IP Address Subscriber Isn’t Liable for Copyright Infringement by Users Sharing That IP Address–Cobbler v. Gonzales

13 09 2018

Technology & Marketing Law Blog

Venkat Balasubramani

September 4, 2018

Plaintiff owns copyrights to “The Cobbler” movie and is trying to enforce its rights via litigation in courts around the country. Eric previously blogged about another The Cobbler enforcement suit that didn’t turn out well for the plaintiff. In this case, Cobbler identified an IP address in Oregon associated with several downloads. Cobbler then filed a Doe complaint against the IP address. In discovery, Cobbler learned the IP address was registered to the operator of an adult foster care home. After speaking with the operator (Gonzales), Cobbler concluded that Gonzales was neither the “regular occupant . . . or the likely infringer.” The plaintiff nevertheless filed an amended complaint naming Gonzales as the sole defendant.

The district court dismissed the direct infringement claim without prejudice and dismissed the contributory infringement claim with prejudice.  . . .

On appeal, the 9th circuit affirmed dismissal of the claims on the merits. Alleging only that the IP address was associated with the infringements does not satisfy the bare minimum required to plead infringement. Cobbler was aware that its evidentiary support felt short, as it admitted that it did not obtain information sufficient to identify a specific person as an infringer.

Case citation: Cobbler Nevada v. Gonzales, 2018 WL 4055766 (9th Cir. Aug. 27, 2018).

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/09/ip-address-subscriber-isnt-liable-for-copyright-infringement-by-users-sharing-that-ip-address-cobbler-v-gonzales.htm 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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Ninth Circuit Says Having an IP Address is Not Enough for Infringement: Cobbler Nevada v. Gonzales

3 09 2018
Anyone with an internet connection can find copyrighted content to download—legally or illegally. But the Ninth Circuit has now held that the mere fact that a rightsholder can show an individual is connected to the IP address through which illegal downloading took place is not enough to make out a case for copyright infringement. In Cobbler Nevada v. Gonzales, plaintiff Cobbler owns the rights to a soon-to-be-released movie, copies of which started illegally becoming…

The content in this post was found at https://www.lexblog.com/2018/08/30/ninth-circuit-says-having-an-ip-address-is-not-enough-for-infringement-cobbler-nevada-v-gonzales/ 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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Copyright Enters the Twilight Zone (A Series of Controversial Decisions May Not Be as Bad as They Seem: Part Two)

3 09 2018

COMLAWBLOG

KEVIN GOLDBERG

ON AUGUST 30, 2018

If you read the first part of this two-part post
on some bizarre copyright decisions emanating from federal courts in 2018, you know I left you with a cliffhanger. Copyright law was seemingly turned on its head when a federal court judge in New York declared that embedding tweets with photos could be considered direct infringement of a copyright owner’s display right in those photos. Or did it?

Judge Katherine Forrest asserted that her decision would not prove as consequential in fact as many feared because defendants facing liability after embedding tweets in their websites might still have many defenses at their disposal.

I surprised myself by eventually agreeing with that position, based on two fair use cases that were also decided this year.

The first case is Philpot v. Media Research Center. Decided on Jan. 8 by Judge T.S. Ellis III, it involved photos taken by professional photographer Larry Philpot. . .  .

Judge Claude Hilton applied a similar analysis in his June 11 decision in Brammer v. Violent Hues Productions, LLC.

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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-as-bad-as-they-seem-part-two/ 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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Disney Fixes Its Sketchy DVD Rental License, Wins Injunction Against Redbox Over Digital Downloads

3 09 2018

Tech Dirt

Mike Masnick

[ed’s note: we need no more evidence than this case to substantiate our claim that judges in the US court system have lost their collective memories from the contracts classes they took in law school. Apparently, not a one of them is willing to use common sense and legal judgment to mark terms of service and other wrap contracts as the crap that they usually are. Here, we have yet another stunning example of a judge sticking with bad precedent rather than pointing out the obvious and thereby bringing some wisdom into the void].

Tech Dirt

Mike Masnick

Earlier this year we wrote about Disney’s silly lawsuit against Redbox. If you don’t recall, Redbox, whose main business was renting DVDs out of kiosks started also offering digital download codes that could be purchased at their kiosks. What Redbox did, was it would buy Disney “combo packs” (that came with both a DVD and a download code) and would offer up just the slip of paper with the code out of its kiosks. This seems like perfectly reasonable first sale rights. A legitimate code was purchased, and then resold.

When we wrote about the case back in February, it involved the court smacking down Disney, and even saying that the company was engaged in “copyright misuse” in overclaiming what copyright allowed the company to do. . . .

So my prediction following that was: “this almost certainly means that Disney is quickly reprinting the packaging on all its Combo Pack DVDs to make this language more legalistic to match the Lexmark standard.”

And… bingo. That’s exactly what happened. In a new ruling, the court has now granted a preliminary injunction against Redbox all because of the new “contract” language Disney has put on its DVDs (though amusingly, in a footnote, the court notes “Disney does not concede that the changes were necessary.”)

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The content in this post was found at https://www.techdirt.com/articles/20180831/00545440550/disney-fixes-sketchy-dvd-rental-license-wins-injunction-against-redbox-over-digital-downloads.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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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…

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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

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Copyright Enters the Twilight Zone: (A Series of Controversial Decisions May Not Be All that They Seem: Part One)

26 08 2018

[Editor’s Note:  This is the first of a two-part episode on three copyright decisions issued by federal courts in 2018 that relate to the use of photos in news reporting; the second part will be posted next week.]

Picture for a moment a man. Not an ordinary man by any stretch. This man is Tom Brady. . . . .

The world is filled with pictures of Tom Brady. And one of those pictures has now become extremely controversial in a legal sense.

Which brings us to the heart of the matter – a February 15 decision by Judge Katherine Forrest in Goldman v. Breitbart, News Network LLC. The scene is the Hamptons, July 2, 2016. Tom Brady is seen with Danny Ainge, the general manager and President of the Boston Celtics. They are assumed to be there as part of the Celtics’ pitch to Kevin Durant, the most sought after free agent in the NBA that summer. Another man – this one an ordinary man who goes by the name of Justin Goldman – takes a photo of Brady and uploads it to his Snapchat Story. In 24 hours, that would generally be the end of the story, as the photo would disappear from that platform. But, as a photo of Tom Brady in the Hamptons just as the Celtics are believed to be wooing Kevin Durant will do, this photo goes viral and eventually ends up being uploaded to Twitter by several different people.

Several prominent news outlets, including, among others, Time, Inc (owner of Sports Illustrated), Yahoo, Vox, Gannett, the Boston Globe, NESN, and Breitbart News “embed” the Tweets into their online stories about a possible Celtics-Durant connection.

In this case, none of the defendants – according to Judge Forrest – actually copied and pasted the photo onto their own servers for display on their websites; instead, they follow the now-common practice of embedding content under a process allowed by the platform on which that content is found. Embedding is prevalent today because it is so easy to do and, until now, widely believed to be legal. The user simply needs to add a specific “embed code” to the HTML instructions when seeking to include a certain piece of content in a story. The underlying content – in this case the Tweet containing a picture of Tom Brady and Danny Ainge – remains on the original server – in this case, Twitter – even as it appears on the user’s website.

It’s that last part that has made embedding seem relatively safe from a copyright infringement perspective.  Until now, some courts – with the Ninth Circuit taking the lead – have analyzed embedding under the so-called “Server Test,” . . .

The Server Test is believed to have carried the day since 2006. But Judge Forrester’s decision may be changing that, as she ruled in favor of Justin Goldman, the plaintiff.

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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

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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.

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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



Investing in Inventing: A Patent Process Primer for Startups

26 08 2018

IP Watchdog

Trevor Day & Neil Ferraro
August 25, 2018

The patent process is long and complex, but well worth the effort if it means protecting your invention and your new company. Key decisions made along the way can help simplify future steps in the process and make obtaining a patent significantly more efficient. Early on, determining a patent scope through patentability searches can help narrow a patent application to the important novel aspects that are most worthwhile to protect. Similarly, preparing a thorough provisional application can make the non-provisional application preparation much simpler and afford better protection against later published works or filings by others. By thinking about these key decisions ahead of time and being aware of the patent process, you can be more prepared when the time comes to seek protection for your invention.

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The content in this post was found at https://www.ipwatchdog.com/2018/08/25/investing-in-inventing-a-patent-process-primer-for-startups/id=100385/ 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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Nintendo Files Copyright, Trademark Infringement Suit Against Operator of ROM Websites

21 08 2018

IP WatchDog

Steve Brachmann
August 17, 2018

Nintendo’s complaint targets the operator of LoveROMS.com and LoveRETRO.co who has made thousands of Nintendo titles available online for free from platforms including the Game Boy, the original Nintendo Entertainment System, Super NES, Nintendo 64 and Nintendo DS, among others. Nintendo alleges that just the top 10 games on the LoveROMs site in which Nintendo is a copyright claimant and trademark owner have been downloaded more than 60 million times. Further, the LoveROMs website allegedly receives more than 17 million visits each month.

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The content in this post was found at https://www.ipwatchdog.com/2018/08/17/nintendo-files-copyright-trademark-infringement-suit-against-operator-rom-websites/id=100283/ 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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As Academic Publishers Fight And Subvert Open Access, Preprints Offer An Alternative Approach For Sharing Knowledge Widely

21 08 2018

TechDirt

Glyn Moody

The key idea behind open access is that everyone with an Internet connection should be able to read academic papers without needing to pay for them. Or rather without needing to pay again, since most research is funded using taxpayers’ money. It’s hard to argue against that proposition, or that making information available in this way is likely to increase the rate at which medical and scientific discoveries are made for the benefit of all. And yet, as Techdirt has reported, academic publishers that often enjoy profit margins of 30-40% have adopted a range of approaches to undermine open access and its aims — and with considerable success. A recent opinion column in the Canadian journal University Affairs explains how traditional publishers have managed to subvert open access for their own benefit:

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The content in this post was found at https://www.techdirt.com/articles/20180816/06022140441/as-academic-publishers-fight-subvert-open-access-preprints-offer-alternative-approach-sharing-knowledge-widely.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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