Tactics suggest overreaching on more than just copyright grounds.

News broke over the Labor Day weekend that Righthaven, that enterprise set up to file copyright lawsuits over alleged infringements of articles from the Las Vegas Review-Journal, sued Nevada senate candidate Sharron Angle. The complaint [PDF] contains two claims for copyright infringement over allegations that Angle posted two articles on her website without authorization.

Let’s set aside for a moment any objections or snickering we might have about Righthaven’s approach, or any disdain we may feel about spamigation in general. There’s one paragraph in the Angle complaint which demonstrates a plaintiff mindset that is over the top on just about any reasonable scale.

In addition to the ususal demands for copyright infringement relief in the complaint (e.g., statutory damages, costs, attorney’s fees, injunction, etc.), Righthaven asks that the court:

[d]irect the current domain name registrar, Namesecure, and any successor domain name registrar for the Domain to lock the Domain and transfer control of the Domain to Righthaven.

Say what?

This is a copyright lawsuit, not one for trademark infringement or cybersquatting. Nothing in the Copyright Act provides the transfer of a domain name as a remedy. Such an order would be tantamount to handing the whole website over to Righthaven just because there may have been a couple of infringing items.

The Copyright Act does provide for the impounding and disposition of infringing articles (See 17 USC 503). So it’s plausible that a court would award the deletion of the actual alleged infringing articles. Or if it wanted to be weirdly and anachronistically quaint about it, could order that the infringing files on the server be removed and somehow destroyed in a way additional to just being deleted. In any event, there’s no basis for a court to order the transfer of a domain name as a result of copyright infringement.

I’ll let you, the reader, decide what you will about Righthaven. But if you decide that their tactics are silly, and in some cases uncalled-for, you won’t be alone.

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BMMSOFT, Inc. v. White Oaks Technology, Inc., 2010 WL 3340555 (N.D.Cal. August 25, 2010)

Plaintiff, a software development company, sued defendant, a company that was performing software installation services for it client, the U.S. Air Force. Plaintiff alleged that defendant violated the End User License Agreement (“EULA”) for the software by copying and distributing the software in violation of the terms of the EULA.

Defendant moved for summary judgment, arguing that it should not be bound by the EULA, since when it purportedly clicked on the “I Agree” button during installation, it was doing so as an agent on behalf of a disclosed principal, namely, the federal government.

The court agreed, finding that the purchase orders clearly disclosed that defendant would be installing the software on behalf of its government client. And the terms of the EULA were clear in designating that the “You” authorized to use the software was not the defendant, but the government, at the location specified in the order.

So the court threw out the breach of license claim. One is left to wonder why facts that support copying and distribution of the Software in a manner prohibited by the terms of the EULA would not also support copyright infringement. But apparently there was no such claim in this case. Perhaps there are some nuances of the defendant’s conduct that would not necessarily violate a condition, but be merely a breach of covenant.

Three adult media entertainment producers filed suit yesterday in the U.S. District Court for the Northern District of Illinois alleging copyright infringement against hundreds of anonymous defendants accused of trading videos using Bittorrent. This kind of action resembles the much-criticized mass litigation undertaken by the U.S. Copyright Group against hordes of unknown accused Bittorrent users trading movies like Hurt Locker.

In this case, the subject matter promises to be more provocative. Plaintiff Millennium TGA is known for producing content in the “transsexual adult entertainment niche.” Plaintiff Lightspeed Media Corporation is alleging infringement of content including collections relating to its Jordan Capri and Tawnee Stone websites. Plaintiff Hard Drive Productions produces the Amateur Allure website.

Here are the complaints:

• Millennium TGA, Inc. v. Does 1-100
• Lightspeed Media Corporation v. Does 1-100
• Hard Drive Productions v. Does 1-100

Christen v. Iparadigms, LLC, No. 10-620, 2010 WL 3063137 (E.D.Va. Aug. 4, 2010)

Plaintiff was a graduate student and one of her professors uploaded a couple of plaintiff’s papers to the web-based plagiarism detection service Turnitin. You may remember how the Fourth Circuit held last year that this uploading and use of students’ papers is a protected fair use that would not subject Turnitin to liability for copyright infringement.

Perhaps recognizing the difficulties of a copyright case against Turnitin, plaintiff pursued various state-law, non-copyright claims based on Turnitin’s inclusion of plaintiff’s works in its database. So plaintiff sued for conversion, replevin and unjust enrichment.

The court dismissed all three of these claims, holding that they were preempted by the Copyright Act.

The Copyright Act specifically preempts all state-law rights that are equivalent to those protected under federal copyright law. Many courts apply a two-pronged test to determine if a particular state-law claim is preempted: (1) the work must be within the scope of the subject-matter of copyright, and (2) the rights granted under state law must be equivalent to any exclusive rights within the scope of federal copyright.

The court found that there was “no question” that the works at issue — plaintiff’s unpublished manuscripts — fell within the subject-matter of copyright protection.

It went on to find that plaintiff’s conversion claim was “simply a copyright infringement claim dressed in state-law clothing.” And the rights in the works that the plaintiff asserted — mainly, to use and reproduce the copyrighted work — were exclusive rights granted by the Copyright Act. The conversion claim also failed because plaintiff was not seeking the return or destruction of tangible property, just code stored on the Turnitin server.

The court dismissed the replevin claim on similar grounds. Because there was nothing tangible to be purged or returned, an action in replevin would not be viable. But even more importantly, replevin actions are no longer recognized under Virginia law, as the cause of action was repealed by statute.

Finally, the court held that plaintiff’s unjust enrichment claim failed. Citing to Nimmer and a batch of cases holding unjust enrichment cases to be preempted by the Copyright Act, the court held that a state-law cause of action for unjust enrichment should be regarded as an “equivalent right” to rights granted under the Copyright Act.

GateHouse Media, Inc. v. That’s Great News, LLC, No. 10-50164 (N.D. Ill. filed 6/30/2010)

A lawsuit filed this past week in the Northern District of Illinois includes a claim that the defendant violated the terms of a Creative Commons license covering the plaintiff’s copyrighted works. GateHouse Media publishes a slew of local newspapers, including the Rockford Register Star in Rockford, Illinois. The Register Star provides premium online content to its subscribers, and makes that content available under a Creative Commons Attribution-NonCommercial-NoDerivs license.

GateHouse sued a company that sells reprints of articles — including articles from the Register Star — on fancy plaques to the people who are featured in those articles. Since GateHouse has its own reprint business, it views the defendant’s work as a competitive threat.

The complaint has all the claims you’d expect under these facts — copyright infringement, trademark infringement and various claims under Illinois unfair competition law. It also has a breach of contract claim, in which GateHouse invokes the terms of the Creative Commons license, going after the defendant’s commercial use of the licensed material.

Ponder if you will why GateHouse chose to pursue a violation of the Creative Commons license as a breach of contract claim and not as copyright infringement. The license terms are written as conditions and not covenants. So it seems like the defendant’s alleged use would be outside the scope of the license and therefore infringement. Any ideas why plaintiff is proceeding this way?

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.

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 throws out Viacom’s copyright suit against YouTube (americablog.com)
• YouTube wins case against Viacom (googlepublicpolicy.blogspot.com)
• YouTube Wins Summary Judgment in Viacom DMCA Lawsuit (eff.org)
• Viacom Loses $1 Billion Lawsuit Against YouTube (mashable.com)
• YouTube wins case against Viacom (googleblog.blogspot.com)
• Judge rules in favor of YouTube over Viacom (macworld.com)
• YouTube wins $1B Viacom lawsuit (seattlepi.com)
• YouTube wins case against Viacom (Kent Walker/The Official Google Blog) (techmeme.com)
• YouTube Wins $1 Billion Copyright Case Against Viacom (readwriteweb.com)
• Viacom loses their case against Google/YouTube (zdnet.com)

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.

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.

Twitter is giving a copy of the archive of all tweets from the beginning of time to the Library of Congress. The inevitable outrage has ensued. One big concern is privacy. You gotta admit it’s creepy (and evokes Big Brother) to know that all your tweets will belong to the feds.

The other outrage-catalyst is copyright, and the possible violation of the license that one grants to Twitter via the terms of service.

Venkat and I exchanged some email earlier today on this topic. What if you delete your tweets? Doesn’t that terminate the license you gave to Twitter to store and share your content? How can the Library of Congress still keep its copy if the original license has ended? Fred Stutzman has also asked these kinds of questions.

These objections seem to presume that if one were to remove his or her tweets from Twitter, the license would be revoked, and any subsequent display by Twitter would be an infringement. I imagine that’s true in relation to Twitter, but I’m not so convinced when it comes to the Library of Congress. They’d likely fall under Section 108 of the Copyright Act.

Section 108 (17 USC 108) says that it’s not an infringement for a library to make a copy or distribute a work if (1) it’s not for commercial advantage, (2) the collections of the library are open to the public or available to all researchers in a particular field, and (3) the notice of copyright in the original work remains intact or if no notice can be found, there’s a legend stating that it may be protected under copyright.

You see what I’m saying? The Library of Congress would appear to have the right to archive one’s Twitter stream regardless of any assitance on Twitter’s part. In other words, by providing the archive, Twitter is just helping the LOC do something it’s entitled to do anyway.

What do you think?

Advance Magazine Publishers v. Does 1-5, No. 09-10257 (S.D.N.Y. Dec. 22, 2009)

Someone accessing the Internet using an AT&T IP address hacked into Conde Nast’s computer system and acquired and published copies of editorial content and the images that were to be in the December 2009 issue of GQ. Those images were later published anonymously on a blog hosted by Google’s Blogger service.

Conde Nast sued in federal court alleging copyright infringement (for the posting of the content) and violation of the Computer Fraud and Abuse Act (for the unauthorized accessing of the Conde Nast servers). Since the identity of the person or persons committing these acts was not known, Conde Nast sued “John Does 1 through 5″. It then filed a motion with the court for permission to serve subpoenas on AT&T and Google to get information with which to give the defendants a name.

The court granted the motion and authorized the subpoenas.

Rule 26(d) requires that a party demonstrate good cause before expedited discovery will be permitted. In this case, Conde Nast gave four reasons supporting good cause:

• It had sufficiently pled causes of action under the Copyright Act and the Computer Fraud and Abuse Act
• AT&T’s server activity logs and Google’s registration data were at risk of being overwritten or purged
• The scope of the information requested was appropriate — the only items being requested were those sufficient to name the defendants
• Without the identifying information, the case would be at a standstill and Conde Nast might be left without a remedy

For these reasons the court ordered the anonymous participants to be unmasked.

Masked woman photo courtesy Flickr user Alaskan Dude under this Creative Commons license.