September 30, 2009
1909 Copyright Act Conference Recap (five months late...)
By Eric Goldman
[Note: I'm embarrassed to admit that it has taken me 5 months to write this recap. Normally at this late date I'd just give up, but for an event 100 years in the making, a 5 month delay is a drop in the bucket]
Back in April, the High Tech Law Institute and the Berkeley Center for Law & Technology co-sponsored a Conference on the 100th Anniversary of the 1909 Copyright Act. The event brought together two dozen top copyright experts as speakers and attracted a huge and enthusiastic audience of over 150 folks (that's after a huge flake rate exacerbated by the height of swine flu fears). For a niche topic with only a little relevance to most folks' daily practice, the audience turnout exceeded our wildest expectations.
Overall, the single biggest theme of the day was the speakers' love/hate relationship for the formalities-driven 1909 Act, which largely divided on generational lines. Folks who practiced under the 1909 Act came to bury it, not praise it. For example, Marybeth Peters said the "1909 Act served its purpose, and I'm glad it's gone." Jon Baumgarten, GC of the Copyright Office at the time of the 1976 Act, had even less kind things to say about the 1909 Act. Among other things, he said that he was "astonished by the nostalgia for the 1909 Act," that "everyone working towards the 1976 Act thought they were making a very substantial improvement," and "the wonderful world of copyright formalities was really only wonderful for the lawyers." (He gave a horrifying example of writing a 30 page memo on the differences between affixing a work with a circle C vs. a triangle C).
In contrast, folks who started practicing after the 1976 Act largely lamented the progressive loss of formalities since the 1976 Act. For example, Bill Patry praised the 1909 Act as "one of the great copyright acts of all time, superior to our current one," and he ended his talk with a rallying cry: "Long Live the 1909 Act!"
This struck me as a classic grass-is-greener situation. Formalities served the valuable purpose of excluding works from copyright protection, increasing the public domain, but formalities also can be illogical, unfair and just plain tedious. In either direction, whether you like copyright formalities or not, be careful for what you wish for!
One other contextual note: As it turned out, the conference came just days after the sad passing of Barbara Ringer, the former register of copyrights who is largely credited as the author of the 1976 Copyright Act which ended the 1909 Act and wiped away its formalities. A WSJ retrospective on Barbara Ringer.
Other Media Coverage
Some other recaps from the day:
Colette Vogele did an amazing job of live tweeting the event (something I still find amusing--as if there would be hot news about a statute that has been dying for the past 33 years!). Look for her tweets from April 30, 2009. I know there were numerous other tweeters in the audience, but unfortunately my references to those have dissolved in my 5 month delay, and Twitter's search engine is non-functional.
Relive the Day!
If you didn't make it (or even if you did), you can watch the videos from the event at iTunesU (sorry, the iTunes client required). The specific sessions:
* Marybeth Peters' opening keynote address
* First panel--Copyright Subject Matter
* Second panel--Authorship and Ownership
* Bill Patry's lunchtime keynote address
* Third panel--Formalities
* Fourth panel--Rights & Limits, Part 1
* Fifth Panel--Rights & Limits, Part 2
* David Nimmer's closing keynote address
Thanks to the speakers and everyone who came for such a great day!
September 29, 2009
Another Copyright Owner Doesn't Like 512(c)...and Thinks an Anti-Copying Filter is Copyright Infringing--Scott v. Scribd
By Eric Goldman
I hadn't planned to blog on this lawsuit, but I was finally prompted to read the complaint and thought there was enough stuff to ridicule to warrant a brief post:
There can be a fine line between brilliance and crazy when it comes to new lawsuits, and this one falls on the crazy side of that equation. It is a frontal assault on the DMCA online safe harbors and a backdoor assault on the burgeoning efforts to develop anti-copying filters. I think both efforts are wildly misdirected.
The 512(c) Assault
With respect to 512(c) assault, the plaintiff doesn't bring much new to the party. If 17 USC 512(c) preempts all flavors of copyright infringement (both direct and secondary), then this lawsuit is probably DOA.
Note: Fred kindly linked to my write-up of the recent UMG v. Veoh ruling but took issue with my assessment that it's ambiguous if 512(c) only preempts direct copyright infringement or all flavors of infringement. He correctly notes that the legislative history is entirely clear that 512 preempts all flavors…but this only helps if a court reaches that legislative history. On its face, the statute has express exclusions that mirror language from the secondary copyright infringement tests, so other courts could simply rely on the statute to narrow the statutory protection only to direct infringement. Indeed, a number of courts have implicitly reached this interpretation without acknowledging the ambiguity; which made the UMG v. Veoh's determination that the words in the statute mean something different than the exact same words used as part of the vicarious copyright infringement test all the more interesting.
Back to Scribd's 512(c) defense. Recall that I said the lawsuit was “probably” DOA. As part of trying to oust Scribd from 512(c), the plaintiffs challenge Scribd's compliance with the statutory formalities by noting an inconsistency between Scribd's contact info on its site and in its copyright office filing. (See para. 35-36). It's possible that this highly technical "problem" could be a greater threat to Scribd's 512(c) eligibility than the plaintiff's more substantive assaults.
The Copyright Filter Assault
With respect to the fact that Scribd uses copyrighted works to create a filter to prevent their reloading, I think this lawsuit is way, way off-base.
First, the Fourth Circuit recently held that the Turnitin anti-plagiarism filter (built using copyrighted works that were, in some cases, included in the system through quasi-coercion) was a fair use. See my blog post on the district court ruling AV v. iParadigms for more detail on the coercion and fair use points. Further, in that case, Turnitin monetizes its database directly by licensing access to it, while the complaint apparently alleges that Scribd uses the database only for its own filtering purposes and does not license it to others. As a result, Scribd's internal usage of the database (without separate monetization) seems like it would tilt the fair use equitable factors even more clearly in its favor.
Alternatively, courts could reach fair use by concluding that Scribd's copying into the filter is an intermediate copy to create a non-infringing/fair use output. See, e.g., Sega v. Accolade; Kelly v. Arriba; Perfect 10 v. Amazon. In fact, as far as the complaint indicates, Scribd never republishes any of its copy used for filtering, while Turnitin republished portions of its copies as part of its originality reports.
Second, several courts recently have encouraged defendants to build filters to suppress infringing or wrongful behavior and given the defendants extra legal protection because they are using these filters. See Io v. Veoh; UMG v. Veoh; Tiffany v. eBay; Cisneros v. Yahoo. For example, the recent UMG v. Veoh case lauded Veoh for upgrading its infringement suppression filter from a weak hashing technology to the more robust Audible Magic system. Given this trend, it seems likely that future courts will legally protect efforts to build more robust anti-copying filters, even if copyrighted works are copied along the way.
Third, this attack on the filtering efforts, and the fact that it's probably not Rule 11 sanctionable despite its ridiculousness, shows just how misdirected copyright law has gotten. The plaintiffs seek to set up what Wikipedia says is a "Morton's Fork" (which, I think, most people refer to as a Hobson's choice). A service provider can choose not to automatically filter the site, in which case infringement can run rampant and excise the service provider from 512(c) based on the statutory technicalities and exclusions. But if the service provider builds a filter to automatically filter for copyright, the plaintiffs believe the service provider should face liability for building the filter.
Courts recognize and would like to avoid this dilemma, and the copyright owners' countervailing interests are weak. Other than the theoretical and highly formalistic loss of control over their copyrighted works, exactly how are copyright owners harmed by having their works in Scribd's anti-copying filtering database? (Some of us would argue that the only harm is if the filter actually blocks potentially valuable exposure that might have come from having the works published through Scribd, but I don't think that's what the copyright owners are complaining about!). The filter helps copyright owners prevent future infringements, so in that respect it only preserves, not reduces, the value of the copyrighted works. Thus, without any harm, lawsuits like this simply reflect a ridiculous effort to use copyright law to stop progress. This isn't what copyright law is about, and it’s dispiriting to see some copyright owners try nonetheless.
September 24, 2009
Person v. Google Appeal Rejected
By Eric Goldman
Person v. Google, 2009 WL 3059092 (9th Cir. Sept. 24, 2009)
In June 2007, I wrote:
"Person is a lawyer and a former candidate for NY Attorney General. He sued Google for antitrust violations based on its AdWords practices. The first court rejected his suit for improper venue. Person tried again in Google's home court, and Judge Fogel dismissed the lawsuit a second time (with leave to amend) in March. Person didn't give up, but this time Judge Fogel closed the door for good, dismissing the lawsuit a third time--this time with prejudice--because Person didn't cure the defects with his allegations of the relevant market. So this lawsuit should be over unless Person decides to take it to the Ninth Circuit."
Winning points for persistence but simultaneously losing points for questionable legal judgment, Person did in fact appeal the case to the Ninth Circuit. However, he unsurprisingly didn't make any greater headway on his case. In a non-precedential memorandum opinion, the Ninth Circuit needed only 2 paragraphs to breezily brush Person's appeal aside. As I also said in my 2007 post, "While this particular lawsuit was misguided from inception, I doubt this is the last time Google will face antitrust challenges."
September 22, 2009
Google Confirms That Keyword Metatags Don't Matter
By Eric Goldman
Few Internet technologies have horked cyberlaw as much as keyword metatags. Back in the 1990s, some search engines indexed keyword metatags, which encouraged some websites to stuff their keyword metatags as a way of gaming the rankings. Judges took a dim view of this practice, largely because the surreptitious nature of keyword metatags seemed inherently sinister, regardless of their efficacy. In the interim, search engines wizened up. Some search engines stopped indexing keyword metatags, and others greatly diminished the credit they assigned to keyword metatags. As a result, for the better part of this century, keyword metatags have had either zero or de minimis effect on search engine placement.
However, the anti-keyword metatag legal doctrines developed in the 1990s have persisted, even as the technology changed. Although occasionally judges have gotten it right (see, e.g., Standard Process v. Banks). most courts still treat the presence of a third party trademark in keyword metatags as essentially a per se trademark infringement--even if the keyword metatags didn't (and couldn't) change the search results ordering or any consumer's behavior. For a quick sense of the ridiculous state of keyword metatag jurisprudence, take a look at my recent blog posts on the topic.
The current state of nature has put keyword metatag defendants in a bind. On the one hand, the law treats the inclusion of third party trademarks as per se trademark infringement. On the other hand, everyone in the industry knows they are irrelevant but search engines have been less than forthcoming about the components of their search engine algorithms, leaving scanty citable material to support that proposition. And judges, deciding between the weight of a dozen years of anti-keyword metatag legal precedence and not-from-the-horse's-mouth assessments of keyword metatag efficacy, not surprisingly continue to stick with the outdated legal precedent.
This makes Google's announcement yesterday so exciting. Google's star techie Matt Cutts says in plain language that Google's core search algorithm ignores keyword metatags. This isn't news in the sense that we've known this about Google for years, but I believe this is Google's first public confirmation of keyword metatag's irrelevancy. Matt's short video clip goes so far to tell trademark owners to quit suing over keyword metatags. Amen!
I've long believed that trademark law shouldn't intervene even if search engines index keyword metatags because merely appearing in the search engine results for a third party trademark (without more) should be legally immaterial. Even if you don't agree with me on that proposition, I trust most everyone can agree that trademark law should ignore keyword metatags if search engines do. Now that we have confirmation that the dominant search engine disregards keyword metatags, let's hope judges do the same.
September 21, 2009
Israeli Judge Permits Unlicensed Sports Event Streaming—FAPL v. Ploni (Guest Blog Post)
Case No. 1636/08, Motion 11646/08, The Football Association Premier League Ltd. V. Ploni and others [in Hebrew], Tel Aviv District court, Judge Agmon-Gonen, Sept. 2, 2009.
[Eric’s introductory note: I have received several emailed references to the recent Israeli copyright decision involving the Internet streaming of a live sporting event in Israel. Normally, I don’t blog foreign decisions because (1) it’s hard enough to keep up with US legal developments, and (2) it’s even harder to understand the subtleties of a foreign judgment without intimately knowing the entire legal context. Fortunately, Yoram Lichtenstein, an Israeli IP lawyer who represented the defendant in this case, approached me offering to write a guest blog post contextualizing the decision from an Israeli context. Obviously, Yoram has an interest in this case, but that makes his perspectives especially helpful in deciphering the interesting and complex opinion.]
The Tel Aviv (Israel) District court's recently issued a decision regarding copyright protection for streaming live football (soccer to American readers) in Football Association Premier League (FAPL) v. Ploni. The decision tackles several major issues, including international jurisdiction over the Internet, Israeli John Doe procedure, what constitutes copyright infringement (whether streaming live sports over the Internet breaches copyright at all), and more. But the main issues that caused the greatest stir here in Israel were (1) how the court defined and addressed the public's right to access copyrighted material (yes!), and (2) the unusual analysis of fair use under Israeli law.
New User “Rights”
The court addressed the public’s rights under the law (such as fair use) as a “right” deriving from the Human Rights Declaration of 1948 and other doctrines. As a result, the users’ legal rights are accompanied by a duty of another (the copyright holders) to allow their activities. Accordingly, the court’s reasoning could potentially create new causes of action when a copyright owner deprives users of protected “rights.” If, for example, a software developer uses Digital Rights Management (DRM) to limit a person’s right to back up her legally purchased copy of the software or use it on another personal computer, the user might be able to sue the developer for inappropriately restricting the user’s rights in certain instances.
Copyright gives the creator a limited monopoly on his or her work, but the public has certain rights to use the work while it is still under copyright. Unfortunately, this balance is rarely struck in Israeli or international rulings. Fortunately, Judge Agmon-Gonen, a fearless and eloquent judge, confronts those two issues directly in her fair use analysis [note: in 2007, Israel’s copyright statute adopted a fair use defense with the same four factors as the US fair use defense].
The purpose and nature of the use: The judge clearly stated that a use for commercial purposes may still be fair if it has significant social value and benefit. She further concluded that the John Doe's activity here--making important sport events accessible to the public for little or no payment--is socially important and carry significant social gains. The judge referred to Kelly v. Arriba Soft and the Perfect 10 v. Amazon and Google cases as examples where social importance overrode the commercial purpose of the alleged infringement.
The judge then delved into a very interesting analysis of the sociological importance of soccer and the importance of making it accessible to the public. Making soccer available only to the wealthy is unacceptable, stated the judge. The court considered the possibility that the change in culture and the development of the Internet and Internet culture may be a way to return sports to the masses.
Nature of the Work. The judge concluded that live coverage of soccer matches is protected under copyright law but is not part of copyright’s “core.” The main content of sporting events is factual; the artistic value of such work is minimal and not the reason for its popularity.
Amount of the Work Taken. The judge said that the evidence did not permit an informed decision regarding the quality of the infringement.
Effect on the Market. The court stated that we cannot categorically say that any use will damage the value of the work, and in this case the court does not consider the accumulated consequences of other similar breaches.
The judge accepted the Doe's position that some soccer events, and sporting events generally, have a significant cultural and social value. As such, certain uses of protected works are still fair use despite their commercial considerations and potential damage to the rights holder.
The basis of the judge's decision rests on the public's rights and on the obligations of copyright holders to modify their business model in a manner that will not breach the public's rights. For example (and I am no economic consultant), if the FAPL embraces the Olympic model of sponsorships and advertisements, “pirates” such as the John Doe in this case will become the FAPL’s best friends as they will increase the value of the works and the games and not damage them. This appears to be a win-win solution for both the copyright holders and the public.
I dare to say, this judgment is a wakeup call to copyright holders to open their eyes and recognize that the pendulum is swinging back in favor of the public. The Internet is here to stay, and the resulting economic shift will not go away. If appellate judges embrace this reality the way the trial court did, I believe that the main tenets of the judgment will survive the appeal.
That does not mean we should pirate copyright holders freely, but it does mean that the copyright holders need to find better models that will allow them their profit (which I’m all for) without infringing the public's rights. Further, we, the public, need to better protect our rights as users.
On this note, a happy Jewish New Year to us all.
September 18, 2009
Making Sense of the $32M Contributory Trademark Infringement Judgment Against a Web Host--Louis Vuitton v. Akanoc
By Eric Goldman
Louis Vuitton Malletier SA v. Akanoc Solutions, Inc., 5:07-CV-03952 (N.D. Cal. jury verdict returned Aug. 28, 2009). My blog post of the December 2008 ruling on summary judgment motions in the case.
Last month, a jury returned a $32+ million verdict against a web host (and related parties) for contributing to trademark infringement committed by its customers. This ruling was breathtaking on a number of fronts, but two attributes stood out: the size of the verdict and the fact that a web host was contributorily liable. Online cases interpreting contributory trademark liability are rare, and the few cases we've seen--such as the 1999 Lockheed v. NSI case, which remains the flagship case on the topic, and the Tiffany v. eBay case--generally have been defense-favorable. Indeed, I can't think of a prior case where a web host lost a contributory trademark infringement ruling, although Lockheed v. NSI case dicta implicitly contemplates that a web host could have the requisite degree of "direct control and monitoring of the instrumentalities used to infringe" that NSI, as a domain name registrar, lacked in that case.
Because this case takes us into uncharted waters, the ruling looks significant on first blush. However, some things have been bothering me about the case. First, because we're working with a jury verdict, it's hard to identify and distill the key facts that led to Akanoc's loss. If nothing else, the jury verdict blunts the precedential impact of the case; there's no written opinion, there's nothing citable, and by definition the ruling is fact-dependent. Second, I have been having this nagging suspicion that Akanoc did something goofy that stood out from industry standards. In contrast, the December 2008 ruling in this case, though troubling, didn't raise huge red flags for me, so the result seemed like an unexpected odd turn.
As we post-mortem the case, two key facts are emerging. First, Akanoc's defense invoked a jurisdictional component that any infringing activity wasn't taking place in the US. I believe the basic argument is that Akanoc's web hosting customers are Chinese and marketing the allegedly infringing goods to Chinese customers. All that may be true, but it's not clear how well that jurisdictional argument works for a US-based company (Akanoc is located in Fremont, CA). Accordingly, I don't think I would have advanced this jurisdictional defense if it were my choice.
Second, and much more importantly, Louis Vuitton claims it sent 19 takedown notices to Akanoc and most were ignored. I haven't researched the case enough to see the exact wording of the takedown notices, and I'm often skeptical of such claims because IP owners routinely send ridiculously broad takedown notices or requests with unreasonable demands that deserve to be ignored (see, e.g., Tiffany's demands that eBay enforce rules that Tiffany made up). Nevertheless, if the jury decided that Louis Vuitton sent multiple proper takedown notices that were ignored, then this verdict wouldn't be all that surprising or, frankly, all that earth-shattering. Although there is no statutory notice-and-takedown regime for online trademark complaints, I think many web hosts (and other intermediaries) follow the DMCA notice-and-takedown regime--built for copyright complaints--for trademarks as well. If Akanoc's failure to honor Louis Vuitton's takedown notices was the dispositive fact for the jury, it's unlikely that many web hosts would find themselves in a similar position. In that case, then, this case is hardly as disconcerting as it appears on the surface.
Having said that, I think the entire web hosting industry would benefit from a clear rule that notice-and-takedown eliminates contributory trademark liability, as well as clarity about what constitutes a proper takedown notice. Due to the uncertainty of this lawsuit's result, if I ran a web hosting business, I would probably take down users in response to less clear or more expansive trademark take-down requests than I would in the copyright realm where 512(c)(3) spells out the specific requirements for a proper notice. In that respect, then, I think the likely consequence of this case is to make web hosting customers more vulnerable to losing service and going dark on the basis of bogus or questionable trademark take-down requests.
We haven't seen much movement towards a statutory solution to online contributory trademark infringement problems. Maybe it's time. Or, perhaps the Second Circuit's Tiffany v. eBay ruling will give us enough clarity to sort out the issues without statutory intervention.
September 17, 2009
Veoh Gets Yet Another Terrific 512 Defense Win--UMG v. Veoh
By Eric Goldman
UMG Recordings, Inc. v. Veoh Networks, Inc., 2:07-cv-05744-AHM-AJW (C.D. Cal. Sept. 11, 2009)
What's the difference between the market leader and an also-ran? When the also-ran wins its third big legal victory in a row, the first question everyone asks is "what does this mean for the market leader?"
Specifically, when the copyright infringement lawsuits were filed against YouTube in 2007, everyone got really excited about a looming legal determination of the legitimacy of YouTube's practices. (See, e.g., 1, 2). But, we haven't learned very much about substantive law from YouTube's litigation in the 2+ years since. Instead, while the YouTube cases are mired in procedural heck, Veoh has notched three powerful defense-side wins that surely help YouTube (see my previous posts on the Io case and the earlier 512 ruling in this UMG case). These cases have established Veoh as the litigation leader of the user-generated online video business, even if it's not the market leader.
In the December ruling in this case, Judge Matz concluded that the videos in Veoh's network were "stored at the direction of users" even though Veoh's system technologically manipulated the user-supplied video. Having established that, this ruling addresses whether Veoh met the other requirements of 17 USC 512(c).
Actual/Red Flags Knowledge
A service provider loses 512(c) eligibility if it does not expeditiously remove infringing items after getting actual knowledge or has sufficient awareness of infringement. This standard has proven tricky because plaintiffs keep trying to establish knowledge and awareness based on something other than the 512(c)(3) notices contemplated by the statute. In this case, everyone agreed that Veoh responded expeditiously to 512(c)(3) notices, so UMG argued—and the judge rejected—that Veoh got enough culpable scienter from other things, such as
* Veoh was in the music business, and music is protected by copyright.
* Veoh had tagged videos as "music videos"
* Veoh bought search ads keyed to the titles of UMG copyrighted works (but all identified instances were for artists where Veoh had a license covering some of the artists’ works)
* a non-512(c)(3) compliant notice categorically opting out for specified artists. The court rightly rejects such notices as construing actual knowledge because artist names are too imprecise (they do not identify either the infringed works or the infringing works.
The latter point is a contentious one. Compare the wrongly decided 2001 ALS Scan v. RemarQ case, which said that the service provider had to assume that everything published in USENET newsgroups containing the plaintiff's trademarks was categorically verboten. Also compare the Hendrickson case (distinguished in a footnote). However, the judge leaves open the possibility that a non-512(c)(3) compliant notice could still confer actual knowledge if the copyright owner categorically identifies the title of the infringed work or made the representation that all works of a particular artist were unconsented.
The judge also rejects the argument that Veoh had generalized knowledge that widespread infringing activity was occurring on its site.
Finally, UMG argued that Veoh got the requisite scienter from its failure to use filtering technology properly. Veoh went through three iterations of filtering: first, none, then in 2006, a hashing technology, and finally in 2007, Audible Magic. UMG argues that Veoh should have adopted Audible Magic earlier and should have filtered its back catalog quicker once it adopted the technology. The court rejects this argument because (1) Veoh wasn't obligated to adopt filtering technology at all, and (2) it showed good faith by migrating from a poor solution (the hashing technology) to a more robust system.
To be eligible for 512(c), a service provider also must show that it lacked the "right and ability to control" the infringements. The court clarifies that this must mean something other than the operation of the system and the ability to take down content; otherwise, every service provider would be disqualified. Veoh's ability to deploy filtering software is also irrelevant per 512(m) (a rarely discussed corner of the statute).
However, this court is bound by the awful and antiquated Napster precedent, which had a very expansive view of "right and ability to control." The court sidesteps Napster by saying the Ninth Circuit's Napster interpretations only apply to the prima facie case of vicarious copyright infringement, not the identical words contained in 512(c). This is an awkward conclusion because (1) the words are identical, and (2) in ccBill, the Ninth Circuit held that the 512(c) words "direct financial benefit"--immediately adjacent to "right and ability to control" in 512(c)--should be interpreted the same as the usage in the prima facie case. So this court reaches the tough conclusion that "direct financial benefit" means the same thing in 512(c) and the prima facie case while the words "right and ability to control" do not.
This dichotomous language parsing seems particularly unstable. However, it is a logical consequence of the Ninth Circuit's steadfast but ill-fated refusal to overturn the analytically corrupt Napster ruling, which has been horking Ninth Circuit Internet copyright jurisprudence since 2001.
Termination of Repeat Infringers
Finally, the service provider is obligated to terminate repeat infringers. UMG argued that Veoh is disqualified because it doesn't automatically terminate users whose videos are filtered out by the Audible Magic technology. The judge disagrees because Audible Magic's system is a black box, so no one knows how many false positives it produces. Further, other courts have said that a compliant 512(c)(3) notice isn't accurate enough to automatically trigger an obligation to kick the target user off, so Audible Magic's fallibility makes its assessments even less compelling.
UMG also argued that it was unreasonable that Veoh did not kick off users who had uploaded multiple files that were covered under the same 512(c)(3) notice. (Veoh had a two-strikes rule for those users). The judge rejects that argument too, saying that Veoh's policy was appropriate.
Overall, this case is another terrific defense win. In every instance of ambiguity, the judge sided with the defense, repeatedly noting that copyright owners have to shoulder more burden to prepare compliant 512(c)(3) notices and service providers have no burden to filter or take other steps that copyright owners demand but aren't in the statute. Some of this categorical siding with the defense might also reflect that UMG appears to have annoyed this judge. I laughed out loud when I saw FN 10, which says "Veoh cited Io Group extensively in its opening brief. UMG did not mention it at all in its Opposition." You can run from precedent, UMG, but you can't hide.
While there is a lot of good news in this opinion, it's also noteworthy for what it didn't say. As I've mentioned repeatedly in past blog posts, 512(c) has a critical embedded ambiguity--does it insulate service providers from all three flavors of civil copyright infringement (direct, contributory and vicarious) or only direct infringement? Amazingly, courts generally have avoided discussing this crucial threshold consideration, instead proceeding ahead with an assumption (not always the same assumption from case to case!) on this crucial question but not resolving it. This case is no different; the court apparently makes an unexamined assumption that 512(c) is a defense to all three flavors of infringement. This is a terrific assumption for Veoh, YouTube and all 512 defendants, but it would be even better if the court actually said that.
The court does come closer than many other courts to addressing this ambiguity when it said there was a difference between the prima facie vicarious copyright infringement and 512(c) uses of the phrase "right and ability to control." However, I will be very interested to see if the Ninth Circuit agrees with that dichotomy on appeal. Even if they affirm the judgment, I suspect this dichotomy won’t survive intact.
September 16, 2009
Ninth Circuit Groaner About Metatags--Art Attacks v. MGA
By Eric Goldman
Art Attacks Ink LLC v. MGA Entertainment, Inc., CV-04-01035-RMB (9th Cir. Sept. 16, 2009)
What is it about metatags that cause legal folks to believe they have magical search powers? It's a meme that the legal community just can't seem to shake. To wit: In a case involving the alleged ripoff of a small-time local artist by "Bratz" manufacturer MGA, the Ninth Circuit had to determine if MGA would have ever learned of the plaintiff's "Spoiled Brats" art collection. In determining if MGA could have had "access" to the Spoiled Brats design (a prerequisite to copyright infringement), the court says:
"Art Attacks also maintained an internet website as of 1996, during the early years of widespread internet use. The website displayed images of various Art Attacks airbrush designs, including animals, celebrities, cars, animals, and the Spoiled Brats. The website took two minutes to load. Users could click through the main Art Attacks website to a linked Spoiled Brats-specific page to obtain a mail-in order form. The website also lacked Spoiled Brats “meta tags,” invisible pieces of data that are embedded in websites and act as flags to internet search engines....As a result, a potential viewer who typed “Spoiled Brats” into a search field would likely not encounter the Art Attacks page." (emphasis added)
What??? Putting aside the fact that the metatags were ignored by many of the search engines even at the relevant time (back in the late 1990s), this is a backwards way of assessing site visibility for the search term "Spoiled Brats." So what if the term Spoiled Brats wasn't in the metatags if the term was on the page? Yet another reason why I wouldn't rely on Ninth Circuit opinions for accurate descriptions of SEO practices.
One last point: although MGA beat this particular allegation that its Bratz dolls were ripoffs, the appellate victory is a little hollow because MGA wasn't so fortunate in its litigation with Mattel.
September 08, 2009
Yahoo's Search Results Snippets Aren't False Endorsement--Stayart v. Yahoo
By Eric Goldman
Stayart v. Yahoo! Inc., 2009 WL 2840478 (E.D. Wis. Aug. 28, 2009)
Earlier this year, I blogged about Beverly Stayart's quixotic lawsuit against Yahoo and others for showing search results snippets that contained her name adjacent to spammy porn and adult content links. Last month, the court efficiently dismissed her federal Lanham Act "false endorsement" claims and then dismissed the remainder of her lawsuit on procedural grounds, allowing Stayart to refile those claims in state court if she chooses. (She shouldn't but she probably will). The court rejected Stayart's Lanham Act false endorsement claim on three different grounds.
The court says that Stayart has not made adequate efforts to commercialize her name sufficient to give her standing for a Lanham Act claim. I agree with the court's factual assessment. Although Stayart alleged that she has been an active participant in online communities, she hasn't done anything to commercialize her name. Stated differently, if Stayart has standing under the Lanham Act's false endorsement provisions, then just about everyone in the world would.
The court rejects any likelihood of consumer confusion. I don't particularly like the court's reasoning, which seems to be that since Stayart has lived a squeaky clean life, no one would believe that she could be associated with the seedier activity promoted in the spammy links. This reasoning seems completely inconsistent with the nature of gossip. Nevertheless, the court is completely right when it says "No one who accessed these [spammy] links could reasonably conclude that Bev Stayart endorsed the products at issue." I think this is true because the spammy links lack internal credibility enough for anyone to believe them at all.
With respect to Various, the defendant whose adult website was advertised at some of the spammy links, Stayart argued initial interest confusion because people interested in her might be induced to click on the spammy links. The court rejects the argument by saying "The type of person looking for information about Bev Stayart would not be fooled into using an online adult-oriented dating website." I'm not sure why the court thinks this is true; people have all sorts of “hidden interests.” Nevertheless, I'd like to think no prudent person would be fooled into clicking on spammy porn links in a search engine, even if it referenced Stayart's name.
47 USC 230
The court's discussion up to this point has some odd reasoning, but the 47 USC 230 discussion is quite bizarre. The court's conclusion is that "Yahoo! should be entitled to immunity because it acted as an interactive computer service, even though Stayart’s claims are nominal intellectual property claims....Immunizing Yahoo! from Stayart’s claims would not limit the laws pertaining to intellectual property because Stayart does not state a valid intellectual property claim."
What? Is the court saying that it doesn't need to discuss 230 because Stayart failed to state a valid IP claim, or is the court saying that Yahoo qualifies for the 230 immunity because doing so would be consistent with 230's policies--even if the court has to ignore 230's statutory exclusion for IP claims? The court could have found a role for 230 by concluding that the Lanham Act false endorsement claim wasn't really an IP claim at all, any more than a Lanham Act false advertising claim is an IP claim, but I don't think the court said that.
So I'm not sure what the 230 references means, and I personally think the court would have been better off not discussing 230 at all. (As Rebecca writes, the whole 230 digression was "obviously useless.") At minimum, I don’t think it would be accurate to say that this court found a 230 defense to a federal IP claim. As a result, I’m filing this case in the bucket of “not very interesting” 230 cases.
Note: we already knew that 230 protects search engines from liability for their search results snippets when IP claims aren’t involved. See, e.g., Maughan v. Google and Murawski v. Pataki. A British court also reached the same result on common law grounds. See the Metropolitan International Schools case.
The court denies Various' 230 defense because its association with the banner ad was unclear. Having dismissed the federal Lanham Act claims completely, the court then declines supplemental jurisdiction over the state law claims. The court also rejects Stayart's guffaw-inducing request for sanctions against the defendants for having the temerity of moving to dismiss her complaint.
I'm glad to see Stayart's lawsuit quickly dismissed. It was a ridiculous lawsuit from inception. At the same time, the court's corner-cutting leaves me lamenting the absence of better doctrines to deter junk lawsuits like this in the first place. It's actually can be tricky to say that any trademark complaint is "wrong" given how much doctrinal contortions some courts have indulged in--even when lawsuits like this are so clearly wrong.
September 03, 2009
Employer Isn't Liable for Employee Misuse of the Internet--Maypark v. Securitas
By Eric Goldman
Maypark v. Securitas Security Services USA, Inc., 2009 WL 2750994 (Wis. App. Ct. Sept. 1, 2009)
As part of my efforts to keep up with new cyberlaw developments, I read a lot of cases involving yucky facts. But even with my constitution hardened over time, occasionally I still find some cases that really gross me out. So for this case, I'm just going to quote the key factual sentences from the court's opinion:
"At some point, Schmidt copied the photographs of approximately thirty female employees to a flash drive. He printed the photographs at home, ejaculated on them, and posted pictures of the adulterated photos on adult websites he created on Yahoo!." He made these postings without using the company's connectivity.
Schmidt was the employee of a third party vendor that provided security for a Wisconsin manufacturer's facility. The affected manufacturer's employees sued the security vendor for negligent training and supervision. In the trial court, the employees got total damages of $1.4M.
The appellate court reversed this ruling and held that Schmidt's employer was not negligent as a matter of law because Schmidt's misconduct wasn't foreseeable. Implicitly, the court rejects the argument that merely providing Internet access to employees, without more, constitutes per se negligent supervision or training. As the court says, "There is nothing inherently dangerous about permitting employees to access the internet at work."
The court goes on to say that public policy limits the employer's exposure to damages here. First, as the court says, "It would be an understatement to say Schmidt's actions were bizarre and unexpected. Schmidt's actions were unimaginable." Second, "employers have no duty to supervise employees' private conduct or to persistently scan the world wide web to ferret out potential employee misconduct."
This case reminded me a little of Delfino v. Aglient, where an employer avoided liability for an employee's rogue Internet activities on 47 USC 230 grounds. I never felt comfortable with 47 USC 230 applied to employer-employee relationships, but I liked that it offered an easy and decisive limiting doctrine to cut off employer liability for bizarre employee Internet conduct (otherwise, we get $1.4M judgments at the trial court level). In the Maypark case, I like how the appellate court anchored its reasoning, in part, on public policy grounds without getting into ambiguous statutory grounds like 230. I found the last statement I quoted ("employers have no duty...to persistently scan the world wide web to ferret out potential employee misconduct") especially apropos.