2H 2016 Quick Links, Part 2 (Copyright & Open Access)


* Goldstein v. Metropolitan Regional Information Systems, Inc., 2016 WL 4257457 (D. Md. Aug. 11, 2016)

Unlike in Costar, Goldstein alleges that the Metro Photograph, on its face, contained a watermark indicating that it was copyrighted, which would support the inference that MRIS had actual knowledge that its use would infringe a copyright. Goldstein also alleges facts that indicate that MRIS did not act “expeditiously to remove, or disable access to, the material,” specifically his allegation that the Metro Photograph continued to appear on the MRIS website long after Goldstein had notified MRIS that it was copyrighted. Finally, the fact that MRIS, unlike the online real estate listing service in Costar, affirmatively imprinted its own copyright markings onto the Metro Photograph casts doubt on whether MRIS was merely engaged in “storage at the direction of a user of material that resides on a system or network” as required to qualify for the DMCA safe harbor provision, rather than the affirmative appropriation of another’s copyright. 17 U.S.C. § 512(c)(1). Thus, dismissal at the pleading stage based on the safe harbor provision would be wholly inappropriate.

* Seide v. Level-(1) Global Solutions, LLC, 2016 WL 4206076 (N.D. Ill. Aug. 10, 2016):

The parties spend time in their briefs arguing whether the five days it took for Level-(1) to remove the offending photographs in 2016 demonstrates that Steadfast moved expeditiously in response to Plaintiffs’ notification, which is another of the requirements for Steadfast to qualify for the safe-harbor. The Court does not need to decide whether a five-day response time is “expeditious” in order to decide Steadfast’s motion, because there are factual issues regarding whether Steadfast reasonably implemented a policy. But five days sounds rather expeditious to the Court, and the case law on the issue seems to agree. See Avdeef v. Google, Inc., 2015 WL 5076877, at *1, 3-4 (N.D. Tex. Aug. 26, 2015) (14 days is expeditious); Capitol Records, LLC v. Vimeo, LLC, 972 F. Supp. 2d 500, 535-36 (S.D.N.Y. 2013) (“It cannot be disputed that [a] one-day response time…constitutes expeditious removal”; and three and a half weeks is expeditious to remove 170 videos); Obodai v. Demand Media, Inc., 2012 WL 2189740, at *7 (S.D.N.Y. June 13, 2012) (email showing that the defendant sent notice to infringing user 22 days after receiving notice from copyright holder “establishes that the defendant expeditiously removed the infringing works”); Wolk v. Kodak Imaging Network, Inc., 840 F. Supp. 2d 724, 734 (S.D.N.Y. 2012) (five days to remove 700 photographs is expeditious). The parties should take this case law, and the Court’s preliminary assessment of it, into account in any future briefing on this issue.

* BMG Rights Management (US) LLC v. Cox Communications, Inc., 2016 WL 4224964 (E.D. Va. Aug. 8, 2016):

This case presents the question of whether a conduit internet service provider may be held liable for the infringing activity of its subscribers based on the uploading and downloading of copyrighted musical works using BitTorrent, a peer-to-peer file sharing network. The plaintiff in this action, BMG Rights Management (US) LLC (“BMG”), seeks to hold Cox Communications, Inc. and CoxCom, LLC (collectively, “Cox”) secondarily liable for the reproduction and distribution of 1,397 musical composition copyrights by users of Cox’s high-speed internet service between February 2, 2012 and November 26, 2014. After a two-week trial, a jury found Cox not liable for vicarious infringement, but liable for willful contributory infringement. The jury awarded BMG $25 million in statutory damages.

* Disney Enterprises v. VidAngel, 2:16-cv-04109 (C.D. Cal. Dec. 12, 2016). There is no space-shifting exception to 1201’s anti-circumvention restrictions. Also:

Assuming arguendo that VidAngel’s buy/sellback service creates a valid ownership interest in a DVD, this ownership would only apply to the physical DVD, not the digital content that VidAngel streams to paying subscribers. Subscribers view a stream from a master copy stored on a server, not a DVD temporarily “owned” by the user. Furthermore, lawful ownership of a DVD only conveys authorization to view the DVD, not to decrypt it for the purpose of viewing it on an alternative platform

The Family Home Movie Act didn’t apply because:

The statute clearly requires that a performance or transmission of filtered content must come from an “authorized copy” of the motion picture. The digital content that VidAngel streams to its customers is not from an authorized copy. VidAngel streams from a digital copy that it acquires by circumventing technological protection measures on Plaintiff’s DVDs in violation of § 1201(a) of the DMCA

VidAngel’s defense failed in part because:

VidAngel attempts to support their arguments by offering customer survey results that indicate that over 51% of VidAngel customers would not watch their offerings without filtering. The survey results are ultimately detrimental to VidAngel’s arguments. The fact that 49% of VidAngel’s customers would view movies without filters shows that VidAngel’s service does serve as an effective substitute for Plaintiff’s unfiltered works, for approximately half of VidAngels users.

* Public Knowledge: The Growing List of How the Copyright Office Has Failed Us. Full report.

* Sisyphus Touring, Inc. v. TMZ Productions, Inc., CV No. 15-09512-RSWL-PJW (C.D. Cal. Sept. 23, 2016):

Munaf transferred copyright ownership to Defendants in their December 4, 2015 email exchange. Hendry, wrote that the agreement was for the “outright purchase” of the video for $2,000 and attached the contract and W-9 form. Munaf emailed back stating he agreed to the terms of the agreement and sent the excerpt to a different representative of Defendants…. While the emails do not specifically say that Munaf is transferring copyright ownership to Defendants, it is clear from the finality of the emails, Munaf’s intention was to transfer ownership to Defendants….Munaf, using the pseudonym “Jake Miller,” wrote via email to Hendry he agreed to the terms of the agreement and the email was signed “Jake Miller Freelace Artist”. While Munaf did not click a “yes” button, Munaf did have to click the “send” button and the email had “Jake Miller” written at the bottom, purporting to be Munaf’s signature. The court in Vergara Hermosilla v. Coca-Cola Co., No. 10-21418, 2011 WL 744098 (S.D. Fla. Feb. 23, 2011) held that emails can be signed writings and are sufficient to effect a transfer and satisfy 17 U.S.C. § 204’s writing requirement. There are no genuine disputes as to material facts because Munaf transferred the excerpt to Defendants, not Plaintiffs.

* Ouellette v. Viacom International, Inc., 2016 WL 7407244 (9th Cir. Dec. 22, 2016). Another 512(f) case fails due to Rossi. Prior blog posts (1, 2).

* Opinion Corp. v. Roca Labs, Inc., 2016 WL 6824383 (M.D. Fla. Nov. 17, 2016). You can’t even win a 17 USC 512(f) case on a default judgment.

* TorrentFreak: [Canadian] Court Awards Damages Following Bogus DMCA Takedowns

* Devil’s Advocate LLC v. Zurich American Insurance Company, No. 15-1048. (4th Cir. Nov. 22, 2016). Court rejects an expert witness’ lawsuit over being designated as an expert in litigation and then not being retained. Among other claims, the court rejects the expert’s copyright infringement over the dissemination of his resume to opposing counsel:

Toothman’s resume employed no mode of expression, but merely collected and restated known facts. Zurich’s use was not for profit or in a traditionally commercial sense. Although reproduced in its entirety, Toothman’s resume “was not used to undermine any right conferred by the Copyright Act.” Finally, Zurich’s use of the resume did not affect its marketability. Unlike a manuscript, or other copyrightable works consumers might actually purchase, there is no market for Toothman’s resume as such, nor have Appellants credibly argued otherwise.

Prior blog post.

* The Board of Immigration Appeals holds that a person can be deported for criminal copyright infringement because it is a crime of moral turpitude.

* Ars Technica on EU’s proposed copyright reforms (hint: it’s not going well). Financial Times: “The kindest interpretation one can place on these proposals is that the commission has simply misunderstood the digital marketplace. A more cynical view is that it has caved in to fierce lobbying by a number of powerful European publishers”

* A new chapter in the linking saga

* Michael Geist: Music Canada Reverses on Years of Copyright Lobbying: Now Says WIPO Internet Treaties Were Wrong Guess

* Kirtsaeng denied his attorneys’ fees again.

* ABA Journal: Who’s the pirate? Lawyers join forces to fight allegedly bogus claims of pay-TV theft

* GQ: An Oral History of “We Built This City,” the Worst Song of All Time

Open Access

* James Grimmelmann: “Alternative Publishing Models For Cost-Conscious Professors”

* FTC Charges Academic Journal Publisher OMICS Group Deceived Researchers

* Does clickbait apply to academia?