She also added Crystal Geyser and Nintendo DSi to a lengthy list of endorsement deals that already included American Express.”).

77.See Weil, S.A. v. Theron, 585 F. Supp. 2d 473 (S.D.N.Y 2008).

78.Brian Baxter, Election 2008: Jackson Browne is No Fan of John McCain, The Am Law Daily (Oct. 7, 2008, 5:40 PM), http://amlawdaily.typepad.com/amlawdaily/2008/10/jackson-browne.html.

79.See id.

80.See generally Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003).

81.See generally id.

82.U.S. Const. amend. I.

83.See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578–79 (1994).

84.See id. at 579.

85.See Cal. Med. Ass’n v. Fed. Elec. Comm’n, 453 U.S. 182, 194 (1981) (discussing Buckley v. Valeo, 424 U.S. 1 (1976)).

86.See supra Part III.

87.Browne v. McCain, 611 F. Supp. 2d 1073, 1078 n.2 (C.D. Cal. 2009).

88.See id.

89.Id. at 1079.

90.15 U.S.C. § 1125 (2010).

91.See supra Part III.

92.See Johnston, supra note 6, at 688; see also David Itzkoff, Politician Apologized to Don Henley for Song Parodies, N.Y. Times Arts Beat Blog (Aug. 5, 2010, 11:45 AM) http://artsbeat.blogs.nytimes.com/2010/08/05/politician-apologizes-to-don-henley-for-song-parodies/.

82

BLOOD, BRAINS, AND BLUDGEONING, BUT NOT BREASTS: AN ANALYSIS AND CRITIQUE OF BROWN V. ENTERTAINMENT MERCHANTS ASSOCIATION

Margaret E. Jennings[*]

In Brown v. Entertainment Merchants Ass’n, the Supreme Court held that a California statute banning the sale of extremely violent video games to minors was unconstitutional because it violated minors’ First Amendment rights. This decision highlights the Court’s inconsistent application of evidentiary standards required for States to regulate the sale of erotic (not obscene) content and the sale of violent content to children.

In Brown, the Court stated that unless California could prove a causal link between violent video games and harmful effects on children, it could not regulate the sale of even the most violent of games. However, this holding contradicts Ginsberg v. New York, where the Court did not require the State to proffer any evidence that erotic material was harmful to minors and ruled that the Constitution did not prevent the State from regulating the sale of “girlie” magazines to them.

Additionally, Brown represents a departure from the Court’s standing precedents since it has never before allowed a vendor to assert the constitutional rights of children. In fact, the statute in Brown permitted parents to purchase any violent games for their children. Therefore, the Court allowed the vendor to assert this alleged right even contrary to the rights of parents. The Court ignored the deeply entrenched right of parents to direct the upbringing of their children, and instead recognized a minor’s right to circumvent parental authority. The overall result, as Justice Breyer stated in his dissent, is that Brown has created “a serious anomaly in First Amendment law.”

I. INTRODUCTION

Ever since a first-person shooter video game allegedly inspired Eric Harris and Dylan Klebold to kill their classmates at Columbine High School in 1999,[1] legislatures across the country have tried to regulate the sale of violent video games to minors.[2] In response, the video game industry hastily challenged these statutes.[3] In each challenge, the statutes failed for being unconstitutionally vague in defining “violence” or for failing to demonstrate that the government’s interest was sufficiently compelling to withstand strict judicial review.[4] Nevertheless, without a ruling from the Supreme Court, lawmakers continued in these efforts with wide bipartisan support, and the video game industry continued to challenge the laws.[5]

Finally, in April 2010, the Supreme Court granted certiorari to hear a challenge to California’s violent video game statute in Brown v. Entertainment Merchants Ass’n.[6] There, the Ninth Circuit declared unconstitutional a California statute banning the sale of certain violent video games to minors.[7] The Supreme Court’s heavily anticipated hearing of “the single most important court case in gaming history,”[8] prompted the filing of nearly thirty amicus briefs, almost all in support of the video game industry.[9] The Entertainment Consumers Association staged a rally outside the courthouse on the day of oral arguments,[10] and even comedian Jon Stewart added his sardonic voice to the debate on his program, The Daily Show.[11]

After a decade of legal challenges to legislative efforts to restrict the sale of violent video games to children,[12] the Supreme Court ruled on June 27, 2011 that the California law was unconstitutional because violent video games fall within the purview of First Amendment protection for minors.[13] The gaming blogosphere hailed the decision as “the best possible outcome, both for the game industry and for the public at large . . . .”[14]

This article will analyze the Supreme Court’s ruling in Brown v. Entertainment Merchants Ass’n. Part II will provide a general overview of First Amendment law. Part III will briefly describe the background of the California statute and the subsequent procedural history leading up to the Supreme Court’s grant of certiorari. Part IV will summarize the Court’s ruling, the concurring opinion of Justice Alito, and the dissenting opinions of Justices Thomas and Breyer. Part V will analyze the reasoning behind the various opinions and find that Justice Breyer is the only member of the Court to properly apply case precedent and to correctly conclude the statute is constitutional. Part VI will address the Court’s glaring omission: the Entertainment Merchants Association’s lack of standing to assert the right at issue. Finally, Part VII will conclude that given the narrow 5-4 division of the Court on the ultimate issue in the case and the emerging social scientific research supporting a causative relationship between violent video games and negative cognitive and behavioral effects on children, a future challenge to a more narrowly crafted statute may earn the support of a majority of the Court.

A philosophical inquiry into problems that may be posed for society if children are desensitized to violence or exposed to erotica is beyond the scope of this article. Instead, the focus of this article is solely on the Court’s inconsistent application of case precedent to minors’ First Amendment rights, which, as Justice Breyer aptly indicated, has created a troubling “anomaly in First Amendment Law.”[15]

II. FIRST AMENDMENT BACKGROUND

A. General First Amendment Jurisprudence

The First Amendment proclaims that “Congress shall make no law . . . abridging the freedom of speech . . . .”[16] At the core of the Amendment is the understanding that “each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.”[17] Despite its seemingly specific wording, First Amendment protection extends beyond mere “speech,” and in American Amusement Machine Ass’n v. Kendrick, the Seventh Circuit recognized video games as a form of protected expression under the First Amendment.[18]

Since the First Amendment was incorporated in 1925,[19] and thereby made applicable to state governments, case law has developed to provide different degrees of protection for different types of speech.[20] The Court has stated that the Amendment’s protection is not absolute and does not include libelous speech or obscenity.[21] In reviewing legislative infringements upon the First Amendment, the Court will apply different levels of scrutiny to laws that are “content-based” and laws that are “content neutral.”[22] “Content-based” laws, those regulating the content of speech, are presumptively invalid because they present a risk that the government will extract entire viewpoints from the public dialogue, effectively imposing a government prescribed orthodoxy.[23] Courts review “content-based” restrictions using strict scrutiny, which requires the government to use the least restrictive means possible to further a compelling government interest.[24] Laws that are “content neutral” pose a lesser risk of removing ideas or viewpoints from public discourse.[25] Accordingly, those laws are reviewed under the less stringent standard of intermediate scrutiny. A “content-neutral” law must be narrowly tailored to further a substantial government interest.[26] The law must “burden no more speech than necessary” in order to further the government interest.[27]

In determining whether or not a particular speech restriction is constitutional, courts will also look to see if the law is vague, because vague laws may deny due process.[28] For example, a law is unconstitutionally vague if a reasonable person is unable to decipher which speech is prohibited and which speech is permitted; as a result, he or she would be unable to comply with the law and it would be unconstitutionally vague.[29]

B. Categorical Exclusion for Obscenity

The First Amendment establishes a default rule that all speech is fully protected.[30] However, on a case-by-case basis, the Court has created a list of types of speech that are categorically excluded from First Amendment protection.[31] The existing categories of unprotected speech are obscenity,[32] incitement of illegal activity,[33] and fighting words.[34] The Court has also reduced the level of protection afforded to other categories of speech, including commercial speech and some sexually oriented speech that falls short of obscenity, holding that these types of speech are of “low value.”[35] Statutes proscribing these forms of speech are reviewed using rational basis—the most deferential of all forms of judicial review.[36] Some scholars believe that these exclusions reflect the Court’s own value judgments when it balances the State’s proffered justifications for regulating certain speech with the Court’s view of the value of that speech to society.[37] In United States v. Stevens, the Court stated that it would no longer add new categories of speech to the list of those that are not protected under the First Amendment.[38] The respondent in Stevens was indicted for selling dogfighting videos under a federal statute that criminalized “the commercial creation, sale, or possession of certain depictions of animal cruelty.”[39] Legislative history reveals that Congress was primarily concerned with proscribing the proliferation of “crush videos” (sexual fetish videos that feature “the intentional torture and killing of helpless animals”), although dogfighting videos also falls under the statutory definition.[40] In invalidating the statute, the Court rejected the government’s argument that the depictions at issue were of such low social value that they should be added as a category of unprotected speech.[41] The majority reasoned that protections of the First Amendment are not limited exclusively to speech that survives an “ad hoc balancing” of the costs and benefits of such speech to society, but instead, encompass all expression except that which has historically been unprotected.[42] In Roth v. United States, the Supreme Court held that First Amendment protection does not extend to obscenity because such speech is “utterly without redeeming social importance.”[43] Following Roth, the Court struggled to define what kind of expressive material was obscene.[44] Accordingly, the Court’s definition of obscenity evolved through a number of cases.[45] Finally, in 1957, in Miller v. California,[46] the Court formulated the basic test for obscenity that is still used today.[47] Miller holds that expressive material will be deemed “obscene” if

(a) . . . the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[48]

C. First Amendment Rights of Children

The Court has also found that some erotic speech that does not meet the Miller test may still be outside the realm of Constitutional protection for children.[49] In Ginsberg v. New York, the Court reviewed a state statute that restricted the sale of “girlie” magazines to minors.[50] In order to prohibit the sale to minors of the content that was not prohibited for adults, the New York legislature modified the prevailing obscenity test for adults by restricting only pornographic material that would be “harmful to minors.”[51] The statute defined material harmful to minors as

nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:

(i) predominately appeals to the prurient, shameful, or morbid interest of minors, and

(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and

(iii) is utterly without redeeming social importance for minors.[52]

Even though the “girlie” magazines were constitutionally protected speech for adults,[53] the Supreme Court held the same material was not protected for children.[54] Thus, the Court reviewed New York’s “variable obscenity statute” by applying the same standard used for other statutes restricting unprotected speech—rational basis.[55] Justice Brennan, writing for the majority, articulated two justifications for limiting minors’ access to sex-based content.[56] First, he said that the Constitution recognizes a parent’s fundamental right to direct the upbringing of his or her child, and as a result, the legislature is reasonable in enacting laws that support a parent’s fulfillment of that responsibility.[57] Second, Justice Brennan said that the State has an “independent interest in the well being of its youth.” He argued, “while the supervision of children’s reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society’s transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them.”[58]

Subsequent cases interpreting Ginsberg clarified and reaffirmed the interests articulated by Justice Brennan. In First Amendment challenges to broadcasting and Internet regulations, the Court has held that the state’s interest in protecting children was a “compelling interest,” meaning regulations in furtherance of that interest might survive strict judicial review.[59] In Belotti v. Baird, the Court declared, “the State is entitled to adjust its legal system to account for children’s vulnerability.”[60] The Court affirmed that as part of our constitutional commitment to “individual liberty and freedom of choice,” the directing and upbringing of children rests first with the child’s parents.[61]

Finally, in FCC v. Pacifica Foundation, the Court upheld FCC regulations prohibiting indecent speech (not obscene speech) over television and radio broadcasts.[62] The Court justified this First Amendment intrusion by saying, “[t]he ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.”[63] Collectively, these cases recognize that a child’s right to access speech without parental consent is not coextensive with an adult’s right to access the same material.[64]

III. THE ACT, THE CHALLENGE, AND THE APPEAL

A. California Civil Code Sections 1746–1746.5: Background and Legislative History

Before 2005, the video game industry, like the film and recording industries, enjoyed the freedom of voluntary regulation via its own Entertainment Software Rating Board (“ESRB”).[65] According to its website, the ESRB is “a non-profit, self-regulatory body . . . [that] assigns computer and video game content ratings, enforces industry-adopted advertising guidelines, and helps ensure responsible online privacy practices for the interactive entertainment software industry.”[66] However, the ESRB may have an economic incentive to rate games with a lower label than their content may merit because it receives funding from the video game industry, and the industry sells more games with low ratings than with adults-only ratings.[67] While the ESRB “encourages” game retailers to display information about its rating system, and to “refrain from renting or selling adults-only games to minors” without parental consent, children can and do purchase adults-only rated video games.[68]

Dissatisfied with the gap in the ESRB’s enforcement of its rating system, the California legislature decided to intervene.[69] In 2005, the lawmakers attempted to craft a statute restricting the sale of violent video games to children that would pass constitutional muster.[70] On October 7th of that year, Governor Arnold Schwarzenegger signed into law Assembly Bill 1179, codified at California Civil Code sections 1746–1746.5 (“Act”).[71]

In passing the Act, the legislature made the following findings:

(a) Exposing minors to depictions of violence in video games, including sexual and heinous violence, makes those minors more likely to experience feelings of aggression, to experience a reduction of activity in the frontal lobes of the brain, and to exhibit violent antisocial or aggressive behavior.

(b) Even minors who do not commit acts of violence suffer psychological harm from prolonged exposure to violent video games.

(c) The state has a compelling interest in preventing violent, aggressive, and antisocial behavior, and in preventing psychological or neurological harm to minors who play violent video games.[72]

The Act prohibited the sale or rental of video games to minors that were “violent.”[73] The Act defined a “violent video game” as:

(d)(1) . . . a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:

(A) Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.

(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.

(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.[74]

If a game satisfied the statute’s definition of “violent,” the Act imposed the requirement that on the front face of the game’s package, there should “be . . . a solid white ‘18’ outlined in black . . . not less than 2 inches by 2 inches in size.”[75] Violators of the Act, with the exception of sales clerks, who were exempt from liability, would be subject to a civil penalty of up to $1,000.[76] The Act included an affirmative defense for a defendant who “demanded, was shown, and reasonably relied upon evidence that a purchaser or renter of a violent video game was not a minor or that [relied on a game’s label when] the manufacturer failed to label a violent video game as required pursuant to section 1746.2.”[77] It did not restrict a minor’s parent, grandparent, aunt, uncle, or legal guardian from buying or renting any game on behalf of a minor.[78]

The Act’s definition of violence can be analyzed by examining each section. Section (d)(1) created a threshold requirement similar to the statutes in Ginsberg v. New York and Miller v. California.[79] The Act limited the encompassed content to games where the player may kill, maim, dismember, or sexually assault the image of a human being.[80] In addition to restricting the breadth of material covered by the statute, a threshold requirement also serves a notice function, and in this case, was intended to provide video game dealers with fair notice of the types of games that would be proscribed by the statute.[81]

Subsection (A) is a variation on the Miller obscenity test,[82] as it incorporated the same three prongs, but was adjusted to target violence as opposed to obscenity.[83] The Act replaced the word “prurient” from the Miller test[84] with the words “deviant or morbid,” and also added the words “of minors” or “for minors” to the end of each prong.[85] In subsection (B), the legislature attempted to bolster the strength of the statute and avoid a vagueness fatality by borrowing language from federal death penalty instructions to define key terms such as “cruel,” “depraved,” “heinous,” and “serious physical abuse.”[86] The Act also provided factors to determine when a video game killing is particularly gruesome, including “infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body, and the helplessness of the victim.”[87] However, these attempts proved futile since the State conceded on appeal that subsection (B) was overbroad.[88]

The Act operated in the same manner as many other state statutes that were enacted to protect children[89]—restricting only the sale or rental of violent games to minors.[90] It did not limit minors’ use or possession of any video games, nor did it limit video game manufacturers’ ability to produce or sell any games to adults.[91] As such, the Act operated in the same manner as laws restricting the sale of cigarettes, guns, ammunition, and pornography to children.[92]

B. Procedural History

Prior to the Act’s implementation, Plaintiff-Appellees Video Software Dealers Association and Entertainment Software Association (collectively “Video Dealers”) filed suit seeking declaratory relief by alleging that the Act violated 42 U.S.C. § 1983 and their First and Fourteenth Amendment rights.[93] The Video Dealers prevailed when the district court granted summary judgment in their favor, permanently enjoining enforcement of the Act.[94] The State appealed the district court’s ruling.[95]

On appeal, the Ninth Circuit was faced with a question of first impression when the State argued that the court should lower the standard for review for a content-based law restricting the sale of violent video games to minors.[96] Creating an analogy to Ginsberg, the State contended that the Act, like the statute in Ginsberg, restricted the sale to minors of speech that remains protected for adults.[97] The State argued that in Ginsberg, the Supreme Court analyzed the statute at issue using rational basis, and that the same level of review should be applied in Entertainment Merchants Ass’n.[98]

The Ninth Circuit rejected the State’s argument and declined to apply rational basis review to the Act.[99] Instead, the Ninth Circuit limited Ginsberg’s reach by finding it to be “specifically rooted in the Court’s First Amendment obscenity jurisprudence, which relates [only] to non-protected sex-based expression—not violent content . . . .”[100] To the State’s disappointment, the Ninth Circuit reviewed the Act as it would any other content-based restriction using strict scrutiny.[101] As a result, the Ninth Circuit found that the State’s asserted interest, preventing “psychological or neurological harm to minors who play violent video games,”[102] was not a compelling interest.[103] In reaching this conclusion, the Ninth Circuit dismissed evidence showing any effect that violent video games may have on minors’ psychological health.[104] The court believed that much of the evidence was correlative in nature and that a direct causal link between hostile and aggressive behavior in children and violent video games had not been proven.[105]

Moreover, the Ninth Circuit concluded the State had not demonstrated that the Act was narrowly tailored to further the State’s proposed interest and that the State had not shown that less restrictive means were not available.[106] Instead, the State focused only on the “most effective” means of furthering its interest—imposing a financial penalty on retailers that violated the Act—rather than the “least restrictive” means, such as the ESRB, parental controls on gaming consoles, or educational campaigns.[107]

IV. BROWN V. ENTERTAINMENT MERCHANTS ASSOCIATION

The State of California appealed the Ninth Circuit ruling, and the Supreme Court granted certiorari.[108] On the last day of its 2010–2011 term, the Court, in alliances inconsistent with its typical liberal-conservative division, produced a fractured opinion.[109] The majority opinion, written by Justice Scalia and joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, found California Civil Code sections 1746–1746.5 (“Act”) unconstitutional.[110] The Chief Justice joined a concurring opinion written by Justice Alito that held that the Act failed on vagueness grounds.[111] However, his opinion did not address the broader issue of whether a more narrowly crafted statute might pass constitutional muster.[112] In separate dissents, Justices Breyer and Thomas upheld the Act as constitutional.[113]

A. Scalia’s Majority Opinion

The majority examined the Act not as a restriction on minors’ First Amendment rights, but as a restriction on an entirely new category of speech—violence.[114] Accordingly, the Court rejected the argument that Ginsberg v. New York was the appropriate case precedent, stating instead that Stevens governed the outcome.[115] Reiterating the reasoning of United States v. Stevens, the majority argued against creating a new category of unprotected speech simply because the legislature believes that certain speech harms society.[116] Justice Scalia emphasized the absence of a history or tradition limiting children’s access to depictions of gore.[117] He cited Grimm’s Fairy Tales, Snow White and the Seven Dwarfs, Hansel and Gretel, Homer’s Odyssey, Dante’s Inferno, and Lord of the Flies as examples of culturally endorsed, violence-rich content for children.[118] Further, he dismissed the state’s argument that the “interactive” nature of video games was a unique attribute, stating that for decades, young readers have been able to make decisions that determine the plot lines in “choose-your-own-adventure” novels “by following instructions about which page to turn.”[119] Like the Ninth Circuit, the Court applied strict scrutiny and decided that the statute failed to address a compelling state interest.[120] The Court stated that the industry’s current system of voluntary regulation, the Entertainment Software Rating Board (“ESRB”), was sufficient to ensure that seriously violent games were kept out of the hands of children, and that any remaining enforcement gap was not a compelling interest.[121] The Court also found that the Act was not narrowly tailored, but was, instead, simultaneously underinclusive and overinclusive.[122] The Act was underinclusive because it did not regulate other forms of violent media (for example, “Saturday morning cartoons”) in the face of psychological studies that have shown video games and other types of violent media produce similar effects.[123] On the other hand, the Act was overinclusive because all children would be prohibited from buying the games covered by the Act, including children whose parents do not disapprove of the games.[124]

B. Alito’s Concurrence

Justice Alito’s concurrence argued that the Act failed on vagueness grounds.[125] Alito stated that despite similarities in language and structure, the Act had departed from the Ginsberg statute in several key respects.[126] First, he said the Act’s threshold requirements, which limited the Act’s applicability exclusively to games where a player may “kill[], maim[], dismember[], or sexually assault[] an image of a human being,” did not furnish sufficient notice to game manufacturers.[127] Because similar violent depictions have long been regarded as suitable for the entertainment of minors, manufacturers may not be able to easily ascertain which violent depictions would be encompassed by the Act.[128]

For the same reason, Alito found the Act’s three-prong test did not provide fair notice of what material would be covered.[129] He stated that the Act’s use of the terms “deviant” and “morbid” required an assumption that there are “generally accepted standards regarding the suitability of violent entertainment for minors” and that such standards are well known.[130] Alito emphasized that the long history of obscenity regulations, which helped to shape community standards about sexual content, was absent for violent content.[131] Consequently, a state law regulating violent content could not be based on community norms.[132]

After invalidating the Act on vagueness grounds, Justice Alito responded to the majority opinion.[133] Unlike the majority, Alito did not assume that video games were the same as choose-your-own-adventure novels.[134] Alito noted a difference between passively reading a work of literature or watching television and actively killing video game characters.[135] He described several video games with antisocial themes that depicted extremely heinous violence,[136] and cautioned that the majority was too quick to conclude that the interactive nature of video games does not distinguish them from other forms of media.[137] Unlike the majority, he left open the possibility that some regulation of the sale of violent video games to children might be warranted.[138]

Alito also expressed concern that the Court’s opinion would be viewed by the video game industry as a declaration that government regulation of minors’ access to violent games would never be permissible.[139] He argued that the majority’s firm endorsement of violent games for children would dissolve the industry’s incentive to self-regulate since the ESRB was implemented largely to stave off government regulation.[140]

C. Thomas’s Dissent

Justice Thomas wrote a dissenting opinion that closely examined the original intent of the Constitution’s ratifiers with regard to the rights of children.[141] While he acknowledged that Stevens prohibited the creation of new categorical exclusions, he noted that the Court had not foreclosed the possibility that there may be additional exclusions “that have been historically unprotected and . . . not yet identified . . . in our case law.”[142] He concluded that the Founders did not intend for the “freedom of speech” to encompass a right to speak to children by bypassing their parents, or a right of children to access speech.[143] Instead, the founding generation believed that speech must be closely regulated by a minor’s guardian,[144] as the country’s newly free and democratic society necessitated that children were properly guided into virtuous citizens.[145] The majority dismissed Thomas’s arguments for lack of legal support,[146] but under his originalist interpretive methodology, the Act posed no constitutional problem and should have been upheld.[147]

D. Breyer’s Dissent

Like Justice Thomas, Justice Breyer argued that the Act should be upheld.[148] However, Breyer departed from Thomas’s originalist analysis and instead relied on precedents from Ginsberg and Prince v. Massachusetts.[149] Unlike the majority, Breyer did not dismiss Ginsberg as dealing exclusively with obscenity.[150] He argued that the First Amendment does not apply to children in the same way that it applies to adults.[151] Breyer furthermore believed that the issue before the Court was whether the State of California could regulate certain speech to protect children, not whether the Court should create a new categorical exclusion for depictions of violence.[152]

Breyer accepted that the Act, functioning as a content-based restriction, must survive strict scrutiny.[153] Relying on subsequent interpretations of Ginsberg, Breyer found that “protecting children from harm” had previously been recognized as a compelling government interest,[154] and that the evidence that California offered was sufficient to prove that violent video games negatively affect children.[155] He argued that, although experts debate the conclusions of the scientific studies in the record, where conflict exists, the Court should defer to the conclusion of an elected legislature.[156]

Furthermore, Breyer found that the Act was narrowly tailored.[157] Unlike the majority, he argued that the enforcement gaps under the ESRB and the ineffectiveness of console filtering for tech-savvy teenagers was troubling.[158] Instead, a monetary penalty on vendors would be the most reasonable means of preventing children’s access to violent games.[159] Also, Breyer shared Justice Alito’s concern that the majority opinion would diminish the industry’s incentive to self-regulate.[160]

Like Justice Alito, Breyer compared the language of the statute in Ginsberg with the threshold requirements of the Act.[161] In Breyer’s view, the Act did provide fair notice to game manufacturers of the content that would be forbidden for minors.[162] He argued that the words “kill,” “maim,” and “dismember” are no less clear than the word “nudity”[163] and that the remainder of the Act was virtually identical to the Miller test.[164] Similarly, he noted that the word “deviant” served the narrowing function of the Act no worse than the words “prurient” and “shameful.”[165]

Justice Breyer conceded that both the Miller test and the Ginsberg statute lack perfect clarity,[166] but stated, “that fact reflects the difficulty of the Court’s long search for words capable of protecting expression without depriving the State of a legitimate constitutional power to regulate.”[167] Breyer also rejected Scalia’s survey of violence in classical literature as evidence of a cultural approval of violent content for children by emphasizing the diverse depictions of sex in other literary classics.[168] Despite the ubiquity of erotica in American culture, the Court has held that certain sexual depictions are unprotected for minors and has had no difficulty delineating erotic content that is protected for children from that which is not.[169] Based on this historical understanding, Breyer did not find a vagueness-related difference between the Ginsberg statute and the Act.[170] Breyer concluded by saying that “the First Amendment does not disable government from helping parents make . . . a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children.”[171]

V. JUSTICE BREYER IS RIGHT—THE ACT IS CONSTITUTIONAL

Stare decisis demands that the Supreme Court uphold California Civil Code sections 1746–1746.5 (“Act”). Because the record is replete with evidence to support a conclusion that deviant, violent video games are more harmful to minors than other forms of violent media,[172] the government may act to protect the well being of children, a long established compelling interest.[173] Additionally, the statute is the least restrictive means to achieve this purpose because the industries’ proposed alternatives to government regulation, such as the Entertainment Software Ratings Board (“ESRB”) and parental controls on gaming systems, are insufficient.[174] Finally, slight differences in the statutory language of the Act and other laws defining obscenity that the Court has upheld do not compel the conclusion that the Act is fatally vague.[175]

A. The Government Has a Compelling Interest in Protecting Children

The Supreme Court has declared that, while minors have some constitutional rights in common with adults, those rights “are not automatically coextensive with the rights of adults.”[176] As Justice Breyer suggested, the appropriate question in Entertainment Merchants Ass’n is not whether or not there is a historical tradition of regulating violent material.[177] The question instead is whether the state can regulate the sale of certain content to minors.[178]

Case precedent, including Ginsberg v. New York, reveals that a state may regulate minors’ access to certain types of expressive content for their protection.[179] According to precedent, there are two interests that warrant government intrusion into children’s First Amendment rights: (1) aiding parents with their parental responsibilities and (2) the state’s independent interest in children’s well being.[180]

1. The Government’s Interest in Aiding Parents

With the proliferation of electronic media, parents need more help from the state to monitor the media their children access. When Ginsberg was decided in 1968,[181] children were not specifically targeted by the porn industry to buy pornographic magazines.[182] Today, advertisements for violent video games frequently appear where children may see them.[183] Also, since both parents often work outside the home, children today are more likely than those in 1968 to be unsupervised after school hours.[184] Given these factors, it is reasonable to assume that parents need the government’s aid to help monitor the video games their children play, and the Act only reinforces this parental authority. Conversely, parents who want their children to play violent games can simply purchase the games for their children themselves.[185]

Justice Scalia found that the Act interfered with the rights of children whose parents or guardians “think violent video games are a harmless pastime.”[186] However, the right of a child to access certain types of speech without parental consent is not a right deeply entrenched in history or tradition, nor ever recognized by the Court.[187] Scalia dismissed completely the one fundamental right in Entertainment Merchants Ass’n that does stand on firm constitutional footing:[188] the fundamental right of parents to direct the upbringing of their children.[189] He did not agree that the Act aided in the discharge of parental authority and said that states should not regulate children’s access to violent content “just in case their parents [may] disapprove of that speech.”[190] However, this type of government regulation of children’s access to speech is exactly what the Court upheld in Ginsberg and many other cases.[191] In fact, the Court has upheld numerous broadcasting restrictions, which affect adults and children alike, all in the name of protecting children from speech of which their parents may disapprove.[192]

2. The State’s Independent Interest in the Well Being of Children

The majority did not even acknowledge the state’s “independent interest in the well being of its youth.”[193] However, as Justice Breyer pointed out, the Court has previously stated that an immature and developing child may be less able than an adult to determine for him or herself what material is appropriate or not, and as such is vulnerable to “negative influences.”[194] Accordingly, the state has an interest in intervening to prevent such obstacles to a child’s development into an upstanding citizen.[195]

Justice Scalia impliedly found that the Act did not implicate a state interest in the well being of children because he concluded that violent video games pose no risk to children.[196] He dismissed the state’s evidence demonstrating the effects of violent video games because a direct causal link had not been proven.[197] Justice Scalia stated that “[b]ecause [the State] bears the risk of uncertainty [when regulating speech based on content], ambiguous proof will not suffice” to survive strict scrutiny.[198]

Despite Justice Scalia’s contention that strict scrutiny applies,[199] the traditional justification for strictly reviewing content-based restrictions—to prevent the government from extracting entire viewpoints or ideas from the public dialogue—does not manifest in this context.[200] The Act would not remove any viewpoint or subject matter from the public dialogue, only from the hands of children whose parents did not buy the violent video games for them.[201] Nevertheless, the Act would still survive even if the Court were to decide that a level of review higher than that applied in Ginsberg would be appropriate, such as an intermediate level of review or even strict scrutiny. The evidence demonstrates a potential for risk to children posed by deviant violent games,[202] and protecting them from that risk is a compelling interest.[203]

By the time the Supreme Court heard the oral arguments in the case, there had been over 1,000 independent studies of violent video games that reached various conclusions.[204] Although these studies did not definitely prove a direct causal link between violent videos games and harm to minors, the Court has held that a “legislature can make a predictive judgment that such a link exists, based on competing psychological studies.”[205] The Supreme Court has held that “Congress is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon . . . [such a] . . . complex and dynamic [issue] . . . . And Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review.”[206] Accordingly, the California legislature was entitled to rely on this evidence in passing the Act.

Unlike the majority, Justice Breyer examined both the studies in the record and outside studies and found that even though a definitive consensus had not been reached, the leading professional pediatric and psychiatric organizations had declared a relationship, some even a causal relationship, between violent video games and negative behavioral and cognitive effects in children.[207] Justice Breyer conceded that since the Court lacked the expertise necessary to definitively decide which studies were accurate, it should defer to the legislature’s judgment.[208]

While the Court in Ginsberg did not require a single shred of evidence to restrict minors’ access to pornographic material,[209] the Court in Entertainment Merchants Ass’n has mandated that the California legislature prove causation, a virtually impossible evidentiary standard,[210] in order to regulate the sale of violent games to children.[211] This extraordinarily heavy evidentiary burden is not only contradictory to the Court’s opinion in Ginsberg, but also represents a departure from other case precedents.[212] Typically, the Court will grant at least some measure of deference to the legislature when there is conflicting scientific evidence in an area requiring particular expertise.[213]

Thus, the double standard in the evidentiary burden required to regulate minors’ exposure to violent content and to erotic materials has created what Justice Breyer referred to as “a serious anomaly in First Amendment law.”[214]

He asked:

[W]hat sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?  . . . .

This anomaly is not compelled by the First Amendment. It disappears once one recognizes that extreme violence, where interactive, and without literary, artistic, or similar justification, can prove at least as, if not more, harmful to children as photographs of nudity.[215]

In the context of this case, the state had two compelling interests—facilitating the parental role and protecting the well being of children.[216] Both interests are firmly established in case precedent such that the government may regulate minors’ access to violent video games to further those interests.[217]

B. The Act is Narrowly Tailored

The Act does not “burden more speech than necessary” to achieve the government’s objective.[218] It functions in the same way as many other statutes enacted to protect children.[219] It punishes only the sale of certain violent video games to children—not the possession (by children or adults) of such games.[220] Even in the First Amendment context, similar statutes have been upheld as narrowly tailored.[221]

The majority stated that the Act was not narrowly tailored, but was both underinclusive and overinclusive.[222] Justice Scalia held the Act was overinclusive because all children would be prohibited from buying the games covered by the Act, not only those whose parents did not want them to have the games.[223] While the Court has repeatedly recognized an interest in aiding parental authority,[224] it has never recognized the right of a child to bypass that authority in order to access speech.[225] Accordingly, this feature of the Act does not make it “overinclusive.” The majority held the Act is underinclusive because it regulated only video games and not other forms of violent media.[226] Despite Justice Scalia’s claim that the effects of violent video games on children are small and indistinguishable from other forms of violent media,[227] evidence suggests that violent video games do have a greater affect on children than other forms of violent media.[228] Accordingly, the Court would be justified in creating another narrow carve-out, much like that created in Ginsberg,[229] which regulates only the sale of interactive violent media.

C. There Is No Less Restrictive Alternative

Precedent holds that a legislature may regulate protected speech when children are involved and if the means chosen are the least restrictive.[230] Studies show that the ESRB has fallen short in limiting children’s access to deviant violent video games and that government intervention is needed.[231] Like the ESRB, parental controls are an insufficient alternative because technologically savvy children can run a Google search and learn how to bypass them.[232] Only a monetary penalty would truly incentivize the industry to refrain from selling the objectionable content to minors. In dicta, Justice Brennan stated in Ginsberg that society’s interest in protecting children justifies any “reasonable regulation of the sale of material to them.”[233] The Act is not only “reasonable,” but it is also the “least restrictive” means.

D. The Act is Not Vague

The Act is based upon the Miller framework, some variation of which the Court has endorsed for over fifty years.[234] The only substantive difference between the Miller test and the Act is that the Act replaces the word “prurient” with the words “deviant or morbid,” and the threshold requirements are directed towards depictions of “killing and maiming” rather than hardcore sex.[235] Justice Alito claimed that these differences made the Act fatally vague.[236] He argued that a long history of obscenity prohibition has shaped community norms to provide meaning to the phrase “patently offensive” with regard to sexually expressive material.[237] He found that because there was no similar regulation of violent content, there is a total lack of consensus about what violent content would be considered “low-value” by community standards.[238]

Difficulty in defining “‘accepted norms’ about depictions of sex” led the Court to adopt the “community standards” tool in the first place.[239] In Roth v. United States, the Supreme Court noted that many of the Court’s decisions acknowledge that the terms defining obscenity are not precise.[240]

Furthermore, the Court stated that imprecise statutory terms alone do not violate due process; instead, “all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . . .’”[241]

Whether or not there is a cultural endorsement of violent content for children, the word “prurient”[242] is not somehow empowered with greater capabilities of precision than the words “deviant” or “morbid.”[243] Community standards operate identically in both instances to delineate what expressive sexual material is and is not obscene and what violent depictions are or are not appropriate for children.[244] As Justice Breyer pointed out, even games depicting the most heinous violence will still be protected, as long as they possess at least one of the redeeming attributes described in the third prong.[245] For games lacking any value whatsoever, a community could reach a consensus about which of those games were appropriate for children just as easily as it could reach a consensus about what hardcore sexual content was patently offensive to adults.[246] Accordingly, the Act’s definition gives fair notice to video game manufacturers.[247]

VI. THE ENTERTAINMENT MERCHANTS ASSOCIATION DID NOT HAVE STANDING TO ASSERT THE RIGHT AT STAKE

Brown v. Entertainment Merchants Ass’n should not have been heard in a United States court because the Entertainment Merchants Association (“EMA”) lacked standing to assert the rights of third parties not before the Court. In Entertainment Merchants Ass’n, no child appeared before the Court, yet the Court ruled that California Civil Code sections 1746–1746.5 (“Act”) were unconstitutional “because [the Act] abridges the First Amendment rights of young people . . . .”[248] The Act specifically provided that a parent or guardian could purchase the games for their child.[249] With this understanding, the only right at issue is the right of a minor to purchase violent video games without parental consent. As Justice Thomas pointed out, no similar right of a child to circumvent parental authority in this manner has ever been recognized as a constitutional right.[250]

None of the four opinions in the case addressed the issue of standing.[251] However, if the Court had conducted a standing analysis, it would have reached the conclusion that the EMA did not have standing in this case. Assuming arguendo, that there is a constitutional right to be free from parental control and that it is a right that could be pursued on jus tertii standing, the EMA still does not meet the requirements for jus tertii standing to assert this right on behalf of its child customers. Consequently, the Court based its ruling on the First Amendment rights of a party not before the Court.

Article III of the Constitution limits federal jurisdiction to “cases or controversies” where (1) the plaintiff has suffered or imminently will suffer an injury; (2) the injury is fairly traceable to conduct of the defendant; and (3) a court is able to redress the plaintiff’s alleged injury.[252] In addition to these restrictions, courts may also employ the doctrine of standing as a prudential restraint when deciding whether or not to hear a case.[253] Generally, a plaintiff must assert his or her own rights in a matter in order to have standing.[254] On occasion, courts will make exceptions to the standing requirement and allow jus tertii standing, where third parties assert the rights of others if certain conditions are satisfied.[255] The Court considers three primary factors in granting jus tertii standing: (1) whether or not there is an injury in fact to a party; (2) whether or not a close relationship exists between the litigant and the third party; and (3) whether some obstacle impedes the third party from asserting his or her own rights in the matter.[256]

In Entertainment Merchants Ass’n, the EMA did satisfy the Article III requirements for standing to assert their own rights since the Act’s financial penalty would have been imposed on them.[257] However, the Court did not base its ruling on the rights of the EMA but instead, impliedly conferred upon them jus tertii standing to assert the rights of minors.[258] However, the potential for injury arising from the financial penalty would have provided a basis for the EMA to meet the first jus tertii requirement of an “injury in fact.” But, EMA is unable to meet the second and third requirements of jus tertii standing.

Based on the facts of the case, there was no “close relationship” between the EMA and the children whose First Amendment rights they assert.[259] The only possible basis for any relationship between the litigant and the third party would be that of a vendor/vendee relationship.[260] The Court has recognized that vendors may have standing to challenge acts that regulate buyers or the relationship of buyers and sellers.[261] While the Court has generally been inconsistent in allowing or disallowing third party standing for minors,[262] the Court had never allowed a vendor to assert the standing of children customers until Entertainment Merchants Ass’n.[263] The closest precedent for such a decision would be Craig v. Boren.[264]

In Craig, the Court allowed an alcohol vendor to have jus tertii standing to assert the Fourteenth Amendment rights of men between the ages of 18 and 21 who challenged the constitutionality of a state statute prohibiting the sale of beer to males under age 21 and females under age 18.[265] The petitioner was under 21 at the time the suit was filed, but since he was over 21 at the time the Court heard the case, the Court found his standing was moot.[266] Because the defendant in Craig waived the jus tertii issue, the Court’s standing analysis does not provide precedent for future cases.[267] Nevertheless, it allowed the case to proceed on the vendor’s claim of jus tertii standing, in part because the men affected by the law would not be able to challenge the law because they would be “of age” by the time a final decision was reached, making the constitutional violation capable of repeat, yet evading judicial review.[268] Since the petitioners’ standing would always be moot by the time the final decision was reached, the Court decided instead to confer standing upon the vendor to avoid repetitive and time-consuming litigation.[269]

Had the standing issue not been waived in Craig, it may have provided sound precedent to confer standing in this case, except for one key difference—the petitioners in Craig were not minors.[270] While the relationship between a customer and vendor may be sufficiently close in some instances, the Court has never allowed a vendor to assert the rights of children against their parents, or even the rights of children as their own, without any alternative basis for finding a “close relationship.”[271] Jus tertii standing to assert the rights of children requires a particularly close relationship and has been recognized for parents,[272] schools and teachers,[273] and medical providers,[274] but not vendors.

Because the Court has allowed parents to assert standing on behalf of their children when the state attempts to interfere with the parent/child relationship,[275] better precedent for Entertainment Merchants Ass’n would be Pierce v. Society of Sisters.[276] In Society of Sisters, a parochial school was allowed third-party standing to assert the rights of parents to challenge a compulsory public school attendance law.[277] The petitioners alleged that the law abridged the rights of parents to direct the upbringing of their children.[278] The Court agreed and ruled that the statute created an unreasonable interference with constitutionally recognized parental rights.[279] By allowing the EMA to assert the rights of children against their parents, the Supreme Court essentially holds that the vendor/vendee relationship trumps the parent/child relationship.[280]

The Court has also ruled that where a child’s parents fail to fulfill their parental role for whatever reason, the child is subject to the control of the state as parens patriae.[281] Based on this precedent, if anyone appearing before the Court in Entertainment Merchants Ass’n had a relationship with the third party sufficient to confer jus tertii standing, it would have been the State. Contrarily, the EMA has a purely economic interest that has nothing to do with the well being of children, and which may even present a conflict of interest. Accordingly, the Court should have denied the EMA jus tertii standing and the case should not have been heard.

VII. CONCLUSION

Given the Court’s full endorsement of violent content for minors, the concomitant anomaly it has created in minors’ First Amendment jurisprudence was not lost on Justices Alito and Roberts,[282] or Justice Breyer,[283] and it was certainly not lost on Jon Stewart either. Following the Court’s decision, he played a clip on The Daily Show from the game Mortal Kombat that showed two men holding a woman by each of her legs and slowly ripping her in half from her groin through the top of her skull—blood and organs pouring out of her chest and abdominal cavities onto the floor.[284] He gibed satirically at the audience: “The Supreme Court has ruled 7-2 that the state of California has no interest in restricting the sale of this game to children. But, if while being disemboweled, this woman were to suffer, perhaps, a nip-slip . . . regulate away!”[285]

Given the 5-4 split of the Court on the ultimate issue of the state’s ability to regulate the sale of violent content for children, a subsequent challenge to a more narrowly crafted statute, supported by stronger evidence of a causative relationship between violent video games and negative cognitive and behavioral effects on children, might win a majority of the Court’s support.

* J.D. Candidate, Loyola Law School, 2012; B.A., University of Iowa, 2008. The author would like to thank her family and friends for their support throughout the production of this article. She would also like to thank Loyola Law School professor Karl Manheim for his encouragement and invaluable expertise. Finally, the author would especially like to thank the Editorial Board and the rest of the editors and staff of the Loyola of Los Angeles Entertainment Law Review for their efforts in making this publication possible.

1.See Killer’s Journal Shows Detailed Plan of Massacre, Harlan Daily Enter., Dec. 6, 2001, at 2 (quoting Eric Harris’s journal as stating, “[i]t’ll be like the LA riots, the Oklahoma bombing, WWII, Vietnam, Duke and Doom all mixed together. . . . I want to leave a lasting impression on the world.”). “Duke” and “Doom” are references to the video games Duke Nukem and Doom; in both games the objective is to kill enemies to earn points. Duke Nukem, Wikipedia, http://en.wikipedia.org/wiki/Duke_Nukem (last visited Mar. 2, 2011); Doom, Wikipedia, http://en.wikipedia.org/wiki/Doom_(video_game) (last visited Mar. 2, 2011); see also Paul Duggan, Michael D. Sear, & Marc Fisher, Shooter Pair Mixed Fantasy, Reality, Wash. Post, Apr. 22, 1999, at A1 (detailing Harris and Klebold’s obsession with fantasy violence). But see Greg Toppo, 10 Years Later, the Real Story Behind Columbine; Long-Held Views of the Attack and the Killers Prove Wrong, USA Today, Apr. 14, 2009, at A1 (stating investigation revealed attack attributable to boys’ mental illness rather than fantasy violence obsession).

2.See generally Jeffrey O’Holleran, Note, Blood Code: The History and Future of Video Game Censorship, 8 J. Telecomm. & High Tech. L. 571, 572 (2010); see also Legislation Tracker, GamePolitics.com, http://www.gamepolitics.com/legislation.htm (last visited Mar. 2, 2012) [hereinafter Legislation Tracker].

3.See Seth Schiesel, Courts Block Laws on Video Game Violence, N.Y. Times, Aug. 21, 2007, at E1; see also Legislation Tracker, supra note 2.

4.See, e.g., Entm’t Software Ass’n v. Hatch, 443 F. Supp. 2d 1065 (D. Minn. 2006); Entm’t Software Ass’n v. Swanson, 519 F.3d 768 (8th Cir. 2008); Interactive Digital Software Ass’n v. St. Louis Cnty., Mo., 329 F.3d 954 (8th Cir. 2003); Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572 (7th Cir. 2001), cert. denied, 534 U.S. 994 (2001); Entm’t Software Ass’n v. Blagojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005); Entm’t Software Ass’n v. Granholm, 404 F. Supp. 2d 978 (E.D. Mich. 2005); Video Software Dealers Ass’n v. Maleng, 325 F. Supp. 2d 1180 (W.D. Wash. 2004).

5.See Lorraine M. Buerger, Comment, The Safe Games Illinois Act: Can Curbs on Violent Video Games Survive Constitutional Challenges?, 37 Loy. U. Chi. L.J., 617, 663 (2006); Legislation Tracker, supra note 2.

6.Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011).

7.Id.

8.Daniel Horowitz, Supreme Court to Hear Schwarzenegger v. EMA; Single Most Important Case in Gaming History, World Gaming Network (Sept. 10, 2010), http://www.world-gaming.com/component/content/article/6-general/1111-supreme-court-to-hear-schwarzenegger-v-ema-single-most-important-court-case-in-gaming-history.html.

9.See Docket of Brown v. Entm’t Merchs. Ass’n, No. 08-1448, 131 S. Ct. 2729 (2011), available at http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/08-1448.htm.

10.Richard Mitchell, ECA to Stage Washington Rally Prior to Supreme Court Battle, Joystiq (Oct. 14, 2010), http://www.joystiq.com/2010/10/14/eca-to-stage-washington-rally-prior-to-supreme-court-battle/.

11.The Daily Show with Jon Stewart (Comedy Central television broadcast Nov. 4, 2010), available at http://www.thedailyshow.com/watch/thu-november-4-2010/you-re-welcome---violent-video-games.

12.See Am. Amusement Mach. Ass’n, 244 F.3d 572 (recognizing video games as a protected form of expression for the first time in the federal courts); see also Kurtis A. Kemper, Annotation, First Amendment Protection Afforded to Commercial and Home Video Games, 106 A.L.R. 5th 337 (2003) (providing a historical overview of legal challenges to video game regulations).

13.See Entm’t Merchs. Ass’n, 131 S. Ct. 2729.

14.Mark Methenitis, LGJ: On Brown v. Entertainment Merchants Assn., Joystiq (Jan. 12, 2012, 4:47 PM), http://www.joystiq.com/2011/07/04/lgj-on-brown-v-entertainment-merchants-assn/.

15.Entm’t Merchs. Ass’n, 131 S. Ct. at 2771 (Breyer, J., dissenting).

16.U.S. Const. amend. I.

17.Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641(1994) [hereinafter Turner].

18.Bonnie B. Phillips, Note, Virtual Violence or Virtual Apprenticeship: Justification for the Recognition of a Violent Video Game Exception to the Scope of the First Amendment Rights of Minors, 36 Ind. L. Rev. 1385, 1388–89 (2003).

19.See generally Gitlow v. New York, 268 U.S. 652 (1925).

20.Erwin Chemerinsky, Constitutional Law: Principles and Policies § 11.3.1 at 986 (3d ed. 2006).

21.Roth v. United States, 354 U.S. 476, 483 (1957).

22.See, e.g., Turner, 512 U.S. 622. In Turner, the Court reviewed the constitutionality of “must-carry” provisions in the Cable Television Consumer Protection and Competition Act of 1992 (“CPCA”). Id. The CPCA was enacted by Congress to address a concern that “a competitive imbalance between cable television and over-the-air broadcasters was endangering the broadcasters’ ability to compete for a viewing audience and thus for necessary operating revenues.” Id. at 622. The Court held that despite the content neutrality of the provisions at issue, the government needed to provide stronger factual support for their economic necessity. Id.

23.See, e.g., Simon & Schuster, Inc. v. Members of the N.Y. Street Crime Victims Bd., 502 U.S. 105, 116 (1991) (stating content-based restrictions “[r]aise the specter that the government may effectively drive certain ideas or viewpoints from the marketplace”); Turner, 512 U.S. at 641 (“Government action that stifles speech on account of its message . . . contravenes this essential [First Amendment] right.”); Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 538 (1980) (“To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.”).

24.See, e.g., Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).

25.Turner, 512 U.S. at 642.

26.See, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

27.Madsen v. Women’s Health Ctr., 512 U.S. 753, 765 (1994).

28.See, e.g., Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).

29.See, e.g., id. (finding a law is fatally vague when someone “of common intelligence must necessarily guess at its meaning”).

30.U.S. Const. amend. I.

31.See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); Roth, 354 U.S. at 483; Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

32.Roth, 354 U.S. at 483.

33.Brandenburg, 395 U.S. at 447–49.

34.Chaplinsky, 315 U.S. at 572.

35.See, e.g., Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771–72 (1976) (declaring unconstitutional a state law prohibiting pharmacists from advertising the prices of prescription drugs). Compare Young v. Am. Mini-Theaters, Inc., 427 U.S. 50, 70–71 (1976) with City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 54–55 (1986) (both cases upholding zoning ordinances applicable to adult movie theaters); New York v. Ferber, 458 U.S. 747, 765–66 (1982) (holding that the government may ban the exhibition, sale, or distribution of child pornography even if it does not meet the statutory definition of obscenity).

36.See Chemerinsky, supra note 20, at 540.

37.Id. at 987.

38.See United States v. Stevens, 130 S. Ct. 1577, 1586 (2010).

39.Id. at 1579.

40.Id. (citations omitted).

41.See id. at 1585–86.

42.Id. at 1585.

43.Roth, 354 U.S. at 484.

44.See, e.g., Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (“I shall not today attempt to further define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”).

45.See, e.g., Roth, 354 U.S. at 484 (defining obscene material as that “which deals with sex in a manner appealing to prurient interest”); A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Gen. of Mass., 383 U.S. 413, 418 (1966) [hereinafter Memoirs v. Massachusetts] (overruling Roth and finding material to be obscene when “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value”).

46.Miller v. California, 413 U.S. 15 (1973).

47.Chemerinsky, supra note 20, at 1020–21; see, e.g., United States v. Little, No. 08-15964 (11th Cir. 2010), available at http://www.ca11.uscourts.gov/unpub/ops/200815964.pdf.

48.Miller, 413 U.S. at 24 (internal citations omitted).

49.See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986) (holding that a student’s public speech containing “sexual innuendos,” albeit not obscene, was not protected by the First Amendment in a public school setting because of a “concern on the part of parents, and school authorities acting in loco parentis, to protect children . . . from exposure to sexually explicit, indecent, or lewd speech”).

50.See Ginsberg v. New York, 390 U.S. 629, 631–32 (1968) (involving magazines containing pictures depicting female ‘nudity’ showing “buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple.”).

51.Id. at 643 (modifying the obscenity statute articulated by the Court in Memoirs v. Massachusetts, 383 U.S. 413).

52.Id. at 646.

53.See Bellotti v. Baird, 443 U.S. 622, 636 (1979) (describing the magazines at issue in Ginsberg as “clear examples of constitutionally protected freedoms of choice [for adults]”).

54.See Ginsberg, 390 U.S. 629.

55.See id. at 641 (the Court required only that “it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.”).

56.See id. at 639.

57.Id.; see also Santosky v. Kramer, 455 U.S. 745 (1982); Stanley v. Illinois, 405 U.S. 645 (1972).

58.Ginsberg, 390 U.S. at 640.

59.See Sable Commc’ns of Cal., Inc., 492 U.S. at 126 (“We have recognized that there is a compelling interest in protecting the physical and psychological well being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards.”) (citing Ginsberg, 390 U.S. at 639–40; Ferber, 458 U.S. at 756–57; Reno v. ACLU, 521 U.S. 844, 869 (1997)).

60.See Bellotti, 443 U.S. at 635–39 (challenging a state statute regulating minors’ access to abortions and holding that “[l]egal restrictions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding”).

61.Id. at 638.

62.FCC v. Pacifica Found., 438 U.S. 726, 750–51 (1978).

63.Id. at 750.

64.See generally Bellotti, 443 U.S. 622; Pacifica Found., 438 U.S. 726.

65.About ESRB, ESRB.org, http://www.esrb.org/about/index.jsp (last visited Mar. 20, 2012) [hereinafter About ESRB] (stating that the ESRB has been in place since 1994). By comparison, the recording industry self-regulates via the Recording Industry Association of America’s Parental Advisory Label Program. See Parental Advisory, RIAA.com, http://www.riaa.com/toolsforparents.php?content_selector=parental_advisory (last visited Mar. 20, 2012)). The film industry self-regulates via the Motion Picture Association of America’s Classification and Rating Administration. See The Movie Rating System, FilmRatings.com, http://www.filmratings.com/filmRatings_Cara/downloads/pdf/about/cara_about_voluntary_movie_rating.pdf (last visited Mar. 20, 2012).

66.About ESRB, supra note 65.

67.FTC, A Report to Congress, Marketing Violent Entertainment to Children: A Fifth Follow-Up Review of Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries 19 (Apr. 2007), available at http://www.ftc.gov/reports/violence/070412MarketingViolentEChildren.pdf.

68.Id. A survey by the National Institute on Media and the Family found that seven out of ten of the 600 children surveyed reported playing M-rated games, and sixty-one percent owned an M-rated game. Id. at 19 (internal citation omitted); Brown v. Entm’t Merchs. Ass’n., 131 S. Ct. 2729, 2740–41 (2011) (citing FTC, Report to Congress, Marketing Violent Entertainment to Children 30 (Dec. 2009), available at http://www.ftc.gov/os/2009/12/P994511violententertainment.pdf (stating twenty percent of those under age 17 are still able to buy M-rated games)).

69.See Peter Cohen, E3: Calif. Bill Proposes Video Game Sales Restrictions, Macworld.com (May 16, 2005, 12:00 AM), http://www.macworld.com/article/44821/2005/05/gamebill.html.

70.Id.

71.See California’s Violent Video Game Law on Hold, Lodi News-Sentinel, Dec. 23, 2005, at 5.

72.Assemb. B. 1179 Ch. 638 (Cal. 2005).

73.Cal. Civ. Code § 1746.1(a) (West 2011).

74.Cal. Civ. Code § 1746(d)(1) (West 2011).

75.Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 954 (9th Cir. 2009), aff’d sub nom. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 [hereinafter Video Software Dealers] (citing Cal. Civ. Code § 1746.2 (West 2011)).

76.Cal. Civ. Code § 1746.3 (West 2011).

77.Civ. § 1746.1(b).

78.Id. § 1746.1(c).

79.Ginsberg v. New York, 390 U.S. 629, 647 app. A (1968) (upholding a statute where the threshold limitations encompassed visual and literary representations and sound recordings containing “nudity, sexual conduct or sadomasochistic abuse” harmful to minors, or “detailed verbal description or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse” harmful to minors when taken as a whole); Miller v. California, 413 U.S. 15, 25 (1973) (suggesting a threshold limitation covering content such as “[p]atently offensive representations or description of ultimate sexual acts,” or “masturbation, excretory functions, and lewd exhibition of the genitals”).

80.Cal. Civ. Code § 1746(d)(1) (West 2011).

81.See Miller, 413 U.S. at 27 (stating that the threshold requirements in the Miller test provided fair notice to pornography dealers of what materials might warrant prosecution).

82.See id. at 24 (citations omitted) (holding that expressive material will be deemed “obscene” if “(a) . . . the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the work, taken as a whole, lacks serious literary, artistic, political, or scientific value”).

83.See Civ. § 1746(d)(1)(A).

84.See Miller, 413 U.S. at 24 (restricting the scope of the statute to works that “appeal to the prurient interest in sex”).

85.Civ. § 1746(d)(1)(A).

86.Video Software Dealers, 556 F.3d at 954.

87.Civ. § 1746(d)(2)–(3).

88. See Video Software Dealers, 556 F.3d at 956.

89.See, e.g., Cal. Penal Code § 308 (West 2008) (prohibiting the sale or furnishing of tobacco or smoking paraphernalia to minors); Cal. Penal Code § 12280(a)(2) (West 2009) (prohibiting the transfer, lending, sale, or furnishing of any assault weapon to a minor); Cal. Penal Code § 30300 (West 2011) (prohibiting the sale or supply of ammunition to a person under 18); Cal. Penal Code §§ 313–313.1 (West 2008) (prohibiting the sale, rental, or distribution of pornography to minors).

90.Civ. § 1746.1(a).

91. See id. § 1746.1(c).

92.See, e.g., Penal § 308 (prohibiting the sale or furnishing of tobacco or smoking paraphernalia to minors); Penal § 12280(a)(2) (prohibiting the transfer, lending, sale, of furnishing of any assault weapon to a minor); Penal § 30300 (prohibiting the sale or supply of ammunition to a person under 18); Penal §§ 313–313.1 (prohibiting the sale, rental or distribution of pornography to minors).

93.Video Software Dealers, 556 F.3d at 955.

94.Id. at 955–56.

95.Id. at 956.

96.Id. at 957–58.

97.Id. at 958 (citing Ginsberg, 390 U.S. at 636).

98.Id. at 959 (citing Ginsberg, 390 U.S. at 641).

99.See Video Software Dealers, 556 F.3d at 960.

100.Id. at 959.

101.Id. at 960.

102.Id. at 954.

103.Id. at 964.

104.Id.

105.Video Software Dealers, 556 F.3d at 963–64.

106.Id. at 965.

107.Id.

108.Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011).

109.See Frank LoMonte, When It Comes to Government Infringement of Speech, “No” Means “No”, Learning Network: Teaching & Learning with the N.Y. Times (Sept. 13, 2011, 3:04 PM), http://learning.blogs.nytimes.com/2011/09/13/the-constitution-and-you-video-games-and-the-first-amendment/?scp=1&sq=brown%20v.%20entertainment%20 merchants%20association&st=cse (noting that the Court’s decisions in First Amendment cases often depart from the usual conservative/liberal dichotomy).

110.See generally Entm’t Merchs. Ass’n, 131 S. Ct. at 2742.

111.Id. (Alito, J., concurring).

112.Id. at 2742–51 (Alito, J., concurring).

113.Id. at 2751–61 (Thomas, J., dissenting), 2761–71 (Breyer, J., dissenting).

114.See id. at 2735.

115.See id. at 2734.

116.Entm’t Merchs. Ass’n, 131 S. Ct. at 2734 (citing United States v. Stevens, 130 S. Ct. 1577, 1585 (2010)).

117.Id. at 2736.

118.Id. at 2736–37.

119.Id. at 2737–38.

120.Id. at 2741.

121.Id.

122.Entm’t Merchs. Ass’n, 131 S. Ct. at 2741–42.

123.Id. at 2739–40.

124.Id. at 2741.

125.Id. at 2742 (Alito, J., concurring).

126.Id. at 2743 (Alito, J., concurring).

127.Id. at 2745 (Alito, J., concurring) (citing Cal. Civ. Code § 1746(d)(1) (West 2009)).

128.Entm’t Merchs. Ass’n, 131 S. Ct. at 2745 (Alito, J., concurring).

129.Id. at 2746 (Alito, J., concurring).

130.Id. at 2745 (Alito, J., concurring).

131.Id. at 2746 (Alito, J., concurring).

132.See id. at 2745–46 (Alito, J., concurring).

133.See id. at 2746 (Alito, J., concurring).

134.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2750 n.19 (Alito, J., concurring).

135.See id. at 2750 (Alito, J., concurring).

136.See id. at 2749–50 (Alito, J., concurring). Alito recounts one game “in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech.” Id. at 2749 (Alito, J., concurring) (citing Kayla Webley, “School Shooter” Video Game to Reenact Columbine, Virginia Tech Killings, Time.com (Apr. 20, 2011), http://newsfeed.time.com/2011/04/20/school-shooter-video-game-reenacts-columbine-virginia-tech-killings/). He cites another game where the objective is “to rape a mother and her daughters . . . .” Id. at 2749–50 (Alito, J., concurring) (citing Kyung Lah, “RapeLay” Video Game Goes Viral Amid Outrage, CNN (Mar. 30, 2010), http://articles.cnn.com/2010-03-30/world/japan.video.game.rape_1_game-teenage-girl-japanese-government?_s=PM:WORLD). In another game, “players engage in ‘ethnic cleansing’ and can choose to gun down African-Americans, Latinos, or Jews.” Id. at 2750 (Alito, J., concurring) (citing Julia Scheeres, Games Elevate Hate to Next Level, Wired (Feb. 20, 2002), http://www.wired.com/culture/lifestyle/news/2002/02/50523. In yet another game, “players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.” Entm’t Merchs. Ass’n, 131 S. Ct. at 2750 (Alito, J., concurring) (citing Clive Thompson, A View to a Kill: JFK Reloaded Is Just Plain Creepy, Slate (Nov. 22, 2004), http://www.slate.com/id/2110034).

137.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2742 (Alito, J., concurring).

138.See id. at 2751 (Alito, J., concurring).

139.See id. at 2747 (Alito, J., concurring).

140.See id. at 2747–48 (Alito, J., concurring).

141.See id. at 2751–61 (Thomas, J., dissenting).

142.Id. at 2759 (Thomas, J., dissenting) (quoting Stevens, 130 S. Ct. at 1586).

143.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2752 (Thomas, J., dissenting).

144.See id. (Thomas, J., dissenting).

145.See id. at 2755 (Thomas, J., dissenting).

146.See id. at 2736 n.3.

147.See id. at 2751 (Thomas, J., dissenting).

148.See id. at 2761 (Breyer, J., dissenting).

149.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2762 (Breyer, J., dissenting) (citing Prince v. Massachusetts, 321 U.S. 158, 170 (1944) (holding that the government may enforce child labor laws over religious exercise claims by Jehovah’s Witnesses whose children wish to participate in proselytizing and suggesting the standard of review for regulations of minors is lower than that for adults)).

150.See id. at 2766 (Breyer, J., dissenting).

151.See id. at 2762 (Breyer, J., dissenting) (citing Ginsberg v. New York, 390 U.S. 629, 638 n.6 (1968)).

152.See id. at 2762–63 (Breyer, J., dissenting).

153.See id. at 2765–66 (Breyer, J., dissenting).

154.Id. at 2766 (Breyer, J., dissenting) (citing Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)).

155.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2768 (Breyer, J., dissenting) (citations omitted).

156.See id. at 2769–70 (Breyer, J., dissenting).

157.See id. at 2765 (Breyer, J., dissenting) (citing Reno v. ACLU, 521 U.S. 844, 874–79 (1997)).

158.See id. at 2770–71 (Breyer, J., dissenting).

159.See id. at 2761 (Breyer, J., dissenting).

160.See id. at 2770–71 (Breyer, J., dissenting).

161.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2763–64 (Breyer, J., dissenting).

162.Id. at 2763 (Breyer, J., dissenting).

163.Id. at 2763–64 (Breyer, J., dissenting).

164.See id. at 2764 (Breyer, J., dissenting).

165.See id. at 2764 (Breyer, J., dissenting).

166.Id. (Breyer, J., dissenting).

167.Entm’t Merchs. Ass’n, 131 S. Ct. at 2764 (Breyer, J., dissenting).

168.See id. at 2765 (Breyer, J., dissenting) (“[O]ne can find in literature as many (if not more) descriptions of physical love as descriptions of violence. Indeed, sex ‘has been a theme in art and literature throughout the ages.’ For every Homer, there is a Titian. For every Dante, there is an Ovid. And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there are those who know the story of Lady Godiva.” (quoting Ashcroft v. Free Speech Coal., 535 U.S. 234, 246 (2002))).

169.See id. at 2763 (Breyer, J., dissenting); see generally Ginsberg, 390 U.S. at 646–47.

170.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2765 (Breyer, J., dissenting).

171.Id. at 2771.

172.See generally Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2771–79 app. (2011).

173.See generally id.

174.See id.

175.See id. at 2763 (Breyer, J., dissenting).

176.Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (citation omitted).

177.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2763 (Breyer, J., dissenting).

178.See id. (Breyer, J., dissenting).

179.See Ginsberg v. New York, 390 U.S. 629, 639–40 (1968).

180.Id.

181.See id.

182.Elizabeth Harmer Dionne, Pornography, Morality, and Harm: Why Miller Should Survive Lawrence, 15 Geo. Mason L. Rev. 611, 642–43 (2008).

183.See Killzone Ads Pulled from Canadian Bus Stops, Geekologie (Mar. 13, 2009), http://www.geekologie.com/2009/03/killzone_ads_pulled_from_canad.php (describing an incident where a teacher emailed Sony Canada after seeing an ad for Killzone 2 in the bus shelter near his school). Also, as a relevant anecdote, a particularly graphic advertisement for Grand Theft Auto III covered the side of midrise building in mid-city Los Angeles for several months in 2009, and for several months in 2010 Los Angeles Metro buses displayed ads for Call of Duty: Black Ops, an M-rated violent video game. See Call of Duty: Black Ops, HillaryCoe.com, http://www.hillarycoe.com/812553/Call-of-Duty-Black-Ops (last visited Mar. 20, 2012).

184.Entm’t Merchs. Ass’n, 131 S. Ct. at 2767 (Breyer, J., dissenting) (“Today, 5.3 million grade-school-age children of working parents are routinely left home alone.” (citing Dept. of Commerce, Census Bureau, Who’s Minding the Kids? Child Care Arrangements: Spring 2005/Summer 2006, p.12 (2010), available at http://www.census.gov/prod/2010pubs/p70-121.pdf)).

185.See Cal. Civ. Code § 1746.1(c) (West 2011).

186.Entm’t Merchs. Ass’n, 131 S. Ct. at 2742.

187.See id. at 2760 (Thomas, J., dissenting) (“[T]his Court has never held, until today, that ‘the freedom of speech’ includes a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents.”).

188.See, e.g., Bellotti v. Baird, 443 U.S. 622, 637–38 (1979) (“[T]he guiding role of parents in the upbringing of their children justifies limitations on the freedoms of minors” and “the tradition of parental authority is not inconsistent <INPUT TYPE=\ hidden > MACROBUTTON HTMLDirect <INPUT TYPE=\ hidden VALUE= { pageset : S72eb733b9c9a11d991d0cc6b54f12d4d , pageNumber : 3046 } > MACROBUTTON HTMLDirectwith our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter.”); see also Chemerinsky, supra note 20, at 792 (stating that a fundamental right is one that the government may not abridge unless it meets the requirements of strict scrutiny).

189.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2740.

190.Entm’t Merchs. Ass’n, 131 S. Ct. at 2740.

.Id.

191.See Ginsberg, 390 U.S. at 639; see also, e.g., United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 203 (2003); Ashcroft v. ACLU, 535 U.S. 564 (2002); Denver Area Educ. Telecomms. Consortium, Inc., v. FCC, 518 U.S. 727 (1996); Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115 (1989).

192.See, e.g., FCC v. Pacifica Found., 438 U.S. 726 (1978); Denver Area Educ. Telecomms. Consortium, Inc., 518 U.S. 727; Info. Providers Coal. for Def. of the First Amendment v. FCC, 928 F.2d 866 (9th Cir. 1991).

193.See generally Entm’t Merchs. Ass’n, 131 S. Ct. at 2732–42.

194.Id. at 2767 (Breyer, J., dissenting) (citing Roper v. Simmons, 543 U.S. 551, 569–70 (2005)).

195.See id. at 2767 (Breyer, J., dissenting).

196.See id. at 2739.

197.See id. at 2738–39.

198.Id. at 2739.

199.Entm’t Merchs. Ass’n, 131 S. Ct. at 2738.

.Id.

200.Id. at 2747 (Alito, J., concurring), 2766 (Breyer, J., dissenting).

201.See Civ. § 1746.1(c).

202.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2771–79 app.

203.See id. at 2771 (Breyer, J., dissenting).

204.See id. at 2769 (Breyer, J., dissenting).

205.Id. at 2738 (citing Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994)).

206.Turner Broad. Sys., 512 U.S. at 665–66 (citing Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 330 n.12 (1985)).

207.Entm’t Merchs. Ass’n, 131 S. Ct. at 2769 (Breyer, J., dissenting) (citing American Academy of Pediatrics, the American Academy of Child & Adolescent Psychiatry, the American Medical Association, the American Academy of Family Physicians, the American Psychiatric Association, and the American Psychological Association).

208.Id. at 2770 (Breyer, J., dissenting); see also id. at 2742 (Alito, J., concurring) (“[W]e should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.”).

209.See Ginsberg, 390 U.S. at 642 (stating legislatures do not need to show scientific evidence).

210.What is the difference between causation and correlation?, STATS.org, http://stats.org/in_depth/faq/causation_correlation.htm (last visited Mar. 20, 2011) (“In general, it is extremely difficult to establish causality between two correlated events or observances. In contrast, there are many statistical tools to establish a statistically significant correlation.”); see also Entm’t Merchs. Ass’n, 131 S. Ct. at 2747 (Alito, J., concurring) (acknowledging that proving a causal link is a “formidable (and perhaps insurmountable) obstacle”).

211.Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 964 (9th Cir. 2009).

212.See, e.g., Gonzales v. Carhart, 550 U.S. 124, 163 (2007); Kansas v. Hendricks, 521 U.S. 346, 360 n.3 (1997); Nat’l Ass’n of Radiation Survivors, 473 U.S. at 330 n.12; Jones v. United States, 463 U.S. 354, 364–65 n.13, 370 (1983); Marshall v. United States, 414 U.S. 417, 427 (1974); Lambert v. Yellowley, 272 U.S. 581, 597 (1926); Collins v. Texas, 223 U.S. 288, 297–98 (1912); Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905).

213.See, e.g., City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 51–52 (1986) (holding in a First Amendment challenge to a zoning ordinance that the city of Renton was not required to present evidence of alleged “secondary effects” of adult theaters in its own city, but instead could rely on studies conducted by other cities, as long as the evidence was reasonably relevant to the city’s objectives); see Marshall, 414 U.S. at 427 (“When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad.”); see also Carhart, 550 U.S. at 163–64 (deferring to legislative judgment of the necessity of a particular method of abortion and stating that “[t]he Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty[;] . . . [m]edical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”).

214.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2771 (Breyer, J., dissenting).

215.Id. (Breyer, J., dissenting).

216.Id. at 2767 (Breyer, J., dissenting).

217.Id. at 2771 (Breyer, J., dissenting); see also Ginsberg, 390 U.S. at 639.

218.See Cal. Civ. Code § 1746(d)(1) (West 2011); see also Madsen v. Women’s Health Ctr., 512 U.S. 753, 765 (1994) (stating that a content neutral injunction should be evaluated by asking “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest”).

219.See, e.g., Cal. Penal Code § 308 (West 2008) (prohibiting the sale or furnishing of tobacco or smoking paraphernalia to minors); Cal. Penal Code § 12280(a)(2) (West 2009) (prohibiting the transfer, lending, sale, of furnishing of any assault weapon to a minor); Cal. Penal Code § 30300(a)(1) (West 2011) (prohibiting the sale or supply of ammunition to a person under 18); Cal. Penal Code §§ 313–313.1 (West 2008) (prohibiting the sale, rental or distribution of pornography to minors).

220.See Civ. § 1746.1(a), (c).

221.See, e.g., Ginsberg, 390 U.S. at 631–33 (affirming the lower court’s decision that a statute prohibiting the sale of obscene materials to minors under the age of seventeen is constitutional).

222.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2741–42.

223.Id.

224.See, e.g., Prince v. Massachusetts, 321 U.S. 158, 165–66 (1944); Ginsberg, 390 U.S. at 639–40.

225.Entm’t Merchs. Ass’n, 131 S. Ct. at 2760 (Thomas, J., dissenting).

226.Id. at 2742.

227.Id. at 2739.

228.See id. at 2768–70 (Breyer, J., dissenting) (providing examples of studies that show how the effects of video games are different from traditional passive media forms) (citing Brad J. Bushman & Rowell Huesmann, Aggression, in 2 Handbook of Social Psychology 851 (S.T. Fiske et al. eds., 5th ed. 2010) (stating that video games stimulate more aggression because “‘[p]eople learn better when they are actively involved,’ players are ‘more likely to identify with violent characters,’ and ‘violent games directly reward violent behavior.’”); Hanneke Polman, Bram Orobio de Castro, & Marcel A.G. van Aken, Experimental Study of the Differential Effects of Playing Versus Watching Violent Video Games on Children’s Aggressive Behavior, in 34 Aggressive Behavior 256–64 (2008) (“[F]inding greater aggression resulting from playing, as opposed to watching” violent game); Craig A. Anderson, Douglas A. Gentile, & Katherine E. Buckley, Violent Video Game Effects on Children and Adolescents: Theory, Research, and Public Policy 136–37 (2007) (citing three studies finding greater effects from games as opposed to television)); see also Entm’t Merchs. Ass’n, 131 S. Ct. at 2769 (stating that statements of expert public health associations agree that interactive games can be more harmful than “passive media” like television).

229.Ginsberg, 390 U.S. at. 636–38.

230.Sable Commc’ns of Cal., 492 U.S. at 126 (“[T]he Government may . . . regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.”)

231.See Cohen, supra note 69; see also FTC, A Report to Congress, Marketing Violent Entertainment to Children: A Fifth Follow-up Review of Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries 19 (Apr. 2007), available at http://www.ftc.gov/reports /violence/070412MarketingViolentEChildren.pdf (reporting that a survey by the National Institute on Media and the Family found that seven of ten of the 600 children surveyed reported playing M-rated games, and sixty-one percent owned an M-rated game) (citations omitted).

232.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2770 (Breyer, J., dissenting) (citing hockey14822, How to Bypass Parental Controls on the Xbox 360, YouTube (Oct. 16, 2009), http://www.youtube.com/watch?v=CFIVfVmvN6k (type “how to bypass parental controls on Xbox 360” in the search box on youtube.com, click search, then select the first link shown).

233.Ginsberg, 390 U.S. at 640 (citing People v. Kahan, 206 N.E.2d 333, 334 (1965)).

234.See generally Roth v. United States, 354 U.S. 476 (1957); A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Gen. of Mass., 383 U.S. 413 (1966); Miller v. California, 413 U.S. 15 (1973).

235.Compare Civ. § 1746(d)(1), with Miller, 413 U.S. at 24.

236.Entm’t Merchs. Ass’n, 131 S. Ct. at 2744–46 (Alito, J., concurring).

237.Id. at 2744 (Alito, J., concurring).

238.Id. at 2746 (Alito, J., concurring) (citing Edwards & Berman, Regulating Violence on Television, 89 Nw. U. L. Rev. 1487, 1523 (1995)).

239.Id. at 2765 (Breyer, J., dissenting).

240.See Roth, 354 U.S. at 491.

241.Id. (quoting United States v. Petrillo, 332 U.S. 1, 7–8 (1947)).

242.See Ginsburg, 390 U.S. at 646–47.

243.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2763–64 (Breyer, J., dissenting).

244.Id. at 2764 (Breyer, J., dissenting).

245.Id. (stating that the third prongs of the Miller test and of the Act consider whether the work, when taken as a whole, is utterly without serious literary, artistic, political, or scientific value).

246.See Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682, 693 (3d Cir. 1991) (noting that when evaluating obscenity, the court balances inter alia whether the material offends contemporary community standards).

247.See Entm’t Merchs. Ass’n, 131 S. Ct. at 2764 (Breyer, J., dissenting).

248.Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2742 (2011).

249.See Cal. Civ. Code § 1746.1(c) (West 2011).

250.Entm’t Merchs. Ass’n, 131 S. Ct. at 2760 (Thomas, J., dissenting) (“[T]his Court has never held, until today, that ‘the freedom of speech’ includes a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents.”).

251.See generally id.

252.See, e.g., Ne. Fl. Contractors v. Jacksonville, 508 U.S. 656, 663–64 (1993).

253.Chemerinsky, supra note 20, at 50 n.1.

254.See, e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975).

255.Robert Allen Sedler, Comment, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599, 600 (1962).

256.See, e.g., Caplin & Drysdale v. United States, 491 U.S. 617, 623 n.3 (1989); Campbell v. Louisiana, 523 U.S. 392, 396–400 (1998) (determining that a white defendant has standing to assert the equal protection rights of African Americans who were excluded from jury service).

257.See Cal. Civ. Code § 1746.3 (West 2011).

258.Entm’t Merchs. Ass’n, 131 U.S. at 2742 (ruling the Act unconstitutional “because it abridges the First Amendment rights of young people,” not because of any possible violation of the Video Dealers’ rights to manufacture or sell video games).

259.See generally Entm’t Merchs. Ass’n, 131 U.S. 2729; see also Singleton v. Wulff, 428 U.S. 106, 115 (1976) (explaining that the litigant and third party must have the same or parallel interests to establish a “close relationship”).

260.See generally Entm’t Merchs. Ass’n, 131 U.S. 2729; see also Charles Alan Wright et al., Federal Practice and Procedure § 3531.9.3, at 742 (Richard D. Freer & Edward H. Cooper eds., 3d ed.) (“Vendors are routinely accorded standing to assert the constitutional rights of customers and prospective customers.”).

261.See, e.g., Craig v. Boren, 429 U.S. 190, 194 (1976); Carey v. Population Servs. Int’l, 431 U.S. 678, 683–84 (1977) (conferring standing on the basis of the sensitive nature of the right at stake (personal privacy with regard to reproductive health) in addition to the vendor/vendee relationship).

262.Compare Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (denying a father standing on behalf of his daughter to challenge the addition of the words “under God” in the Pledge of Allegiance as violating the Establishment Clause), with Planned Parenthood of N. New Eng. v. Heed, 390 F.3d 53 (1st Cir. 2004) (allowing a physician and three health centers to have standing to assert the rights of minors to challenge a statute requiring parental notification in order for a minor to obtain an abortion).

263.The Court did not address the issue of standing in Ginsberg. See generally Ginsberg v. New York, 390 U.S. 629 (1968).

264.Craig, 429 U.S. 190.

265.Id. at 192–93.

266.Id. at 192.

267.Id. at 193.

268.Id. at 193–94.

269.Id.

270.Craig, 429 U.S. at 192.

271.See Eisenstadt v. Baird, 405 U.S. 438, 445 (1972) (conferring standing not solely on basis of the vendor/vendee relationship, but also because Baird was a medical provider and “an advocate of the rights of persons to obtain contraceptives”).

272.See, e.g., Smith v. Org. of Foster Families for Equality and Reform, 431 U.S. 816, 840–42 (1977).

273.See, e.g., Nicholson v. Bd. of Educ. Torrance Unified Sch. Dist., 638 F.2d 858, 863 (1982).

274.See, e.g., Planned Parenthood of N. New Eng., 390 F.3d 53; Population Servs. Int’l., 431 U.S. 678.

275.See, e.g., Org. of Foster Families for Equality and Reform, 431 U.S. at 840–42 (holding foster parents could not only raise their own rights, but could also raise the rights of their foster children).

276.See Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).

277.Id. at 519.

278.Id.

279.Id. at 534–35.

280.Entm’t Merchs. Ass’n, 131 U.S. at 2742.

281.See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“[The] rights of parenthood [are not] beyond limitation.”); Schall v. Martin, 467 U.S. 253, 265 (1984) (stating that the state may act to guard its independent interest in the well being of children).

282.Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2747 (2011) (Alito, J., concurring).

283.Id. at 2771 (Breyer, J., dissenting).

284.The Daily Show With Jon Stewart: Episode #16086 (Comedy Central television broadcast June 30, 2011), available at http://gamepolitics.com/2011/07/01/daily-show-takes-scotus-video-game-ruling.

285.Id.