Plaintiff makes videos and posts them to YouTube. Defendants took snippets of one of plaintiff’s videos, interspersed those snippets with their own commentary about the content of those snippets, and posted that to their YouTube channel. Plaintiff sued for copyright infringement. Defendants moved for summary judgment, arguing they were entitled to the affirmative defense of fair use.
The court granted the defendants’ motion for summary judgment. It found that “[a]ny review of the defendants’ video leaves no doubt that it constitutes critical commentary of the [plaintiff’s] video.” It also found there is “no doubt that the [defendants’] video is decidedly not a market substitute for the plaintiff’s video.” Leaning on these elements – the first and fourth elements of the Copyright Act’s four-factor analysis – the court found in favor of defendants on their fair use defense.
Hosseinzadeh v. Klein, No. 16-CV-3081 (S.D.N.Y., August 23, 2017)
More coverage at TechCrunch.
About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases. Read Evan’s other blog, UDRP Tracker, for information about domain name disputes.
This NBC News piece reports that since 2007, YouTube’s ContentID program has enabled copyright holders to monetize content posted to the service and get paid a billion dollars in the process. (Also included in the report is the staggering statistic that ContentID scans 400 years of content every day — we live in content-producing world of crazy proportions!)
So we see that with this kind of cash rolling in, it’s no wonder that Viacom finally came to its senses earlier this year when it decided to discontinue its litigation against YouTube. The billion dollar notion is also interesting — that’s the very amount Viacom sought when it filed suit in March 2007.
Ron Paul 2012 Presidential Campaign Committee, Inc. v. Does, 12-00240 (N.D. Cal. January 25, 2012)
(Hat tip to Venkat for posting a link to this decision.)
Ron Paul’s campaign — Ron Paul 2012 Presidential Campaign Committee, Inc. — sued some John Doe defendants in federal court over an offensive video attacking former (but then current) opponent Jon Huntsman. The video demonstrated a gross insensitivity toward Chinese culture, and was posted to YouTube and promoted on Twitter by a user calling himself NHLiberty4Paul.
Since the campaign did not know the true identity of the John Doe defendants, it asked the court for leave to take “expedited discovery” so that it could serve subpoenas on YouTube and Twitter. (The Federal Rules of Civil Procedure do not allow early discovery like this unless the court specifically permits it.)
The court denied the campaign’s motion seeking early discovery. It held that the campaign failed to show the required “good cause” for expedited discovery set forth in the case of Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 577 (N.D.Cal.1999).
Under the Seescandy.com standard, in determining whether there is good cause to allow expedited discovery to identify anonymous internet users named as Doe defendants, courts consider whether:
- (1) the plaintiff can identify the missing party with sufficient specificity such that the court can determine that defendant is a real person or entity who could be sued in federal court;
- (2) the plaintiff has identified all previous steps taken to locate the elusive defendant;
- (3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and
- (4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.
The court found that the campaign failed to address these required issues. One is left to wonder whether there is enough of Paul’s campaign left to make it worthwhile to try again.
Kashmir Hill pointed out that at least one erstwhile file sharing service has changed its business model in response to the federal government’s action against Megaupload. She observes that:
FileSonic users can’t be too happy to have one of the main features of the site taken away. But the company must be less worried about its breach of contract with existing users than it is about the possibility of getting the Megaupload treatment, i.e., arrest, seizure of its property, and a criminal indictment.
This raises an important point. Any kind of online service that pushes the legal envelope may want to build in some mechanisms to pull back with impunity if it gets freaked out or loses its envelope-pushing courage. Said another way, that service should not make promises to its users that it cannot keep in the event the service wants to change what it is doing.
Some well known user generated content sites do this pretty well already in their terms of service. For example:
- Dropbox: “We reserve the right to suspend or end the Services at any time, with or without cause, and with or without notice.”
- “YouTube reserves the right to discontinue any aspect of the Service at any time.”
- Reddit: “We also reserve the right to discontinue the Program, or change the content or formatting of the Program, at any time without notice to you, and to require the immediate cessation of any specific use of the Program.”
- Facebook (being kind of vague): “If you . . . create risk or possible legal exposure for us, we can stop providing all or part of Facebook to you.”
All good examples of foresight in drafting website terms and conditions that help innovative sites with damage control.
Arpaio v. Dupre, 2011 WL 831964 (D.N.J., Mar 3, 2011)
It has been three years since Eliot Spitzer resigned as governor of New York for getting busted for hooking up with a prostitute (time flies!). Shortly after he resigned, Girls Gone Wild offered Ashley Dupre, the high-priced prostitute Spitzer was accused of patronizing, a million dollars to be in a new Girls Gone Wild magazine spread and promotional tour. But when the producers realized they already had archival footage of her from years earlier, they revoked that offer.
Dupre sued Joseph Francis, the head of Matra Films (the producer of Girls Gone Wild) for $10 million alleging that he improperly used Dupre’s image from the archival footage. She claimed that because she was only 17 at the time, she didn’t understand the nature of what she was doing. Francis responded by releasing a video that made its rounds on the web (maybe NSFW) that showed the 17-year-old Dupree saying she was of age, and presenting a New Jersey driver’s license bearing the name of plaintiff Arpaio.
Plaintiff filed this lawsuit against Dupre and Girls Gone Wild alleging defamation and invasion of privacy. After none of the defendants responded to the lawsuit, the court entered default against the Girls Gone Wild defendants. Plaintiff never properly served the complaint on Dupre, so it did not enter default judgment against her.
The court awarded plaintiff $3 million in damages. It based this figure on her testimony and other evidence relating to plaintiff’s distress from being mistaken for Dupre, her concern that future employment would be jeopardized from employers doing a Google search on her and learning of the situation, the harm from plaintiff’s children (someday) being exposed to insulting material, and plaintiff’s symptoms consistent with post traumatic stress disorder.
U.S. v. Jeffries, No. 10-CR-100, 2010 WL 3619946 (E.D. Tenn. September 13, 2010)
Defendant created and posted a video to YouTube in which he allegedly sang a song that threatened to bomb the car of a judge scheduled to hear his child custody case. Though he did not mention the judge by name, he said the song was “for you judge” and said “do not tell me I cannot curse.” (The judge had previously admonished defendant for swearing in the courtroom.)
The feds charged defendant with one count of transmitting in interstate commerce a threat to injure and kill.
Recognizing that defendant was a danger to society, the government filed a motion asking the court to order he stay in custody until trial. The court granted the motion.
The court weighed four factors in making this determination. First, the charged offense was a crime of violence (18 U.S.C. 16 defines a crime of violence as one containing an element of threatened use of force against another). Second, the evidence as to defendant’s dangerousness was great — the YouTube video was about killing and car-bombing, after all. Third, the defendant’s character (especially in the past few months) made him a risk — he had attacked a doctor, had alcohol problems, and got kicked out of military housing for firing a weapon during a dispute. Fourth, defendant was a danger to the community and to his family — he was living with his wife and children when he had fired the gun into the air.
Fuentes v. Mega Media Holdings, Inc. 2010 WL 2634512 (S.D. Fla. June 30, 2010)
Plaintiff is a famous Cuban author who has written extensively about Raul Castro and other members of the Castro regime. The producers of the Maria Elvira Live show used plaintiff’s name and image in the content of one of the show’s episodes.
In addition to broadcasting the episode on TV, the producers uploaded clips from the show to YouTube. Plaintiff had not consented to that appearance and sued for, among other things, violation of Florida’s right of publicity statute, Florida Statute 540.08.
The show moved to dismiss the right of publicity claim and the court granted the motion.
It held that use of plaintiff’s name and image in this way did not violate the statute because the use was not “for purposes of trade or for commercial or advertsing purposes.” Looking to analogous cases (which, of course, did not involve social media), the court held that for this statutory standard to be met, the use of the name or image has to be separate and apart from the broadcast itself.
In these other cases, the individuals featured in the content of an audiovisual work sued under the statute and lost.
In Lane v. MRA Holdings, the plaintiff sued the producers of Girls Gone Wild. She lost even though her picture appeared on the cover of the DVD. In Tyne v. Time Warner, some individuals who were incorporated into the movie A Perfect Storm lost on the same grounds — their name and image had not been used separate and apart from the work itself.
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.
Miller v. State, 2009 WL 3517627 (Ind. App. October 30, 2009)
Appellant Miller and his dad robbed Wedge’s Liquor Store in Logansport, Indiana back in November 2007. During the robbery Miller pulled out a shotgun and pointed it at the clerk’s face.
During closing argument at trial, the prosecutor showed the jury a video from YouTube to illustrate “how easy it was to conceal a weapon inside clothing.” The video was not admitted as evidence but was used merely as a demonstrative aid. The jury convicted Miller and the court sentenced him to 18 years in prison.
Miller appealed his conviction, arguing that the trial court made a mistake in letting the jury see the YouTube video. The court agreed with Miller and reversed.
The court noted that experiments and demonstrations may be permitted during trial if they will aid the court and jury. But in this case the court of appeals found that the YouTube video showing how weapons could be concealed could not possibly provide such aid. The state conceded in its appeallate brief that Miller’s defense theory was mistaken identity. So “the whole issue about the ability to hide weapons under clothing was ultimately unimportant.”
Moreover, before showing the video to the jury, the prosecutor said that the video “[had] nothing to do with this case.” The court of appeals agreed with Miller’s argument that the video “[brought] alive the passions of the jury . . . and suggested Miller was not only the robber but that he also . . . intended to . . . cause injury or death.” The video “was irrelevant, prejudical, and confused issues. . . .”
YouTube evidence picture courtesy Flickr user PIAZZA del POPOLO under this Creative Commons license.
O.Z. v. Board of Trustees of Long Beach Unified School Dist., 2008 WL 4396895 (C.D. Cal. Sept. 9, 2008)
While school was out of session for spring break, seventh grader O.Z. collaborated with a classmate to make a slide show video dramatizing the murder of the students’ English teacher. Though O.Z. says she did not intend to share the slide show to anyone outside her home, she posted the video to YouTube. A couple months later, while doing a vanity search on YouTube, the English teacher encountered the video. Naturally distressed by the work, the teacher notified school authorities. Administrators suspended O.Z. and transferred her to a different school for her eighth grade year.
O.Z. filed suit and sought a preliminary injunction requiring the school district to re-enroll her at her former school. She argued that the slide show was protected speech under the First Amendment, and that the school’s discipline for it was unconstitutional. The court denied the motion for preliminary injunction.
In evaluating the likelihood of O.Z.’s success on her First Amendment claim, the court applied the standard set forth in Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. 503 (1969). The Tinker test provides that discipline over student speech is appropriate if school officials reasonably conclude that the speech will “materially and substantially disrupt the work and discipline of the school.”
O.Z. argued that the slide show was merely a joke and not a true threat. But the court found that the school could reasonably forecast substantial disruption of school activities given the violent language and unusual photos comprising the video slide show. Further, the decision to transfer O.Z. served not only to discipline her, but to protect the safety of the teacher.
The fact that O.Z. created the slide show outside of school was of little import in the circumstances. Comparing the present situation with Wisniewski v. Board of Educ. of Weedsport Cent. School Dist., 494 F.3d 34 (2nd Cir. 2007) and other cases involving off-campus conduct, the court found that the slide show created a foreseeable risk of disruption within the school. Such a finding was no doubt influenced by the ability of social media platforms like YouTube to facilitate wide distribution of content.