Q4 2014 & Q1 2015 Quick Links Part 8 (Copyright, Media)
NY Times: “Owing to the specifics of copyright law, the jury was instructed to base its decision on the sheet music, a fact that reflects how inadequate copyright law is when it comes to contemporary songwriting and production practices. In 2015, the arrangement of notes on a sheet of paper is among the least integral parts of pop music creation. We’re decades beyond the time when a songwriter penned a tune on paper, then gave it to musicians to perform.”
My take on Blurred Lines: (1) no one warned me about the NSFW video, so I got quite an eyeful at the office. Caveat viewer! (2) The best thing about the song is that it reminds me of songs from 1970s that were actually good.
* Among the many analytical deficiencies of the now-vacated Garcia v. Google opinion, Judge Kozinski indicated that actors claiming copyrights in their performances would be rare because the issue would be resolved by contract. It turns out that is obviously incorrect as a factual matter, which isn’t surprising given that an appellate court was making up the facts out of thin air. Since the ruling, we keep finding new examples of actors who might claim they were “duped” about the videos they were making. See, e.g., Smoking Gun: “Drunk Girl” Video Is Latest Viral Hoax; and Cracked: 6 Actors Who Thought They Had Made a Totally Different Movie. Are all of these actors now potential copyright plaintiffs? Let’s hope not.
* Beastie Boys v. Monster Energy Co., 2014 WL 6845860 (SDNY Dec. 4, 2014). Upholding jury award. Beastie Boys v. Monster Energy Co., 2015 WL 736029 (SDNY Feb. 20, 2015). Issuing permanent injunction. Prior blog post.
* Gardner v. CafePress Inc., 2014 WL 6890934 (S.D. Cal. Dec. 4, 2014). Denying CafePress’ summary judgment motion on direct copyright infringement:
While some of the CafePress process is similar to the DVR cases—specifically where users upload images to the site and customers request items—a significant portion of the process is done by CafePress itself, namely the production and sale of the allegedly infringing items. In making the allegedly infringing items, CafePress’s employees respond to a customer request to purchase the item. CafePress does not contend that its production facility and shipping process are completely automated and thus devoid of human employees engaging in volitional conduct. CafePress’s employees, not its customers, are the ones operating the machinery used by CafePress to create the allegedly infringing items.
Also denying summary judgment on the vicarious copyright infringement claim:
CafePress does have active control over at least some of the allegedly infringing items during the process in which CafePress produces and then ships those items to customers. While CafePress’s actions in response to allegedly infringing uploads may be similar to Amazon and eBay where it is not actively involved and can only engage in after-the-fact removal and access blocking, CafePress’s production of allegedly infringing items at its production facility does appear to be “purposeful conduct” such that CafePress has the “right and ability to control.”
* American Broadcasting Companies, Inc. v. Aereo, Inc., 2014 WL 5393867 (SDNY Oct. 23, 2014). Aereo’s 512(a) defense fails:
Aereo never so much as asserts in its opposition brief—or anywhere else for that matter—that it has satisfied all the eligibility conditions for the § 512 safe harbors stated in § 512(i). For example, to qualify for a § 512 safe harbor, the service provider must have in place a policy for terminating repeat infringers. § 512(i)(1)(A). Congress could not have been clearer when it said that “[t]he limitations on liability established by this section shall apply to a service provider only if the service provider” adopts, reasonably implements, and informs its subscribers of a policy providing for the termination of repeat infringers. Id. Failure to have in place such a policy is thus an absolute bar to asserting any defense under § 512. Aereo asserts that it satisfies the other eligibility condition under § 512(i)(1)(B), but conspicuously omits any assertion that it has a repeat infringer policy in place as required by § 512(i)(1)(A).
Aereo proposed to settle in bankruptcy with its copyright creditors for less than $1M (about a penny on the dollar for the alleged damages).
* Curtis v. Shinsachi Pharmaceutical Inc., 2014 WL 4425822 (C.D. Cal. Sept. 9, 2014). [This is a default judgment]
Curtis alleges that Defendants submitted DMCA takedown notices to eBay, Google, Google, PayPal, and Serversea complaining of “copyright infringement of images and/or text owned by Defendants, without specifying any copyright registration, and without identifying the images or text allegedly used by Plaintiff.” (FAC ¶ 34.) She further contends that the accused eBay listings “did not include any of Defendants’ copyrighted text or graphics.” (Id . ¶ 40.) Without Curtis having used any of Defendants’ protected material, she cannot be liable for copyright infringement, as there is no “work” at issue to infringe. See § 102(a). Moreover, while § 512(f) requires actual knowledge of the infringement misrepresentation, that requirement is a state of mind that Curtis properly averred generally. See Fed.R.Civ.P. 9(b) (providing that knowledge “may be alleged generally”). Since Curtis repeatedly alleged that Defendants knew that the takedown notices contained false infringement allegations, she adequately pleaded all of § 512(f)’s elements.
She indicates that she had valid contracts with Google and eBay to market and sell her skin creams and that Defendants knew about these contracts. She contends that Defendants intentionally submitted false takedown notices to Google and eBay, thereby causing those service providers to terminate Curtis’s contracts with them. Since she was unable to sell her products through these terminated contracts, Curtis consequently suffered damages. Moreover, she had an interest in continuing to work with Google and eBay in the future, which Defendants impeded through their intentional conduct. Finally, those false takedown notices were independently unlawful because the DMCA proscribes them. Curtis has thus adequately pleaded all necessary elements of her intentional-interference claims.
The Court finds that a permanent injunction is not appropriate in this case for several reasons. The Court is mindful of the Ninth Circuit’s position that “[i]njunctive relief is the remedy of choice for trademark and unfair competition cases, since there is no adequate remedy at law for the injury caused by a defendant’s continuing infringement.” Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1180 (9th Cir.1988). But this case is somewhat different from a standard infringement case, as Defendants essentially hijacked Plaintiff’s commonlaw trademarks but did not use them in commerce. Rather, they registered domain names under those marks and posted disparaging information about Curtis’s products and sent false takedown notices to her service providers. As established above, the Court has employed several remedies to reverse Defendants’ conduct and to prevent future recurrences, including cancelling their trademark registrations, punishing them with hefty statutory damages, and ordering the transfer of their infringing domain names. The availability of those remedies belies the notion that there is no adequate remedy at law to cure Defendants’ conduct.
* Reuters: Stop threats to Canada’s online pirates, rights holders told
* TorrentFreak: MPPA Secretly Settled with Hotfile for $4 Million, Not $80 Million
* Court orders Perfect 10 to pay Giganews $5.6M in attorneys’ fees and costs.
* Ars Technica: Piracy notwithstanding, MPAA enjoys a “very strong year”—again
* An analysis of the Copyright Alert System: Evaluation of the MarkMonitor AntiPiracy System. Related: Techdirt: Hollywood Privately Acknowledges Six Strikes Program Isn’t Doing Much, Guaranteeing It Will Get Much Worse
* Smithsonian: How the Photocopier Changed the Way We Worked—and Played
* Choyce v. SF Bay Area Independent Media Center (N.D. Cal. Nov. 2, 2014). An effort to claim copyright infringement in a headshot photo that was taken by a third party leads to a large 17 USC 505 fee-shift.
* In Oracle v. SAP, Oracle takes the 9th Circuit damages figure of $357M rather than try another trial.
* Wired: Why We’re Just Now Getting the 1960s BatmanTV Show on DVD. Good example of how rights thickets can be effectively impenetrable.
* TorrentFreak: Luxury Watchmakers Target Pirate SmartWatch Faces
* The Verge: The MPAA has a new plan to stop copyright violations at the border. And Techdirt: The MPAA’s Secret Plan To Reinterpret The DMCA Into A Vast Censorship Machine That Breaks The Core Workings Of The Internet. Related: The Register: “A court in Denmark has ordered a British furniture company to block users with Danish IP addresses from visiting its website.” Welcome to our future Internets.
* Robbins v. Universal Music Group, 2015 WL 171443 (S.D. Ga. Jan. 13, 2015). Shades of Ira Arnstein: “Robbins is a man with a delusional and disturbed mind who believes that musicians, record companies, and the federal courts are depriving him of vast sums of money to which he is entitled.”
* BWP Media v. Gossip Cop Media (SDNY Jan. 26, 2015). Celebrity journalism website can’t win fair use defense for republishing paparazzi photos.
* Splitsider: Inside the Secret Technology that Makes ‘The Daily Show’ and ‘Last Week Tonight’ Work. A good example of how a digitized database of content can enable novel and interesting secondary uses. Cf. the TVeyes case.
* HuffPo: Leaked Email Reveals How Hollywood Opposed ‘Fair Use’ Protections In Secretive Trade Agreement
* Techdirt: MPAA Pirated Clips From Google Commercials To Make Its Own MPAA Propaganda Videos
* Search Engine Land: Getting Better, But Google Still Has Work On Piracy: The Game Of Thrones Story
* Wired: We Can’t Let John Deere Destroy the Very Idea of Ownership
* The Verge: Keurig’s attempt to ‘DRM’ its coffee cups totally backfired
* New York Times: “It turns out that the media people are actually exposed to both online and offline is much more diverse and heterogeneous than people’s self-reports suggest.” Powerful response to those who fear echo chambers and filter bubbles. See my related academic article.
* NY Times: CBS Offers Web Service as TV Unbundles Itself. Time: The cable TV bundle is finally starting to unravel. Wendy Davis: Will Cable Companies Thwart New HBO, CBS Services With Data Caps? WaPo: In cable, it’s survival of the fittest as channels drop from the bundle
* NY Times: Amazon Offers All-You-Can-Eat Books. Authors Turn Up Noses.
* TaxAnalysts: From Mexico With Love: How Sony Got Millions in Incentives to Rewrite 007 Film
drama and science fiction genres deliver the highest percentage of time-shifted viewing on primetime cable and broadcast. Seventy-nine percent of sporting-event viewing happens in real time and, surprisingly, 71 percent of primetime animation viewing occurs in real-time, whereas 71 percent of drama programming is recorded and viewed at a later time. ESPN and ESPN2 both rank in the top five least time-shifted networks during this summer and fall.
* NY Times: BuzzFeed Says Posts Were Deleted Because of Advertising Pressure