1. The Vimeo Case and the DMCA: What Your Employees Know Can Hurt You

    Oh, Those Pesky, Pesky Employees!

    From a legal* point of view, hardly anything good ever comes out of the employer-employee relationship**, when you think about it. Wrongful termination suits, reams of paperwork to create a “paper trail” to counter wrongful termination suits, making oral promises the company can’t keep, entering into contracts the company isn’t aware of, getting into accidents in the course of their employment (and making the company liable), and so on and on.

    * Of course, hiring is based on need. Nobody ever said, “Oh, I’m really desperate for some help, and there’s lots of it, but I’m afraid of the legal ramifications!” Which isn’t to say there aren’t transaction costs to hiring employees.

    ** The one exception I could think of: works created by employees in their course of their employment are considered to have been created by the employer. Not that this “work made for hire” doctrine isn’t without controversy.

    We can add one more thing to the list: when your employees are using a service that your company provides. Let’s say your company is in the business of hosting and publicly performing uploaded content, which might or might not infringe copyright. And let’s say … Read More»

  2. Hotfile on the Internet- What You Don’t Know Can Hurt Your DMCA Safe Harbor

    On the Importance of Knowing Just Enough

    As we all know by now (quick primer here), the DMCA safe harbor is a marvelous, marvelous thing for internet-related system operators—not just YouTube, but any website that interacts much with its users—but that marvelous protection can be lost if you’re not careful. One way to lose it is to have actual or “red-flag” knowledge of infringing activity on the network. The tendency among service providers, therefore—and something of a perverse incentive—is to remain as ignorant as possible of user activities on the system, unless forced to pay attention via a DMCA takedown notice.

    Upload, Infringe, Repeat

    But, as the recent Hotfile case demonstrates, complete ignorance isn’t good for your DMCA safe harbor. That’s because you have to promulgate and reasonably implement a policy that terminates repeat infringers. The Hotfile court held that implementing a repeat-infringer policy involves collecting some information.

    As I’ve explained here, here and especially here, these repeat-infringer requirements raise several difficult questions that have not be adequately addressed by the courts. In Hotfile, the main question was: what is the minimum you have to do to have “reasonably implemented” a repeat-infringer policy? Folded into … Read More»

  3. Who Needs Guidance from Above? District Court Finds its Own Way in Viacom v. YouTube

    But Is the Trail Worth Following?

    Well, that wasn’t so hard.

    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»

  4. 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.

    3845352265_d722f4e38eThe 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»

  5. 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»

  6. 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»

  7. 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»

  8. I Have a Dream (of Copyright Clarity)

    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 confirmed … Read More»

  9. 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»

  10. 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»

Rick and Tara are experienced lawyers who have set out to serve clients in a new way. Rick's roots reach back to his Silicon Valley home, where he first developed his litigation-oriented practice before moving to Nashville in 2004. Tara got her start in the music publishing business in Nashville in 1998 and has used that experience to form the basis of her transactional law practice since graduating from law school in 2004.
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