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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The content in this post was found at https://www.techdirt.com/articles/20180219/10404139267/esa-comes-out-against-allowing-museums-to-curate-online-video-games-posterity.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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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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The content in this post was found at https://www.ipwatchdog.com/2018/02/21/no-dmca-safe-harbor-coxs-13-strike-policy-terminating-repeat-infringers/id=93725/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of privacynnewmedia.com. Clicking the title link will take you to the source of the post.

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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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The content in this post was found at https://www.techdirt.com/articles/20180216/11245139250/court-realizes-it-totally-screwed-up-injunction-against-zazzle-copyright-infringement.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of privacynnewmedia.com. Clicking the title link will take you to the source of the post.

 

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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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The content in this post was found at https://blog.ericgoldman.org/archives/2018/02/cox-loses-dmca-safe-harbor-but-gets-a-new-trial-on-contributory-infringement-bmg-v-cox.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



DMCA 2017: 9th Cir. decides safe harbor, anti-circumvention cases

31 01 2018

In 2017, there were several noteworthy decisions relating to the Digital Millennium Copyright Act (DMCA). Specifically, the Ninth Circuit addressed two separate cases, one dealing with safe harbor provisions, the other on anti-circumvention. This article discusses three separate decisions including Mavrix Photographs LLC v. LiveJournal Inc., 873 F.3d 1045 (9th Cir. 2017)(on DMCA safe harbor), and Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017)(anti-circumvention provisions).

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The content in this post was found at http://www.ipwatchdog.com/2018/01/30/dmca-safe-harbor-anti-circumvention/id=92804/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



DMCA Safe Harbor Doesn’t Protect Zazzle’s Printing of Physical Items–Greg Young Publishing v. Zazzle

3 01 2018

The court summarizes the key facts: “GYPI alleges that Zazzle has publicly displayed 41 paintings by Westmoreland or Erickson on its website, and that Zazzle has created consumer products bearing these images.” GYPI lacked standing to enforce the Westmoreland paintings, but the court says GYPI has sufficient standing to enforce the Erickson paintings.

The case turns to the 512(c) safe harbor:

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Case citation: Greg Young Publishing, Inc. v. Zazzle, Inc., 2017 WL 2729584 (C.D. Cal. May 1, 2017)

The content in this post was found at http://blog.ericgoldman.org/archives/2017/06/dmca-safe-harbor-doesnt-protect-zazzles-printing-of-physical-items-greg-young-v-zazzle.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Ruling in Digital Copyright Case Puts a Dent in DMCA’s Safe Harbor Shield

31 12 2017

A federal appeals court ruling Friday has the potential to raise copyright liability risks for online platforms that allow users to moderate content post by other users. The case decided by the Ninth U.S. Circuit Court of Appeals concerns the “safe harbor” protections of the Digital Millennium Copyright Act of 1998,

Mavrix Photographs, LLC v. LiveJournal, Inc., No. 14-56596 (9th Cir. 2017)

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Stanford Copyright & Fair Use – Key Overview Updates

22 12 2017

Attorney at law, Nolo Legal Editor, Blogger — Dear Rich: Nolo’s Patent, Copyright and Trademark Blog, Author, Nolo

Q: Thank you for updating the copyright overview on this site. What are the most important changes that you want us to know?

A: Because the update reflects changes from 2014 through 2016 it includes a few decisions that readers may be familiar with such as the Google book scanning decision (Author’s Guild v. Hathitrust, discussed below), the sequel rights to Catcher in the Rye, (Salinger v. Colting), the use of news – including business news and video clips – for transformative purposes (Swatch Grp. Mgmt. Servs. Ltd. and Fox News v. TVEYES, Inc.), the use of pop culture references (the “Who’s on First” comedy routine) within a play (Fox News v. TVEYES, Inc), and the ability to parody a popular movie (Point Break). (Keeling v. Hars). I think the cumulative importance of these and other cases that are discussed, is the evolving liberalization of fair use standards.

Q: Do we have any more clarity on Fair Use with respect to academic or library uses?

A: In order to provide more clarity, I think academics and librarians would like to see courts or legislators adopt quantitative guidelines – for example, establishing what percentage of a book or article constituted fair use. That seems unlikely based on the Eleventh Circuit rejection of the “10% rule” in Cambridge University Press v. Patton. The District court had allowed copying of 10% of a work as recommended by the Code of Best Practices, a set of fair use guidelines established by a group of publishers and academics. But the Eleventh Circuit rejected that standard and instead emphasized the importance of a flexible case-by-case fair use analysis. The good news for the academics was that on remand the majority of copying at issue was permitted under fair use.

The other good news for academics was the ruling in Author’s Guild v. Hathitrust. Most of your readers are probably aware of this case, in which the Second Circuit ruled that digital scans of a book constituted a fair use when used for two purposes: a full-text search engine, and electronic access for disabled patrons who could not read the print versions. The Second Circuit remanded as to whether “preservation” constituted a third fair use purpose, but the parties settled in 2015 before the issue could be litigated.

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The content in this post was found at https://fairuse.stanford.edu/2017/04/11/stanford-copyright-fair-use-key-overview-updates/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



protect your site from copyright lawsuits

16 12 2017

protect your site from copyright lawsuits

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The content in this post was found at https://www.lawofthelevel.com/2016/11/articles/intellectual-property/dont-lose-dmca-safe-harbor-protection/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.