Author Archives: Evan Brown

YouTube victorious in copyright case brought by Viacom

District court grants summary judgment, finding YouTube protected by DMCA safe harbor.

Viacom v. YouTube, No. 07-2103, (S.D.N.Y. June 23, 2010)

The question of whether and to what extent a website operator should be liable for the copyright infringement occasioned by the content uploaded by the site’s users is one of the central problems of internet law. In talks I’ve given on this topic of “secondary liability,” I’ve often referred it simply as “the YouTube problem”: should YouTube be liable for the infringing content people upload, especially when it knows that there is infringing material.

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Today was a big day in the history of that problem. The district court granted summary judgment in favor of YouTube in the notorious billion dollar copyright lawsuit brought against YouTube by Viacom way back in 2007.

The court held that the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”) (at 17 USC 512) protected YouTube from Viacom’s direct and secondary copyright claims.

Simply stated, the DMCA protects online service providers from liability for copyright infringement arising from content uploaded by end users if a number of conditions are met. Among those conditions are that the service provider “not have actual knowledge that the material or an activity using the material on the system or network is infringing,” or in the absence of such actual knowledge, “is not aware of facts or circumstances from which infringing activity is apparent.”

The major issue in the case was whether YouTube met these conditions of “non-knowledge” (that’s my term, not the court’s) so that it could be in the DMCA safe harbor. Viacom argued that the infringement was so pervasive on YouTube that the site should have been aware of the infringement and thus not in the safe harbor. YouTube of course argued otherwise.

The court sided with YouTube :

Mere knowledge of prevalence of such activity in general is not enough. . . . To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

Given the magnitude of the case, there’s little doubt this isn’t the end of the story — we’ll almost certainly see the case appealed to the Second Circuit Court of Appeals. Stay tuned.

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Court rejects RIAA’s arguments against 24 cent ringtone royalty rate

Recording Industry Ass’n of America, Inc. v. Librarian of Congress, — F.3d —, 2010 WL 2487842 (D.C. Cir. June 22, 2010)

Recorded music is usually subject to copyright protection in two ways — the musical composition (think sheet music and lyrics) is protected by one copyright, and the actual sound recording is protected by another copyright. In general, for someone other than the copyright owner to use a copyrighted work (e.g., to copy or distribute it), he or she must get a license from the copyright owner (setting aside exceptions such as fair use).

The compulsory license schema

But there’s a kind of zany exception to the general requirement of a negotiated license when it comes to reuse of a musical composition. Others seeking to make such further reuse can do so without obtaining an agreement with the owner of the copyright in the musical composition, provided that the reuser obtain and pay a fee for a “compulsory license.” The mechanics for such licensing system are set up in Section 115 of the Copyright Act (17 USC 115).

There is a Copyright Royalty Board (CRB) that the Library of Congress oversees. This three-member panel sets the fees due to copyright owners under the Section 115 compulsory license schema.

Ring-a-ling cha-ching

As you probably know, ringtones that sample popular songs are popular these days. (As a commuter on public transportation I can attest to what a scourge this is on our modern society.) Since they’re all the rage, they’re big business.

In 2009, after some complex hearings, the CRB set the rate for payment under a compulsory license at 24 cents per ringtone sold. The Recording Industry Association of American (RIAA) had argued that its copyright owners were entitled to a percentage of total revenue, not a flat “penny-rate.” Unhappy with the CRB’s determination, it appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The court affirmed the CRB’s penny-rate of 24 cents.

How the CRB was right

The CRB determined that a penny-rate was more in line with reimbursing copyright owners for the use of their works. In upholding the CRB’s determination on this point, the court observed that in other cases it had validated the CRB’s preference for a royalty system based on the number of copyrighted works sold — like the penny rate — as being more directly tied to the nature of the right being licensed than a percentage-of-revenue rate.

Moreover, the CRB had determined (and the court agreed) that a percentage revenue model did not make as much sense for the sale of individual copyrighted works as it would in the sale of media that is streamed or broadcast. Simply stated, it is relatively easy to measure how many copies of a ringtone are sold, and thus easy to calculate a penny-rate amount. But that is more difficult to accurately do in the case, for example, of satellite radio. Those difficulties were not present in this situation, and that militated against the adoption of a percentage rate.

Finally, the court agreed with the CRB’s disdain for the complexity of calculating a percentage of revenue licensing fee. A penny-rate structure was much simpler to handle than the “salient difficulties” presented by the RIAA’s percentage mode.

The court found nothing unreasonable about the CRB’s determination (i.e., that the the CRB’s determination was not arbitrary and capricious, and so it affirmed that determination.

Photo courtesy Flickr user totalAldo under this Creative Commons license.

Illinois court sets standard for unmasking anonymous commenters

Maxon v. Ottawa Pub. Co., — N.E.2d —, 2010 WL 2245065 (Ill.App. 3 Dist. June 1, 2010)

The rules of civil procedure in Illinois permit an aggrieved party to file a petition with the court asking for an order requiring unknown potential defendants to be identified. This is called a Rule 224 petition.

A couple from Ottawa, Illinois got their feelings hurt over some anonymous comments left in response to content published by the local newspaper on its website. Wanting to sue for defamation, the couple filed a Rule 224 petition. The newspaper opposed the petition. (For something similar, see Enterline v. Pocono Medical Center.)

The trial court denied the petition, applying the standards articulated in Dendrite v. Doe and Doe v. Cahill, finding that the petitioners had not presented a strong enough case for defamation to justify the unmasking of the anonymous commenters. Those cases require, among other things, that a party seeking to identify an anonymous speaker make efforts to notify the anonymous party, and present enough evidence to establish a prima facie case of defamation (Dendrite) or survive a hypothetical motion for summary judgment (Cahill).

The aggrieved couple sought review with the Appellate Court of Illinois. Reviewing the decision to deny the Rule 224 petition de novo, the court reversed and remanded, ordering the identification of the anonymous speakers to be made.

In reaching its decision, the court rejected the newspaper’s (and amicis’) arguments that the trial court should apply the rigorous standards of Dendrite and Cahill. That’s not to say, however, that the court left anonymous speakers at great risk of having their First Amendment rights trampled upon.

The court held that the mechanics of Rule 224 adequately protect the potential First Amendment rights of anonymous internet speakers. Here’s why, according to the court:

  • The petition must be verified – the threat of the pain of perjury should keep out half-hearted claims.
  • The petition must state the reason discovery is necessary.
  • The discovery is limited only to learning the identity of the potential defendant.
  • Most importantly, before the discovery will be permitted, the court must hold a hearing and determine the petition sufficiently states a cause of action.

In this fourth step, the court is to apply the standard it would apply in a Section 2-615 motion. Such a motion is, essentially, the Illinois version of a motion to dismiss for failure to state a claim. That is no insignificant test, because unlike federal court and other state jurisdictions, Illinois requires fact pleading. That means the petition needs to include a significant amount of specific information to survive the motion to dismiss.

A troubling aspect of the ruling is the omission from the test of a requirement that the party seeking discovery attempt to notify the anonymous target of the inquisition. The appellate court held that a trial court may, in its discretion, impose such a requirement.

But it would be nice to know that the real party whose First Amendment interests are at stake (the anonymous speaker) is guaranteed a fair opportunity to argue from his or her perspective. After all, it’s that party with the real incentive to do so. Let’s hope the trial courts exercise that discretion wisely (and that they know in the first place that they have that discretion).

Photo courtesy Flickr user TheTruthAbout… under this Creative Commons license.

Access to private email server supports Stored Communications Act claims

Devine v. Kapasi, 2010 WL 2293461 (N.D. Ill. June 7, 2010)

Kapasi and Devine were equal shareholders in a corporation. In August 2009, the two decided to part ways. The corporation transferred one of its servers to Devine, and he immediately put it into the service of his new company.

After the server was transferred, Kapasi and some employees of the old company allegedly logged on to the server to access and delete email messages stored on that machine. Devine and his new company sued for violation of the Stored Communications Act (at 18 U.S.C. §2701) and the Computer Fraud and Abuse Act (at 18 U.S.C. §1030).

The defendants moved to dismiss under FRCP 12(b)(6) for failure to state a claim. The court denied the motion as to the Stored Communications Act claims but granted the motion (with leave to amend) as to the Computer Fraud and Abuse Act claims.

The Stored Communications Act claims

The defendants argued that the Stored Communications Act did not apply to access to the server because plaintiffs did not provide an electronic communications service to the public. Defendants relied on the case of Andersen Consulting LLP v. UOP, 991 F.Supp. 1041 (N.D.Il.1998) to support this argument. In that case, the court dismissed a Stored Communications Act claim for unauthorized disclosure of emails under 18 U.S.C. §2702. The Andersen Consulting court held that disclosure of emails obtained from the server of a company not in the business of providing electronic communications services to the public did not violate the Stored Communications Act.

This case, however, arose under 18 U.S.C. §2701, which does not impose the same scope on potential defendants – the term “to the public” does not appear in connection with the provision of electronic communication services in §2701. Section 2701 deals with unauthorized access, while §2702 deals with unauthorized disclosure.

So the court held that “[w]here, as here, a plaintiff pleads that it stores electronic communications on its own systems, and that a defendant intentionally and without authorization got hold of those stored communications through the plaintiff’s electronic facilities, the plaintiff states a claim under § 2701 of the [Stored Communications Act].”

The Computer Fraud and Abuse Act claims

The court dismissed the Computer Fraud and Abuse Act claims, finding that the plaintiffs failed to plead that they suffered a cognizable “loss” under the statute. The plaintiffs were required to plead that the defendants’ conduct “caused . . . loss to 1 or more persons during any 1-year period . . . aggregating at least $5,000 in value.” Such allegations were simply missing from the complaint.

The defendants tried an interesting argument that the court rejected as premature at the motion to dismiss stage. They argued that since one of the plaintiffs was a technology company, it should have had a backup of all the data allegedly deleted. Therefore, any cost in excess of the $5,000 statutory threshold would not be a “reasonable cost.” Though it didn’t fly at the motion to dismiss stage, such an argument may fare better in a motion for summary judgment.

Photo courtesy Flickr user Jordiet under this Creative Commons License.

Court refuses to keep train wreck video confidential

Maldonado v. UPRR, No. 09-1187, 2010 WL 1980318 (D.Kan. May 18, 2010)

Even the fear of social media won’t keep some things under wraps.

The video camera onboard a locomotive captured the moments before the train struck a car at a railroad crossing, killing one of the occupants. In the inevitable lawsuit against the railroad following the accident, the plaintiffs’ lawyers demanded that the video of the accident be produced in discovery.

The railroad objected to the production of the video absent a court order keeping it confidential, arguing that the presence of services like YouTube would permit the video to be widely distributed to the public. To keep the video from serving as “entertainment for gawkers looking to satisfy their morbid curiosity,” the railroad wanted only the parties, lawyers, staff and experts to be able to see the video.

The court rejected the arguments and found that nothing in the video depicted gruesome images of death or injury. It denied the railroad’s motion for protective order. So if you’re into this kind of content, keep an eye on YouTube. Though from what I gather from the court’s description of this video, there’s plenty of gorier stuff out there.

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That bogus social networking profile can send you to jail

Facebook

Clear v. Superior Court, 2010 WL 2029016 (Cal.App. 4 Dist. May 24, 2010)

The California Court of Appeal has held that a man who set up a bogus MySpace profile of his former church pastor can stand trial for criminal “personation.”

The defendant’s alleged conduct that might really put him on the hook is what he did after setting up the profile: he posted content that suggested the pastor used drugs and was gay. Because this could have resulted in the pastor losing his job, the court found the statute prohibiting personation of another might have been violated (that question will be resolved at trial unless there’s a plea deal).

The criminal personation statute (Penal Code Sec. 529) has an intriguing framework for liability. Apparently it’s not enough just to say you’re someone else. To be liable you’ve got to actually do something while assuming that persona that would subject your target to some kind of legal harm.

For example, just saying to the cops that you’re someone else, that you have that persons birthday and even responding affirmatively to whether you have their middle name apparently isn’t enough to violate the statute. People v. Cole, 23 Cal.App.4th 1672 (1994).

But using your sister’s name when you get a traffic ticket and also forging her signature on the citation isn’t allowed. People v. Chardon, 77 Cal.App.4th 205 (1999).

All the reason not to set up that Facebook profile of your boss and populate it with tales of crystal meth and kiddie porn.


Image by Balakov under this Creative Commons license.

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Anonymous accused Bittorrent user moves to quash subpoena using real name

Worldwide Film Entertainment, LLC v. Does 1-749, 2010 WL 2011306 (D.D.C. May 20, 2009)

Some have already commented on their scruples arising from the large economies of scale approach to copyright litigation that’s being undertaken by lawyers with the U.S. Copyright Group to go after Bittorrent movie sharers. See, for example, what Mike Masnick and Eriq Gardner have had to say. And the ISPs aren’t all that happy about the work required to respond to a bunch of subpoenas.

So no one should be surprised if some interesting little internet law vignettes play out along the way. One of those vignettes is wrapping up in federal court in Washington D.C. It has to do with anonymity.

Worldwide Film Entertainment has sued over 700 anonymous Bittorrent users over the 2007 film The Gray Man. As with any case of this sort (like the numerous RIAA lawsuits), the plaintiff doesn’t know the identity of the various defendants when the lawsuit starts. All it has is an IP address for each alleged infringement, so it has to go to the ISP to link that IP address with an individual’s name and physical address. Then the plaintiff will know who to list as a defendant.

But most ISPs won’t turn over subscriber information without a subpoena. So Worldwide Film Entertainment had a subpoena issue to Comcast, the ISP for the IP address associated with one of the alleged infringements. Under the Cable Communications Policy Act of 1984 (at 47 USC 551), providers like Comcast have to notify their subscriber before turning over the subscriber’s information.

Comcast notified its subscriber in this case, one Mr. Simko, of Worldwide Film Entertainment’s efforts to learn Mr. Simko’s identity.

And here’s the part that makes this little vignette so charming: rather than challenge the plaintiff’s efforts to unmask his identity, Mr. Simko filed a motion to quash the subpoena USING HIS REAL NAME.

The court denied the motion to quash. The basis for denying the motion is kind of an aside (the motion to quash phase was not the right time to challenge venue or knowledge of the infringement).

What’s noteworthy about the case is Mr. Simko’s decision to voluntarily waive his anonymity. Not only did he challenge the subpoena using his own name, he filed as an exhibit the letter he got from Comcast notifying him of the subpoena. Right there, in all caps and as plain as day were Simko’s name and address for all to see.

Photo courtesy Flickr user pourmecoffee.

Can a robot perform a valid marriage ceremony?

Mashable has this little story and video of a couple in Japan getting married in a ceremony performed by a robot. Looks like it went off without a hitch. But it’s an interesting harbinger of some of the legal questions that will arise as intelligence based on nonbiological substrates gets more human-like.

Is a marriage ceremony performed by a robot “legal”?

I looked up the Illinois statute that provides the requirements for a marriage ceremony (750 ILCS 5/209). A couple can get married if the marriage is “solemnized” by a judge, a county clerk, or “in accordance with the prescriptions of any religious denomination, Indian Nation or Tribe or Native Group, provided that when such prescriptions require an officiant, the officiant be in good standing with his religious denomination, Indian Nation or Tribe or Native Group.”

I expected the statute to be phrased in a way that would at least strongly imply that the ceremony has to be solemnized by a person. But I’m not sure it’s totally clear. I’m not a family lawyer — so take this with a grain of salt. It looks like a couple can still be validly married in a religious ceremony if the “prescriptions” of that religion do not require an officiant.

So it may not be too hard to work around the robot problem. Just find a church out there to establish some prescriptions that don’t make the officiant an essential part. Then the robot ceremony could ostensibly be a side show, like the cutting of the cake or tossing of the bouquet.

If you think about it, does it really matter whether the officiant is a person? There remains the obligation to get a license, which serves as a vetting process of sorts for the couple. And the psychological effect of “solemnization” is to get the couple to take it seriously. Does anyone care whether the officiant is conscious of what’s going on in the same way a human would?

Trademark holder not entitled to domain name registered years before

Arizona State Trailer Sales, Inc. d/b/a Little Dealer Little Prices RV v. World Wide RV, No. FA1003001315658 (Nat’l Arb. Forum, May 7, 2010)

Startups in the process of selecting a company or product name are often frustrated to see that someone else, years ago, registered the .com version of their newly thought-of name. Similarly, companies that have acquired a trademark registration wonder whether they can use their crisp new registration certificate to stomp out someone else who has been using a domain name similar to the company’s new mark.

A recent case arising under the Uniform Domain Name Dispute Resolution Policy (UDRP for short) shows us that the earlier domain name registration is usually going to be on solid ground against a later-arriving trademark owner.

In the case of Arizona State Trailer Sales, Inc. d/b/a Little Dealer Little Prices RV v. World Wide RV, a National Arbitration Forum panelist denied the trademark owner’s cybersquatting claim against another company who had registered the domain name version of the trademark in 2006.

To be successful under the UDRP, the complainant would have had to show:

  • the domain name registered by the respondent was identical or confusingly similar to a trademark or service mark in which the complainint had rights;
  • the respondent had no rights or legitimate interests in respect of the domain name; and
  • the domain name had been registered and was being used in bad faith.

The complaint failed on the first of these three elements. The panel found that the requirement of being identical or confusingly similiar “necessarily implies that Complainant’s rights must predate the registration of Registrant’s domain name.” Since the domain name in this case was registered years before, there was no relief to be had. The request to transfer the domain name was denied.