1. 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»

  2. 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»

  3. Rick’s Copyright Course Final Exam: Part 2 of 3

    Part II: Short Essays

    Last time, I explained my philosophy informing the way I constructed the final exam I gave to my copyright class last semester at Vanderbilt University Law School (which happens to be where I went to law school), plus Part I of said exam which consisted of 12 short answers.

    Here, now, is my annotated Part II, complete with my comments about how the essay topics should have been addressed.

    Preliminary note: The students were presented with eight short-essay topics a week before the exam period began. Of those, I chose four, and each student chose three of those to answer. That’s why the topic numbers go 1, 2, 4, 7. So, on the one hand, the students got to prepare in detail. On the other hand, there were diminishing returns in over-preparing. I chose to do this because of the three-hour time constraint. The idea is that the students would be able to address the topics in less time if they were able to prepare for specific topics. As a side-benefit, they were also forced to prepare for a wider range of topics than could actually be crammed into a three-hour exam.*

    * The idea Read More»

  4. 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»

  5. I Has a Flava: Does Framing Video Infringe Copyright? Hard to Say

    Richard Posner LOLs a Bad Preliminary Injunction. But Does Anyone Get the Joke?

    Is Richard Posner’s opinion in Flava Works v. Gunter (better known as the “myVidster” case) already a month old? For such an anticipated decision, it sure flew under the radar after a little bit of buzz. It’s already been pronounced something of a dud*, which is perceptive, if not entirely fair.

    * See also TechDirt and Prof. Goldman.

    The decision was so anticipated because it was appealed from a lower-court opinion that, according to popular (but slightly erroneous) report, implied that merely linking to unauthorized material was an act of infringement (though there might be a DMCA safe harbor for that). The truth was only slightly less alarming: the lower-court decision held that merely framing content that is hosted elsewhere is an act of infringement.

    To add to the drama, the appeal was heard by a panel that included one of America’s best known and highly regarded jurists, Richard Posner, whose copyright opinions were known to be somewhat erratic. Oh, and the copyrighted material in question? Hardcore porn*. That gets everyone’s attention.

    * If it weren’t for porn, how much less would copyright and internet Read More»

  6. 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»

  7. Megaupload: Legal Obstacle Course for Prosecutors: Copyright

    Part 2: The Government’s Unclear Path to Conviction

    Last time, I tried to give some practical perspective to the Megaupload Indictment. It was, at the same time, business as usual and completely extraordinary. I predicted (we’ll see how accurately) that MU will be the only major indictment of its kind in the medium term. I gave two reasons for it. First, indicting MU served its broader purpose of sending a message to other file-sharing sites. Second, the government will probably want to see how well its legal theories do–because, as we’ll discuss this time, the government’s case isn’t as straightforward as many of us (including me) thought it was.

    For purposes of post, we’re going to ignore the “easy” parts of the government’s case, i.e., those involving direct copyright infringement, because the lessons there are less applicable. I assume that legitimate file-sharing sites are at least careful enough not to engage in direct copyright infringement (other than, arguably, distribution, which is a vexed issue).

    Primary Consideration, Secondary Liability, Uncommon Law

    When I (and, I assume, a lot of other people) first heard of the MU Indictment, we figured the government’s case-in-chief would be a slam dunk, … Read More»

  8. Burning Down the Dance-Hall: UMG v. Veoh Clarifies the DMCA

    One of the Great Unanswered Questions Is Answered!

    This is the third post on the recent and important Ninth Circuit opinion in the “Veoh case” (actually styled, UMG Recordings v. Shelter Capital, but we’ll call it “Veoh”). In the first post, we marveled at Universal’s surprising leading argument and worried about the fate of user-created videos of cute kittens. In the last post, we analyzed Universal’s surprisingly weak argument that Veoh had “red flag” knowledge of infringing activity and wondered if Universal hadn’t made things worse for rights holders on that issue.

    Universal’s third and final argument fares rather better*, although it, too, ultimately fails. It targeted the financial benefit requirement (which, remember, is really a “no financial benefit” requirement). Recall that there are two prongs to this requirement: (1) the provider not receive a “financial benefit directly attributable to the infringing activity”; and (2) the provider have “the right and ability to control” the infringing activity.

    * I still think that Universal would have been better off targeting Veoh’s repeat infringer policy. There’s so much we just don’t know about this requirement. Universal would have had a much better shot at reshaping Read More»

  9. In Grooveshark’s Defense: Red Flags and Financial Benefit (Part 7 in our Online Music Services Series)

    Why Grooveshark Might Not Swim into the DMCA Safe Harbor

    In our last blog post, we examined two of the four main requirements for Grooveshark’s DMCA safe-harbor defense.  Those requirements were (1) having and implementing a repeat-infringer policy, and (2) compliance with the notice-and-takedown procedure.  We gave Grooveshark a pass on those two requirements.  We now look at the two remaining requirements:  (3) lack of actual knowledge or “awareness” and (4) lack of direct financial benefit.  We think these two requirements will be much trickier for Grooveshark.

    Knowledge and “Awareness”

    To qualify for DMCA safe-harbor protection, you (as the website operator) must (1) not have actual knowledge of the infringement,* (2) not be “aware of facts or circumstances” that make the infringement apparent, and (3) “expeditiously” stop the infringement, once you are obtain such knowledge or “awareness.”

    *  Want to hear something weird?  If someone sends you a defective DMCA takedown notice, but it includes enough information to put you on notice that infringing activity is going on, you are not deemed to have actual knowledge or even “awareness” of the infringement.  Although this is illogical, there’s a good reason for it.  Otherwise, there’d be no reason for copyright Read More»

  10. The Case Against Grooveshark: Uploading Trouble (Online Music Service Series, Part 4)

    Through the Grooveshark’s Jaws

    In my last two posts, we took an overview of copyright law as it applies to online music services, and at six of the major new such services.  We’ll now turn our focus to the specific services, starting with the inspiration for this series of posts, Grooveshark (which is currently a defendant in a lawsuit here in Nashville).  Grooveshark’s business model is so interesting, it’ll take three posts to get through it all.  Recall that Grooveshark has two interactive ends:  on one end, users are invited to upload music files; on the other end, those music files are streamed to users on demand.  This means there are two separate opportunities for infringement.  On top of that, Grooveshark relies on a complex defense, the DMCA safe-harbor.

    In this post, we’ll analyze the “uploading content” end of Grooveshark’s service.  In the next post, we’ll look at the “streaming” end.  And in the post after that, we’ll examine its DMCA safe-harbor defense.

    Uploading Content

    Right off the bat, we know that Grooveshark isn’t subject to direct liability for the “uploading content” end of its service.  That’s because Grooveshark isn’t doing the uploading; its users are.  But … 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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