Recording companies are not all thieves. In fact, it's probably not so much the companies themselves as the abject absence of originality in current American music writing and dissemination practices, which encourages individuals on the edge to steal "ideas" (and often more than just "ideas"). Some of these individuals are powerful enough within their respective corporate hierarchies that for that limited purpose the corporation should be treated as an alter ego.
In any event, the Second Circuit proved again that hard facts make bad law; that it is out of step with the realities of publishing, whether in music or elsewhere; and, by creating a needless circuit split in a case in which the artist claiming infringement was proceeding pro se, reinforced my argument for sending all copyright cases to a single circuit (for a dissenting view, see Howard Bashman's 20 Questions interview of Judge Birch of the 11th Circuit, questions 8 and 9). In Jorgensen v. Epic/Sony Records, Inc. (Dec. 4, 2003) (PDF, 97kb), we find this little gem:
[E]vidence of corporate receipt of unsolicited work is insufficient to raise a triable issue of access where there is no evidence of any connection between the individual recipients of the protected work and the alleged infringers.
Slip op. at 2. The procedural posture of this case is critical. It considers a summary judgment decision by the trial court. The proper standard for granting summary judgment is that, after considering all of the non-live-testimony evidence offered by both parties after an adequate opportunity for discovery, no reasonable juror could believe one side's story and the story offered by the other side (the one that moved for summary judgment) is entitled to judgment as a matter of law.
The real problem with this opinion, as in all too many opinions out of certain circuits, is the sweeping language in that preamble. Particularly in a pro se matter, the Court would be better advised to limit its rhetoric to the record at hand. That quotation that I pulled out is not so far out of context that it will not present serious difficulties to future litigants—even though, when one actually reads Jorgensen, one can see that it turns on matters of evidentiary support for various propositions, and not at all on copyright law per se. More to come.