Eight NBA teams who are prosecuted for their use of licensed music in social networks publications deposited a memory of AMICUS at the United States Supreme Court on Monday. They urge the court to reject the “discovery rule” – which does not start the three -year clock for a copyright holder to continue for offense until they discover or, with reasonable diligence, would have had to discover a counterfeit and approve the “injury rule”, which starts the clock when the offense occurred.
The memory deposited by the Indiana Pacers, Denver Nuggets, the Minnesota Timberwolves, New Orleans Pélicans, Orlando Magic, Portland Trail Blazers, Sacramento Kings and San Antonio Spurs are in favor of Radesign Inc. (Ruthie Davis fashion designer), which was continued by the pursuit by Radesign Inc. (Fashion Designer Ruthie Davis), who was continued by Michael Greek productions for copyright violation on the publication of an Amber Rose model bringing a pair of Ruthie Davis shoes. The relevant question for the NBA teams is that the alleged violation of Radesign began more than four years before the deposit of the prosecution and that the law on copyright requires that the offense complaints be carried in the three years. Last year, the American Court of Appeal for the second circuit approved the discovery rule, which led Radessign to ask the Supreme Court to re -examine.
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In a thesis written by lawyers Kian J. Hudson and Stephen R. Mick, the teams note that they are defendants in a case of offense concerning the use of approved music in publications on social networks ” ‘A decade. continued 14 NBA teams During their use – without the permission of the complainants – songs sung by Britney Spears, Justin Bieber, Doja Cat, Bad Bunny and other well -known artists.
The teams point out that the discovery rule is not indicated in the law on copyright and therefore lacks statutory support. Instead, the courts adopted the rule as a question of practice. The teams maintain that if the discovery rule was created for an interesting reason – namely to protect the “innocent complainants” which are late in the discovery of counterfeiting – it has become a “powerful weapon” by the “trolls of law of ‘Author »to abuse copyright law.
A problem with the discovery rule, insist the teams, is that its availability is on the applicant’s knowledge. This approach rewards the complainants to “profess any knowledge” and encourage to know less. While the element “should have known” from the discovery rule should discourage a tactic “hearing without difficulty, seeing no harm”, the teams argue that the courts consider that knowledge is a question of a fact that cannot not be addressed on procedural acts or in summary judgment. In other words, that the applicant “knew” or “should have known” becomes a reason for a court to keep a case on the file, which increases the dispute fees for the defendants and subjects them to a more extensive discovery.
The teams also point out that with the rise of Instagram and Tiktok, the trolls seek to capitalize on publications on social networks which contain simple “extracts from music or images in the background”. These clips could include several seconds from a “Touché de touché or hymn song of the arena celebrating the victory of a team”. The teams argue that “sophisticated” trolls use computer technology to “pass through the oceans of social media content” in the hope of finding a brief use of material protected by copyright which can “form the base of a threatening and costly forbidden forbidden. ”
Another alleged problem linked to the Discovery rule is that the provision of damages of the Act respecting copyright encourages applicants “to accumulate dozens or hundreds of small affirmations”. Each complaint can be worth up to $ 30,000 per work and, with a voluntary counterfeit, $ 150,000 per work. This arrangement, according to the teams, can make an “brief and accidental violation” has a potential litigation value “hundreds of times greater than the commercial value of use”.
To illustrate this point, the teams cite disputes against CNN and its affiliates for more than $ 11 million in potential music damage whose “actual license value” is only worth $ 11 million. “No one has been surprised,” write the teams, “when CNN settled” the dispute “before an important discovery”.
The NBA teams conclude either brief by providing a sporting example, but not one on basketball. Instead, they refer to a YouTube video that will smile at Boston Red Sox fans:
The video captures the former designated Red Sox striker, David Ortiz, the home circuit of the 2004 AL Championships series and – the teams insist – “perfectly illustrates the danger of the uncontrolled discovery rule”. While the basics are being by the basics to celebrate the New York Yankees, “a cautious listener can hear the FENWAY PARK PA system in the background in the point Dirty waterA festive song that is played (under license) by the Boston Red Sox after the victories. »»
The teams warn that by virtue of the Discovery rule, it is possible that “these few seconds of background music are a complaint in potential counterfeiting with 20 years of accumulated damage”.
The Supreme Court currently weighs whether to take Radesign c. Greco. If the judges agree to take it, eight NBA teams – and perhaps a video of “Big Papi” – may have played a key factor.
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