Ninth Circuit Affirms Dismissal of Copyright Infringement Claim Against Disney’s Inside Out Movie

4 06 2021
On August 3, the United States Court of Appeals for the Ninth Circuit, in Masterson v. Walt Disney Company, affirmed a district court’s dismissal of Carla Masterson’s copyright infringement claims against The Walt Disney Co. The infringement claim was based on Masterson’s allegation that Disney’s Inside Out (the Movie) violated her copyrights in her book of poetry, What’s On the Other Side of the Rainbow? (A Book of Feelings) (the Book) and her movie script, The Secret of the Golden Mirror (the Script). Masterson’s Book was a collection of poems featuring a cloud-like character, Mr. Positivity, and anthropomorphic doors representing different feelings. The Script is about Mr. Positivity and the anthropomorphic doors helping a child cope with a difficult situation. In contrast, Disney’s Inside Out is about an eleven-year-old girl and the anthropomorphized emotions that control her brain from her brain’s “Headquarters.” The district court held that the literary works were not substantially similar and granted Walt Disney’s motion to dismiss.
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Easier Copyright Registration Coming for Blogs and Social Media Posts

3 06 2021

LexBlog/99 Park Row
Jason Mueller & Robert Hough
August 10, 2020
Starting this month [August 2020], social media influencers and other authors of online content can take advantage of a new group copyright registration option for short online works such as blog entries, social media posts and web articles. Authors could even register their own comments to a social post as separate copyrightable works in certain situations.

The U.S. Copyright Office announced that the new registration option allows applications covering groups of up to 50 literary works if those works meet the eligibility requirements. Most notably, each separate work must contain between 50 and 17,500 words, and all works in a single application must be created by the same individual, or jointly by the same group of individuals (although there is no limit on the number of applications that can be filed). In addition, all works must have been first published as part of a website or online platform, such as an online newspaper, social media website or social networking platform, and all works in a single application must have been first published within the same three calendar month period. Copyright claims in the selection, coordination or arrangement of the group as a whole will not be permitted. Resulting registrations will cover each work as a separate work of authorship.

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Internet Archive Responds To Publishers Lawsuit: Libraries Lend Books, That’s What We Do

3 06 2021

Tech Dirt
Mike Masnick
Jul 31st 2020
Last month, we wrote about the big publishers suing the Internet Archive over its Controlled Digital Lending (CDL) program, as well as its National Emergency Library (NEL). As we’ve explained over and over again, the Internet Archive is doing exactly what libraries have always done: lending books. The CDL program was structured to mimic exactly how a traditional library works, with a 1-to-1 relationship between physical books owned by the library and digital copies that can be lent out.

While some struggled with the concept of the NEL since it was basically just the CDL, but without the 1-to-1 relationship (and thus, without wait lists), it seemed reasonably defensible: nearly all public libraries at the time had shut down entirely due to the COVID-19 pandemic, and the NEL was helping people who otherwise would never have had access to the books that were sitting inside libraries, collecting dust on the inaccessible shelves. Indeed, plenty of teachers and schools thanked the Internet Archive for making it possible for students to still read books that were stuck inside locked up classrooms. But, again, this lawsuit wasn’t just about the NEL at all, but about the whole CDL program. The publishers have been whining about the CDL for a while, but hadn’t sued until now.

Of course, the reality is that the big publishers see digital ebooks as an opportunity to craft a new business model. With traditional books, libraries buy the books, just like anyone else, and then lend them out. But thanks to a strained interpretation of copyright law, when it came to ebooks, the publishers jacked up the price for libraries to insane levels and kept putting more and more conditions on them. For example, Macmillan, for a while, was charging $60 per book — with a limit of 52 lends or two years of lending, whichever came first. And then you’d have to renew.

Basically, publishers were abusing copyright law to try to jam down an awful and awfully expensive model on libraries — exposing how much publishers really hate libraries, while pretending otherwise.

Anyway, the Internet Archive has filed its response to the lawsuit,

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Section 230 Doesn’t Protect Repeating Rumors–La Liberte v. Reid

3 06 2021

Technology & Marketing Law Blog
Eric Goldman
July 30, 2020
La Liberte spoke at a city council meeting. A photo of her speaking went viral because a “social media activist” posted the photo with a caption that she said racist things about a minority teenager in the photo. That turned out to be false. Nevertheless, MSNBC TV host Joy Reid retweeted the initial post (which is not at issue in this case); then she made two separate posts about the photo, each of which made the claim that La Liberte was making racist statements about teen. La Liberte sued Reid for defamation.

Reid invoked Section 230, but the issue is pretty straightforward. Reid solely authored the two posts repeating the claims she saw elsewhere, so she’s the ICP in the equation.

To get around this, Reid argued that her post “merely repeated what countless others had previously published before her, including Vargas and at least eight other individuals who specifically stated that La Liberte made racial slurs at the Council Meeting.”

Not surprising, the Second Circuit shreds this:Case citation: La Liberte v. Reid, 2020 WL 3980223 (2d Cir. July 15, 2020)

The post Section 230 Doesn’t Protect Repeating Rumors–La Liberte v. Reid

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Print-on-Demand Vendor Doesn’t Qualify for DMCA Safe Harbor–Feingold v. RageOn

2 06 2021

Technology & Marketing Law Blog
Eric Goldman
July 24, 2020

This case involves two copyright-protected photos that users submitted to the RageOn print-on-demand service. Among other defenses, RageOn invoked the DMCA safe harbor. The Greg Young v. Zazzle case held that Zazzle qualified for the 512(c) safe harbor for displaying user-supplied photo on its site, but not for manufacturing and shipping the physical items contain the photos. This court says that RageOn disqualified for several of the DMCA safe harbor’s elements.

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A Case Where The Courts Got Section 230 Right Because It Turns Out Section 230 Is Not Really All That Hard

2 06 2021

Tech Dirt
Cathy Gellis
Jul 21st 2020

Having just criticized the Second Circuit for getting Section 230 (among other things) very wrong, it’s worth pointing out an occasion where it got it very right. The decision in Force v. Facebook [ed: a case about using social media to encourage terrorism] came out last year, but the Supreme Court recently denied any further review, so it’s still ripe to talk about how this case could, and should, bear on future Section 230 litigation.

It is a notable decision, not just in terms of its result upholding Section 230 but in how it cut through much of the confusion that tends to plague discussion regarding Section 230. It brought the focus back to the essential question at the heart of the statute: who imbued the content at issue with its allegedly wrongful quality? That question is really is the only thing that matters when it comes to figuring out whether Section 230 applies.

This case was one of the many seeking to hold social media platforms liable for terrorists using them. None of them have succeeded, although for varying reasons. For instance, in Fields v. Twitter, in which we wrote an amicus brief, the claims failed but not for Section 230 reasons. In this case, however, the dismissal of the complaint was upheld on Section 230 grounds.

The plaintiffs put forth several theories about why Facebook should not have been protected by Section 230. Most of them tried to construe Facebook as the information content provider of the terrorists’ content, and thus not entitled to the immunity. But the Second Circuit rejected them all.

Ultimately the statute is simple: whoever created the wrongful content is responsible for it, not the party who simply enabled its expression. The only question is who created the wrongful content, and per the court, “[A] defendant will not be considered to have developed third-party content unless the defendant directly and ‘materially’ contributed to what made the content itself ‘unlawful.'” [p. 68].

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Stretching the Bounds of Personal Jurisdiction, 4th Circuit Finds Geotargeted Advertising May Subject Foreign Website Owner to Personal Jurisdiction in the U.S.

1 06 2021

LexBlog/99 Park Row
J. Alexander Lawrence & Lily Smith
July 21, 2020
Foreign websites that use geotargeted advertising may be subject to personal jurisdiction in the United States, even if they have no physical presence in the United States and do not specifically target their services to the United States, according to a new ruling from the Fourth Circuit Court of Appeals.

In UMG Recordings, Inc. v. Kurbanov, twelve record companies sued Tofig Kurbanov, who owns and operates the websites: flvto.biz and 2conv.com. These websites enable visitors to rip audio tracks from videos on various platforms, like YouTube, and convert the audio tracks into downloadable files.

The record companies sued Kurbanov for copyright infringement and argued that a federal district court in Virginia had specific personal jurisdiction over Kurbanov because of his contacts with Virginia and with the United States more generally. Kurbanov moved to dismiss for lack of personal jurisdiction, and the district court granted his motion.

The district court found that both flvto.biz and 2conv.com were semi-interactive, that the visitors’ interactions with them were non-commercial, and that Kurbanov did not purposefully target either Virginia or the United States. As a result, the court ruled that no federal court in the United States had personal jurisdiction over Kurbanov and to exert such jurisdiction would violate due process. On appeal, however, the Fourth Circuit reversed the district court’s ruling and remanded the case.

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Twitch Faces Sudden Stream of DMCA Notices Over Background Music

1 06 2021

Tech Dirt
Timothy Geigner
Jul 10th 2020

There is obviously a great deal of action going on currently in the streaming world, spurred on in part by the COVID-19 crises that has many people at home looking for fresh content. Between the attempts to respond to social movements and tamp down “hateful” content to changes to the competitive landscape, streaming services are having themselves a moment. But with the sudden uptick in popularity comes a new spotlight painting a target on streaming platforms for everyone from scammers to intellectual property maximilists.

Twitch has recently found itself a target for the latter, suddenly getting slammed with a wave of DMCA notices that appear to focus mostly on background music.

Copyright strikes are an occupational hazard for many Twitch streamers and content creators, but a recent surge of DMCA takedown requests has overwhelmed the community. Now, Twitch support staff has responded to complaints, stating that the claims are focused on clips with background music from 2017 to 2019, and recommending that streamers remove them. The tweets also state that this is the first time that Twitch has received mass DMCA claims against clips.

Given that Twitch is still most popular as a site for live-streams and let’s-plays of video games, the speculation is that a great deal of this is targeting clips that include video game music. And, as we’ve seen elsewhere, it’s also the case that scammers are currently using game music as a method to try to takedown or monetize the videos of others. Whether or not that’s what is going on here is anyone’s guess, as Twitch is making it fairly clear that the flood of notices is so large that it’s simply taking down content and advising its streamers to proactively take down anything that might include this sort of copyrighted content.

Except that leaves no room for a number of things, including arguments for Fair Use of certain music,

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The “Wolf of Wall Street” Defamation Suit – The Risk of an “Inspired By” Character in Movies and TV

29 05 2021

It seems that recently there has been a significant number of libel claims that are all based on an unfavorable portrayal of a real person in a work of fiction – television program of motion picture – that is based on real life events.  There is Mossack Fonseca & Co., S.A. et al v. Netflix Inc ., which is based on the streamer’s portrayal of Panamaian lawyers at the center  the “Panama Papers”, leaked documents , that outlined their practice of helping clients move money to avoid tax liability.  The defamation suit claims the program falsely depicts both men as engaging in criminal activity, including subplots that link them to drug cartels and Russian gangsters with Mossack and Fonseca depicted in a “cartoonish” and “palpably farcical” manner that made it obvious the portrayal was fictionalized and intended to be comedic. . . .

Despite the producer’s win on appeal, this case is an example of the risks inherent in creating a work of fiction, including fictional characters, that is based on real world events.  It also provides examples of steps producers can take to prevent being on the losing side of a defamation claim.

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A Generic Word Combined With “.Com” Can Create A Protectable Trademark

29 05 2021

LexBlog/99 park row
Felicia Boyd (US) & Andrea Shannon (US)
July 8, 2020

In United States Patent And Trademark Office, Et Al., v. Booking.Com B. V. (No. 19-46, Jun. 30, 2020), the Supreme Court held that the combination of a generic term with “.com”—referred to as a “generic.com term”–could be a protectable trademark.

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