Quick Links from the Past Year, Part 2 (Copyright)

* Hebenstreit v. Merchants Bank of Indiana, 1:18-cv-00056-JPH-DLP (S.D. Ind. Aug. 26, 2021). A photo of the Indianapolis nighttime skyline has generated $825 in license fees & $135k in settlements. After 3+ yrs of litigation, court awards Bell $200 in statutory damages–but actually $0 due to a related settlement. This is a preview of the future of CCB litigation…CAN’T WAIT!

* Bell v. Wilmont Storage Services, LLC, No. 19-55882 (9th Cir. Sept. 9, 2021). Apparently the “de minimis” defense to copyright infringement doesn’t exist at all in the 9th Circuit. It’s a shame a “troll” got the benefit of this ruling.

* SA Music LLC v. Apple Inc., 2022 U.S. Dist. LEXIS 50427 (N.D. Cal. March 21, 2022).  A lawsuit over allegedly infringing music files uploaded to the iTunes store.

Apple’s motion on willfulness is granted and the plaintiffs’ is denied. Apple has shown that it required, and reasonably relied on, representations that users possessed valid rights to the recordings they uploaded. And Apple has shown that it maintained a notice-and-takedown procedure for anyone wishing to challenge the rights to any recording on the iTunes Store (which these plaintiffs never did). The plaintiffs primarily counter that it would have been obvious to Apple that the uploaders were serial infringers; they argue that a jury could find that Apple was willfully blind to this reality or acted recklessly in permitting them to use the iTunes Store. But the record evidence shows that it was not sufficiently obvious, from Apple’s perspective, that these particular uploaders were such serial infringers that Apple’s alleged infringement was willful.

[The court adds: “Apple was not willfully infringing merely because it did not exhaustively background check the hundreds of thousands of uploaders on its store.”]

Apple also seeks summary judgment on whether it can be held liable for copyright infringement for “making available”—as opposed to actually selling—the compositions. Although courts have divided on this issue, I conclude that the copyright laws support this theory of liability on the facts of this case. Apple’s motion is also denied on its argument that it did not infringe as a matter of law by placing “promotional clips” of the recordings on the iTunes Store….

there are genuine disputes of material fact about whether Apple infringed the copyrights, at least because a jury could find that Apple’s conduct does not fulfill copyright law’s “volitional conduct” requirement.

* UMG Recordings, Inc. v. RCN Telecom Services, LLC, 2022 WL 1291388 (D. N.J. April 29, 2022). Rightscorp’s robo-notices don’t constitute unfair competition.

* Incredible Features, Inc. v. BackChina, LLC, 2021 WL 6337194 (C.D. Cal. Dec. 16, 2021):

Defendant argues that it is shielded from liability by 17 U.S.C. section 512(d), which limits liability for “referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link,” provided that the defendant does not have actual or constructive knowledge of the infringing activity and responds expeditiously to remove access to the infringing material upon its discovery. Defendant points out that it used “picture links” to third-party websites. But Defendant did not merely direct users to a third-party site that contained the Subject Images, it caused the Images to display on its own site. It also clearly had the right and ability to control the display of the Subject Images—its own employees published the infringing articles—and it received a financial benefit from them in the form of paid advertising.

* CDK Global LLC v. Brnovich, No. 20-16469 (9th Cir. Oct. 25, 2021). The Ninth Circuit appears to undermine the MAI v. Peak ruling and embrace the Cablevision ruling that there is a class of unfixed electronic works:

embodiment alone does not result in the creation of a copy; the embodiment must also persist for a period of more than transitory duration. We have not previously considered what is required for a copy to persist for more than a transitory period. In MAI, the duration requirement was not disputed, but it seems likely to have been met because the copy at issue remained fixed for a period long enough for a human technician “to view the system error log and diagnose the problem with the computer.” We agree with the Second Circuit’s characterization of our decisions: MAI and the cases following it establish only that “loading a program into a computer’s [memory] can result in copying that program,” not that “loading a program into a form of [memory] always results in copying.”

* Bloomberg Law: Redbubble Didn’t Infringe Atari Marks, Copyrights, Jury Says

* White v. UMG Recordings, Inc., 2021 WL 6052106 (S.D.N.Y. Dec. 21, 2021). 512(f) claims survive a motion to dismiss based on these allegations:

Plaintiff’s amended complaint alleges that Jenks sold Plaintiff the rights to use the Beat in creating hip-hop music, and that Jenks knew that Plaintiff used the Beat to create “Oi!” in February 2017. The amended complaint further alleges that the takedown notices requested the removal of content related to “Oi!”. Taken together, these allegations allow the Court to infer that Jenks knew that Plaintiff’s Twitter posts were not infringing on any copyright Jenks may have owned

* Dish Network LLC v. Fraifer, 2021 WL 6690278 (M.D. Fla. Dec. 13, 2021): “By their distribution of STBs enhanced by CDNs, Defendants did “otherwise communicate a performance … to the public, by means of any device or process.” Accordingly, pursuant to Aereo, Defendants’ act of selling STBs, together with providing associated CDNs to enhance the end user’s viewing experience, constitutes direct copyright infringement.”

* Martin v. Tumblr, Inc., 2017 WL 11665339 (SDNY Feb. 10, 2017). This one just showed up in my Westlaw alerts–grr. It would have made the list of cases in our account termination/content removal article if we’d known about it. Tumblr terminated Martin’s account for getting too many copyright takedown notices (3 strikes). (Reminder: if Tumblr hadn’t done so, it would have potentially foreclosed its eligibility for the 512 safe harbor for not reasonably implementing its repeat infringer policy). Martin unsuccessfully counternoticed. He then sued Tumblr for violating the 512(g) counternotification provision.

The court describes the purposes of 512(g):

as long as an ISP follows the procedures outlined in § 512(g), the provider cannot be held liable for a claim brought by the user whose content was taken down, even if it ultimately turns out that the content was wrongfully removed because the content did not actually violate copyright laws. Thus, the overarching purpose of § 512(g) is to limit the liability of ISPs who remove allegedly infringing material in good faith.

Martin can’t turn this into a cause of action:

Martin cannot bring a claim directly under § 512(g) against Tumblr. Rather, if he were to bring some other claim, perhaps a state contract or tort law cause of action, Tumblr could defend against that claim on the ground that it qualifies for § 512(g)’s safe harbor.

But no service ever needs the 512(g) safe harbor because other legal doctrines foreclose liability. For example, Tumblr’s TOS contained a provision saying “Tumblr may immediately terminate or suspend Accounts that have been flagged for repeat copyright infringement” (again, this is essentially dictated by the DMCA preconditions) and for any/no reason. So this case highlights why 512(g) is functionally irrelevant in court cases, though many services voluntarily choose to process and honor counternotices as contemplated by 512(g) despite its legal irrelevance.

A similar and more recent case: Finley v. YouTube LLC, 2022 WL 704835 (N.D. Cal. March 9, 2022). YouTube removed Finley’s videos, and she sued YouTube for not following the DMCA’s procedures. The court responds: “The DMCA provides websites protections against suits from copyright owners. It does not allow those who are alleged to have violated someone else’s copyright to sue the website about the procedures the website used to take down the material, even if they believe the website is not complying with the statutory safe harbor provisions, or any other part of the law.”

* Milo Enterprises v. Bird-X, Inc., 2022 WL 874625 (N.D. Ill. March 24, 2022). How hard is it to win a 512(f) claim? The court dismissed 512(f) on these facts: “Milo does not point to any evidence that would support even a passing inference of a knowing representation by Bird-X. In fact, it is uncontroverted that the only reason the word “copyright” was mentioned in any of Bird-X’s takedown notices was because Seid did not understand the difference between a copyright and a trademark.” Obviously wrong but clueless takedown notices apparently are A-OK under 512(f).

* Fornix Holdings LLC v. Unknown Party, 2022 WL 992546 (D. Ariz. April 1, 2022): “Plaintiffs argue that domain registrars and hosting service providers necessarily “act in concert or participation” when a client of theirs uses the domain and website to infringe copyrighted property. Plaintiffs do not allege an agency relationship. Plaintiffs’ argument fails because they do not allege that Cloudflare or Namecheap knew of the defendant’s allegedly infringing conduct and nevertheless continued to provide services that facilitated that infringement. They cannot be said to be aiding and abetting the defendant, and thus, the Court cannot bind them to a TRO absent them being named parties.”

* Harrington v. 360 ABQ, LLC, 2022 WL 1567094 (D.N.M. May 18, 2022): “360 ABQ alleges that Mr. Harrington is not using the copyright and legal system for an authorized purpose, but as a method to derive income from infringement demands or suits. These allegations, taken as true, state a plausible claim that Mr. Harrington has a wrongful motive and misused the copyright or legal system.”

* Stross v. Twitter, Inc., 2022 WL 1843142 (C.D. Cal. Feb. 28, 2022): “Though Plaintiff claims that Twitter ‘decides’ what content to display, Plaintiff pleads no facts indicating whether this is an active decision —which would satisfy the volitional-conduct requirement—or algorithmic one…Not a single allegation in Plaintiff’s FAC suggests that Twitter actively (or even passively) copied, shared, or reposted Plaintiff’s posts.”

Regarding contributory infringement: “Plaintiff plausibly alleges that he had given Twitter notice via DMCA-compliant emails…Had Twitter’s email system not deleted the PDF attachments, Plaintiff’s notices would have likely been sufficient to show where the infringing uses were located.”

* Stross v. Meta Platforms, Inc., 2022 WL 1843129 (C.D. Cal. April 6, 2022):

“Defendants do not cite, and cannot cite, any case holding that the use of human-designed computer algorithms rather than human employees to manage a website absolves a party of liability for direct infringement.”

“By failing to allege even a single instance of Plaintiff’s photographs appearing in any user’s News Feed or in the Moments or Place Tips features, Plaintiff only alleges that his photographs appeared on Facebook’s servers. A website that passively hosts an infringing work does not engage in volitional conduct.”

“Plaintiff sent Defendant a takedown notice with a table of each subject work matched to screen captures of the corresponding infringing uses and their respective URLs attached as an exhibit. This is not conclusory and sufficiently alleges that one of Defendant’s agents had direct knowledge of the infringement.”

* Techdirt: Tanzania’s Abuse Of US Copyright Law To Silence Critics On Twitter Should Be A Warning For Regulators Looking To Mess With Content Moderation

* Techdirt: Fake ‘U.S. Copyright Office’ Imposter Gets Google To Delist URLs On Section 1201 Grounds

* Creative Commons: New License Enforcement Principles for Public Comment