Court dismisses Tur v. YouTube/Google suit

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Over a year ago, Robert Tur was the first person to bring suit against Youtube for copyright infringement. At issue, video coverage Tur shot of the 1992 Los Angeles riots (search Youtube for L.A. riot video). This week at Tur’s bequest, a Los Angeles federal court judge dismissed the suit.a copyright infringement lawsuit against YouTube in order to allow the plaintiff — a Los Angeles video news service — to join a proposed class-action lawsuit pending in New York against the site.

The dismissal, requested by Robert Tur and his Los Angeles News Service, was granted last Friday. YouTube opposed the dismissal arguing, among other things, that the class-action suit will proceed at a slower pace than the Tur case, which could result in increased liability for the site if an adverse judgment is entered against it

Capitol Records, et al v. Jammie Thomas – Sony BMG’s lawyer says “Copying music you own is stealing.”

I was wondering when this bit of revisionism would take hold. I do not have a side in this battle (or a stake in it, when is my phone going to ring?), and for me it is purely an academic issue which should be framed thusly: “Whether format-shifting music (such as ripping a CD to your iPod) by a consumer for personal use or as a backup is a fair use under the Copyright Act.” For years the RIAA said yes, it was. For instance, during oral arguments in Grokster, the RIAA’s attorney stated to the U.S. Supreme Court:

The record companies, my clients, have said, for some time now, and it’s been on their website for some time now, that it’s perfectly lawful to take a CD that you’ve purchased, upload it onto your computer, put it onto your iPod.

Apparently, however, this was not a use that would fall under any fair use analysis, according to the RIAA, et al, but simply a license they were granting to do so. At least that is how it looked after the music industry filed a joint reply with the government as part of the triennial of the effectiveness of the DMCA. In the reply (pdf), the companies said in one footnote:

Nor does the fact that permission to make a copy in particular circumstances is often or even “routinely” granted, see C6 at 8, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case, is simply a statement about authorization, not about fair use.

Now, in this case which should be a fairly routine one, the subject of fair use arose and here is what Sony BMG’s counsel had to say:

[Judge] Gabriel asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy. [Sony BMG 's attorney] replied, “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ‘steals just one copy’,” she said.

For more on today’s arguments, see Sony BMG’s chief anti-piracy lawyer: “Copying” music you own is “stealing”

The content industry, however, should pick its battles better. There is a good case to be made that, under current fair use analysis, content-shifting is not a fair use, and this is a case that they should easily win. Any of the software manufacturers making CD ripping software would fail both the tests of Sony and Grokster. And why did no one sue Apple for the “Rip. Mix. Burn.” ads?

(note: I do seem to remember that both Roxio www.roxio.com and Apple www.apple.com, which make a majority of the CD ripping/burning software had a deal with EMI to create “secure CDs,” but I am sure that deal died a horrible corporate slow death.)

Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey

Use of copyrighted material located using Internet Archive’s Wayback Machine by defendants for Litigation a fair use

Last month the the U.S. District Court for the Eastern District of Pennsylvania ruled on a case that at first blush seems entirely too long to deal with the subject matter (40 pages). The opinion dismissed the Plaintiff’s claims under copyright law, the Digital Millennium Copyright Act’s anticircumvention provisions, the Computer Fraud and Abuse Act and state common law. However, in finding fair use for the copyright issue the opinion does not go to prior cases on point, such as Bond v. Blum, 317 F.3d 385 (4th Cir. 2003), and instead looks for other ways to determine the case.

A robots.txt file is a protection measure to control access under the DMCA

Lots will be written about this case, specifically about whether the ruling was correct in determining a robots.txt file to be a lock on web material (I remember arguing in 1996 about whether the robots.txt specification, never offically adopted btw, would be used as a means for arguing they limited access to files) for DMCA anticircumvention cases (A robots.txt file is a “technological measure that effectively controls access to a work” under the DMCA). This was previously implied in Field v. Google, 412 F. Supp. 2d 1106 (D. Nev. Jan. 19, 2006), where Google won because the web site owner did not configure a robots.txt file to prevent caching by search engines. This puts another spin on the already irreconcilable views of Lexmark Int’l v. Static Control Components/The Chamberlain Group, Inc. v. Skylink Technologies, Inc. and Universal City Studios, Inc. v. Corley/Universal City Studios, Inc. v. Reimerdes.

For today though there is already plenty of reading, so I will put up those other cases later in the week.


Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, Slip Copy, 2007 WL 2085358, E.D.P.A. (July 20, 2007).

Presently before this Court is the Motion for Summary Judgment filed by Defendant Harding, Earley, Follmer & Frailey, John F.A. Earley III, Charles L. Riddle, Frank J. Bonini Jr., and Kimber Titus (collectively the “Harding firm”). Also before this Court is the Motion for Partial Summary Judgment filed by Plaintiff Healthcare Advocates, Inc. For the following reasons, Defendants’ Motion for Summary Judgment is granted, and Plaintiff’s Motion for Partial Summary Judgment is denied.

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Justice Department delivers proposed Intellectual Property Protection Act of 2007 to Congress

Press release, USNewswire story here. Today the Justice Dept. delivered a draft of The Intellectual Property Protection Act of 2007 to Congress. In it is a current wishlist of new criminal provisions for IP violations, including:

  • Increasing the maximum penalty for counterfeiting offenses from 10 years to 20 years imprisonment where the defendant knowingly or recklessly causes or attempts to cause serious bodily injury, and increase the maximum penalty to life imprisonment where the defendant knowingly or recklessly;
    causes or attempts to cause death;
  • Toughening penalties for repeat copyright infringers;
  • Adding property seizure provisions similar to those used in the “War on Drugs” TM, for IP infringers to forfeit property derived from or used in intellectual property offenses;
  • Adding harsher restitution provisions for copyright and DMCA offenses;
  • Making the exportation and of copyright-infringing goods is a crime.

Complete text of the draft language coming soon.

Digg.com and the AACS code, a legal perspective

The ABA Journal reported on the mass of postings on Digg.com last month of a 32 letter and number series which can be used to circumvent DRM in blu-ray and high-def. DVDs (you’ll need some software too) (this was posted elsewhere, I like the http://09-f9-(etc).com/ URL and the ThinkGeek t-shirt) A user would post, they would receive a cease-and-desist from the Advanced Access Content System (a trade group of entertainment companies), the administrators of Digg would remove the offending content, and then more users would post the code in response. This angered a number of power users on the system, and finally the administrators gave up. So, what is Digg’s liability: does the code fall under copyright (probably not), is this covered by the DMCA (likely so), did Digg give up their DMCA safe-harbor protections by not removing the content (ummm, yes and no), and does 47 USC § 230 give Digg any protection (it depends). Thank the gods, this is why I love the law.

Here is the ABA Journal story: It’s No Secret: Code Stirs Up a Web Storm. Eric Goldman, who is quickly becoming my favorite IP professor (too bad I don’t want to do an LLM at Santa Clara), also gives some analysis in the article.

Under the federal Digital Millennium Copyright Act, it’s unlawful to circumvent technology designed to protect copyrighted work. But the statute also provides a safe harbor for Web site operators in section 512 (c), when users make questionable posts.

“What’s unclear is whether the cease-and-desist notice was sent under 512 or some other rubric we don’t know about, and whether Digg.com, by refusing to honor the notice, lost its eligibility to be protected by safe harbors,” says Eric Goldman, an assistant professor at the Santa Clara University School of Law and director of the school’s High Tech Law Institute.

He also mentions another federal statute, passed in 1996, that provides expansive safe harbor from liability for third-party content. The statute, 47 USC § 230, holds that—providing the post in question doesn’t involve intellectual property—online providers can respond to a complaint however it wants.

So if the secret code is not intellectual property, Goldman says, Digg.com has no liability. But he stresses that continuing to allow the code posts is risky.

Viacom v. YouTube/Google: Google responds, argues free speech

I never expected to be checking the First Amendment category box on this case, but here it is. Full details of the press conference and free speech claim at  silicon.com, news.com, or zdnet, but the real meat is in the response Google filed with the court (pdf). Because it was a fun to read “Defendants deny the allegations . . . ” a hundred times outside of my job, I have decided to reprint it here. Also, Google lists a even dozen defenses, which is a fun read as well.

Here are the 12 defenses, the complete response is below:

DEFENSES

FIRST DEFENSE (DMCA SAFE HARBORS) – Plaintiffs’ claims are barred in whole or in part because Defendants are protected by one or more of the DMCA Safe Harbors in 17 U.S.C. § 512.

SECOND DEFENSE (LICENSE) – Plaintiffs’ claims are barred in whole or in part by licenses, express and implied, granted or authorized to be granted by Plaintiffs.

THIRD DEFENSE (FAIR USE) – Plaintiffs’ claims are barred in whole or in part by the doctrine of fair use.

FOURTH DEFENSE (FAILURE TO MITIGATE) – Plaintiffs’ claims are barred in whole or in part because Plaintiffs have failed to mitigate their damages, if any.

FIFTH DEFENSE (FAILURE TO STATE A CLAIM) – Plaintiffs’ allegations fail to state a claim for copyright infringement of any work not listed on Exhibit A of the Complaint.

SIXTH DEFENSE (INNOCENT INTENT) – Plaintiffs’ damages, if any, are limited by Defendants’ innocent intent.

SEVENTH DEFENSE (COPYRIGHT MISUSE) – Plaintiffs’ claims are barred in whole or in part by the doctrine of copyright misuse.

EIGHTH DEFENSE (ESTOPPEL) - Plaintiffs’ claims are barred in whole or in part by the doctrine of estoppel.

NINTH DEFENSE (WAIVER) – Plaintiffs’ claims are barred in whole or in part by the doctrine of waiver.

TENTH DEFENSE (UNCLEAN HANDS) – Plaintiffs’ claims are barred in whole or in part by the doctrine of unclean hands.

ELEVENTH DEFENSE (LACHES) – Plaintiffs’ claims are barred in whole or in part by the doctrine of laches.

TWELFTH DEFENSE (SUBSTANTIAL NON-INFRINGING USE) – Plaintiffs’ claims are barred in whole or in part based on the doctrine of substantial noninfringing use, although Defendants submit Plaintiffs bear the burden of proving the doctrine’s inapplicability.

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Viacom v. YouTube/Google: lawyers debate the lawsuit

Over at the Utube Blog is a complete rundown of the arguments that Viacom and YouTube/Google’s lawyers made re: their lawsuit on a panel discussion this week at the Fordman IP Conference.

Donald Verrilli, from DC’s Jenner & Block, represents Viacom. He’s the lawyer who succesfully represented the movie studios against Grokster before the Supreme Court.
Alex Macgillivray, Google’s Senior Product and IP Counsel, spoke on behalf of Google and YouTube. Alex has also been affiliated with Harvard’s Berkman Center for Internet and Society. The two lawyers were speaking on a panel with several other lawyers, but I will only discuss the Viacom-Google exchange, summarizing the main arguments in the general order in which they were presented.

Like myself, this author is surprised at how much the attorneys are willing to talk publically. This needs to be played out in court, not at press releases and conferences. From the synopsis it seems that Verrilli’s argument has changed slightly from a few weeks ago.

Digital Millennium Copyright Act section 512 safe harbor basics

The Digital Millennium Copyright Act of 1998 (full pdf of DMCA here) amended U.S. copyright law to limit liability for online service providers for information or material residing on a system or network that the service provider controls.  The infringing material must have been placed on the system at the direction of a user, and, to qualify for safe harbor, the service provider must:  

  • Designate an agent to receive claims of copyright infringement, initiate take-down, receive counter-claims, and initiate restoration as appropriate.
  • Inform users of a policy that terminates service for infringements.
  • Register an agent to receive DMCA claims with U.S. Copyright Office, which is then placed in its directory of registered agents.
  • Identify the DMCA agent via “its service including on its website in a location accessible to the public.”
  • Remove material identified in a claim expeditiously.

In a nutshell, that is it. For purposes of our discussion, YouTube’s registered agent form is here (pdf), and as of Dec. 5, 2005, its registered DMCA agent is:

Heather Gillette
71 E. Third, 2nd Floor
San Mateo, CA 94401
p: 650-343-2960
f: 650-343-2983
e: copyright@youtube.com

For fun sometime, look at the name of the companies listed in the directory. Copyright office + amateur porn sites = hilarity.

Viacom v. YouTube/Google: case filed

I have stayed away from this for the most part, because I wanted to mull a bit on how the analysis from the Napster and Grokster analysis decisions would play out. I have been leaning toward the sort of position posited by Michael Fricklas, one of Viacom’s attorneys, in the Washington Post this week (Our Case Against YouTube), which is that the DMCA will not protect YouTube because of their centralized database, direct knowledge of the infringement, right and ability to control, and direct financial gain. Under Grokster, these guys haven’t a leg to stand on.

However, last Thursday I was driving Prof. Barry Scheck around town sightseeing and to give a speech. Towards the end he asked me what I thought about the suit, and out of my mouth came the following: “There is a non-trivial argument that the Digital Millennium Copyright Act (DMCA Section 512) grants, and was intended to grant, protection for just this type of service provider. While they are aware that copyrighted material is uploaded, they provide a very easy mechanism for rightsholders to identify the material and act quickly (expeditiously) to remove it. The fact that they know it happens is not the same as having direct knowledge of each infringement, which is the benchmark for garnering the DMCA protection. Also, William Patry hired on as Google’s in house copyright counsel. I expect him to be on the winning side.” (At this point Scheck started talking about how “Bill” Patry was a friend, and when did he go to Google, etc. – stuff that doesn’t matter here).

And, in the end, I think that my off the cuff answer is much better than any strained and dutifully precise answer I can give under Grokster. I don’t think that the court will ever get to looking at the same factors involved in the Napster and Grokster court cases–they will do a DMCA analysis, see that its provisions protect a diligent service provider like YouTube, and call it a day. If they should, I also don’t see the encouragement element that existed in Grokster. Yes, uploading a South Park joke is fun, but providing an easy tool for doing so is not encouragment, only the sign of a good product interface.

While we are on the subject, another of Viacom’s counselors, Douglas Lichtman, wrote an editorial for the Los Angeles Timeslast week. published last Saturday in which he also argued that YouTube’s knowledge of users’ actions will inevitably tip the scale in his client’s favor. I am actually quite troubled that these attorney’s are trying to lay their case out in the public forum instead of issuing a standard press release and leaving it up to the outcome of the lawsuit. While there is no rule prohibiting this type of activity, it has the appearance of impropriety, which is what kills the reputation of the profession in the mind of the general public and serves only to feather the public reputation of the attorney. This issue is too complex for a layperson to understand after reading a 500 word editorial in the Saturday edition.

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