Copyright, not privacy, motivated Reddit to take down photos of nude celebrities

This VentureBeat piece with Reddit CEO Yishan Wong brings up a number of interesting facts concerning Reddit in the wake of its receiving an additional $50 million funding round. One of those pieces of interesting information concerns Reddit’s decision to take down a subreddit devoted to the sharing of recently-leaked celebrity nude photos.

Says Wong:

If there’s any confusion: [Reddit] did not shut down /r/TheFappening due to content linking to nude celebrity photos. The subreddit was shut down because users were reposting content already taken down due to valid DMCA requests, and because spammers began posting links to the images hosted on their own pay-per-click sites, or sites intended to spread malware.

We can’t read too much from this comment, but it does implicate that the dignitary interests of the celebrities involved did not motivate Reddit to do the right thing. Instead, the risk of copyright liability (or, more precisely, the risk that DMCA safe harbor protection may be eliminated) was a stronger motivation.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

Microsoft letter to GitHub over DRM-free music software is not the first copyright-ironic action against an intermediary

TorrentFreak has reported that Microsoft demanded that GitHub take the code repository of an app that provides access to unprotected Xbox Music tracks. Some are calling it ironic, given that Microsoft is offering access to DRM-free music through its API.

The situation is reminiscent (though not legally identical) to the weirdness we observed way back in 2006 when YouTube asked TechCruch to take down a tool that allowed people to download video clips. We recognized early on that YouTube was a copyright renegade. So it was surprising that it would take such an aggressive tactic toward purveyors of software that would make use of copyrighted works easier.

The Microsoft of today is certainly not the YouTube of 2006. So naturally its interests are different. But comparing the two scenarios yields the common conundrum of how one company that wants to more smoothly make content available deals with other technologies and platforms that do the same thing, but cut out the main monetizing opportunity.

It could be a phenomenon of copyright’s outdatedness. Both YouTube and Microsoft took action against others who were distributing technologies that touched on infringement by means of making copies of the works. That will likely remain an important protection under copyright law even after meaningful reform. But what is really at stake is the right to access content. If that were a meaningful right under the Copyright Act, companies would be less likely to take enforcement actions that appear on the surface to be ironic.

Evan Brown is an attorney in Chicago advising clients on matters dealing with copyright, technology, the internet and new media.

When is news reporting fair use under copyright law?

Blogger claims fair use supports his challenge to DMCA takedown of YouTube video. But “news reporting” aspect of fair use can be tricky.

An embattled California pastor sent a DMCA takedown notice to YouTube over a video clip that a blogger used “to report accurately the relationship” between two organizations. The blogger sent a counternotification and explained that he believes copyright fair use protects him against the takedown (and apparently against infringement as well).

The blogger invokes, among other things, the news reporting aspect of fair use, which one finds set forth in Section 107 of the Copyright Act. A recent fair use case, Swatch Group Management Services Ltd. v. Bloomberg, 742 F. 3d 17 (2d Cir. 2014) might shed some interesting light on how news reporting plays into the analysis. In that case, the court found that defendant was protected by fair use when it distributed an audio recording of a company’s earnings call. Unlike many fair use cases, in which the analysis under the first factor (purpose and character of the use) becomes a question of whether the subsequent use is “transformative,” the court observes the following:

In the context of news reporting and analogous activities … the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work rather than transform it.

A defendant may in some circumstances provide transformative material along with the faithful reproduction of an original work. But the absence of that transformative material will not disqualify a defendant from showing fair use:

[B]y disseminating not just a written transcript or article but an actual sound recording, [defendant] was able to convey with precision not only what [plaintiff’s] executives said, but also how they said it. This latter type of information may be just as valuable … as the former, since a speaker’s demeanor, tone, and cadence can often elucidate his or her true beliefs far beyond what a stale transcript or summary can show.

So we see that the news reporting aspect of fair use can be conceptually separated from transformative use.

There is a slippery slope risk here, and the court recognized that. It cited to the Supreme Court’s Harper & Row decision to observe that “[t]he promise of copyright would be an empty one if it could be avoided merely by dubbing the infringement a fair use ‘news report'”. In this case, however, the “independent informational value inherent in a faithful recording” carried the day. From this we see a rule or guide: use of a piece of content is more likely to be newsworthy if the piece of content itself, and not just the raw information within the content, is a news event.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

DMCA’s protection of copyright management information applied to non-electronic works

The Digital Millennium Copyright Act (DMCA) provides safe harbors from copyright infringement liability for online service providers (17 U.S.C. 512) and makes it unlawful to circumvent technological measures that effectively control access to copyrighted works (17 U.S.C. 1201). A lesser-known (and lesser-litigated) provision of the DMCA (17 U.S.C. 1202) makes it illegal to intentionally remove or alter any copyright management information or to distribute copies of works knowing that copyright information has been removed or altered without authority of the copyright owner or the law. “Copyright management information” includes information conveyed in connection with copies of the work, such as the title and the name of the author.

A recent case from federal court in Florida considered whether this regulation of copyright management information in the DMCA applies only to electronic works intended for distribution over the internet, or whether it applies to more traditional works such as hard copy technical drawings. The court interpreted the DMCA broadly to apply to all kinds of works, whether on the internet or not.

Plaintiff alleged that defendant violated the DMCA by distributing copies of plaintiff’s drawings “knowing that [plaintiff’s] name had been removed therefrom and/or that another entity’s name had been added thereto.” Defendant argued that plaintiff failed to state a claim for a violation of the DMCA because the DMCA only applies to “technological” infringement. Defendant cited to Textile Secrets Intl’l, Inc. v. Ya–Ya Brand, Inc., 524 F.Supp.2d 1184 (C.D.Cal.2007), which found that § 1202(b) “was [not] intended to apply to circumstances that have no relation to the Internet, electronic commerce, automated copyright protections, or management systems, public registers, or other technological measures or processes as contemplated in the DMCA as a whole.” To read it otherwise, the court in that case reasoned, would contradict the “legislative intent behind the DMCA to facilitate electronic and Internet commerce.”

In this case, however, the court noted that other courts, focusing on the plain language of the DMCA, have held differently, and approved the DMCA’s application to non-technological contexts. See Murphy v. Millennium Radio Group LLC, 650 F.3d 295 (3d Cir.2011); Agence France Presse v. Morel, 769 F.Supp.2d 295 (S.D.N.Y.2011). Although in this case, as in Murphy, the legislative history of the DMCA was consistent with defendant’s interpretation, it did not actually contradict it. Instead, Section 1202(b) simply established a cause of action for the removal of, among other things, the name of the author of a work when it has been conveyed in connection with copies of the work.

So the court, as it found it was required to do, considered the statute’s plain meaning before it considered its legislative history. Under that analysis, it held that plaintiff’s allegations were sufficient to a state a claim for violation of the DMCA.

Roof & Rack Products, Inc. v. GYB Investors, LLC, 2014 WL 3183278 (S.D. Fla. July 8, 2014)

Evan Brown is an attorney in Chicago advising clients on matters dealing with copyright, technology, the internet and new media.

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