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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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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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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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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MPAA Opposes Several Filmmaker Associations Request For Expanded Circumvention Exemptions

7 03 2018

Techdirt

February 28, 2018

Over the past few weeks, we’ve mentioned in a couple of posts that the Copyright Office is currently taking public commentary for changes to the DMCA’s anti-circumvention exemptions provisions. While we’ve thus far limited our posts to the Museum of Art and Digital Entertainment’s bid to have those exemptions extended to preserving online video games and the ESA’s nonsensical rebuttal, that isn’t the only request for expanded exemptions being logged. A group of filmmaker associations put in a request last year for anti-circumvention exemptions to be extended to filmmakers so that they can break the DRM on Blu-ray films in order to make use of clips in new works. At issue is the fact that these filmmakers are able to make use of clips in these new works thanks to fair use but cannot readily get at them due to the DRM on the films themselves.

This is confusing and creates uncertainty, according to the International Documentary Association, Kartemquin Films, Independent Filmmaker Project, University of Film and Video Association, and several other organizations. Late last year they penned a submission to the Copyright Office, which is currently considering updates to the exemptions, where they argued that all filmmakers should be allowed by break DRM and rip Blu-rays. The documentary exemptions have been in place for years now and haven’t harmed rightsholders in any way, they said.

“There is no reason this would change if the ‘documentary’ limitation were removed. All filmmakers regularly need access to footage on DVDs and without an exemption to DVDs, many non-infringing uses simply cannot be made,” the groups noted.

So, there are several groups that lobby for documentarians going to bat for the larger filmmaking world, having seen just how beneficial the exemptions they enjoy have been to the documentary craft. Frankly, it’s nice to see associations such as these not simply staying in their own lane and instead advocating for their larger craft as a whole. Unlike, say, the MPAA which leapt to respond with claims of how awful all of this would be.

A group of “joint creators and copyright owners” which includes Hollywood’s MPAA, the RIAA, and ESA informs the Copyright Office that such an exemption is too broad and a threat to the interests of the major movie studios.

The MPAA and the other groups point out that the exemption could be used by filmmakers to avoid paying licensing fees, which can be quite expensive.

Which, of course, is precisely the point of these exemptions. An end-around of fair use by locking up content behind DRM in order to extract licensing fees from those that legally would otherwise not have to pay them is a special kind of perversion of the DMCA. Not to mention copyright law as a whole, actually. Recall that the entire purpose of copyright law in America is to promote the creation of more works for public consumption. What the MPAA is arguing is that these exemptions, which would do much to promote new work, should be cast aside in favor of a system in which those new works live at the pleasure of the licensing schemes of the major movie studios.

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Angry Pick-Up Artist Says He Won’t Issue Bogus YouTube Claim On Critic’s Video; Issues Bogus Claim On Critic’s Video

7 03 2018

Techdirt

March 3, 2018

Another case of YouTube’s copyright notification system being abused has filtered down through social media. A YouTuber whose channel specializes in game reviews was targeted by the developer of the game after some back-and-forth on the internet over his negative review.

Chris Hodgkinson reviewed a game called Super Seducer, which supposedly teaches dudes how to pick up women through the magical art of full-motion video. Call it “edutainment.” (If you must…) The developer, Richard La Ruina, didn’t care for his game being featured on a video series entitled “This is the Worst Game Ever.” Nor did he care for Hodgkinson’s suggestion the game offered nothing to men in the way of usable pick-up artistry.

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Google Gets Easy Section 230 Win in DC Circuit–Bennett v. Google

27 02 2018

[It’s impossible to blog about Section 230 without reminding you that it remains highly imperiled. Also, I have several other Section 230 rulings to blog that I’ll get to eventually.]

I previously described the facts of this case:

Dawn J. Bennett was a financial advisor in major trouble with the SEC. She also has a sporting apparel company. She hired an SEO, Pierson, to improve the search engine indexing of her website. After a payment dispute, Pierson posted a blog post that starts out “DJ Bennett, the luxury sporting goods company, does not pay their employees or contractors.” Bennett demanded Google de-index the blog post, and then sued Google for defamation and more when it didn’t.

One factual ambiguity that crept into the appellate opinion: The appellate opinion discusses Blogger’s “Content Policy.” However, I believe the post resided only on Pierson’s theexecutiveseo.com domain, not on the Blogger platform. Therefore, I think this is really a search engine de-indexing case, not a blog hosting case.

The district court ruled for Google. In a brief opinion, the DC Circuit affirmed.

 

Case CitationBennett v. Google, LLC, 2018 WL 1021235 (D.C. Cir. Feb. 23, 2018)

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Congress Probably Will Ruin Section 230 This Week (SESTA/FOSTA Updates)

27 02 2018

For the past year, I’ve been covering Congress’ efforts to create a sex trafficking exception to Section 230’s immunity. From the beginning, it was clear that the proponents did not understand Section 230’s powerful but counter-intuitive doctrinal mechanisms, yet their initiative to gut Section 230 had momentum. Two bills were introduced: SESTA in the Senate and FOSTA in the House. Both bills as introduced were terrible.

After a Senate Commerce Committee hearing, SESTA was amended to fix some of its roughest edges, but the amendments didn’t resolve SESTA’s structural flaw (I’ll discuss that below). As part of a House Judiciary Committee hearing, FOSTA as introduced was replaced by substitute FOSTA, which still had problems but represented a more productive approach to address sex trafficking. Amended SESTA and substitute FOSTA passed the Senate Commerce Committee and House Judiciary Committee, respectively, queuing both up for passage by their respective chambers. However, amended SESTA has been slowed by Sen. Wyden’s hold; and for reasons that aren’t clear to me, the House Judiciary Committee didn’t report substitute FOSTA until last week. Ten days ago, the House Energy & Commerce Committee waived jurisdiction over FOSTA to help get the bill on the House floor.

Ever since substitute FOSTA emerged, one of the key questions has been how Senate and House might reconcile the different policy approaches in SESTA and FOSTA if both advanced. No one I spoke to, not even the inside-Congress experts, were confident in their predictions. Last week, a backroom deal was announced that apparently answers that question, but in substantively and procedurally deficient ways. This is BAD NEWS.

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