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Who Needs Guidance from Above? District Court Finds its Own Way in Viacom v. YouTube
April 29, 2013 by Rick Sanders | Category: Blawg, Blog | Tags: DMCA, safe-harbor, YouTube
But Is the Trail Worth Following?
As has been chronicled in this blog (here and especially here), the district court in the Viacom v. YouTube case had originally granted summary judgment to YouTube, but the Second Circuit decided that the district court was too quick to make a couple of important factual findings, had applied the wrong law in one instance and had overlooked a legal doctrine in another instance. So it punted the case back to the district court with very specific instructions about what it must do—but without giving it much in the way of actual legal guidance.
I didn’t say so explicitly, but I was concerned that, with the lack of guidance, the district court would freeze up, afraid that it’ll just get reversed and remanded again, no matter what it did. I’m glad to say that the district court was up to the challenge, and almost one year after the remand, it issued a confident, firm decision (once again in YouTube’s favor). Your mileage may vary, but at least we’ll get this kicked back up to the Second Circuit very quickly.
Pictured: the District Court Judge following … Read More»
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You’re No Fung Anymore: There Really Is Such Thing as Red Flag Knowledge in Copyright Law
Also, There Really Is Such Thing as Copyright Inducement
Hot on the heels of the new and improved opinion in the Veoh case (discussed last time), we also have Columbia Pictures Industries, Inc., et al. v. Gary Fung & IsoHunt Web Technologies, Inc., another important 9th Circuit decision construing the major DMCA safe harbors. We’ve actually discussed the case before because it was—and as far as I am aware—the only case in which a service provider was found to have had enough “red flag” knowledge to be deprived of the DMCA safe harbor.
The rare yellow-bellied sapsucker is a close relative of the even rarer red-flagged sapsucker. Photo by Phillippe Boissel, under Creative Commons license.The Red-Flagged Sapsucker
I’ve said previously that “red flag” knowledge will be found only in extraordinary situations, and nothing since then has changed my mind. The problem is that “red flag” knowledge is clearly objective knowledge (in contrast to the subjective nature of actual knowledge). Lawyers are actually used to these standards, more classically stated as “knew or should have known.” In many cases, knowledge requirements are important, but even so, we don’t like to limit them to purely subjective … Read More»
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DMCA Circuit Split Averted: New Rule but the Holding Remains the Same
Also, UMG’s Home-Run Stroke Still Need Work
Last year* there were two much-anticipated, important decisions about the scope of the major DMCA safe-harbor defenses: the Ninth Circuit in UMG Recordings v. Shelter Capital (better known as the “Veoh case”), which was issued first, and then the Second Circuit in Viacom v. YouTube. They mostly agreed with each other, but diverged on a major point and on a minor point.** I blogged at length about both of them: Veoh here, here and here; and YouTube here and here.
* If by “last year” you mean “2012 plus the tail end of 2011.”
** A quick recap of the the basic mechanics of the two major DMCA safe-harbors are set out here. Remember: there are four requirements that you have to meet in order to take advantage of the safe harbors, simplified somewhat: (1) you implement a reasonable repeat-infringer policy; (2) you are genuinely unaware that content in question is infringing, whether through actual knowledge or indirect “red flag” knowledge”; (3) you don’t both benefit financially and directly from the infringement and have the right and ability to control the infringing activity; and (4) you expeditiously … Read More»
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Rick’s Copyright Final Exam: The Final Part
Part III, No. 2: Larry Gardner & the Missing 25% Copyright Ownership Interest
This really is the last part of my annotated final exam that I gave to my Vanderbilt Law copyright class last term. I decided to split the long essays into two parts because of: length issues. Feel free to start at the beginning, or return to the first long-essay topic, or even jump somewhere in between.
Anyway, here is my homage to/satire* of the Harry Potter novels, inspired partly by Rich Burlew’s Larry Gardener and the Angry Half-Orc. Only I’d never kill Harry off like that. I’ll defend books 1-3 to the end, no matter how badly mangled the Latin is, and I’ll defend the series as a whole to a lesser extent (except book 5—never book 5).
* Very post-modern, no? It’s a parody of Harry Potter, in which the parody is, in-topic, “straight,” and there’s also (1) an in-topic “parody” (well, is it really? You decide.) and (2) an in-topic “straight” rip-off of the “straight” original, which really a parody of the real original. Between you and me, I think I’d rather watch Georgina Henderson.
Lurking behind this fact … Read More»
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Space Amazons, Space Marines and the Non-Existant Trademark Takedown Notification
Caught Between the Heartless and the Cowardly, Does an Indie Author Stand a Chance?
Update (Feb. 8, 2013): It appears that Spots the Space Marine is available once again from Amazon’s Kindle store, as of this morning. I don’t have any details about the change, e.g., whether it’s permanent, who relented (Amazon or Games Workshop), or why. (Since this post didn’t go up until last night, we can feel confident that this post had nothing to do with it!)
Further Update (Feb. 14, 2013): It appears Amazon voluntarily put the back up. Apparently, the EFF asked Amazon to, Amazon took an actual look at the notice, gagged, reached the same conclusion outlined below, and put the book back up. The EFF’s report paints Amazon as somehow so overwhelmed with notifications that they can’t spot (as it were) an obvious stinker like this. But taking something down like this isn’t being “neutral.” It’s being a tool (in the old sense of the word). EFF is correct, however, to identify providers like Amazon as the “weak link” in the chain of free speech.
Further Update Cont’d: For its part, Games Workshop claimed that it “had no choice” but to cause … Read More»
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I Have a Dream (of Copyright Clarity)
January 21, 2013 by Tara Aaron | Category: Blawg, Blog | Tags: *, copyright, DMCA, fair use, public domain
There’s been some talk on this Martin Luther King day about the availability of the video of King’s immortal “I Have a Dream” Speech. The removal of the video from the Vimeo site has stirred enough outrage to launch another march on Washington. Or maybe even another SOPA-type revolt.
There is so much to talk about regarding the copyright issues in this Speech that this blog could turn into a volume in a hurry (I’ve tried not to let that happen). One of the many vexations, I think, is that we’re talking about two different pieces of material. One is the speech itself, which has been the subject of a controversial lawsuit which we’ll break down in a minute. As a result of that lawsuit, the copyright in the speech belongs to the King Estate and is administered by EMI (which has been recently bought by Sony/ATV, but who can keep up?) The other is the CBS video.*** Both are at issue when the speech is posted on YouTube or Vimeo by a third party who isn’t either EMI/Sony, CBS, or the King Estate.
***I have only read that CBS owns the copyright in the video. I haven’t … Read More»
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I Has Moar Flava: Nine Copyright Observations About the myVidster Case
Heh, He Said “Dicta”
Last time, I tried to explain the main holdings from the important but maddening Flava Works v. Gunther (a/k/a myVidster) opinion by Judge Posner. Because so much of the decision is dicta (material that is unnecessary to the holding), and fascinating and bizarre dicta at that—basically, it’s Judge Posner arguing with himself—there’s a lot to react to.
So here they are: nine observations about the dicta in Judge Posner’s Opinion, in no particular order:
Are Wieners Copyrightable?
1. Judge Posner can’t help but spend an unnecessary but interesting paragraph (again, complete dicta) on whether pornography is copyrightable.* He seems to think it is, and the current legal authority (somewhat old and creaky) backs him up. Under First-Amendment principles, what constitutes pornography (“obscenity,” really) is a combination of national principles (whether it lacks some sort of artistic merit) and local values (the jury going, “Ewwwww!”). Copyright is a national system, so it shouldn’t change from locale to locale. If the local populace is truly disgusted by it, it can use other laws to discourage it, just leave copyright out of it.
* Judges who are stuck adjudicating mass-defendant BitTorrent cases involving pornography (as most of them … Read More»
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Willful Blindness, Substantial Influence and Uncertainty in the Law of DMCA Safe Harbors
Part 2 of 2: The Second Circuit Punts on Third Down
Last time, I laid out the context for the Second Circuit’s decision in the Viacom v. YouTube case–i.e., the state and open issues of the law of the DMCA safe harbors. This time, I’ll get into what the Second Circuit actually said, pointing out where the Second Circuit agrees with, and diverges from, the Ninth Circuit’s reasoning in Shelter Capital v. UMG (the “Veoh case”).
Knowledge Requirement Is Limited to Specific Knowledge
The Second Circuit agrees with the Ninth Circuit that only knowledge of specific acts of infringement may defeat the Knowledge Requirement, whether under the actual knowledge or “red-flag” prongs.
The Second Circuit goes a bit further and describes “red-flag” knowledge as “objective” knowledge, as opposed to subjective knowledge. I.e., a reasonable person would have had knowledge (without conducting an investigation!) regardless of his or her actual knowledge. If that’s the case, the scope for red-flag knowledge must be very narrow indeed, since a person with so much awareness would almost always have enough facts to constitute actual (subjective) knowledge.
As it happens, the Second Circuit found instances that arguably show actual … Read More»
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YouTube Decision Muddies the Water for DMCA Safe-Harbor Law–for Now
Part 1 of 2: Second Circuit on DMCA Safe Harbor: It’s Complicated
Well, if you were hoping that the DMCA safe-harbor law would clear up with the Second Circuit’s long-awaited opinion in Viacom v. YouTube–that we’d get to the point where folks would know the contours of the safe harbor without having to consult with a lawyer–then last Thursday was, indeed, as Prof. Goldman put it, a “bummer.” There were things to criticize in last December’s Ninth-Circuit decision in Shelter Capital v. UMG (better known as the “Veoh case”), and certainly rights-holders were unhappy with it, but at least you knew where things stood. The basic lesson from Veoh was: comply with the DMCA notice-and-takedown regime, watch out for notices of infringement by non-rights holders, and things’ll probably be OK.
But YouTube muddies the waters–at least, for a while. That’s not really meant as a criticism. Simplicity and “bright line rules” are nice because it saves business folks and consumers money (fewer legal fees) and worry. But an appellate court’s job is, in this case, to interpret a statute. Sometimes the best interpretation is also a complex or “fuzzy” one. True, lawyers are the main beneficiaries, but … Read More»
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Pinterest and Copyright: So Why All the Fuss?
Part 2 (of 2): Welcome Nice Pinterest Users to the Bizarro World of Copyright and the Internet!
Last time, we took stock of the recent kerfuffle about Pinterest, copyright and Pinterest’s Terms of Use (“TOU”), and we even looked at those horrifying, normal TOU. In this post, I want to step back and answer two basic questions: Should Pinterest users really worry about being sued for copyright infringement? And is there really something to all this fuss?
I’ll preface the rest of what I’m going to say by emphasizing that, although I’m a lawyer in this field (i.e., copyright and the internet), I’m not giving you legal advice here. A lot of this is reasoned speculation, but I could turn out to be wrong, and I don’t know your specific legal situation and speak to it. OK?
Is Someone Really Going to Sue Nice Pinterest Users?
How much should you worry if you’re using Pinterest? I suspect you don’t have that much to worry about. Unlike Napster, Pinterest isn’t threatening an entire livelihood here. Flickr has already done all the damage the internet is going to do to professional photographers, in a perfectly legal manner, by … Read More»
