Customer of domain name registrar (Intercosmos Media dba DirectNic) allegedly uploads infringing material. Copyright owner sues registrar. Registrar seeks declaratory judgment of non-infringement as copyright owner didn't complay with DMCA.
Ugh, now it's stuck in my head.
Never gonna let you down.
Mediocre song.
Never gonna run around and desert you.
This Rickrolling thing has gone a tad far.
Never gonna make you cry.
Anyway, the Mets got rickrolled, there was a video . . .
Never gonna say goodbye
and MLB used DMCA to shut it down.
Never gonna tell a lie and hurt you.
Ars Technica: "With a Death in Congress, an IP Shakeup Looks Likely"
Rep. Tom Lantos' (D-CA) death from esophageal cancer last night leaves an opening at the top of the House Foreign Affairs Committee, an opening that appears to be perfectly shaped like Howard Berman (D-CA). Berman is expected to take over the foreign affairs post, which will open his current spot as chair of the Subcommittee on Courts, the Internet and Intellectual Property. Rick Boucher (D-VA), who's in favor of expanded fair use rights and DMCA reform, looks to be next in line.
Berman hails from Hollywood and has been a powerful Congressional backer of the entertainment industry. Known as Congressman Hollywood, he's pushed everything from higher radio station royalty payments to the MPAA's campaign against colleges to the current PRO-IP Act.
ArsTechnica: "Song BMG's Chief Anti-Piracy Lawyer: "Copying" Music You Own Is "Stealing":
"Testimony today in Capitol Records, et al v. Jammie Thomas quickly and inadvertently turned to the topic of fair use when Jennifer Pariser, the head of litigation for Sony BMG, was called to the stand to testify. Pariser said that file-sharing is extremely damaging to the music industry and that record labels are particularly affected. In doing so, she advocated a view of copyright that would turn many honest people into thieves."
The Register: "Parents' Fury at Google's Copyright Roadblock":
"Imagine if you walked into Scotland Yard to report a crime involving children, only to be given a telling off, before you'd opened your mouth, about the dire penalties for wasting police time. And that your complaints would be forwarded to a watchdog - and that you'd better come back with a lawyer.
That's how a group of parents feel after seeing photographs of their kids defaced on Orkut. Members of Google's social network created "mash-ups" of photographs originally posted to Flickr - adding text, some of which contained sexual innuendo, for children as young as five."
Slashdot: "Creationists Silence Critics with DMCA":
"As richarddawkins.net reports., an organization called Creation Science Evangelism Ministries has been submitting DMCA copyright requests to YouTube resulting in the Rational Response Squad being banned after they protested against videos being taken down and accounts being closed by YouTube. Rational Response Squad are attacking creationism (AKA intelligent design) and promoting the atheist viewpoint."
Now there's a title. The Register:
"Three years ago, Timothy Vernor quit his day job to enjoy life as a full-time eBay junkie. His online store, Happy Hour Comics, typically sells comics-related collectibles and vintage toys, but about 24 months back, he walked into a "garage sale" and stumbled onto a copy of AutoCAD, the professional design tool that Autodesk prices at roughly $4000 a pop - and he decided to sell that on eBay too.
Well, Autodesk got all huffy. The software maker chucked a DMCA claim at eBay, insisting that Vernor's AutoCAD auction was in violation of the U.S. Digital Millennium Copyright Act (DMCA). eBay promptly yanked the auction, but in an act of defiance rare among internet users, Vernor sent Whitman and company a counter-claim, insisting it put the auction back up."
Late last month . . . Viacom put the screws to Star Wars-loving North Carolinian Christopher Knight for posting his own TV ad to the world's most popular video-sharing web site. Yes, he also posted a sliver of Viacom-owned content, but most of the video was his - and he wasn't doing anything Viacom hadn't already done to him. Nonetheless, Viacom ordered YouTube to yank the clip - in which Knight waves a light sabre at federal legislation - and our hero received a digital form letter threatening to destroy his account.
But Jedi Knight filed a counter-complaint, risking a lawsuit from Sumner Redstone and company, and for once, YouTube justice was served. Viacom eventually bowed to internet common sense, and late Tuesday night, the clip was restored.
The fact that the guy's name is Knight adds a certain,uh, coincidence to the story.
MP3 recording of "Everyone's A Winner At Nixon Peabody"
AboveTheLaw discussing the demand letter they received from Nixon Peabody.
The Fair Use Extended Dance Mix on YouTube:
Denise Howell chronicles the spat. Join the Between Lawyers Group on Facebook to join the pile-on.
WSJ.com: Facebook Pulls Audio Service From Web Site
"Social-networking start-up Facebook Inc. says it pulled a service called Facebook Audio from its Web site because the service violated copyright rules. Facebook Audio allowed Facebook users to play full-length songs within its pages. . . . The RIAA had written July 9 to Facebook Audio, asking it to remove pages on Facebook that contained links to outside Web sites that had posted infringing material."
Today's WSJ has a special section entitled "All Things Digital" that is a must-read for many reasons. From an interview with the CEOs of Viacom and Google we get the following:
Mr. Daumann (CEO of Viacom): The DMCA was not intended to cover a company that is in the media business that has knowledge of the copyright violation. [It was intended to cover] companies that are involved in the building blocks of the Internet - routing, caching, all the rest. I go to every media conference and I see these guys [Google]. They're a media company. So that's great. They can create their own content. They can have user-generated content.
. . .
Mr. Schmidt (CEO of Google): . . . As we read the law, it is pretty clear that there is a safe haven for sites on the Internet that host content that is incorrectly or illegally uploaded, as long as they take it down promptly. And indeed we do that. We are busy building tools that will automate as much of that process as we possibly can, because it is crazy having people doing this stuff manually . . . [Viacom] should have waited for the tools.
Dave Winer's take on AT&T's cooperation with the RIAA and MPAA" "I Don't Believe in the Death Penalty . . . for People".
TechNewsWorld: "Open Source and the DMCA: What Hath Digg Wrought?" (discussion of the Digg/09 F9 matter, raising two questions (1) what will be the effect of civil disobedience on DMCA; and (2) how does one remove food coloring from a swimming pool?)
Perfect 10 v. Google and Amazon, 06-55405 (9th Cir. May 16, 2007)
Summary of Perfect1o decision by John Ottaviani.
Comment by Oren Kerr on what constitutes a copy here.
Via Boing Boing, EFF takes on Uri Geller's use of the DMCA.
A UK Columnist for ZD Net illustrates the "food color in the swimming pool" problem by pointing out that the DMCA is not the law in the UK and then proceeding to print the 09 F9 number.
WEbProNews: "YouTube Caught In Malkin, EFF, UMG Crossfire" (Columnist Michelle Malkin posted concert footage on YouTube as part of her criticism of performer Akon - UMG sends a DMCA notice)
Text of complaint (via WSJ Online) in The Football Association Premier League v. YouTube (works in question include soccer games).
WSJ law blog coverage here.
Dave Winer has an interesting take on the Digg/09 F9 brouhaha that is perceptive not only because he agrees with me about the 'who can own a number' red herring but also because he notes the marketing and legal bind a pure user-generated content site is in when it comes to enforcing the DMCA.
The story so far: someone hacked a decryption key and every one was having great fun disclosing the key (search the term '09 F9' and you will get an idea of the magnitude of this). User-generated content sites, such as Digg, are great places for this sort of thing. but when the owners of Digg received a DMCA C&D letter, Digg began taking all the offending posts down.
This prompted what has been described as a 'user revolt' and Digg reversed itself and is no longer taking down posts containing the key. It is characterizing this as a principled stand, and if this provokes a bet-the-ranch lawsuit, then, in its words, it will go down fighting the good fight (no comment). So now Digg has voluntarily left the DMCA safe harbor.
As Dave discusses, the owner of a site that primarily consists of user-generatred conent is in a quandary. DMCA, in one way of looking at it, was intended to get the ISP out of a customer-relations problem by allowing it (forcing it, in effect) to take a hostile act against what was perceived as an infinitesimally small percentage of customers. What happens when a large percentage of (until recently, loyal) customers are using the site to commit what is arguably an overt illegal act. The choice may be between being sued by powerful copyright owners and alienating many customers (in a market where there are no shrotage of competitors).
Now, it may be the case that Digg's risk here is manageable. The decryption key, we are told, is obsolete, and perhaps the key's owner is not motivated to sue Digg out of business. But the general problem is this. As Dave points out, not only might be a certain percentage of the users in user-generated content world, be actively hostile to copyright, they have a proprietary sense with regard to sites that consist mostly of UGC (not that YouTube split the Google money with them). The UGC site owner is caught between a rock and a hard place. Dave suggests one possible approach.
Text of answer in Viacom v YouTube.
If someone had taken your online banking username and PIN number, and disseminated them on the Internet, then you would likely find expressions such as "censorship" and "how can you claim ownership in a number?" to be trite and, in this instance, besides the point.
EFF provides the background law for the dissemination of an alphanumeric decryption code for a DRM product. A timeline of how the key spread would be of value.
Digg's experience will make an interesting case study in how to manage risk in the era of user-generated content (and the disconnect between what a CEO believes he/she needs to say to their customers, and what a lawyer would have them say).
More coverage: IHT: 'A Lesson In Mob Rule On The Web."
UPDATE: News.com on how various websites responded to DMCA letters from AACS, owners of the decryption key in question.
NewTeeVee.com: 'Anticipating Google's 'Claim you Content'" (a system that 'somewhat automates' the DMCA process for copyright owners, that, as the article notes, reduces some of the cost but keeps the burden of enforcement on the copyright owner).
Ars Technica: "Viacom: 'We goofed on Colbert Parody Takedown Notice" (Viacom and EFF resolve dispute over Colbert parody clip).
On April 24th at 6:30 PM in the Moot Court Room at Benjamin N. Cardozo School of Law, The Cardozo Intellectual Property Society Presents
"Viacom vs. GooTube: Solving the User-Generated Gridlock"
1.0 CLE credit Available in Areas of Professional Practice
To RSVP, respond to: youtubepanel at gmail dot com
Featuring:
Stanley Pierre-Louis, Esq.
Kaye Scholer, LLP
Mark Anderson, Esq.
MasurLaw
John Delaney, Esq.
Morrison & Foerster, LLP
Moderated by:
Jonathan Purow
CSL '07
STANLEY PIERRE-LOUIS is Special Counsel at Kaye Scholer LLP in New York, where he is involved in counseling and litigation in the areas of entertainment law, intellectual property and other related fields. Prior to joining Kaye Scholer, Mr. Pierre-Louis served as Senior Vice President of Legal Affairs for the RIAA, where he developed enforcement strategies and managed the record industry's litigation in various cases, including Napster, MP3.com, Aimster and Grokster.
MARK G. ANDERSON is Associate Counsel at MasurLaw, where he focuses on intellectual property licensing, copyright issues, contracts, and general corporate and transaction work. Mr. Anderson drafts and negotiates a wide variety of licensing arrangements, management, recording, and digital distribution deals. Prior to joining Masur & Associates, Mark was Director of Business Affairs for License Music Now and Contracts Manager for Vault Music Services.
JOHN F. DELANEY is a partner in the New York office of Morrison & Foerster, where he serves as Co-Chair of the firm's Technology Transactions Practice Group. Mr. Delaney has substantial experience in advising companies on cutting-edge issues such as user-generated content, Section 512 safe harbors, virtual reality and electronic contracts. Mr. Delaney has appeared on the cover of the American Lawyer as one of the "lawyers for the new economy" and on the cover of New York Lawyer as one of "fifteen lawyers 40 and under shaping the law for the 21st Century." Crain's New York Business included him in its "Technology 100," a list of individuals "likely to shape the direction and growth of New York's economy for years to come."
MichaelGeist.ca: "DMCA Architect Acknowledges Need For A New Approach": (Former head of the Patent and Trademark Office, Bruce Lehman, influential in the creation of the DMCA, during a panel conference (available on video):
". . . Lehman says that we are entering the "post-copyright" era for music, suggesting that a new form of patronage will emerge with support coming from industries that require music (webcasters, satellite radio) and government funding. While he says that teens have lost respect for copyright, he lays much of the blame at the feet of the recording industry for their failure to adapt to the online marketplace in the mid-1990s."
Wendy Seltzer recovers from her first DMCA takedown and get her video of NFL's copyright warning put back up on YouTube.
This is only the second time I've used the word 'chutzpah' in 5 years of blogging, but, if the facts are as they appear, the use is justified.
Voicing an apparently widespread belief, comic Joe Rogan accused Carlos Mencia of stealing jokes. Rogan showed up at Mencia's act at the Comedy Store, and films a confrontation in which he accuses Mencia of plagiarism. Rogan uploads the video to YouTube. Mencia then uses the DMCA to remove the video that accuses him of plagiarism.
Rogan's website and Google Video still show the video.
UPDATE: A reader writes to advise that Rogan was onstage, made a remark about Mencia, then Mencia took the stage. More from Rogan about the protection of stand up comedy material, or lack thereof, here.
Wendy Seltzer: "My First DMCA Takedown":
"On Feb. 8, I posted to YouTube a clip taken from the Super Bowl: not the football, but the copyright warning the NFL stuck into the middle of it, wherein they tell you it's forbidden even to share "accounts of the game" without the NFL's consent.
Their copyright bot didn't seem to see the fair use in my educational excerpt, so YouTube just sent me their boilerplate takedown. Time to break out that DMCA counter-notification."
As the price of digital-playback devices (i.e. iPods) plumment, we may see more and more 'pre-loaded' offerings. Here a discussion of Load 'N Go, a company that pre-loads iPods with video content (and bundles the related DVD). However the question arises whether it is cricumventing DRM sfotware to do so. Via IP Due Diligence Blog.
Lawgarithms (aka Denise Howell): UMG sues MySpace in a no-lose proposition, draws Grokster judge."
This seems like a paradigmatic lawsuit for IP on the Internet.
Plaintiff creates a guide relating to Defendant's product, which product is protected by TM and Copyright. Plaintiff sells the guide on eBay. Defendant notifies eBay that Plaintiff's product infringes, and requests termination of eBay auctions, pursuant to its VERO program. Plaintiff submits multiple VERO requests using at least two claimant names. Plaintiff might characterize Defendant's actions as 'gaming VERO' and the DMCA (see complaint for Plaintiff's description of the correspondence between Defendant, eBay and Plaintiff).
While, as far as I can tell, there has not yet been a determination of whether plaintiff's product does in fact infringe Defendant's rights, Plaintiff's product appears to have been kept off eBay several times during November and December.
Plaintiff has now sued Defendant for, inter alia, tortious interference.
Coverage here.
Removal of a trademark logo and link is not 'removal of copyright management information' as barred by the DMCA. The District Court for New Jersey dimissed a copyright claim, interpretating 'copyright management information' as being part of an automated system, not part of a manual system (such as affixation of a copyright notice).
IQ Group v. Weisner Publishing, 03-5221 (D NJ Jan. 10, 2006) (via Rutgers, via BNA).