Digimarc Fighting Piracy By Submitting Incomplete DMCA Notices Targeting Tons Of Non-Infringing URLs (Including Techdirt’s)

16 07 2018

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.

 

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Yet Another Case Highlights Yet Another Constitutional Infirmity With The DMCA

31 05 2018

Tech Dirt

Cathy Gellis

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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Vimeo Copyright Infringement Case Still Going Nearly A Decade Later, With Another Partial Win For Vimeo

11 04 2018

tech dirt

Mike Masnick

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

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Tom Brady and a Ruling over Embedded Tweets Could Change the Internet and Online Publishing

10 04 2018

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/

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DMCA Safe Harbor Applies to Some Unfair Competition Claims–Capitol Records v. Vimeo

10 04 2018

You probably remember this case. Copyright owners sued the video hosting site Vimeo for third party uploaded videos that allegedly infringed their copyrights. Given this was the paradigmatic situation the DMCA safe harbor was designed to address, you’d think this would result in a quick-and-cheap defense win.

HA! This lawsuit was filed in December 2009, so it’s closing in on its decade anniversary. In 2013, the district court ruled that the DMCA safe harbor did not apply to state copyrighted works, including pre-1972 sound recordings. In an important ruling in 2016, the Second Circuit reversed that ruling, holding that the DMCA safe harbor did apply to state copyrights. The Second Circuit’s ruling had other provisions generally favorable to Vimeo.

Case citation: Capital Records LLC v. Vimeo LLC, 2018 WL 1634123 (SDNY March 31, 2018). [the court caption in this ruling spells it “Capital,” even though the case name is Capitol.]

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https://blog.ericgoldman.org/archives/2018/04/dmca-safe-harbor-applies-to-some-unfair-competition-claims-capitol-records-v-vimeo.htm
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RIAA Gets To Move Forward In Case That Tries To Force ISPs To Help Copyright Trolls

10 04 2018

TechDirt

Mike Masnick

Back in February, we wrote about the details of the appeals court ruling in BMG v. Cox, a case that looked at whether or not internet access providers are required to terminate users accused of repeat infringement. The case was really a proxy for copyright trolling operation Rightscorp, which floods ISPs with claims of infringement tied to “settlement” offers that it wants the ISPs to pass on to end users. As discovery during the Cox case revealed, Rightscorp engages in incredibly sketchy practices to pressure people into paying up (such as telling them that they need to take their computers to the local police station for a search to prove they’re not infringing).

However, due to a bunch of weird details in that case — including a judge who made it clear he didn’t think the internet was such a big deal — Cox lost that case, and then again on appeal. The good thing in the appeal, however, was that the opinion mostly limited its decision to the specific facts in Cox’s case, which included the fact that it had a “repeat infringer policy” but it didn’t follow its own policy. That’s really what sunk Cox. The court noted that an ISP should have wide latitude in designing its own repeat infringer policy, it just had to then follow its own policy. And Cox didn’t.

While that case was going on, a second similar case was filed, this time by Universal Music Group against Grande Communications. Back in February, the magistrate judge on that case made recommendations to allow the case to move forward, though throwing out some of the claims. As TorrentFreak recently pointed out, the Title III judge in the case has accepted the recommendations of the magistrate, which you can see here.

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Intellectual Property in the World of eSports

4 04 2018

IP Watchdog

Roman Brtka
April 2, 2018

eSports is an exciting new area — not only in the sporting industry but in legal terms. There are various key players such as eGamers, game publishers, and organizers of eSports events, who are facing the challenge of sufficiently protecting their rights. Organizers need to ensure that they obtain all necessary usage rights from the game publishers and the participating eGamers, and these parties need to be aware of their possible ancillary copyrights and should take appropriate precautionary measures to protect them.

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The content in this post was found at https://www.ipwatchdog.com/2018/04/02/intellectual-property-esports/id=95245/

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Big Loss for News Media in Copyright Case: Where Is Your Server, and Why Do I Care?

27 03 2018

Pay or Play: Entertainment Law

on March 22, 2018

The digitization of content is forcing courts to take a fresh look at basic copyright concepts. The Disney v. Redbox case that I’ve recently blogged on addressed whether a digital download code is a “copy” of a work. Now a New York District Court has taken up the meaning of “display” in a case that could have big consequences for the way news outlets do business.

A photographer named Justin Goldman snapped a candid photo of New England Patriots quarterback Tom Brady with Boston Celtics general manager Danny Ainge. Goldman posted the photo on Snapchat, whence it went viral, including on Twitter. The defendant news outlets, including Breitbart, Time and the Boston Globe, embedded the tweets together with the photo in stories concerning whether Brady was assisting the Celtics to recruit a player named Kevin Durant. Goldman sued for copyright infringement. The defendants moved for summary judgment on the ground that they had merely linked to an image hosted on Twitter’s servers and did not themselves maintain copies.

Judge Katherine Forrest rejected this position. In her view, the location of the server on which an image is stored is merely a technical distinction that is not relevant to whether the copyright owner’s display right was infringed. Judge Forrest acknowledged that this view is contrary to the position of the 9th Circuit, but held that it is supported by Supreme Court precedent and the language and legislative history of the Copyright Act.

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Cloud Back Up of Copyrighted Material May be Infringing Act

8 03 2018

Chicago IP Litigation

R. David Donoghue on March 2, 2018

Flava Works, Inc. v. Gunter d/b/a myVidster.com, et al., No. 17 C 1171, Slip Op. (N.D. Ill. Jan. 30, 2018) (Gettleman, J.).

Judge Gettleman granted in part defendants’ (collectively “myVidster.com”) Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff’s copyright, Lanham Act and related state law claims in this dispute regarding plaintiff’s adult entertainment website, videos and related products that myVidster.com allegedly allows to be collected behind its paywall website. . . .

Plaintiff’s Lanham Act trademark infringement and unfair competition were “woefully deficient.” The claims did not identify a single mark that myVidster.com allegedly used, nor did they claim use of any mark in commerce.

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The content in this post was found at https://www.chicagoiplitigation.com/2018/03/cloud-back-up-of-copyrighted-material-may-be-infringing-act/ 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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District judge in the SDNY: Embedding links to third –party web content is copyright infringement

7 03 2018

AdLaw by request

Brian Sutherland on 2 March 2018

What is the legal difference between embedding an image on a website and displaying a copy of the image? News organizations and other website publications have relied on the Ninth Circuit’s opinion in Perfect 10, Inc. v. Amazon.com Inc., which established a bright-line server test for determining whether a website displayed a copy of an image, and thus potentially infringed upon the owner’s copyright in that image for the past ten years. According to the server test, a website operator displays an image if it sends a copy of the image from its server to the end user’s browser, but does not display an image if it merely embeds instructions (HTML) in its webpage that enable the end user’s browser to request the image from a third party’s server.

On February 15, 2018, District Judge Katherine B. Forrest of the Southern District of New York opened the door to new copyright infringement suits in the Second Circuit and beyond with her ruling in Goldman v. Breitbart News Network, LLC.

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The content in this post was found at https://www.adlawbyrequest.com/2018/03/articles/in-the-courts/district-judge-in-the-sdny-embedding-links-to-third-party-web-content-is-copyright-infringement
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