The Digital Millennium Copyright Act of 1998 (DMCA), 17 U.S.C. 512(c), establishes a safe harbor which gives qualifying Internet service providers protection from liability for copyright infringement when their users upload infringing material on the service provider’s site and the service provider is unaware of the infringement. Plaintiffs filed suit against Vimeo alleging that Vimeo is liable for copyright infringement by reason of 199 videos posted on the Vimeo website, which contained allegedly infringing musical recordings for which plaintiffs owned the rights. In this interlocutory appeal on certified questions from rulings of the district court interpreting the DMCA, the court concluded that the safe harbor of section 512(c) does apply to pre-1972 sound recordings, and therefore protects service providers against liability for copyright infringement under state law with respect to pre-1972 sound recordings, as well as under the federal copyright law for post-1972 recordings. Therefore, the district court’s grant of partial summary judgment to plaintiffs with respect to Vimeo’s entitlement to the safe harbor for infringements of pre-1972 recordings is vacated. The court also concluded that various factual issues that arise in connection with a service provider’s claim of the safe harbor are subject to shifting burdens of proof. Because, on a defendant’s claim of the safe harbor, the burden of showing facts supporting a finding of red flag knowledge shifts to the plaintiff, and the district court appears to have denied Vimeo’s motion for summary judgment as to a number of videos on this issue based on a test that would improperly deny service providers access to the safe harbor, the court vacated the denial of Vimeo’s motion for summary judgment on that issue. The court remanded for reconsideration and further proceedings. Finally, the court rejected plaintiff’s argument that the district court erred in its ruling in Vimeo’s favor as to plaintiffs’ reliance on the doctrine of willful blindness. Accordingly, the court affirmed in part, vacated in part, and remanded for further proceedings.
BWP Media USA v Clarity Digital Group, 10th Cir re Use of DMCA re Content Generated by Independent Contractors
Justia summary: Plaintiff-Appellant BWP Media USA, Inc. d/b/a Pacific Coast News and National Photo Group, LLC (“BWP”) appealed the district court’s grant of summary judgment in favor of Defendant-Appellee Clarity Digital Group, LLC n/k/a AXS Digital Media Group, LLC (“AXS”). BWP owned the rights to photographs of various celebrities. In February 2014, BWP filed a complaint alleging that AXS infringed its copyrights by posting 75 of its photographs without permission on AXS’s website, “Examiner.com.” Rather than hiring a centralized writing staff, the content generated on Examiner.com was created by independent contractors, called “Examiners,” all over the world. Because it was a group of Examiners that posted the infringing content on Examiner.com, AXS asserted it was protected under the DMCA’s safe harbor provision. .” AXS asserted it was protected from liability by the safe harbor provision of the Digital Millennium Copyright Act (“DMCA”) and moved for summary judgment. The district court agreed. Finding no reversible error, the Tenth Circuit also agreed and affirmed the district court.
Actors’ Equity Association apparently polices YouTube on behalf of its actor members. Plaintiff uploaded a video and AEA sent a DMCA notice, erroneously believing that the uploading was without authorization of an AEA member. In fact plaintiff owned copyright in the work. Plaintiff sues AEA on copyright grounds. Held: AEA may have interefered with plaintiff’s ‘performance’ right but that in itself not copyright infringement, as AEA did not make an unauthorized copy of the work. The court then notes sua sponte that this is not a ‘false DMCA’ counterclaim as AEA did not knowingly make a misrepresentation in its DMCA. At best it behaved negligently.
Decision Actors Equity Dmca
A website named Photoshop Disasters reproduced a Ralph Lauren magazine ad. Boing Boing ran the photo. Ralph Lauren’s attorneys sent a DMCA notice. Boing Boing reported on the letter and ran the photo again, and Chilling Effects reproduced the DMCA letter as well.
Maybe the model is really skinny, maybe it’s the angle, maybe it’s photoshopped. Also, the photo is of the magazine page itself, which seems to be curved toward the viewer, which may make her look thinner.
p.s. Boing Boing’s ISP is apparently in Canada.
Plagiarism Today: “Twitter and the DMCA: A Fine Mess“:
Over the past few weeks, I’ve been getting a lot of requests for information about Twitter and their DMCA procedure. Most of these issues stem from avatar or backgrounds that are infringing, not the tweets themselves. It seems the exponential increase in Twitter members has brought with it a wide range of individuals who are decorating their profiles with the works of artists that didn’t grant permission.
However, I’ve been hard pressed to advise these people as Twitter’s DMCA process is an unadulterated mess. There are three separate policies, one of which appears to be out of date, two separate email addresses and three different means of filing a notice.
NZ PC World: Google Submission Hammers Section 92A [proposed NZ DMCA type regulation]:
Google has made a detailed submission to the Telecommunications Carriers Forum that heavily criticises the draft code of practice for ISPs in relation to section 92A of the Copyright Act.
In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.
With regard to businesses targeting DMCAs agaisnt competitors, I think that’s neither here nor there.
With regard to 37% of notices not being valid copyright claims, When I first read this PC World article, my inital reaction was: I don’t see how Google evaluate the validity of a copyright based on the information provided in a DMCA notice. For example, neither the presence nor absence of a copyright registration is conclusive as to validity. If Google had conducted a survey of DMCA notices and came to that conclusion, then that is interesting but what was more likely was that the 37% number would simply become a ‘fact.’
Then I came across this article from TechDirt and if you dig through the comments, someone came across what appears to be the original survey that Google cited for the 37% number, and the situation is much more complex. These are findings from the executive summary:
– Thirty percent of notices demanded takedown for claims that presented an
obvious question for a court (a clear fair use argument, complaints about
uncopyrightable material, and the like);
-Notices to traditional ISP’s included a substantial number of demands to remove
files from peer-to-peer networks (which are not actually covered under the
takedown statute, and which an OSP can only honor by terminating the target’s
Internet access entirely); and
-One out of 11 included significant statutory flaws that render the notice unusable
(for example, failing to adequately identify infringing material).
In addition, we found some interesting patterns that do not, by themselves, indicate
concern, but which are of concern when combined with the fact that one third of the
notices depended on questionable claims:
Over half—57%—of notices sent to Google to demand removal of links in the
index were sent by businesses targeting apparent competitors;
Over a third—37%—of the notices sent to Google targeted sites apparently
outside the United States.
So that’s the source of the 37% number. Now, given that the DMCA doesn’t apply to non-US sites, then DMCA notices targeting such sites would be flawed, even if they concerned potentially valid US copyright claims. So an allegation that 37% of the DMCA notices sent to Google are jurisdictionally flawed may be correct, but that they are not valid copyright claims is a mis-characterization.
Also of interest, is the idea that Google receives as many DMCA notices as it does. The survey does raise the issue that on its face, stating that:
These notices are somewhat troubling in and of themselves, as merely providing a link is unlikely to create secondary liability for the search engine, in the first place.)
but see Section 512(d) of the Copyright Act, referring to circumstances where a provider of an ‘information location tool’ might be liable.
See this Chilling Effects discussion of Google’s relationship to the DMCA for more information. There’s an interesting statement in that piece, namely that taking something out of Google’s index is akin to taking it off the Net. Unfortunately, at times, the converse is true as well.
Having said that, there is a problem with DMCA notices based on invalid copyright claims. The idea raised by Google of a neutral evaluating a limited record (analogous to a UDRP type proceeding) is not a hysterically implausible suggestion.
UPDATE: Google’s info page on the DMCA.
NewTeeVee: No End in Sight for Critical Viacom-YouTube DMCA Case” (Discussion of discovery dispute regarding BayTSP, a vendor Viacom employs to police copyright).
Ars Technica: “Coupons, Inc. drops DMCA Lawsuit Against Coupon Hacker“:
A copyright lawsuit against a man who posted instructions on how to print unlimited copies of coupons has been dropped. The defendant, John Stottlemire, posted to his website this week that he had reached a settlement with Coupons, Inc. after a year-long legal battle over the digital coupons, and that Coupons would not be able to file another similar action against him.
In late 2007, Stottlemire posted instructions to tenbucks.net detailing how to perform a number of registry key modifications under Windows that would allow users to print unlimited online coupons offered by couponsinc.com. Without the “hack,” users are technologically limited to printing only one coupon apiece.
Marketwatch.com: “Google Opens New Front In Battle Over Viacom’s ‘Copyright Cop“:
In a motion filed in federal court in San Jose, Google demands internal records from closely-held BayTSP Inc., one of a number of firms that offer copyright-policing services.
. . .
In a court filing, Google argues that BayTSP’s documents will “refute” Viacom’s own assertion that it can’t be expected to track down the improper use of its content. They will also demonstrate that Viacom routinely uploaded its own content to YouTube while asking BayTSP to avoid flagging it and requesting its removal — illustrating Viacom’s ability to manage the appearance of its content on YouTube for its own benefit, according to Google.