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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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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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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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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ESA Comes Out Against Allowing Museums To Curate Online Video Games For Posterity

27 02 2018

Tech dirt
[retrieved 2-27-18]

A week or so back, we discussed the Museum of Art and Digital Entertainment (MADE) calling on the Copyright Office to extend exemptions to anti-circumvention in the DMCA to organizations looking to curate and preserve online games. Any reading of stories covering this idea needs to be grounded in the understanding that the Librarian of Congress has already extended these same exemptions to video games that are not online multiplayer games. Games of this sort are art, after all, and exemptions to the anti-circumvention laws allow museums, libraries, and others to preserve and display older games that may not natively run on current technology, or those that have been largely lost in terms of physical product. MADE’s argument is that online multiplayer games are every bit the art that these single-player games are and deserve preservation as well.

Well, the Entertainment Software Association, an industry group that largely stumps for the largest gaming studios and publishers in the industry, has come out in opposition to preserving online games, arguing that such preservation is a threat to the industry.

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No DMCA safe harbor for Cox’s 13-strike policy for terminating repeat infringers

22 02 2018

Heather Smith-Carra
February 21, 2018

IP Watchdog

On February 1, 2018, the U.S. Court of Appeals for the Fourth Circuit issued a decision in the case, BMG Rights Management LLC v. Cox Communications, Inc. The Fourth Circuit affirmed in part the district court’s granting of summary judgment to BMG on the § 512(a) Digital Millennium Copyright Act (DMCA) safe harbor defense. Ultimately, the Fourth Circuit agreed with the district court’s decision that Cox was not entitled to the safe harbor defense, finding that Cox’s 13-strike policy for repeat infringers was effectively no policy at all, and far less than the termination policy required in order to maintain safe harbor protections.

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Court Realizes It Totally Screwed Up An Injunction Against Zazzle For Copyright Infringement

22 02 2018

Last year we wrote about a bizarre and troubling DMCA case involving the print-on-demand company Zazzle, in which the judge in the district court bizarrely and wrongly claimed that Zazzle lost its DMCA safe harbors because the allegedly infringing works were printed on a t-shirt, rather than remaining digitally (even though it was the end user using the infringing work, and Zazzle’s system just processed it automatically). To add insult to injury, in November, the judge then issued a permanent injunction against Zazzle for this infringement.

However, it appears that no one is more troubled about this permanent injunction issued by Judge Stephen Wilson… than Judge Stephen Wilson.

In early February, Wilson released a new order reversing his earlier order and chastising himself for getting things wrong.

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Cox Loses DMCA Safe Harbor but Gets a New Trial on Contributory Infringement–BMG v. Cox

16 02 2018

BMG sued Cox for the alleged copyright infringement of its users. The court described Cox’s “graduated” policy for terminating subscribers:

The first notice alleging a subscriber’s infringement produces no action from Cox. The second through seventh notices result in warning emails from Cox to the subscriber. After the eighth and ninth notices, Cox limits the subscriber’s Internet access to a single webpage that contains a warning, but the subscriber can reactivate complete service by clicking an acknowledgement. After the tenth and eleventh notices, Cox suspends services, requiring the subscriber to call a technician, who, after explaining the reason for suspension and advising removal of infringing content, reactivates service. After the twelfth notice, the subscriber is suspended and directed to a specialized technician, who, after another warning to cease infringing conduct, reactivates service. After the thirteenth notice, the subscriber is again suspended, and, for the first time, considered for termination. Cox never automatically terminates a subscriber.

Cox also limited its processing of notes from copyright owners or agents.

BMG hired Rightscorp to monitor police infringements. Rightscorp issues takedown requests, and it asks ISPs to forward settlement requests to the subscribers. Prior to BMG having engaged Rightscorp, Comcast decided to cease processing takedown requests from Rightscorp. Rightscorp sent “millions of notices” to Cox on BMG’s behalf, but BMG never viewed any of these.

The trial court held that a reasonable jury could not conclude that Cox maintained a policy of terminating repeat infringers. BMG put forth evidence from which a jury could conclude that Cox knew of accounts being used to effect infringing activity but nevertheless failed to terminate such accounts. The case went to trial (essentially) on damages, and the verdict came back for $25MM in BMG’s favor.Case citation: BMG Rights Mgmt (US) LLC v. Cox Communications Inc., 2018 WL 650316 (4th Cir. Feb. 1, 2018).

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