September 01, 2008
Io v. Veoh Comments--a Terrific 512(c) Defense-Side Win
By Eric Goldman
IO Group v. Veoh Networks, Inc., 5:2006cv03926 (N.D. Cal. Aug. 27, 2008)
We spend so much time thinking about and debating 17 USC 512(c) that it's easy to lose sight of how few cases really interpret the statute. As a result, a clean and thorough opinion like this one makes a significant contribution to the precedent and teaches us a lot.
There are two architectural features of this ruling that make it particularly defense-favorable. First, the question of whether 512 trumps secondary liability or secondary liability trumps 512 is one of the most important frontiers in online copyright law because the statute is inherently ambiguous on this key point, and the cases have been erratic on this topic. Here, the court doesn't dwell on the issue and instead assumes (without any real discussion) that 512 trumps secondary liability. As a result, the court dismisses the case without ever reaching the plaintiff's prima facie case; meaning that even if the plaintiff could establish a prima facie secondary infringement, Veoh still wins. If the court in Viacom v. YouTube reaches the same conclusion, then YouTube will win.
Second, Veoh took a number of steps to suppress user-caused copyright infringement, including some steps that were not required to satisfy 512(c). The court recognizes that it's impossible to eliminate user-committed copyright infringement but instead rewards Veoh for trying so hard. As the court says, "far from encouraging copyright infringement, Veoh has a strong DMCA policy, takes active steps to limit incidents of infringement on its website and works diligently to keep unauthorized works off its website." In this respect, the opinion reminded me of the Tiffany v. eBay ruling, where that court also lauded eBay for going beyond what the law required and excusing the infringement that slipped through the cracks. I think these two opinions put a huge exclamation mark to reject the notion that courts will only tolerate passive conduits (who do nothing to police their network) or perfect editorial control, with no middle ground for courts to excuse omissions by good faith actors. As with my first point, if the Viacom court adopts this philosophy, then YouTube will win.
A few other noteworthy aspects of this ruling:
* a website's failure to prevent terminated users from re-registering under alternative credentials does not preclude 512(c)
* 512(c) is not lost even if employees spot-check user submissions after publication and make minor edits to the metadata
* 512(c) still applies even if the website automatically extracts some metadata (in this case, some still previews of the video) and uses that metadata for promotional purposes. 512(c) even applied to the screenshots.
* The court rejects Io's argument that Veoh should change its business operations to do a better job of infringement suppression. The court recaps Io's argument as:
plaintiff contends that, if Veoh cannot prevent infringement on its site given the current volume of its business, then Veoh should be required to either hire more employees or to decrease its operations and limit its business to a manageable number of users (whatever that number might be). Its not-so-subtle suggestion is that, if Veoh cannot prevent infringement from ever occurring, then it should not be allowed to exist.
This change-your-business argument is popular among copyright plaintiffs, but the court emphatically rejects it:
Declining to change business operations is not the same as declining to exercise a right and ability to control infringing activity...Moreover, as discussed above, the DMCA does not require service providers to deal with infringers in a particular way...Further, plaintiff’s suggestion that Veoh must be required to reduce or limit its business operations is contrary to one of the stated goals of the DMCA. The DMCA was intended to facilitate the growth of electronic commerce, not squelch it.
While this ruling is very good news for the defense, there are plenty of reasons why it may not portend a similar result in the Viacom v. YouTube lawsuit, including:
* different courts (9th Cir. v. 2d Cir.). In particular, the Veoh court makes numerous references to Ninth Circuit precedent, and the Viacom court could simply say that Second Circuit law is different
* Io did not send any 512(c)(3) notices before suing. Viacom did. This is significant because the Io judge had little reason to be sympathetic to Io if they didn't take advantage of the non-litigation recourse mechanism specified in the statute. Then again, the Viacom court could simply expect Viacom to continue using the 512(c)(3) mechanism as well rather than looking for a court-imposed workaround.
* The Io court notes that the user-uploaded videos did not have a copyright notice in them. I'm sure Viacom can find examples where its copyright notice was included in the uploaded videos.
* Io is a pornographer. Their copyrights are as good as anyone else's, but courts might feel less sympathy towards pornographers.
* Veoh had gotten out of the porn business, and this mooted the injunction. However, Viacom could get an injunction against YouTube with significant bite. Most people misassume that 512(c) eliminates all liability for user-caused copyright infringement, but it only eliminates damages and limits the scope of injunctive relief in 512(j)--but a court can still issue an injunction. 512(j) is, as far as I know, not been litigated, and frankly I don't understand all of its provisions. But the bottom line is that an injunction is possible in the Viacom lawsuit even if 512(c) applies, and the Io ruling doesn't shed any light on that possibility.
Despite all this, YouTube has to be heartened by this ruling.
One final point: this is such a nice clean discussion about 512(c) that it may be a useful pedagogical tool. As a result, I am considering adding it to my Cyberspace Law reader in the future.
Posted by Eric at 09:54 PM | Copyright , Derivative Liability | TrackBack
August 21, 2008
Fair Use - It's the Law (for what it's worth)--Lenz v. Universal
DMCA notice & takedown provisions upheld in Lenz v. Universal
By Ethan Ackerman
A recent ruling in Lenz v. Universal shows just how far being right about something can get you - barely past a motion to dismiss. It just may force a bit of change, too.
Wednesday's ruling in Lenz v. Universal is being characterized by most press coverage as "requiring copyright owners to consider the fair use doctrine before issuing takedown notices." For most purposes, that's an accurate summary of the ruling.
The statute requires it, right?
What the court gets right in Lenz is its conclusion that the statute means what it says. More specifically, Lenz upheld the statutory requirement that a notifier have a "good faith belief that use of the material in the manner complained of is not authorized by ... law, as stated in 17 USC 512(c)(3)(A). One of Lenz's core claims in the case was that her use of Universal's music was a fair use, and thus "authorized by law." The fact that it was authorized by the fair use provision of copyright law made Universal's assertion otherwise a misrepresentation, Lenz contended.
Judge Jeremy Fogel agreed, holding that "an activity or behavior 'authorized by law' is one permitted by law or not contrary to law" and since "fair use is a lawful use of a copyright,...in order for a copyright owner to proceed under the DMCA with 'a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright."
Faced with such clear statutory language, Judge Fogel found Universal's arguments, roughly that 'fair use is hard to figure out' and 'fair use isn't really law so much as an exception to the law,' were lacking.
So how's this not a win for Lenz?
While the opinion so far seems a pretty cut-and-dried win for Lenz (and her attorneys at the EFF,) Judge Fogel looks to the next step of this litigation and points out that being right on the law isn't enough. There are facts that must be proven too. In a complex judicial process called 'telegraphing an opinion and dropping hints,' Judge Fogel states that "the Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required...."
These DMCA notice provisions are a two-edged sword, and 9th Circuit precedent has further narrowed the provisions such that the other edge is sharp indeed. The notice provision requiring a "belief" that the post isn't authorized by the owner or the law merely requires that the notifier have a "good faith belief," not a legal certainty. Additionally, Judge Fogel points out under a prior case, Rossi v. MPAA, that "subjective bad faith" must be shown to disprove good faith. In other words, Lenz has to show that Universal (roughly) knew, or possibly should have known, the use was fair and sent the notice anyway. While EFF has made a point of lining up an impressive array of facts that may push this particular case over the edge, bearing the evidentiary burden of proving the actions and intentions of an adversary is a heavy burden indeed.
But wait, what if this letter wasn't even under the statute?
Another unsettled issue in this case may pop up on appeal or in similar cases. As detailed above, Lenz came out this particular way because the judge followed the clear wording of the DMCA provisions. An unaddressed part of Universal's argument, and one likely to pop up again in similar cases or possibly on appeal, seems like it may well moot this holding. Universal argued (albeit just in a footnote) that the DMCA statute didn't apply from the get-go because Universal didn't send a DMCA notice. Universal argued that it shouldn't be held to the particulars and penalties of the DMCA because its letter to YouTube wasn't a DMCA notice, just a request letter.
Judge Fogel's order simply doesn't address this argument. It's a good one (or a particularly bad one, depending on one's view) too, especially in light of other recent litigation developments and the procedural history of the DMCA notice provisions. These DMCA provisions make up a regime for take-down notices and copyright safe harbors, but they likely aren't the only regime in town.
Even before the DMCA was enacted, an ISP was often not liable for the infringements of its users. Similarly, pre-DMCA a content owner could ask that an ISP remove content via a nice (or not) letter to the ISP. The DMCA legislation created a structured system to give more legal certainty in this area, but it is likely not the exclusive way in which content owners can notify ISPs - at the very least no court, including Lenz, has yet said it's the exclusive way.
The Lenz judge treated Universal's letter as a DMCA notice, even though it said on its face it wasn't. A good argument could be made on the facts of this case that it had to be treated as one, but that may not always be the case. Content owners increasingly seem to be making similar claims outside of the DMCA process, or even arguing that DMCA safe-harbor compliance isn't enough, and at some point a court might well accept such an argument.
[Eric's addition: I think Ethan is onto something regarding the types of takedown notices that trigger 512(f). For example, would an inappropriate NOCI under the eBay VeRO program be governed by 512(f)? This issue was sidestepped in prior litigation over 512(f) and eBay NOCIs. See Dudnikov v. MGA Entertainment. However, in the future, as Ethan points out, 512(f) defendants might claim that their C&D or other takedown request wasn't made under 512(c)(3) to try to escape liability under 512(f).]
Posted by Ethan Ackerman at 03:45 PM | Copyright | TrackBack
August 05, 2008
July 2008 Quick Links, Part I (IP Edition)
By Eric Goldman
Copyright
* Granger v. Gill Abstract Corp., 2008 WL 2791264 (S.D.N.Y. July 18, 2008). A title company admitted infringing the defendant's copyrighted "rate calculator" by posting it to the title company's website. The plaintiff demanded actual damages of $766 MILLION on the theory that the title company's entire revenues were attributable to the rate calculator on the website. The court dismisses this argument as "preposterous." Instead, the plaintiff admitted that its licensing rate is $500/year, so the court awards a maximum of $1,500 for three years of infringement, an amount that the defendant surely would have happily paid to settle before going to court if the plaintiff would have accepted it. Instead, this is great example of a dispute that had no chance of settling because the plaintiff’s demands were so out of this universe. For another example of irrational plaintiff damage demands faring poorly in court, see the Gregerson case.
* An update on Designer Skin v. S&L Vitamins. You may recall that S&L Vitamins lifted product shots from Designer Skins, and in the previous ruling, the court said that such copying isn't fair use. However, in a July hearing, the court subsequently concluded that Designer Skin suffered no actual damages from the copying when S&L marketed legitimate Designer Skin goods using the images, netting the plaintiff zero dollars. An injunction may still be possible. Of course, plaintiffs in the future will try to register their product shots on a timely basis, positioning themselves for statutory damages and attorneys' fees, so this ruling is helpful only in the cases where the registration isn't timely.
* Chronicle of Higher Education: "When Web Sites Post Test Answers Online, Professors Worry"
* 11th Amendment geeks will be interested in the CRS on Infringement of Intellectual Property Rights and State Sovereign Immunity, July 23, 2008.
Trademark
* Nothing spoils a good birthday party like trademark concerns.
* Paul Levy informs us that the ABA IP Section has finally given up their pointless quest to opine on the keyword advertising issue.
* CafePress has settled a trademark infringement lawsuit by Hustler magazine.
* This month, several interesting trademark academic articles emerged:
1) Margreth Barrett, Finding Trademark Use: The Historical Foundation for Limiting Infringement Liability to Uses 'In the Manner of a Mark' Prof. Barrett does some historical sleuthing to determine the scope of trademark use in commerce” doctrine, and she offers a suggested multi-factor test for defining use in commerce in the future. I previously blogged on one of Prof. Barrett's earlier papers on this topic.
2) Bill McGeveran, Rethinking Trademark Fair Use. Prof. McGeveran discusses trademark rules vs. standards and the interplay between the plaintiff’s prima facie case and the defenses.
3) Ken Port, Trademark Extortion: The End of Trademark Law. Prof. Port marshals some empirical evidence to argue that the quantity of trademark lawsuits is dropping but more trademark demands are settling on extortionate terms prior to a lawsuit being filed.
Posted by Eric at 06:59 AM | Copyright , Trademark | TrackBack
August 04, 2008
"DVR as a Service" Isn't Copyright Infringement--Cartoon Network v. CSC Holdings
By Eric Goldman
The Cartoon Network LP v. CSC Holdings, Inc., No. 07-1480-cv(L) & 07-1511-cv(CON) (2d Cir. Aug. 4, 2008)
The Second Circuit has issued an interesting and potentially important ruling that Cablevision's DVR as a service does not infringe copyright law. This ruling reverses the district court's summary judgment for the plaintiff and opens the way for Cablevision to roll out its DVR service offering in the Second Circuit.
The good news is that the opinion eliminates the odd regulatory distinctions between DVRs as a device and DVR as a service. The bad news is that to reach this conclusion, the Second Circuit has to override a lot of adverse precedent, and I'm not sure that other circuits will find this panel's arguments entirely convincing. As a result, it will be interesting to see if Cablevision interprets this opinion as a greenlight for a national rollout.
Thus, while the opinion is good news for DVR service offerings, the opinion leaves open a lot of questions that will have to be answered in the future. I think it's safe to say that this opinion is hardly the last stop in our journey.
Buffering Isn't Infringement
Cablevision's DVR service splits a broadcast feed into two streams, including a "buffer" copy that goes to a router where it is stored for no more than 1.2 seconds as the router looks to see if any consumers have asked for the program to be recorded for them. If yes, the data goes into their private storage areas; if no, the stream is discarded. The court holds that this buffer copy isn't fixed because it's not embodied "for more than a transitory duration."
To reach this conclusion, the court has to fight against a lot of precedent, especially the MAI v. Peak holding that a copy into RAM is fixed, even though that copy may be embodied for even less time than the buffer copy at issue here. The court says that MAI v. Peak stands for the proposition that these short-duration RAM copies can be fixed but are not automatically fixed. The court says that in MAI (without citing any actual facts from the MAI case), the software surely was resident in RAM for "at least several minutes" while in this case the copies exist for only 1.2 seconds, and this factual difference explains the different conclusion regarding fixations.
There is a major slippery slope problem with this conclusion. Is 3 seconds fixed? 10 seconds? I could keep going, and the court deftly side-steps this problem. Nevertheless, this holding offers some promise for certain types of web activity. First, this ruling might excuse copies made by scrapers/robots who download copyrighted pages to extract unprotectable information on the page. This case suggests that the copies made to download the page and perhaps to process it are not fixed, at least so long as they are flushed really quickly (1.2 seconds or less would be good). Second, this case seems to provide another defense to the otherwise problematic argument that web browsing is infringement; so long as the user hits the back button (and kills any local cache) really fast, no fixation of the web page. The opinion deliberately limits itself to Cablevision's system of overwriting the data, so that may limits its overall applicability, but this case creates a new category of copies that are embodied in a medium but are not fixed, and this offers some hope for defendants.
Users, Not Cablevision, Make the Other Copies
Even if the buffer copies aren't fixed (and therefore cannot support an infringement claim), Cablevision still stores a copy of the broadcasted works in its storage area, where users can download the programs. There's no fixation problem with these, so plaintiffs challenge these copies as both impermissible copies and public performances. The court rejects these arguments, concluding that Cablevision is a sufficiently passive entity that the users and not Cablevision are doing the legally significant activity. Thus, Cablevision is at most exposed to contributory liability for these user activities. Because the plaintiffs had waived allegations of contributory infringement, Cablevision gets summary judgment.
To reach this conclusion, the court ignores Cablevision's active role in setting up its systems and providing ongoing services, including selecting which broadcast channels are DVRable in its system. Instead, the court sees this fact pattern as identical to DVR as a device, where the DVR manufacturer isn't directly liable for how the DVR is used. This is consistent with the uncited Field v. Google case, but it conflicts with numerous copyright cases where the service provider's hosting of files gives the provider more legal responsibility over the system usage than a device maker would have. Similarly, the court distinguishes the coursepack cases on the basis that a human employee of the copyshop presses the "copy" button, because here the system works automatically without manual intervention from Cablevision.
Note, of course, that the court didn't discuss contributory liability, which also raises the ugly and risky question of whether Cablevision users are directly infringing by using the DVR as a service. I think there is helpful language in the Sony Betamax case about DVRing as a fair use, but I doubt anyone wants to see that battle relitigated.
Similarly, with respect to the argument that the distribution of the files from Cablevision's storage area is a public performance, the court says that Cablevision isn't "transmitting" as required by the statute because the user is making the legally significant action.
Further, Cablevision's delivery of the file isn't "to the public" as required by the statute. This latter conclusion is totally fine with me as a matter of common sense interpretation of those words, but it runs contrary to numerous messy and analytically questionable precedents regarding the central serving of copyrighted works to private spaces, such as Redd Horne and On Command. The court deftly tries to evade those, but after 2 readings I still can't figure out what the court said. Maybe the third time will be the charm. I think it has something do with the fact that Cablevision encoded each file delivery to its consumers so that each file delivery could be consumed only by a single playback machine. Let me know if you can figure out what the court was saying here and how it might apply to anyone else. Because the ruling seems to let Cablevision freely broadcast third party content to potentially all of its subscribers without constituting a public performance, I think there may be some exploitable holes here.
One more open question: this opinion makes me wonder if the MP3.com opinion from SDNY is still good law. I'd need to go back through that opinion, but as I recall, a lot turned on the fact that MP3.com tried to act as a proxy for its users. Here, the court treats such proxy activities as passive, and perhaps that analysis would fit the MP3.com facts as well.
Conclusion
I'm excited about this opinion because it eliminates some of the legal anomalies between DVR as a device and DVR as a service. In many situations, DVR as a service will be a better consumer experience, and it is unquestionably better for the environment, so I'm happy that this opinion tries to get copyright law out of the way to enable this result. At the same time, the appellate court set up enough conflicts with other precedent, and sufficiently caveated its opinions to address the narrow facts in Cablevision, that I expect this case resolved nothing definitively. That will have to wait the many cases in our future.
Even so, I remain amused (in a cynical way, not a funny way) that the broadcasters are still fighting against giving consumers what they really want, which is to consume their content at the time and place of the consumer's own choosing. Eventually, broadcasters are going to have to bite the bullet and post their content onto the Internet for viewers to enjoy at their convenience. There always will be consumers who want to consume the content upon first release, but after that, content that's unavailable to consumers is just wasting away instead of continuing to make money for the broadcasters.
Posted by Eric at 05:44 PM | Copyright , Derivative Liability | TrackBack
July 31, 2008
Still Not Copyright: Para-Copyright Revisited--Blueport v. US
Another friendly reminder that not everything related to copyright is copyright.
By Ethan Ackerman
The Copyright Act is a curious critter. Litigants seem to keep finding ways to get unexpectedly drawn into it when they don't want to and ways to fall short of it even when they want its cover.
This blog previously focused on one such near-but-not-copyright situation, Prince's record album's take down notice of a bootleg performance. The post pointed out that the take down notice was likely improper as there was probably no copyright infringement occurring, only the related para-copyright no-bootlegging right.
A Federal Circuit opinion, Blueport v. U.S., has basically affirmed that line of thinking, deeming the DMCA anti-circumvention provisions as a para-copyright. In a suit by a software development company against the Air Force, it held a para-copyright right (in this case, the anti-circumvention provisions of the DMCA) is not part of or the same thing as the Copyright Act, and thus can't take advantage of the government's copyright sovereign immunity waiver.
While news editorials are tempted to dismiss the case as "Maybe Congress just likes free software too," William Patry's ongoing coverage of the case digs a bit deeper. He points out both that the DMCA is outside of and not a part of the Copyright Act, but also the astute policy observation - it's hypocritical to heavily push similar "copyright-plus" provisions abroad while not even complying with them domestically.
[Eric's additional comment: On that point, I remember the 1990s debates over "softlifting," the installation of software on more computers than the license permits. When the SPA (now the SIIA) would go to Congress to lobby against softlifting, they would routinely harp on the fact that the US government was one of the biggest softlifting abusers.]
Posted by Ethan Ackerman at 04:37 PM | Copyright | TrackBack
June 14, 2008
When breaking news breaks copyright
Community blog Drudge Retort receives DMCA notices from the Associated Press for links, quotes.
by Ethan Ackerman
Rogers Cadenhead is a blogger. A prolific one in fact, with a personal blog and the role of editorial director at the commenter-driven political commentary blog Drudge Retort. The latter blog has recently drawn the ire (read: multiple take-down notices) of the Associated Press' legal department for linking and quoting AP content.
Multiple DMCA notices happen daily, and many make questionable legal assertions, but these, well, they're interesting....
UPDATE 6/17
The New York Times covers the Associate Press' 'partial apology but still take-down request' in more detail here, as does Scott Rosenberg. Kudos to the NYT for acknowledging it is an owner of the AP. For follow-up reporting, Mr. Rosenberg's blog definitely aggregates coverage better than the NYT. In short, the AP still considers the Drudge Retort's posts to be infringing and demands they be removed, but was sorry it came across badly in saying so and won't issue any more blog DMCA notices (other than this one) until it has released guidelines on acceptable quoting and linking.
Guidelines, we don't need no stinkin' guidelines.
The notion of quotation guidelines seems to be a non-starter for many bloggers. As (former attorney) Michael Arrington points out, the real guidelines in this situation are the fair use provisions of the Copyright Act, and guidelines can't shrink or expand those. Absent some type of contractual agreement with the AP, no one would be constrained by the guidelines in any way.
That said, the notion of guidelines are at least legally interesting, and puzzling. Regardless of any fair use considerations, to the extent any AP 'guidelines' purported to allow some linking and quoting of AP stories, they would function as an express license to bloggers. Express licenses are an entirely different legal beast than a fair use defense - and they aren't exclusive. For one thing, any sued blogger could probably get a judicial resolution of a suit a lot quicker - whether an alleged use is within the scope of a license can be determined as a matter of law, possibly on the pleadings or at least in a motion for summary judgement. A fair use defense often requires further discovery and motions proceedings.
Unless I'm missing something, it would seem like AP offering guidelines effectively gives some bloggers a 'safe harbor' but doesn't touch those who exercise the full scope of their fair use rights.
The fallout - The Internet sees censorship as damage and routes around it.
That Internet truism looks to be applicable to AP's takedown actions, with fairly widespread negative blogging responses and boycott promises from quite a few prominent blogs.
[Author's comment. Normally I'd be sceptical of anything with the word 'web-based' and 'boycott,' but in this case, authors are choosing not to cite to AP - an almost effortless choice. It's not like someone foregoing gasoline. This may be a classic example of the Colbert response to IP over-enforcement.]
It's just a discontinuity in the path of money.
As Mike Markson points out, at the end of the day, this conflict boils down to a weakness in the business plan and structure of the Associated Press. Its business structure makes it adverse to its customers' customers. AP's licensees see the traffic and get the linking and page-viewing, exactly what they want, but AP gets nothing in this. Perhaps AP could restructure its business model to better benefit AP with one central content site, or this could be one of many examples of a shift in relative power between parties.
The law in all of this.
As a starter, the degree to which headlines and factual news is even protected by copyright is, well, thin to nothing. Unfortunately, most of the blog coverage misses that point, running to the more nebulous (but still important and applicable) fair use defense. David Aradia at Harvard's Citizen Media Law Project does an excellent job at laying out the fair use aspects. He also details the legally fuzzy issue of "hot news misappropriation," a pseudo-copyright issue that may or may not have a place in state law or copyright law. Read his excellent coverage there of why, if it even exists and isn't preempted, 'misappropriation' doesn't matter.
Is there copyright here? Is there relevant law here? News events (and the facts that make them up) aren't protected under copyright law. Neither are any other factual compilations that don't have the requisite minimum creative writing to separate the creativity from the underlying facts. That almost certainly means news headlines aren't protected - they're too intertwined with the facts they convey. I say almost certainly because there's nothing but hints to that effect in copyright cases - no recent rulings squarely address the issue. The holy grail for many copyright scholars on this exact issue could have been Agence France-Presse v. Google. Unfortunately for copyright law clarity, but probably fortunately for all parties involved, that case settled in 2007. So, while counsel for Google may have served their client well, they deprived copyright scholars from having something to write about.
Posted by Ethan Ackerman at 03:17 PM | Copyright | TrackBack
June 09, 2008
Rights in Copies vs. Copyright
Prince's entanglement with Radiohead, YouTube, and a video bootlegger leads to much debate over just what's in copyright law and a YouTube nightmare scenario.
By Ethan Ackerman
Copyright bloggers were privileged to a few laughs recently when Prince's music label, NRG, requested a DMCA take-down of a bootleg YouTube video of his live performance of Radiohead's hit song, Creep. NRG was asserting rights over a song it didn't write, and a video it didn't make. At first blush, unless he had secured a performance license, Prince may have been the only person infringing copyright laws. Bloggers snickered at the irony, and the EFF even helpfully highlighted the lack of checks in the DMCA process that allowed this to happen.
The snickers quickly turned to head-scratching the more bloggers thought about it. A post by Sam Bayard, at the excellent Harvard-based Citizen's Media Law Project blog, exemplified these difficulties and second thoughts. Sam Baynard pointed out that another provision of Title 17, the anti-bootlegging statutes, might apply. Eric Goldman pointed out on the same post that maybe NRG could have made a recording itself that was being copied - and so the Copyright Act would apply.
The anti-bootlegging statute in Title 17, 17 USC 1101, squarely addresses unauthorized recordings of live musical performances. This provision was included in the 1990s to comply with trade treaty obligations (Article 14 of TRIPS.) As Sam points out however, it's not immediately clear that a DMCA take-down notice is appropriate for an alleged sec. 1101 violation. After all, the DMCA is for "for infringement of copyright."
What exactly is "infringement of copyright" for DMCA purposes? While it's clearly not appropriate to use the DMCA notice-and-take-down provisions for things like "infringement of trademark" or "infringement of publicity rights," is a section 1101 anti-bootlegging violation an "infringement of copyright?"
No, it's not. While the definitions section has no entry, and no other portion of the Copyright Act says exactly what is "an infringement of copyright," 17 USC 501 provides a helpful starting point in noting who is an infringer - "anyone who violates any of the exclusive rights of the copyright owner as provided by section 106..."
But the anti-bootlegging rights aren't in Section 106 of the Copyright Act - they're not even in the Copyright Act at all. At best, section 1101's anti-bootlegging rights are in the same title (Title 17) as the Copyright Act. They weren't added to the Copyright Act, but were listed after it, much like the semiconductor chip mask works and boat hull protection acts. This distinction between "Acts" and "Titles" of US Code is often missed by attorneys (and judges) who haven't worked extensively with legislation, but it matters. To see just how much this distinction matters, read a post by former professor (and former Legislative Counsel) William Patry, to whom it matters a lot.
As Professor Patry detailed, the anti-bootlegging statute was enacted outside the Copyright Act, without limitations that the Copyrights Clause would require, and covering some subject matter that wouldn't be subject to the Copyright Act at all. While some might argue over whether the anti-bootlegging statutes are themselves unconstitutional, they clearly aren't part of the Copyright Act, and clearly aren't addressed by the DMCA.
If there's clearly an applicable law (17 USC 1101), and a clearly unauthorized recording, who cares where definitions are, which Title's in which Act and vice versa?
While everyone should care about laws being used correctly, in this case YouTube likely cares - a lot. Remedies for a Section 1101 violation are literally identical to those for a copyright violation - injunctions, damages, impoundment, fees, etc. Additionally, the scope of any secondary liability for a section 1101 violation is unclear - there are no mounds of case law on secondary liability like there are in copyright infringement cases. Piling things on even more for YouTube, while the DMCA notice-and-take-down process doesn't apply, neither does its handy, litigation-preventing safe-harbor.
Posted by Ethan Ackerman at 11:24 AM | Copyright , Derivative Liability | TrackBack
June 03, 2008
May 2008 Quick Links, Part 2
By Eric Goldman
Copyright
* Google says it isn't settling the Viacom lawsuit (I don't believe it).
* Interesting juxtaposition: (1) Chronicle of Higher Education: How It Does It: The RIAA Explains How It Catches Alleged Music Pirates and (2) BusinessWeek ran a lengthy retrospective on Tanya Andersen's battle against the RIAA, including her beefs against the RIAA’s investigation and enforcement tactics.
* A music warez trader was convicted by a jury of criminal copyright infringement.
Online Contracts
* Juanda Lowder Daniel. Virtually mature: examining the policy of minors' incapacity to contract through the cyberscope. 43 Gonz. L. Rev. 239-269 (2007/08). This article addresses the very important issue of contracting capacity of minors. See my most recent post on that topic.
* Adelman v. Sparks Network (Cal. App. Ct. May 20, 2008). The Jdate online dating service allegedly failed to include required language (such as notice of a mandatory cooling-off period) in its user agreement. The court dismisses the plaintiff's lawsuit nonetheless because he was a happy customer who didn't suffer any damage.
* Tom O'Toole surveys some recent online contract cases. He offers the following conclusions: (1) Contract Terms Should Be Available for Review, (2) Clickable Buttons/Links Should Clearly Signal Assent, and (3) Humans Are Not Helpful.
* I realize this point would be better explored in a full blog post, and I suspect this point has been made in the academic literature (if so, I'd appreciate some cites so I can pass them along). The issue: how might the endowment effect explain consumer antipathy towards EULAs? Wikipedia says the endowment effect means that "people value a good or service more once their property right to it has been established." This observation occurred to me when I attended a ridiculously stacked panel at the ION Game Conference on "user rights" in virtual worlds. Many of the gripes/grumbles related to very common EULA provisions that simply overrode default law. It occurred to me that maybe part of the problem was that consumers assume the defaults are appropriate rights allocations granting them the "property" right, in which case they suffer a greater psychological loss when those defaults are varied than if different defaults were set. One obvious policy consequence: as part of the considerations when setting defaults, policy makers should include the psychological costs of varying the defaults. If the interaction between EULAs and the endowment effect hasn't been written about, it would make an excellent paper topic.
Other Topics
* A military court has said that distributing a hyperlink to child porn does not constitute criminal distribution of child porn. Tom O'Toole explains the situation.
* A.B. v. State, 2008 WL 2031388 (Ind. May 13, 2008). It seems like the digital age recipe for guaranteed trouble: 8th grader + hatred towards a school principal + MySpace. How many judicial cases are we going to see with this combination? This one involves some mean-spirited and profanity-laced comments about her principal made by a 14 year old girl on a private MySpace page accessible only by 26 students. The principal saw it only because one of the students gave a printout to the principal. The court concludes that posting to a private MySpace page doesn't satisfy the criminal standards of "intent to harass, annoy, or alarm" via the Internet.
* Doe v. Friendfinder Network, Inc., 2008 WL 2001745 (D.N.H. May 8, 2008). The court denied the plaintiff's motion for reconsideration on Friendfinder's 230 eligibility for the statement "Sorry, this member has removed his/her profile."
* Another "where are they now?" retrospective on dot com boom companies, ironically running in the Industry Standard (which wiped out in the dot com bust itself).
Posted by Eric at 11:56 AM | Content Regulation , Copyright , Derivative Liability , Internet History , Licensing/Contracts , Privacy/Security , Virtual Worlds | TrackBack
May 19, 2008
Content Generation and the Law
By Eric Goldman
Last week I participated on a panel at the ION Game Conference in Seattle to discuss UGC in virtual worlds and online games. You can see a reasonably faithful transcript of the discussion here. Here's a recap of the main points I made:
The Interface Between Content Generation and the Law: Game providers should think about how to generate both more UGC and the right kind of UGC. There are three main sources of law governing the UGC content generation choices:
* the site's EULA. Most EULAs give providers maximum flexibility to manage UGC as they see fit, but if I were researching the issue, I'd start with the EULA to see how the provider may have restricted itself.
* 47 USC 230. Many people operate under the outdated myth that a site must choose to be either a publisher or a passive conduit. Fortunately, the law facilitates heterogeneous approaches to UGC. Per 230, a VW isn't liable for third party content with limited exceptions. Ownership doesn't matter; editing doesn't matter, prescreening/policing doesn't matter. Most VW providers remain unaware of 230's power and import. Due to 230, providers have the choice of various UGC generation strategies, all of which have the same legal treatment.
* 17 USC 512. 512 doesn't go as far as 230 at enabling different content generation approaches, but it still provides some insulation from liability for user-caused copyright infringement.
In addition to these sources, many sites develop their own adjudicatory systems, including ways for users to report problems with other users, expedited takedown procedures (such as VeRO), and customer support representatives (CSRs) as private adjudicators.
How to Increase UGC: Obviously, users can be motivated through incentives/disincentives (carrots and sticks). For example, at Epinions, we used both cash and credit. There is also value in supporting and empowering a site's meta-community (the offsite interaction of power users).
Working with Power Users. I'm often amazed at just how much work users will do for a site for free if you just ask them/empower them. However, in asking users to do more work, sites should be cognizant of the amorphous boundary between independent contractors and employees. Recall the class action lawsuits against AOL and About.com over their volunteer labor force.
Site Responses to UGC Problems: I talked about the problem of "rule proliferation": in response to a new test case involving user behavior, a site often promulgates a new restrictive rule. This may happen infrequently, but even if it happens only 1X/week, that adds up to 50+ new rules/year. The collective effect is a burgeoning body of code and common law that eventually becomes unwieldy and unmanageable. To avoid this code creep, sites should promulgate new common law reluctantly.
What Works with UGC/What Doesn't: Sites should try to address two partially contradictory forces. Most users want to do the right thing, so sites should make it easy for them to do so. At the same time, sites need to build systems that are robust enough to squash the inevitable vandals and bad actors.
If you want a little more on the topic of this panel, I also did an interview for ION's pre-conference newsletter.
Posted by Eric at 12:01 PM | Content Regulation , Copyright , Derivative Liability , Virtual Worlds | TrackBack
May 08, 2008
Third Party Liability Presentation
By Eric Goldman
Last week I spoke at the "Center for Creativity and Commerce Symposium: New Media, New Markets, New Rights" at Georgia State University in Atlanta. This event was sponsored by four different departments within GSU (law, business, communications, digital media), which created an unusually heterogeneous audience that was heavy on content creators and their vendors (like their lawyers). As a result, after I did the audience assessment, I decided the most useful direction was a practice-oriented talk focusing on how rights owners can enforce against third party intermediaries. Of course, this topic should strike regular readers as odd/ironic: first, a law professor talking about practice issues, and second, a defense-side guy talking about bringing enforcement actions...?! With those caveats, my slides.
Posted by Eric at 04:49 PM | Copyright , Derivative Liability | TrackBack
May 07, 2008
April 2008 Quick Links
By Eric Goldman
Anti-Gaming
* Even though Ticketmaster won its lawsuit, Minnesota overreacted to the Hannah Montana ticket crush by banning software to circumvent an online ticket allocation process. See Sec. 609.806. Check out the hyperbole in this press release! What's next? Are legislators going to make SEO a crime?
* Google modified its relevancy algorithm 450 times in 2007. And yet courts still cite to Brookfield for how search engines operate!
* The UK cracks down on shill marketing online. ClickZ: "Under the new [UK] Consumer Protection from Unfair Trading regulations, it will be illegal to "Falsely claim or create the impression that the trader is not acting for purposes relating to his/her trade, business, craft or profession," or to "falsely represent oneself as a consumer."" See also AdAge.
IP
* Speaking of SEO....the latest pathetic attempt to grab a generic term and trademark it? "SEO." Sarah Bird is on the job.
* Do student notes of a professor's lecture constitute copyright infringement? We may find out.
* Atlantic v. Howell. More on the "making available" theory of copyright infringement.
* Sarah Bird on registering copyrights in websites and blogs.
* A for-profit T-shirt listing the names of deceased Iraq soldiers sparks a publicity rights lawsuit.
General
* Bowen v. YouTube, Inc., 2008 WL 1757578 (W.D. Wash. April 15, 2008). The court upheld the forum selection clause in YouTube's user agreement.
* eBay is ending its promotion of third party live auctions. Maybe because of this loss?
* Rebecca blogs on SuccessFactors, Inc. v. Softscape, Inc., 2008 WL 906420 (N.D. Cal.), an odd case involving the Computer Fraud & Abuse Act and an "attack PowerPoint" allegedly sent by a competitor to its prospective customers.
* Kate Kaye writes about the new Internet industry lobby group, the "State Privacy and Security Coalition," designed to fight laws like the Utah Trademark Protection Act.
* Kevin Werbach, The Centripetal Network: How the Internet Holds Itself Together, and the Forces Tearing it Apart, UC Davis Law Review, Forthcoming. An interesting paper applying "network formation" theory to show how the Internet came together as a unified network and how those unifying forces are under constant stress.
Posted by Eric at 08:52 PM | Content Regulation , Copyright , Internet History , Licensing/Contracts , Marketing , Publicity/Privacy Rights , Search Engines , Trademark | TrackBack
April 22, 2008
March 2008 Quick Links, Part II
By Eric Goldman
Copyright
* A lot of action on whether “making available” a file in a P2P share directory is copyright infringement, including Elektra v. Barker and London-Sire v. Doe. Patry summarizes the action.
* Ticketmaster L.L.C. v. RMG Technologies, Inc., 2008 WL 649788 (C.D. Cal. March 10, 2008). Copyright misuse is not an independent cause of action; it's only a defense. HT Evan Brown.
* A student asked me a good Q that I couldn't answer. Given that copyright work transfers are subject to the risk of a non-waivable termination of transfer 35-40 years after the transfer, how do companies account for that risk on their financial statements?
* A man whose Youtube video was taken down by lawyers for Van Morrison strikes back with a new video: "The Lawyers Pulled My Video Down."
Trademark
* The Utah governor signed SB 151, the repeal of the Utah Trademark Protection Act.
* Wilson v. Yahoo! UK Ltd., No. 1HC 710/07, Feb. 20, 2008. A UK court says that buying the broad-matched keyword "spicy" does not constitute an actionable use in commerce of the trademark "Mr. Spicy." In response, Google liberalized its keyword policy in the UK and Ireland to match its US and Canada policy.
* Vulcan Golf, LLC v. Google Inc., 2008 WL 818346 (N.D. Ill. March 20, 2008). This is another interesting development that I just didn't have time to blog (see my earlier post when the lawsuit was filed). In a lengthy opinion, the district court rejected most of the significant motions to dismiss, saying that she wanted to let the case develop. Ironically, she also complained about the workload in the case--perhaps this is obvious, but granting some motions to dismiss would help clear your docket queue! Unfortunately, most of the opinion isn't insightful because so many issues were reserved for further development. Perhaps the most interesting discussion relates to the "use in commerce" question, and the court rejected a motion to dismiss on that basis: "The plaintiffs have alleged that Sedo and the other Parking Defendants transacted in and improperly profited from domain names that are deceptively similar to the plaintiffs' trademarks. Such statements sufficiently allege the "use" of a domain name to allow the infringement claims against Sedo and Oversee to move forward on this issue." Some other commentary on the case: Sarah Bird and David Fish.
* American Airlines loves Google (except for the part where it's suing Google). HT Search Engine Land.
State Regulation of the Internet
* Some state legislators are becoming privacy entrepreneurs about behavioral targeting. Venkat does a recap. But Zachary Rodgers points out that some of the operative provisions track NAI's self-regulatory guidelines. More angst about deep packet inspection by IAPs.
* Ewert v. eBay, Inc., 5:07-cv-02198-RMW (N.D. Cal. March 31, 2008). eBay isn't an "auctioneer" or an "auction company" as defined by California's Auction Act.
* The Tennessee legislature is considering a goofy response to the Hannah Montana ticket furor.
* Ken Magill at Direct wrote an article entitled "Psychotic Law Clowns in Utah at it Again." A highlight: "Whenever I think of Utah's state legislature, I envision a room full of Jack-in-the-Boxes straight out of a never-made Twilight Zone episode. Every fall, when it's time for the next legislative session, their cranks begin to turn, a chorus of "Pop Goes the Weasel" begins, and on the note for "pop" the lids fly open and dozens of psychotic clown heads spring out of the boxes chanting: "New Internet Law! New Internet Law!""
Other Stuff
* The Economist: The Battle for Wikipedia's Soul. "To create a new article on Wikipedia and be sure that it will survive, you need to be able to write a "deletionist-proof" entry and ensure that you have enough online backing (such as Google matches) to convince the increasingly picky Wikipedia people of its importance. This raises the threshold for writing articles so high that very few people actually do it. Many who are excited about contributing to the site end up on the "Missing Wikipedians" page: a constantly updated list of those who have decided to stop contributing. It serves as a reminder that frustration at having work removed prompts many people to abandon the project." See a similar article in the NY Times Review of Books.
* FTC busts Goal Financial for inadequate security practices.
* The DOJ is busting people who click on a link that purportedly offered child porn, prosecuting them for attempted downloading of child porn.
* Orin Kerr, "Criminal Law in Virtual Worlds," University of Chicago Legal Forum (forthcoming). Orin sensibly argues against virtual world exceptionalism with respect to criminalizing activities in virtual worlds.
Posted by Eric at 10:09 AM | Content Regulation , Copyright , Domain Names , Marketing , Privacy/Security , Trademark , Virtual Worlds | TrackBack
March 24, 2008
Clickthrough Agreement Binding Against Minors--A.V. v. iParadigms
By Eric Goldman
A.V. v. iParadigms, 2008 U.S. Dist. LEXIS 19715 (E.D. Va., March 11, 2008),
I previously blogged that the judge was going to dismiss this case. The judge finally issued an opinion explaining his reasoning, and it's quite an interesting read.
At issue is iParadigms' Turnitin plagiarism detection service. It works as follows: a professor adopts the Turnitin service for a class. Students then submit class papers directly to the Turnitin database. Turnitin compares the submitted papers against its database, which includes Internet content, previously submitted student papers, and various commercial databases. Turnitin then provides the professor with an "Originality Report" assessing the likelihood that the paper was original to the student and not copied from one of the sources in the database. At the same time, Turnitin adds each student-submitted paper to its proprietary database so those papers create matches if submitted again.
Personally, I've never used the Turnitin service. I'm lucky enough that when I've taught "paper courses," I've been able to work closely enough with each student that a plagiarized paper would be useless. However, not every professor or teacher can interact with students enough to make these individualized assessments, and there are plenty of courses where students basically dump a paper onto professors in a relatively impersonal exchange. In those cases, I could see why Turnitin is an important or even essential tool to combat student efforts to game the grading system.
Even so, I remain troubled by some aspects of the Turnitin service. Most of my concerns relate to the implicit coercion of students to use Turnitin. Some students may not be aware that the professor will require Turnitin use at the beginning of the semester when (in theory) objecting students could freely drop the course, in which case the student is effectively required to use Turnitin to pass the class regardless of student consent. Even more problematically, students might be required to take a Turnitin-mediated course--such as when the course is a mandatory prerequisite and there aren't multiple professors teaching the course, or when students are assigned to a course without any choice (such as in high school). In those cases, students are forced to participate in the Turnitin scheme whether they want to do so or not. This isn't the biggest travesty in the world, but I'm not sure it's fair either.
The plaintiffs in this case--a group of four high schoolers--mount a solid attack on the Turnitin system for copyright infringement based on Turnitin keeping copies of their papers and occasionally republishing the papers to other professors when the papers trigger matches in future Originality Reports. iParadigms defends based on its mandatory clickthrough agreement, which every student must agree to as part of the submission process. The clickthrough was properly formed, so there's no question that it superficially demonstrates mutual assent.
However, student consent is illusory in at least two ways. First, as I mentioned, many students don't have a meaningful choice about consenting to the clickthrough agreement because they will fail their courses if they don't submit. The students attack this as duress, and the court correctly notes that Turnitin is not the source of duress; instead, the schools are the source, and the court tells the students to take it up with them. While the court is right that duress doesn't apply directly here, I could have seen other courts using the school-supplied duress as part of an unconscionability attack on the contract.
Second, the plaintiffs were minors, and well-settled law is that incomplete contracts with minors are voidable. The court sidesteps this issue by saying that the students had received the complete benefit of the Turnitin contract relationship when their papers were cleared by the Originality Report, and therefore they could not "return" the benefits conferred on them by Turnitin.
This is a ruling of potentially large significance. I've long believed that courts would struggle with dismissing claims by minors against websites because of the voidability issue, which seemingly left a large class action hole against all websites with minors as users. That hole may still exist--it depends on whether the contract is complete or not, and in many cases both parties will have incomplete obligations in a standard website EULA. Despite this, it's clear that this judge wasn't going to entertain any bypass that threatened the integrity of the Turnitin service, and I wouldn't be surprised if many other courts would reach the same conclusion in other circumstances.
The court dismisses the copyright infringement claim on the alternative ground that Turnitin's copying is fair use:
* storing the copy of the paper for plaigarism purposes is highly transformative
* the court twists the nature of work factor to weigh in favor of Turnitin, saying that Turnitin doesn't use the papers for their creative meaning
* the court also twists the amount/substantiality of the portion taken to weigh in favor of Turnitin. Even though Turnitin takes 100% of the work, it doesn't really publish the entire work (except in the occasional cases where a professor requests a copy after a match in the Originality Report) to others but simply flags the match.
* the court dismisses the effect on the market value of the work. Most student papers have no commercial value. The papers would have commercial value if resold to the term paper websites, but the plaintiffs conceded that they wouldn't authorize this usage because that would be cheating.
While I can't really quibble with the conclusion that Turnitin's use is fair, especially given the laudable objective of plagiarism suppression, other judges would have reached the opposite conclusion because Turnitin forces students to put their papers into a database that iParadigms mines for its profit.
In any case, this fair use ruling may augur well for search engine fair use cases, most obviously Google's book search and Google News--both of which pump third party copyrighted works into a for-profit database but republish only a limited portion.
The opinion also has some interesting discussion about iParadigms' counterclaims against the students. iParadigms initiated a very aggressive counterattack against the students (the words "scorched earth" came to mind). I guess iParadigms wanted to send the message--don't screw with us, because we'll make your life heck. I don't think iParadigms expected to get any meaningful payoff from their counterclaims, but they got nothing. In some sense they are lucky that it wasn't worse; I could see some judges taking such umbrage at iParadigms' tactics that they could have backfired.
iParadigms sought indemnity from the students based on a clause in its usage policy. The problem is that the usage policy wasn't presented as a mandatory clickthrough (whoops!) and the court refuses to extend the Register.com v. Verio bailout here.
One of the students obtained false credentials to log into the system at one point, but the court rejects iParadigms' claim that such a login was a trespass to chattels, Computer Fraud & Abuse Act violation or Virginia Computer Crimes violation because iParadigms couldn't make any showing of damages from this unauthorized login. This is the right result (at least with respect to trespass to chattels) per Intel v. Hamidi, but we've seen plenty of courts ignore the damages requirement from the Hamidi case.
Other comments on this case:
* Tom O'Toole
* Rebecca Tushnet
* Siva Vaidhyanathan
* Georgia Harper
* William Patry
UPDATE: According to the Chronicle of Higher Education, the students plan to appeal. Given the many conflicting norms associated with this case, I would be surprised if the appellate ruling was as decisively favorable for Turnitin as the district court opinion was.
Posted by Eric at 10:41 PM | Copyright , Licensing/Contracts , Privacy/Security | TrackBack
March 10, 2008
47 USC 230 Day at the Technology & Marketing Law Blog
By Eric Goldman
Today is 47 USC 230 Day at the Technology & Marketing Law Blog as we catch up on a hat trick of recent 47 USC 230 opinions.
1) Gregerson v. Vilana Financial, Inc., 2008 WL 451060 (D. Minn. Feb. 15, 2008)
The defendants repeatedly infringed plaintiff's photos. After the defendants did not pay up in response to a demand letter, the plaintiff posted some griping material to his website and included a section inviting comments about the defendants. Third parties subsequently posted potentially defamatory comments. In a rather perfunctory and typical analysis, the court says that per 47 USC 230 the plaintiff isn't liable for these third party comments, even if the plaintiff received notice about them.
Beyond the 230 discussion, the case touched on some other interesting issues:
A) The defendant's principal claimed that he had a conversation with a guy in a public sauna who recreated the photos and then granted legitimate licenses to the defendants. Unfortunately, alibis based on business deals arranged with strangers in public saunas are always a tough sale for judges.
B) The plaintiff's demand letter quoted his standard license fee for the photos but, as a penalty, demanded 3X that amount and said the settlement price would increase 10X if the plaintiff wasn't paid in 2 weeks. This type of escalating demands is fairly typical with freelancers, who often overestimate the value of their work both in the market and to particular defendants. The court scoffs at the 10X demand, rejecting its legitimacy as a measure of copyright damages, and instead awards the plaintiff its license fee without any gross-ups. I hope this opinion encourages freelancer photographers to make settlement demands based on a realistic assessment of damages, not based on fantastic artificially inflated license fees.
C) The plaintiff gets damages under 17 USC 1202 because the defendants cropped some copyright management information from the photos. This is one of very few plaintiff wins under 1202.
2) Global Royalties, Ltd. v. Xcentric Ventures, LLC, 2008 WL 565102 (D. Ariz. Feb. 28, 2008)
I previously blogged on this case here. As I noted then, Ripoff Report got a defamation claim dismissed (with leave to amend) per 47 USC 230 even though the original poster had repudiated the post and requested its removal. The plaintiff filed an amended complaint, but the court rejects it again, concluding that the poster's request to remove his posting doesn't change the 230 analysis: "liability based on an author’s notice, workable or not, is without statutory support and is contrary to well-settled precedent that the CDA is a complete bar to suit against a website operator for its “exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content” [cite to Zeran]."
The court also rejects the plaintiff's arguments that (1) the Ripoff Report should drop out of 230 coverage because it allegedly runs an extortion racket, (2) Ripoff Report's supplying of category tags matters, and (3) the Roommates.com case has any bearing on this case (the Ninth Circuit opinion was vacated with the en banc hearing, so there's nothing precedential at the moment). The court also refused to stay the case pending the en banc opinion.
3) John Doe Anti-Terrorism Officer v. City of New York, No. 06-cv-13738 (S.D.N.Y. Feb. 6, 2008) [hat tip Jeff Neuburger]
The plaintiff is an Arab-American police officer in the NYPD. He is suing the NYPD and Tefft for racial discrimination principally based on invective-filled emails sent by Tefft, who was a third party contractor (an antiterrorism consultant) to the NYPD. Tefft defends on 47 USC 230 because he claims he simply forwarded third party content (such as articles) in his emails. However, Tefft also added his own commentary to that third party content, such as introductory statements to the articles, and the court rightly says that 230 doesn't provide any protection for the material added by Tefft.
The court goes on to say that Tefft can't qualify as a "user" of an ICS, a determination that the court apparently didn't research very well because the caselaw has repeatedly reached the opposite conclusion.
Posted by Eric at 09:49 AM | Copyright , Derivative Liability | TrackBack
March 02, 2008
Feb. 2008 Quick Links
By Eric Goldman
Advertising
* BusinessWeek: Monetizing social networking sites isn't as easy as everyone had hoped, clickthrough rates are through the floor (0.04%!), and ad proliferation on the sites is driving users away.
* Wilbur, Kenneth C. and Zhu, Yi, "Click Fraud" (January 2, 2008). This paper appears to argue that search engines can increase their profits by failing to disclose the true rate of click fraud on their network.
* In re Miva, Inc. Securities Litigation, 2008 WL 450037 (M.D. Fla. Feb. 15, 2008). This lawsuit alleges that Miva and some associated individuals understated or misreported Miva’s reliance on click fraud, spyware and third party distributors in its public statements and thus inflated the company's stock price. Last year, the court dismissed many of the allegations but let a couple survive. In this ruling, the court dismisses a few more defendants from some statements and lets the rest of the case proceed.
* Going-out-of-business sales are often just another scam. (HT ContractsProf). Note this is completely consistent with economists’ theoretical predictions of final-period behavior of trademark owners.
* Google's stock has lost $70B in market cap in 7 weeks. Oh darn. Clickz offers some theories about why Google's clicks are declining. Could lower rates of click fraud be part of it?
* Hal Varian, Google's Chief Economist, argues that Google's marketplace success is solely due to its "secret sauce" (i.e., the advantage of learning by doing) rather than any defects in the marketplace.
Spam
* Jaynes v. Virginia (Va. Sup. Ct. Feb. 29, 2008). By a 4-3 vote, the Virginia Supreme Court upheld Jeremy Jaynes' 9 year sentence for violating Virginia’s spam law.
* Silverstein v. Experienced Internet.com, 2008 U.S. App. LEXIS 3364 (9th Cir. 2008). Ninth Circuit dismissed a CAN-SPAM lawsuit for lack of jurisdiction when the defendants attest that they didn't send the message and aren't local.
Domain Names
* NSI has been sued for its practice of grabbing pre-registration domain names based on WHOIS searches. The complaint. Good luck defending those practices, NSI!
* Two more breathy articles about the economics of domaining from the New York Times and Network World.
47 USC 230
* Johnson v. Barras, 2007 CA 001600 B (DC Superior Ct Feb. 1, 2008). Court dismisses a lawsuit against a website for republishing a defamatory story per 47 USC 230.
* Yet another doomed lawsuit against MySpace for facilitating communications between an adult male and an underage female that led to sex. Sam Bayard's comments.
Pornography
* NY Lawyer (login required): "Defense Bar Sees Growing Practice in Internet Sex Crimes"
* A federal obscenity prosecution for publishing graphic short stories (without pictures) on the Internet? As Tim Wu says, "astonishing."
* The Utah legislature is considering entering the marketplace again, this time through a certification mark program for Internet access providers who are willing to combat porn. See HB407. Of course, the Utah legislature has had terrific success in the past creating successful new business opportunities that the marketplace has overlooked.
User-Generated Content
* Nick Carr: "What we've seen happen with self-regulating communities, both real and virtual, is that they go through a brief initial period during which their performance improves - a kind of honeymoon period, when people are on their best behavior and rascals are quickly exposed and put to rout - but then, at some point, their performance turns downward. They begin, naturally, to decay." Like, I think, Wikipedia.
* Slate on the top-heavy nature of contributions to Wikipedia and Digg.
* Christian Science Monitor: Teachers Strike Back at Students' Online Pranks.
* Sam Bayard on a motion to quash in the AutoAdmit case.
Reputation
* eBay no longer lets sellers leave negative/neutral feedback for buyers. This putatively stops sellers from retaliating against buyers who leave legitimate complaints, but it also skews the database towards only positive reviews, which ultimately undercuts its credibility.
* In India, where courtships remain very brief by US standards and grooms can be paid dowries by the bride's families, there is an emerging trend for brides to hire "wedding detectives" to ferret out the scoop on grooms and whether their representations are correct.
* Funny article on being a secret shopper for Consumer Reports.
* Dan Solove's book, The Future of Reputation, is now available online for free. Ethan's review of the book.
Patents
* Six years later, eBay finally buys it now: eBay v. MercExchange settles with eBay buying out some of MercExchange's patents and licensing others.
* Mike Masnick: "Psst! Patent Examiners Do Not Scale"
Copyright
* Mike Masnick: “Why We Should All Want Politicians Who Plagiarize.”
* Do Not Resuscitate...My Copyrights (funny).
Miscellaneous
* Citizen Media Law Project has a useful discussion on getting insurance for cyberlaw risks.
* People v. Fernino, 2008 WL 382348 (N.Y. City Crim. Ct. Feb. 13, 2008) (woman violated a no-contact order when sending a MySpace message to the person).
* Mike Masnick: "We Need A Broadband Competition Act, Not A Net Neutrality Act"
* A retrospective on some of the leading dot-coms from the 1990s.
Posted by Eric at 05:32 PM | Content Regulation , Copyright , Derivative Liability , Domain Names , E-Commerce , Internet History , Marketing , Patents , Privacy/Security , Search Engines , Spam , Trademark | TrackBack
February 15, 2008
Turnitin Lawsuit to Be Dismissed--AV v. iParadigms
By Eric Goldman
A.V. v. iParadigms, LLC, No. 07-0293 (E.D. Va. removal from trial docket Jan. 9, 2008)
iParadigms, the operators of the Turnitin plagiarism detection tool, issued a confusing press release earlier this week announcing that the lawsuit against them was going to be dismissed. To make sense of the press release, I pulled the applicable court filing--see it here. The main operative provision says:
"It appearing to the Court that Plaintiffs' Motion for Summary Judgment should be granted as to the counterclaims and Defendant's Motion for Summary Judgment should be granted as to the Complaint, it is hereby ORDERED that the this [sic] case is removed from the Court's trial docket, and a Memorandum Opinion and Order will be forthcoming."
It is unusual for a judge to foreshadow an opinion like this. I'm guessing the judge was trying to schedule another trial and needed the space, so the judge issued this order before he had time to write up his thoughts. As of this morning, the opinion still hadn't been posted to PACER. I'm not sure why iParadigms waited a month to issue this press release but then decided to release it now prior to the actual opinion. In any case, I'm sure the opinion will be an interesting read on the contract or copyright topics (or both), but we'll have to wait to see the judge's thinking.
Posted by Eric at 09:32 AM | Copyright , Licensing/Contracts | TrackBack
February 13, 2008
Jan. 2008 Quick Links (IP Edition)
By Eric Goldman
Trademarks and Domain Names
* Adidas America, Inc. v. Payless Shoesource, Inc., 2007 WL 4482201 (D. Oregon Dec. 21, 2007). This case (1) discusses whether advice of counsel is a defense against willfulness in the trademark context, and (2) concludes that Oregon's state anti-dilution law is preempted by Bonito Boats.
* More evidence that price does affect brand perceptions: "A $90 wine tastes better than the same wine at $10."
* Visa Int'l Service Assoc. v. JSL Corp., No. 2:01-CV-00294, 2007 U.S. Dist. LEXIS 95334 (D. Nev. Dec. 27, 2007). The domain name "evisa.com" actually dilutes the Visa brand because it will disappoint people who enter the domain name looking for Visa. That's SO 1997!
* Salle v. Meadows, 6:07-cv-1089-Orl-31DAB (M.D. Fla. Dec. 17, 2007). A rare case interpreting 15 USC 1129, the law restricting the registration of domain names incorporating a person's name.
* The "Surf City" USA lawsuit between Huntington Beach and a Santa Cruz retailer has settled.
* I've seen this issue come up a few times now. Trademarks 1 and 2 are similar. A Google search for TM1 includes the question "Did you mean: TM2?" How might this prompt affect an infringement analysis?
* There has been a lot of domain name craziness in the past few weeks, and unfortunately I couldn't keep up with all of it. So a few brief remarks on two of the more interesting developments:
- First, NSI has admitted that it grabs domain names that people are researching, preventing the potential customers from using any other domain name registrar for 5 days and potentially helping swipers grab the domain name thereafter. NSI's practice is completely sleazy because of the unique retailing environment for domain names. Domain names are a single-item good that is being simultaneously and competitively sold by multiple retailers (the registrars)--but through this practice, NSI expands its inventory and simultaneously shrinks the inventory of competing retailers before NSI has actually made the sale. ICANN needs to shut down this type of inventory abuse NOW.
- Second, Google has announced that it will not provide AdSense ads (through its domain name parking program) to domain names that may be kited (i.e., repeatedly reregistered during the free 5 day trial period). That's great, Google, but why don't you simply say that you won't display ads on any domain names in the first 5 days of their registration? That policy change would kill domain name tasting, but Google's foot-dragging here makes me wonder just how much money Google is making from domain name tasting. C'mon Google, I think you can do better.
Copyright and File-Sharing
* Virgin Records v. Thompson (5th Cir. Jan. 4, 2008). Man improperly sued by the RIAA dragnet can't recover his attorneys' fees. This turns on the fact that he didn't respond to the pre-litigation contacts to turn over his adult daughter who did the file-sharing.
* Atlantic Recording Corp. v. Serrano, 2007 WL 4612921 (S.D. Cal. Dec. 28, 2007). The court rejects the trespass to chattels and CFAA claims of a P2P file sharer against the parties investigating him by checking out his share directory.
* Lots of action over takedown notices:
- The 10th Circuit says that a bogus takedown notice (in this case, an eBay NOCI under its VeRO program) supports jurisdiction in the targeted vendor's home court. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 2008 WL 217724 (10th Cir. Jan. 28, 2008). See related litigation from the same eBay vendor.
- For a contrary ruling, see Doe v. Geller, 2008 WL 314498 (N.D. Cal. Feb. 4, 2008).
- Colon v. Innovate! is a lawsuit initiated by an eBay seller that claimed an IP owner was misusing eBay's VeRO program to shut down his auctions (which were priced below the IP owner's minimum pricing program although the seller wasn't bound to the program). Innovate made an interesting tactical move (blunder?) to implead eBay into the lawsuit; eBay then countersued Innovate for sending bogus NOCIs.
* In a bizarre press release issued almost 2 months after the applicable ruling, John Dozier of the Dozier Internet Law Firm extolled the ruling in the 43sb.com case (a case the Dozier firm wasn't involved with) where the court suggested that cease-and-desist letters were copyrightable. This sparked yet another blogswarm on this topic; see, e.g., Paul Levy, Marc Randazza, Eugene Volokh, Frank Pasquale, Joe Gratz, 43sb.com, Ron Coleman, Overlawyered. It's clear this issue needs a more definitive resolution by the courts or the legislature. Fortunately, a number of people would welcome the opportunity to help Dozier test if his legal theory will fly in court. If you've been contacted by John Dozier threatening you for infringing the copyright in his firm's cease-and-desist letters and would be interested in help arranging an appropriate defense, please contact me.
Posted by Eric at 11:29 AM | Copyright , Domain Names , Trademark | TrackBack
January 30, 2008
State of the Net Conference Recap
By Eric Goldman
Today I attended the State of the Net conference, sponsored by the Congressional Internet Caucus Advisory Committee. This event has become the "go-to" event for Internet policy wonks. Well over 300 people attended, including many well-known folks. If you deal with Internet policy, you should be at this conference.
A few notes from the event:
The morning keynote was delivered by Mary Bono Mack, who delivered one of the most true believer IP-maximalist talks I've heard in a long time. It was almost cartoonish. Based on the fire-and-brimstone talk, I imagine she would support just about any expansion of IP rights proposed to her. In response to a Q&A, she said that she had been previously misquoted and that she doesn't support a perpetual copyright duration. But she thought the Eldred opinion vindicated Congress' previous term extension as a reasonab