Q2 2018 Quick Links, Part 2 (Copyright)

* Naruto v. Slater (9th Circuit April 23, 2018). The monkey selfie case ends (for now?) with a whimper. The monkey has constitutional standing (per a misguided 9th Circuit precedent that should be overturned) but Naruto as a monkey lacks statutory standing in the Copyright Act.

* Universal City Studios Productions LLLP, et al. v. TickBox TV LLC (C.D. Cal. Jan. 30, 2018). An inducement-based injunction:

Here, as in Perfect 10, the defendant provides a device or service that its customers utilize to access copyrighted content that is displayed or broadcasted by third parties without authorization. Here, as in Perfect 10, the actions of the defendant’s customers (i.e., viewing still images or motion pictures without downloading them), standing on their own, do not infringe upon any of the plaintiffs’ exclusive rights under the Copyright Act. Here, as in Perfect 10, the defendant’s device or service is funneling users to third parties that are directly infringing upon the plaintiffs’ exclusive rights under the Copyright Act (i.e., displaying copyrighted images or broadcasting copyrighted video content). See id. at 1172 (“There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials.”). Absent viewers, including Device users, the third-party streamers of video content would have no audience to broadcast unauthorized versions of Plaintiffs’ (and others’) copyrighted works to, and thus would not be infringing upon Plaintiffs’ public performance rights. But there is an audience, and the Device (via the preinstalled themes and the addons within those themes), by aggregating various unauthorized sources of copyrighted work and simplifying the process of accessing that work, undoubtedly enlarges that audience and thereby enlarges the scope of the infringement. In sum, as with Google in Perfect 10, TickBox may be held contributorily liable under Grokster and Fung because it has served as the intermediary between third parties who directly infringe upon Plaintiffs’ public performance rights and its customers, who become a necessary component of the infringement (i.e., the audience)….

TickBox obviously has not “caused” third parties to broadcast Plaintiffs’ (or others’) copyrighted works over the internet, at least in any direct sense. But TickBox, through the Device, has delivered to those third parties viewers they would not otherwise have had, broadening those third parties’ audiences and the scope of their infringement. TickBox may be held responsible for the instances of infringement that would not have otherwise occurred in the absence of the Device….

The Court’s injunction will not prohibit TickBox from developing or distributing the Device; it will prohibit TickBox from distributing the Device in its current form – that is, preloaded with themes that provide easy access to unauthorized versions of Plaintiffs’ copyrighted work. To the extent the Device is useful for non-infringing purposes, the public will still enjoy access to it.

* Strike 3 Holdings v. Doe, 2018 WL 1924455 (D. Minn. April 24, 2018)

Rather than invoke the direct subpoena provision of DMCA, Plaintiff here filed a lawsuit against John Doe, then filed the instant ex parte motion to serve expedited discovery on the third-party ISP, Comcast. Plaintiff is seeking to serve the subpoena under Federal Rule of Civil Procedure 45 to ascertain what it describes as Defendant’s name and address. However, that very requested material, disclosure of a cable subscriber’s personally identifiable information, is protected under another federal law, the Communications Act. Specifically, a cable operator, such as Comcast here, “shall not disclose personally identifiable information concerning any subscriber without the prior written or electronic consent of the subscriber concerned.” Furthermore, the Communications Act prohibits a cable provider from disclosing the “extent of any viewing or other use by the subscriber of a cable service or other service provided by the cable operator.” Again, as is the case with DMCA, the conundrum here is that the information Plaintiff seeks through a Rule 45 subpoena poses a direct conflict between Plaintiff’s property interest and Defendant’s privacy protections afforded under federal law in the Communications Act. This direct conflict between DMCA and the Communications Act was argued by the parties in In Re Charter Communications. However, as the Eighth Circuit quashed the subpoena on other grounds, it never reached or resolved this issue.

This Court concludes that the conflict between the statutes, DMCA and the Communications Act, compels it to deny Plaintiff’s instant ex parte motion. As the Eighth Circuit reasoned in In Re Charter Communications, when it held that DMCA did not authorize the subpoena the district court had issued, “it is the province of Congress, not the courts, to decide whether to rewrite DMCA ‘in order to make it fit a new and unforseen internet architecture.’”

* Ticketmaster v. Prestige Entertainment (C.D. Cal. Jan. 31, 2018). Another case involving broker sniping of tickets on Ticketmaster’s website, just like the old RMG v. Ticketmaster case–and not entirely consistent with it.

– browsing isn’t copyright infringement, even if it violates the site’s TOU. The contrary RMG ruling came out before the Ninth Circuit’s Perfect 10 v. Amazon ruling, which the court implies overturned RMG.

– using bots or farmers to get around CAPTCHAs could be a DMCA 1201 violation

– the CFAA claim fails. Ticketmaster’s C&D apparently wasn’t strong enough to revoke authorization, and Nosal prevents the TOU from delimiting authorization.

* Weinberg v. Dirty World, LLC, 2017 WL 5665022 (C.D. Cal. April 24, 2017). 512(f) claim survives (cites omitted):

Dirty World alleges the first element of knowing and material misrepresentation by claiming that Weinberg sent a DMCA takedown notification on August 4, 2015, the second DMCA notification, in which Weinberg asserted that he owned the copyright of the image used in post no. 1128246 (that is, Photo 2) and that Dirty World is infringing that copyright—that is, he asserted that Dirty World infringed his copyright in Photo 2….. These postings of the Photographs, and any other uses of the Photographs on the Website, are not authorized by the copyright owners, their licensees, agents, or by law…. This is our last request that the infringing photos be taken down, prior to suing for copyright infringement.”). Dirty World also alleges that it relied on the alleged misrepresentation in the takedown notification by removing the image contained in post no. 1128246 (that is, Photo 2) from its website. Such reliance on the alleged misrepresentation is prima facie sufficient to support both the materiality of the misrepresentation in the first element as well as the second element of a Section 512(f) violation…..

In any event, Dirty World clearly alleges that “Weinberg knew that he was not the owner of any exclusive rights in at least one” of the images at issue, “nor was he authorized to act on behalf of any such owner” which further bolsters the inference that Weinberg knowingly misrepresented in the second DMCA notification that Dirty World infringed his copyright when he held no copyright over the image. Weinberg’s assertion that “[s]uch statements cannot serve as a basis for liability” under Section 512(f) (see Motion at 9) ignores the plain fact that without ownership or authorization over the copyright, Weinberg could not have reasonably believed that he was protected by the Copyright Act or, stated differently, that Dirty World could be liable to him for copyright infringement; and as such, Weinberg knowingly misrepresented copyright infringement in his second DMCA takedown notification.

Finally, Weinberg does not assert that Dirty World has not alleged injury from its reliance on the alleged misrepresentation included in the DMCA notification. After all, Dirty World removed the allegedly infringing content from its website, eliminating any and all commentary from its community of users on that image, which, the Court can infer at this motion to dismiss stage, generates “national media attention” and, in turn, website traffic and advertising revenue for Dirty World from the website.

As such, Dirty World has stated sufficient facts to support a plausible claim for misrepresentation under Section 512(f), and dismissal is not warranted under Rule 12(b)(6). Because the Court finds that Dirty World has sufficiently stated a plausible claim for Section 512(f) violation on the basis of the second DMCA notification, it need not address the sufficiency of the pleadings on the basis of the remaining DMCA notifications sent by Weinberg.

Weinberg also argues that Dirty World fails to allege any specific fact to support Weinberg’s lack of good faith in considering fair use before sending DMCA notices. See Motion at 7-9; Reply at 5-6. In light of the foregoing, specifically where Dirty World alleges that Weinberg was not the copyright owner, Dirty World need not also plead failure to consider fair use to withstand a Rule 12(b)(6) motion. In any event, Dirty World plainly alleges that Weinberg did not form a good faith belief that the use of the images in question was not fair because he failed to consider Dirty World’s fair use, given the context (set forth in great detail in its counterclaim) in which it operates as an internet service provider. Such factual allegations regarding the subjective condition of Weinberg’s mind are sufficient, without anything more, to raise the reasonable inference that Weinberg could have believed that Dirty World’s use of the relevant images constituted fair use or, relatedly, that Weinberg could not have held the belief in good faith that use of the images by Dirty World was “not authorized by … the law” as required under Section 512(c)(3)(A)(v)….

Moreover, as a subjective inquiry, whether or not Weinberg actually possessed a good faith belief that Dirty World’s use constituted fair use is a factual determination generally resolved on the basis of evidence at summary adjudication or at trial.