Copyright Office Extends Anti-Circumvention DMCA Exemptions To All Filmmakers, Not Just Documentarians

11 07 2019

Timothy Geigner
Tech Dirt
Nov 2nd 2018

Earlier this year, we wrote a bunch of posts on the Copyright Office’s request for comment on changes needed to the DMCA’s anti-circumvention exemption list. There were lots of interesting submissions, but one that caught my attention was a whole bunch of film association groups, most of them for documentarians, advocating that the anti-circumvention they enjoyed to be able to use clips from other films and content be expanded to include filmmakers generally. This would address the copyright industries’ cynical attempt to route around Fair Use usage by filmmakers by simply locking up their content behind all kinds of DRM that, unless you’re a documentarian, you can’t circumvent. The MPAA, as you would expect, said that allowing for this would kick off “widespread hacking” of all the DVDs on the planet, while all it was really concerned about was the licensing agreements it was able to secure by filmmakers who didn’t want to violate the DMCA to get the Fair Use clips they wanted.

Well, the Copyright Office made its decision and the exemption will now be offered to filmmakers en masse.

more

The content in this post was found at https://www.techdirt.com/articles/20181101/10104240962/copyright-office-extends-anti-circumvention-dmca-exemptions-to-all-filmmakers-not-just-documentarians.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Powered by WPeMatico



Court Shoots Down Record Label’s Attempt To Expand The Definition Of ‘Vicarious’ Infringement

9 07 2019

Mike Masnick
Tech Dirt
Oct 1st 2018

. . . . Meanwhile, down in Texas, there’s the UMG v. Grande Communications case, which many had seen as a parallel case to the BMG v. Cox case. This was another case that involved an ISP being bombarded with shakedown (not takedown) notices from Rightscorp, in which Righscorp and its clients felt that ISP was not willing to pass on those notices (thus denying Rightscorp and its clients the ability to collect money in exchange for a promise not to sue). . . .

Vicarious and contributory infringement are often lumped together, but they are different. For there to be vicarious infringement, you have to show that the party being sued both had the right and ability to supervise the activity, and that it would directly financially benefit from the infringement. The court rejected that in the case of Grande, noting that just because Grande makes money from its subscribers, that’s not enough to show that it was profiting from the infringement.

Universal Music tried to amend the complaint to show that it had “more evidence” that Grande and its management company, Patriot, were still vicariously liable — but the magistrate judge says it’s just trying to re-litigate what it lost last time.

more

The content in this post was found at https://www.techdirt.com/articles/20180923/12051040696/court-shoots-down-record-labels-attempt-to-expand-definition-vicarious-infringement.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Powered by WPeMatico



Section 230’s Success in Under-the-Radar Cases

23 09 2018

Technology & Marketing Law Blog

Eric Goldman

Sept. 21, 2018

For every high-stakes Section 230 case that gets widespread coverage, I see many other low-profile cases–often pro se–where Section 230 works as we all expect. These rulings usually aren’t super-interesting because they confirm the status quo. However, they provide a good barometer of Section 230’s health as an immunity. Without Section 230 quickly cleaning up these cases, the courts would likely be flooded with thousands of similar cases, most of which would be flatly unmeritorious, and the collective effect of which would be to move defendants closer to death-by-one-thousand-duck-bites.

In this post, I’ll share four recent Section 230 cases that flew under the radar but, collectively, demonstrate the quietly powerful role that Section 230 plays in managing our litigious society. Because their complaints are so convoluted and pro se litigants love to threaten me with defamation, I’m just going to blockquote the courts’ applicable discussion.

DeLima v. YouTube

 

Lee v. OfferUp, Inc., 2018 WL 4283371 (E.D. La. Sept. 7, 2018):

 

Fehrenbach v. Zeldin, 2018 WL 4242452 (E.D.N.Y. Aug. 6, 2018):

 

Shulman v. Facebook.com, 2018 WL 3344236 (D.N.J. July 9, 2018):

more

The content in this post was found at https://blog.ericgoldman.org/archives/2018/09/section-230s-success-in-under-the-radar-cases.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Powered by WPeMatico



Section 230 Survives to Fight Another Day Following California Supreme Court Decision

26 08 2018
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…

more

The content in this post was found at https://www.commlawblog.com/2018/08/articles/intellectual-property/copyright-enters-the-twilight-zone-a-series-of-controversial-decisions-may-not-be-all-that-they-seem-part-one/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Powered by WPeMatico



Recognizing It Had No Chance, Cox Settles BMG Copyright Trolling Case

26 08 2018

TechDirt

Mike Masnick

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.

more

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



Nintendo Using Copyright To Erase Video Game History

17 08 2018

Tech Dirt

by Mike Masnick

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:

more

The content in this post was found at https://www.techdirt.com/articles/20180812/01001240414/nintendo-using-copyright-to-erase-video-game-history.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Powered by WPeMatico



Minnesota Judges Refuse To Unmask Defendants For Copyright Troll Strike 3

13 08 2018

Tech Dirt

Timothy Geigner

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.

more

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

Powered by WPeMatico



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.

more

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.

Powered by WPeMatico



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.

more

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.

 

Powered by WPeMatico



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.]

more

The content in this post was found at
https://blog.ericgoldman.org/archives/2018/04/dmca-safe-harbor-applies-to-some-unfair-competition-claims-capitol-records-v-vimeo.htm
Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Powered by WPeMatico