Sideloading Service Defeats Copyright Infringement Claims–BWP v. Polyvore

27 01 2017

BWP Media is a celebrity photo agency and a repeat online copyright plaintiff. Polyvore is…well, I don’t really get what they do. They say the site “is a new way to discover and shop for things you love in fashion, beauty and home decor” and they mention “social commerce,” whatever all that means. I don’t think I’m in the target audience.

Polyvore apparently enables its users to sideload photos as they browse the Internet. The term “sideload” doesn’t appear in the opinion, but the court’s opinion and Polyvore’s own description point strongly to sideloading. So a user of Polyvore’s “Clipper” tool can designate photos that are automatically loaded into Polyvore’s database and added to the user’s profile, where the user can further manipulate the photos. BWP claimed that Polyvore’s database contained at least 79 BWP photos.

The court says it doesn’t need to address the DMCA safe harbors. Instead, BWP’s case fails on the prima facie elements.

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The content in this post was found at http://blog.ericgoldman.org/archives/2016/07/sideloading-service-defeats-copyright-infringement-claims-bwp-v-polyvore.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



U.S. Copyright Office Rolls Out New Electronic DMCA Agent Designation System

3 01 2017

A service provider seeking to take advantage of certain of the safe harbors under the Digital Millennium Copyright Act (DMCA) is required to designate an agent to receive takedown notices. The service provider is required to post the DMCA agent’s contact information on its website and to provide such information to the Copyright Office. On November 1, 2016, the U.S. Copyright Office, pursuant to its authority under 17 U.S.C. §512(c)(2), issued a final rule (codified at 37 C.F.R. § 201.38) establishing a new electronic system to designate  agents to receive takedown notifications under the DMCA. Service providers that previously designated an agent with the Copyright Office via a paper filing will have until December 31, 2017 to submit new registrations through the electronic system or lose their safe harbor protection. It is extremely important that all service providers who rely on DMCA safe harbors are aware of, and comply with the requirements of, this new rule.

The new rule became effective on December 1, 2016, the date that the new online DMCA agent registration system and directory was launched, replacing the paper-based system implemented through the interim regulations adopted in 1998. Since December 1, 2016, the Office no longer accepts paper designations of DMCA designated agents.

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The content in this post was found at http://newmedialaw.proskauer.com/2017/01/03/u-s-copyright-office-rolls-out-new-electronic-dmca-agent-designation-system/and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Web Host Defeats Copyright Liability Despite Mishandled Takedown Notice–Hydrenta v. Luchian

29 12 2016

The plaintiff produces pornography and distributes it through paid membership sites. The defendants run ad-supported websites that allow users to upload videos, a total of 475,000 user-submitted videos. Moderators screen user submissions to confirm they do not contain “child pornography, animal pornography [or] spam, and to ensure that the video constitutes adult entertainment.” (Note the difference from the typical user content policy, which would *restrict* adult content, not require it). The websites have a 3-copyright-strikes-in-6-months policy, and collectively 1,000 users have been terminated for repeat infringement. Third parties uploaded plaintiff’s videos to the defendants’ websites. The plaintiff identified “thirty-seven (37) Plaintiff-produced videos on Playvid.com, two (2) videos on Feedvid.com, five (5) videos on Peekvids.com, and twenty-eight (28) videos on Playvids.com.”

For unexplained reasons, the website operator outsourced the receipt of DMCA notifications to a third party service called IncorporateNow. I don’t understand how that was an advantageous move. The opinion indicates IncorporateNow simply scans the mail/faxes and then emails them to the website operator, who turns around and manually enters the information into their normal takedown process. By introducing a third party into the equation, it increases costs, the turnaround time, and–importantly to this case–the risk of lost communications.

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Case citation: Hydentra HLP Ltd. v. Luchian, 1:15-cv-22134-UU (S.D. Fla. June 2, 2016)

The content in this post was found at http://blog.ericgoldman.org/archives/2016/06/web-host-defeats-copyright-liability-despite-mishandled-takedown-notice-hydrenta-v-luchian.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Another Tortured DMCA Online Safe Harbor Ruling–EMI v. MP3Tunes

19 11 2016

We’re inadvertently “celebrating” Section 512 week at the Technology and Marketing Law Blog, with Monday’s post on the Copyright Office’s kneecapping of designated agents, today’s post on the MP3Tunes ruling, and a forthcoming post on Pond5. In the past, blogging such a confluence of Section 512 developments would be exciting; now, ennui has set in and I find the task mostly arduous. (Indeed, this post has festered for a week because working on it has been joyless). Most new developments continue to erode 512’s protective powers, and the case rulings involve highly technical statutory parsing that gets worse, and more tedious, with each iteration.

Today’s case involves the sad saga of MP3Tunes, a site that allowed searches of MP3 files and enabled users to sideload MP3 files into its database. In 2011, MP3Tunes mostly won the DMCA online safe harbor issues in district court. However, following the Second Circuit’s 2012 Viacom v. YouTube ruling, the district court reconsidered the case, and MP3Tunes’ case fell apart. On appeal to the Second Circuit, MP3Tunes suffers another stinging loss.

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Case citation: EMI Christian Music Group, Incorporated v. MP3tunes, LLC, 2016 WL 6211836 (2d Cir. Oct. 25, 2016)

The content in this post was found at http://blog.ericgoldman.org/archives/2016/11/another-tortured-dmca-online-safe-harbor-ruling-emi-v-mp3tunes.htm 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

19 11 2016

Everyone who thought they were protected from copyright lawsuits based on user postings, read this and take action by December 1st.

Don’t Lose Your DMCA Safe Harbor Protection!

 

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The content in this post was found at http://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.



Know Thy Software Vendor: Website Operator Cannot Sidestep Copyright Infringement Claims over Link to Allegedly Infringing Software

31 10 2016

Last month, a New York district court refused to dismiss most of the copyright infringement claims asserted against a website operator based on an allegation that the website linked to an infringing copy of plaintiff’s software stored on a third-party’s servers. (Live Face on Web, LLC v. Biblio Holdings LLC, 2016 WL 4766344 (S.D.N.Y., September 13, 2016)).

The software at issue allows websites to display a video of a personal host to welcome online visitors, explaining the website’s products or services and, ideally, capturing the attention of the visitor and increasing the site’s “stickiness.”  A website operator/customer implements the software by embedding an HTML script tag to its website code to link the website to a copy of the software on the customer’s server or an outside server. When a user’s browser retrieves a webpage, a copy of the software is allegedly stored on the visitor’s computer in cache.

The plaintiff claimed that the defendant used an infringing version of its software to display the welcome video on its website.  The defendant countered that, in good faith, it hired a web developer to implement this functionality, that the developer represented that it had exclusive rights to its software, and that the software was not hosted by the defendant.

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The content in this post was found at http://newmedialaw.proskauer.com/2016/10/06/know-thy-software-vendor-website-operator-cannot-sidestep-copyright-infringement-claims-over-link-to-allegedly-infringing-software/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NewMediaAndTechnologyLaw+%28New+Media+and+Technology+Law%29 and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



The Internet Rallies Against A Terrible Section 230 Ruling–Hassell v. Bird

23 08 2016

2016 has been a tough year for Section 230 jurisprudence, and the nadir (so far) was the appellate court ruling in Hassell v. Bird. As you recall, the case involves some negative Yelp reviews about an attorney, Hassell. Hassell sued the putative author and got a default judgment, including an order requiring Yelp to remove the reviews. Yelp refused to honor the court order. The appellate court held that Yelp could not challenge the legitimacy of the trial court’s defamation “finding” but still had to remove the review despite the First Amendment and Section 230. Among other problems, the ruling provides a roadmap for plaintiffs to scrub unwanted negative reviews, and it trampled on Yelp’s rights to manage its database’s integrity.

Yelp has appealed the case to the California Supreme Court, which has the discretion to hear the case. In support of Yelp’s request, amici submitted 14 letters representing over 40 organizations and over a dozen law professors. Basically, the entire Internet community has rallied around Yelp on this matter–including key players such Google, Facebook, Wikimedia, Twitter (and many others and numerous public interest groups. The volume and gravitas of the letters, plus the obvious and stupid mistakes in the appellate court opinion, should give Yelp’s request a good chance of being granted. The California Supreme Court will announce its decision in the next week or two.
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Case library:

*Yelp’s Petition for Review, Hassell’s Response, and Yelp’s Reply. Amicus letters from ACLU/EFF/Public Participation Project, Automattic/Pinterest/Reddit, Avvo, Computer & Communications Industry Association, Facebook/Microsoft/Twitter, GitHub, Glassdoor, Google, Internet Law Scholars, Public Citizen, R Street, Reporters Committee for Freedom of the Press (and 30 other organizations), Wikimedia, and Xcentric Ventures (Ripoff Report).
* Appellate Court Opinion. My blog post about it.
* Yelp’s Appeals Court Brief. Hassell’s Response Brief. Yelp’s Reply.

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The content in this post was found at http://blog.ericgoldman.org/archives/2016/08/hassell-v-bird.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 wins big in record label lawsuit against Vimeo

21 06 2016
A federal appeals court ruled Thursday that service providers such as video-sharing sites like Vimeo are protected by the Digital Millennium Copyright Act for pre-1972 musical recordings uploaded by their users.

The record labels had sued the YouTube-like site and successfully convinced a district court judge that, because pre-1972 recordings fell under state laws and not federal copyright law, the DMCA didn’t apply. The 2nd US Circuit Court of Appeals reversed that decision and also overturned the lower court that ruled the DMCA didn’t grant so-called safe-harbor passage to service providers whose employees saw infringements on their platforms uploaded by their users.

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The content in this post was found at http://arstechnica.com/tech-policy/2016/06/video-sharing-sites-win-big-in-dcma-legal-fight/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



WARNING: Copyright Office Resurrects Troubling Plan To Strip Websites Of 512 Safe Harbor

30 05 2016

The Copyright Office has issued a Notice of Proposed Rulemaking (NPRM) regarding a new electronic submission process for websites and online services to designate agents to receive 512(c)(3) copyright takedown notices. The agent designation process is crucial to the 17 USC 512 safe harbors because the formality of designating an agent is required to qualify for the 512(c) safe harbor. See, e.g., BWP v. Hollywood Fan Sites. As part of rolling out the electronic submission process, the NPRM proposes reducing the filing fee from $105 (or more) to $6, reflecting that an electronic filing system would reduce the Copyright Office’s operating costs.

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The content in this post was found at http://blog.ericgoldman.org/archives/2016/05/warning-copyright-office-resurrects-troubling-plan-to-strip-websites-of-512-safe-harbor.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Downloaders Beware? Judge Rules Against Cox in Copyright Battle

16 05 2016

U.S. District Judge Liam O’Grady recently made the most far-reaching decision to date in the high-profile battle between Cox Communications Inc. and two music publishers over illegal downloads, ruling that federal copyright law doesn’t shield the cable giant from liability for illegal music downloading by its subscribers.

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The content in this post was found at http://blogs.wsj.com/law/2015/11/25/downloaders-beware-judge-rules-against-cox-in-copyright-battle/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.