Digital Perspectives on Yesterday’s News

The Supreme Court ruled against warrantless GPS surveillance and mildly good news on digital music sales showed how relatively small that important industry is in the context of online piracy. A unanimous court speaking in many opinions held that police can’t attach a tracking device to a car without a search warrant. United States v. Jones ( No. 10–1259; January 23, 2012). Meanwhile in London, the International Federation of the Phonographic Industry (IFPI) issued its “Digital Music Report 2012 Expanding Choice. Going Global” finding an estimated $5.2 billion in global digital music revenues in 2011.

In Jones, Justice Scalia emphasized trespass–physical placement by police on private property, a suspect’s car. But from there surveillance was on the web, and he went out of his way to acknowledge that it “may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy” — a fight he reserved for another day. Justice Sotomayor seemed ready to rule on that question yesterday,“Physical intrusion is now unnecessary to many forms of surveillance…”

Suspect’s private property and entirely electronic means will have to be at the heart of greater criminal copyright powers sought by content owners in the wake of the funeral for SOPA and PIPA. Jones may signal that it could survive constitutional attack.

As for the universally recognized need to combat piracy, the IFPI says its good news from 2011 was despite piracy, and not a reflection of successful copyright infringement enforcement. Chaired by the great one-man music business, Plácido Domingo, IFPI represents the global recording industry with members in 66 countries and affiliates in 45 more. ifpi.org/content/library/DMR2012.pdf.

A large chunk of digital music revenue is from iTunes, Apple’s pioneering legal download store. And Apple’s great success gives perspective Silicon Valley should keep as it and Hollywood hopefully negotiate an agreed approach to piracy. There’s an earnings call today, but Apple’s fourth quarter results were $28.27 billion–about six times digital music revenue for the whole world for a whole year.apple.com/pr/library/2011/10/18Apple-Reports-Fourth-Quarter-Results.html . Google’s fourth quarter was only double digital music sales. nvestor.google.com/financial/tables.html.

Rather than single companies, of course, music revenues are the work of thousands of copyright stakeholders. Apple and Google are the pinnacle of a great pyramid of technology companies, but they can have a place at any bargaining table if they want. Copyright owners have little choice but to be represented by industry associations. However the players come together, Jones is something to consider when they meet.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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