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Lex Blog

AUGUST 22, 2018

As we have noted previously, the California Court of Appeal’s Hassell v. Bird decision in 2016 upholding an injunction requiring Yelp to remove certain user reviews was discouraging to social media companies and other online intermediaries, as well as to fans of Section 230 of the Communications Decency Act and proponents of Internet free speech generally. The recent California Supreme Court decision reversing the Court of Appeal was, therefore, met with considerable relief…

TechDirt

The long saga of the BMG v. Cox case is now over. If you don’t recall, BMG had hired the copyright trolling outfit Rightscorp to bombard ISPs with shakedown letters, based on accusations of copyright infringement. Rightscorp really wanted ISPs to pass those letters on to ISP subscribers, including the part where they demand money to leave you alone. As was revealed during the case, Rightscorp would blatantly lie to those subscribers, telling them that if they were innocent they needed to first hand their computers over the police for a forensic search. Cox, after being bombarded with these shakedown letters, started ignoring the Rightscorp letters, leading BMG to sue.

Cox pointed to the DMCA safe harbors to protect itself, but the judge, Liam O’Grady, made it pretty clear that he didn’t care much for the internet at all, and didn’t seem to mind Righscorp and BMG shaking down people for money with the threat of losing their entire internet access. Of course, it did not help at all that Cox itself had some damning emails about how they treated subscribers accused of infringement. While plenty of attention has been placed on Cox’s apparent “thirteen strikes” policy for those accused (not convicted) of copyright infringement, the real problem came down to the fact that Cox didn’t follow its own repeat infringer policy. So, in the end, Cox lost to BMG in the lower court and it was mostly upheld on appeal.

However, the case was sent back down to the lower court because O’Grady messed up with his jury instructions, providing them with the wrong standard for contributory infringement (O’Grady’s jury instructions about contributory infringement presented it as a much broader standard than it actually was). And thus, the case was supposed to go back for another trial… but that’s now over as the two sides have settled and Judge O’Grady immediately signed off on the settlement.

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The content in this post was found at https://www.techdirt.com/articles/20180824/12282440502/recognizing-it-had-no-chance-cox-settles-bmg-copyright-trolling-case.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Tech Dirt

by Mike Masnick

Mon, Aug 13th 2018

Just recently, Tim Geigner wrote about how Nintendo’s success with the relaunched Nintendo NES Classic showed how the company successfully competed with free, because there are plenty of NES emulators that can play ROMs for free. And yet, the NES Classic comes in a neat, easy to use package. And it’s worth buying if only because it looks cool — just like the original, but… tiny. I should know: I have one and it’s great. And my wife can’t stop playing Mario Bros. on it, though she keeps complaining about other games from her youth that are missing.

But, of course, this is Nintendo we’re talking about, so it’s been busy, busy, busy suing a bunch of ROM sites and scaring others into shutting down. The site EmuParadise shut down recently with the following as part of its farewell message after 18 years in operation:

Tech Dirt

Timothy Geigner

Fri, May 11th 2018

With copyright trolling a business model in full force across the world, we’ve noted that there has finally started to be some pushback against these tactics. In Europe, both courts and ISPs have begun wising up to the notion that IP addresses are an incomplete and faulty piece of “evidence” at best, with both government and industry also finally beginning to question just where user privacy should fit into all of this. In America, unfortunately, copyright trolls have all too often been able to unmask customers through ISPs based on court orders pretty much at will. Strike 3 Holdings is one such troll, with the company being partially responsible for a number of piracy lawsuits shooting out of the gate in 2018 at record speed.

And, yet, it appears that there might finally be some pushback coming to the US too, as two judges in Minnesota have now refused to order ISPs to give up customer information to Strike 3.

Late last month, Magistrate Judge Franklin Noel denied such a discovery motion.

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The content in this post was found at https://www.techdirt.com/articles/20180508/06010439798/minnesota-judges-refuse-to-unmask-defendants-copyright-troll-strike-3.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

TechDirt

Mike Masnick

Fri, Aug 3rd 2018

For years, we’ve noted that the major record labels have been drooling over the idea that the DMCA might allow them to force ISPs to kick people entirely off the internet based on mere accusations of piracy. This is problematic for all sorts of reasons (as you might imagine). However, the record labels feared testing this idea in court, because it might not turn out the way they wanted it to. However, as we covered on Techdirt, a few years back, music publisher BMG, with the assistance of copyright trolling operation Rights Corp. went after ISP Cox, claiming that it had failed to kick people off under the DMCA.

That case was an utter mess, not helped at all by the fact that it was handled by Judge Liam O’Grady, who flat out mocked the idea that the internet was important, and made it clear he didn’t see any issue at all with banning people from the internet. Here’s how he responded to an attempt by the EFF to file an amicus brief pointing out the problems with kicking people off the internet:

. . . .

The whole case was a complete mess — and it was made worse by some bad choices by Cox, including not really following its own stated DMCA repeat infringer policy. O’Grady’s ruling was bad, and unfortunately the appeals court upheld it. However, at least the Appeals Court made it more or less clear that they weren’t saying every ISP had to kick people off the internet — but rather that Cox lost its DMCA safe harbors by not following its own DMCA policy. While much attention was paid to the claim that Cox’s policy amounted to a “13 strike” policy before you might lose access, the appeals court notes it’s not the number of strikes that matters, so much as whether or not the company follows its own policy — and Cox did not.

. . . .

Between the ruling in the original BMG case, and the revelations about Cox’s own practices, the RIAA clearly sensed blood in the water, and a chance to prove its point. And, thus, it has a massive lawsuit against Cox. It’s basically all of the major labels using the earlier case as evidence of some grand conspiracy to profit off of piracy.

. . . .

And to increase the level of concern: this new case has been assigned to… Judge Liam O’Grady. Needless to say we’ll be watching it closely.

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The content in this post was found at https://www.techdirt.com/articles/20180802/17420540355/sensing-blood-water-all-major-labels-sue-cox-ignoring-their-dmca-notices.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Tech Dirt

by Tim Cushing
Fri, Jul 13th 2018

There are bogus DMCA takedown requests — something we’ve covered frequently here — that try to use a copyright tool to make unflattering content disappear. Then there’s this form of bogus, the kind being engaged in by Digimarc. It appears to be the result of inadequate automation handling everything terribly.

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The content in this post was found at https://www.techdirt.com/articles/20180711/06075840213/digimarc-fighting-piracy-submitting-incomplete-dmca-notices-targeting-tons-non-infringing-urls-including-techdirts.shtml  Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

 

Tech Dirt

Cathy Gellis

Wed, Apr 4th 2018

Once again, the Constitutional exceptionalism of the DMCA has reared its ugly head. Thanks to the way it has been interpreted we have already enabled it to become an unchecked system of prior restraint, which is anathema to the First Amendment. And now yet another court has allowed this federal law to supersede states’ ability to right the wrongs that misuse of the DMCA’s censorship tools inevitably causes, even though doing so arguably gives this federal law more power than the Constitution allows.

The two problems are of course related. Prior restraint is what happens when speech is censored without ever having being adjudicated to be wrongful. That’s what a takedown demand system does: force the removal of speech first, and sort out whether that was the right result later. But because the Ninth Circuit has taken the teeth out of the part of the DMCA that is supposed to punish bogus takedowns, that second part very rarely happens. Section 512(f) was supposed to provide a remedy for those who have been harmed by their content being removed. But in the wake of key rulings, most recently Lenz v. Universal, that remedy is rarely available, leaving online speakers everywhere vulnerable to the censoring whims of anyone inclined to send a takedown demand targeting their speech, no matter how unjustifiably, since there is little ability to ever hold this wrongdoer liable for the harm their censorship causes.

And censorship does cause harm. Sometimes the harm that it causes can even be to one’s business or livelihood, which can suffer from the interruption of the removed content’s availability. Of course, normally when people have had their business or livelihoods messed with, they can sue whomever messed with them. We have lots of laws that address wrongful meddling, including torts like intentional interference with contract or prospective economic advantage, because normally we don’t like people having free reign to mess with other people’s business.

But most of those tort claims are creatures of state law, and the DMCA is federal law. And the question that was raised by a recent case, Stevens v. Vodka & Milk, LLC, is how state law and federal law interrelate. Per the court: they don’t. According to the Southern District of New York court, federal law completely pre-empts state law, leaving the only recourse available for someone who has been hurt by wrongful DMCA takedown notices Section 512(f), the remedy that the DMCA ostensibly enables. Even though that remedy is utterly useless.

Sadly, this court was not the first to reach this conclusion. But that fact does not make the conclusion any less terrible, or any less questionable. It’s predicated on the notion of “field pre-emption,” “where Congress occupies an entire field.” In this case, Congress is the exclusive authority establishing copyright, and so federal law pre-empts state laws on copyright. This pre-emption makes sense, because state law addressing copyright would likely interfere with the federal policy. Yet that’s not what these state laws are doing. They aren’t trying to establish copyrights or address their scope; they are attempting to speak to what happens in situations where a harm has resulted and no copyright was involved at all.

The court essentially ignores this distinction, asserting that because the DMCA addresses what happens when takedown notices are sent without there being a valid copyright claim, it is the final word on remediating the harm the wrongful takedown notices caused. But this reasoning doesn’t make sense.

First, the Constitution narrowly prescribes what federal law can do. It can, for instance, create copyrights (pursuant to the Progress Clause), but it doesn’t follow that federal law can necessarily operate, much less exclusively operate, where there is no copyright present. Without that copyright there may be no constitutional basis for that federal law to operate at all. But if the court were right, that once the DMCA is merely cited as a basis for a censorship demand, even if invalidly, it is the only law that can address the resulting harm, then that’s what the federal law would be doing: operating in a domain where it may no longer have any constitutional entitlement to act. Particularly given that people aren’t even supposed to be able to engage the DMCA without that federally-created copyright in the first place, it really doesn’t make sense that the DMCA can remain engaged, trumping state law, when it wasn’t supposed to be engaged in the first place.

Granted, it might make sense for the DMCA to pre-empt state law when the takedown notice sender has a valid copyright but nonetheless has sent wrongful takedown notices where the targeted use was fair. If state law could punish those takedown notices, it might interfere with the parameters of that federally-created copyright and encroach the “field” of copyright law left exclusively to federal law. But in the absence of a valid copyright, federal law should not be able to extinguish a state-based claim that has nothing to do with the contours of a right that isn’t even present.

And the reason federal law should be so limited is because of the abuse we see, where anyone can get away with tortious behavior simply by fraudulently claiming a fictional federal right. A takedown notice sent by someone without a valid copyright is not any more about the “field” of copyright than it is about Santa Claus. Rather, it’s about tortiously wrongful behavior. And vindicating injuries caused by such behavior is not something that federal law generally gets to do. That is a power generally left to the states, and the Constitution should not permit a bad actor to escape state law designed to punish this sort of behavior simply because he’s fraudulently packaged up his bad acts with a meaningless copyright label federal law does not allow him to use.

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The content in this post was found at

https://www.techdirt.com/articles/20180401/21565139540/yet-another-case-highlights-yet-another-constitutional-infirmity-with-dmca.shtml

 Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

tech dirt

Mike Masnick

Tue, Apr 10th 2018

I’ll admit that I’d forgotten this case was still going on, but after nearly a decade, there it is. The case involves record labels suing web hosting site Vimeo for copyright infringement. The case, which was first filed in 2009, initially focused on Vimeo’s promotion of so-called “lipdubs.” Vimeo is a much smaller competitor to YouTube for hosting videos, but in the 2007 to 2009 timeframe, got some attention for hosting these “lipdubs” of people singing along to famous songs. Perhaps the most famous was one done by the staff of Vimeo itself. The case has taken many, many, many twists and turns.

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The content in this post was found at 

https://www.techdirt.com/articles/20180406/12242839584/vimeo-copyright-infringement-case-still-going-nearly-decade-later-with-another-partial-win-vimeo.shtml

Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

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IP Watchdog

Franco Galbo
April 6, 2018

Of all of the things NFL quarterback Tom Brady has been accused of ruining over the years, the internet is not necessarily at the top of the list, and certainly not based on an alleged copyright infringement that he had no part in perpetuating. Yet, a photograph of him and Danny Ainge, the general manager of the Boston Celtics, could in fact forever change the internet and online publishing as we know it.

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he content in this post was found at 

https://www.ipwatchdog.com/2018/04/06/tom-brady-embedded-tweets-online-publishing/id=95387/

Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.