1H 2019 Quick Links, Part 1 (Copyright & More)


* Long v. Dorset, 2019 WL 861424 (N.D. Cal. Feb. 22, 2019). Dorset allegedly locked Long out of his Facebook page. Access was restored in 5 business days. The court says that’s expeditious enough for DMCA notice-and-takedown purposes:

Plaintiff’s proposed rule—that expeditiousness can never be decided at a motion to dismiss—would undermine the DMCA’s purpose. Under plaintiff’s rule, courts could never apply the safe harbors at the motion to dismiss stage because a question of fact would always exist as to whether the service provider acted expeditiously as required by the safe harbors. That result does not respect the balance that Congress sought to strike between “protecting intellectual property interests” and encouraging internet innovation because it “permits the specter of liability”—through the costs imposed by extensive (and unnecessary) discovery—“to chill innovation.” And it certainly does not help limit or “‘clarif[y] the liability faced by service providers who [unwittingly] transmit potentially infringing material over their networks.

That is not to say that the issue of expeditiousness is always ripe for decision at the motion to dismiss stage. Often the opposite will be true. For example, the parties might dispute how long it took for defendant to respond to the notice. Or the complaint may allege circumstances giving rise to the inference that a response time of a specific number of days or weeks was not expeditious.

But that is not the case here. Under the facts allege here, the court finds that Facebook’s five-business-day response satisfies the DMCA’s expeditious requirement. Plaintiff sought the removal of over a hundred allegedly infringing images and also sought the restoration of his administrator status. Facebook promptly responded to plaintiff’s initial email and, over the next several days, continued to exchange emails with plaintiff to resolve the issue. A total of five business days after it first received notice of the alleged infringement, Facebook resolved plaintiff’s complaint. Based on those allegations, the court finds that the DMCA’s safe harbors apply to plaintiff’s copyright claims against Facebook because Facebook “satisfied the ‘responds expeditiously to remove’ requirement.

The court also finds Section 230 applies because “The FAC is devoid of allegations showing that Facebook was “directly involved” with developing or posting the infringing material.”

* Strike 3 Holdings, Inc. v. Doe, 2019 WL 2022452 (E.D.N.Y. March 21, 2019)

whatever else Strike 3 will do with the information it secures if it prevails on these motions, it is likely that one thing it will not do is use the information to litigate the action in court. Strike 3 has filed 276 cases in this district since 2017. Of those, 133 remain pending, many with unresolved motions for expedited discovery. Of the 143 cases that have been resolved, Strike 3 reports that it settled 49 and voluntarily dismissed 94 – 28 due to the alleged infringers’ hardship, 50 due to Strike 3’s inability to satisfy itself that Doe (the service subscriber named as the defendant) was in fact the alleged infringer, and 16 for other reasons …

It is thus apparent that Strike 3 is deliberately asserting claims in a scattershot fashion against a broad array of individuals simply because it is confident that many of them will be liable – even if almost as many of them are not.

* Stardock Systems, Inc. v. Reiche, 2018 WL 7348858 (N.D. Cal. Dec. 27, 2018)

Plaintiff’s argument is based on the “flawed premise” that the issuance of a notice of infringement under the DMCA is the equivalent of an injunction requiring the removal of allegedly infringement material. It is not. Contrary to Plaintiff’s assertion, Defendants cannot “unilaterally” block Origins or any other content from distribution by issuing a DMCA notice. Such notice simply serves to provide knowledge of alleged infringement to service providers. Critically, receipt of a notice of claimed infringement does not mandate that a service provider remove or disable access to allegedly infringing material.

* Rodriguez v. Serna, 2019 WL 2340958 (D.N.M. June 3, 2019):

Plaintiff alleged that Defendant Ricky Serna sent a takedown notice to her web provider that photos on her website were copyrighted, when he knew they were not.

Under the DMCA, “[a]ny person who knowingly materially misrepresents under this section– (1) that material or activity is infringing …shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material.” 17 U.S.C. § 512(f). Moreover, the DMCA requires that a “notification of copyright infringement” include a statement that the complaining party has a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner.” 17 U.S.C. § 512(c)(3)(A)(v). “The purpose of Section 512(f) is to prevent the abuse of takedown notices.” Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1156 (N.D. Cal. 2008).

Here, Plaintiff has plausibly pled that the takedown notice was issued in bad faith and a knowingly material misrepresentation, as Defendant plausibly issued it in retaliation for Plaintiff’s prior speech. Plaintiff alleges she published on her website content critical of NNMC and certain administrators. Plaintiff alleges that Defendant Serna submitted a takedown notice and attested that the photos were copyrighted, when they were not. Plaintiff’s service provider, Weebly, Inc., determined that Defendant Serna’s claims were false and restored the website. Defendant Serna stated that her website “tweeted hatred.” He stated that “this small group of angry and viscous [sic] people are capable of violence.” Based on this prior alleged conflict, Plaintiff plausibly alleged that Defendant Serna knew that the photos were not copyrighted, and knowingly misrepresented the photos were copyrighted to be vindictive or retaliate against Plaintiff for her statements.

* Johnson v. New Destiny Christian Center Church Inc., 2019 WL 1014245 (M.D. Fla. March 4, 2019)

The evidence before the Court uniformly supports Defendant’s good faith defense. And critically here, Plaintiff has not supplied a factual basis on which to find the opposite: that Defendants, in pursuing Takedown Notifications, made a knowing material misrepresentation. As it stands, Defendants’ affidavits supply that before PWM sent YouTube takedown requests, Plaintiff’s videos were analyzed to determine whether they constituted fair use. Each time, PWM concluded that Plaintiff’s videos did not constitute fair use and were infringing copyrighted material. …

Thus, the Court finds that PWM’s sending of Takedown Notifications “did not evince bad faith or entail the making of a material misrepresentation.” Defendants’ Motion is therefore granted as to Plaintiff’s § 512(f) claim.

* Michael Grecco Productions, Inc. v. Alamy, Inc., 2019 WL 1129432 (E.D.N.Y. March 12, 2019). Putting your own watermark while infringing someone else’s photos could violate 17 USC 1202(a).

* Unsurprisingly, paranoia and trolling has taken root in the songwriting industry in the aftermath of the Blurred Lines ruling.

* Variety: Conan O’Brien: Why I Decided to Settle a Lawsuit Over Alleged Joke Stealing

* Vice: How Etsy Sellers and Big Business Make Money on Public Domain Art

* NY Times: Athletes Don’t Own Their Tattoos. That’s a Problem for Video Game Developers.

* TorrentFreak: Reddit’s /r/Piracy is Deleting Almost 10 Years of History to Avoid Ban. Regulation causes the Internet to keep shrinking.

* TorrentFreak: Former “Copyright Alert System” Portal Now Links to Mattress Review Site

* The Verge: YouTubers and Record Labels Are Fighting, and Record Labels Keep Winning

* Quill Ink Books Ltd. v. ABCD Graphics & Design, Inc., 5:18-cv-00920 (W.D. Okla.): “The fact that the DMCA notice was sent to one online distributor of Plaintiff’s that is located in Oklahoma, and even that distributor does not direct its sales to Oklahoma, is not sufficient to locate the “brunt” of Plaintiff’s alleged injury in Oklahoma, much less to establish that Defendant Soto had knowledge that the brunt of Plaintiff’s alleged injury would be felt in Oklahoma.”

Trade Secrets

* Washington Post: How Donald Trump silenced the people who could expose his business failures

* Washington State Governor Signs Law Severely Limiting Non-Competes

* WSJ: Interns’ Job Prospects Constrained by Noncompete Agreements


* Daniel Nazer: Theranos: How a broken patent system sustained its decade-long deception