2H 2020 Quick Links, Part 1 (Copyright)
* UMG Recordings v. RCN Telecom Services, LLC, 3:19-cv-17272-MAS-ZNQ (D.N.J. Aug. 31, 2020):
Plaintiffs have made allegations sufficient to satisfy the knowledge requirement at the pleading stage. As to actual knowledge, Plaintiffs aver that the five million notices sent to RCN by Rightscorp that provided the IP address of the user, the date and time of the activity, and the name of the infringed upon content is sufficient to confer actual knowledge to RCN. Plaintiffs similarly argue that, at a minimum, such notices gave RCN “reason to know” that widespread infringement was being committed by its subscribers and, therefore, that RCN had constructive knowledge of infringement. As to willful blindness, Plaintiffs allege that “[b]y ignoring the repeat infringement notifications and refusing to take action against repeat infringers, and instead providing those customers with ongoing internet service, Defendants made a deliberate decision to contribute to known copyright infringement.” …
Plaintiffs have adequately pleaded the material contribution or inducement element. Plaintiffs have alleged that “RCN facilitated, encouraged, and materially contributed to such infringement by continuing to provide its network and the facilities necessary for its subscribers to commit repeated infringements.” “At the same time, RCN had the means to withhold that assistance upon learning of specific infringing activity by specific users, but failed to do so, purposefully ignoring and turning a blind eye to the flagrant and repeated infringement by its subscribers.”
* Superama Corp. v. Tokyo Broadcasting System Television, No. 19-55981 (9th Cir. Oct. 21, 2020): “because the infringing act of downloading the material occurred on a computer outside the United States, there was no act in the United States to establish jurisdiction”
* Donat v. Amazon.com, 1:19-cv-01222-RM-KMT (D. Colo. Aug. 31, 2020):
Plaintiff argues that Amazon cannot rely on the DMCA’s safe harbor provision because it receives a direct financial benefit from its infringing activity, but he has not pointed to any evidence that Amazon has the right and ability to control the allegedly infringing activity. “[I]n order to have the right and ability to control, the service provider must exert substantial influence on the activities of users.” Substantial evidence may include high levels of control over activities of users or purposeful conduct. Plaintiff has pointed to evidence of neither. Nor has he identified any act or decision by Amazon that led to the alleged infringement.
* Strike 3 Holdings, LLC v. Doe, 964 F.3d 1203 (D. C. Cir. 2020). This decision turns a blind eye to the abuses of copyright trolling.
The mere fact that a defendant may be embarrassed to have his name connected to pornographic websites is not a proper basis on which to diminish a copyright holder’s otherwise enforceable property rights… a plaintiff’s ability to defend its copyrights cannot turn on a court’s subjective view of the copyrighted material… The protections afforded by copyright law do not turn on a copyright holder’s popularity or perceived respectability….
Strike 3 asserts that it has used a combination of forensic and geolocation technology to tie a single IP address, registered to a user in the District of Columbia, to twenty-two acts of infringement on specified dates over the course of a year. Based on these allegations, a court could reasonably infer that someone with prolonged, continuous access to this IP address was responsible for the alleged infringement. Viewing the allegations in the light most favorable to Strike 3, we think it at least plausible that the registered IP address subscriber “actually did the infringing.”…
At that point, if Strike 3 is unable to plead additional facts tying the registered subscriber to the alleged infringement, the scales may tilt towards implausibility. At this stage, however, we cannot know what Strike 3’s subpoena will uncover. The mere fact that discovery may demonstrate that the subscriber is not the proper defendant is no basis to close the courthouse doors before Strike 3 can step inside.
* Mango v. Buzzfeed Inc, Docket No. 19-446-cv (2d Cir. Aug 13, 2020): Regarding a 17 USC 1202 claim: a defendant’s awareness that distributing 6 copyrighted material without proper attribution of CMI will conceal his own infringing conduct satisfies the DMCA’s second scienter requirement.
* Harrison v. Facebook, Inc., 2020 WL 4728931 (9th Cir. Aug. 14, 2020):
Harrison has failed to allege that Facebook engaged in any volitional conduct that would give rise to a claim for direct copyright infringement. Harrison or her agent uploaded her copyrighted works to Facebook. Harrison has alleged only that Facebook passively hosted the content and failed to remove it when Harrison was unable to follow Facebook’s procedures for removal.
Harrison or her agent also consented to Facebook’s terms of service when the content was uploaded. By doing so, she or her agent gave Facebook a license to display the copyrighted works. That license expires only when the user deletes the images or the entire Facebook account—neither of which Harrison has done.
Facebook therefore retains a license to display Harrison’s copyrighted works.
* LA Gem and Jewelry Design, Inc. v. Groupon, Inc., 2020 WL 5440501 (C.D. Cal. Sept. 10, 2020)
LA Gem provides evidence that Groupon was aware of the facts and circumstances from which infringing activity is apparent. Groupon advises vendors on product prices and sale, and vendors partner with Groupon to sell their products on its platform. Additionally, vendors must satisfy Groupon’s vetting process. To be designated as a first-party vendor, Golden Moon interacted with a Groupon representative over a dozen times in its New York office as well as Groupon’s Chicago office. The representative was aware that Golden Moon acquired jewelry from international supply channels and did not manufacture the products. Thus, at best, the evidence shows that Groupon may have been aware of the infringing activity, which is insufficient.
Notably, LA Gem provides evidence that Groupon received a financial benefit directly attributable to the infringing activity. Groupon accepted payment from consumers and retained a portion of the revenue of 38,963 units of infringing jewelry similar to the Crescent Design and 664 units of infringing jewelry similar to the Mom Design. LA Gem also provides evidence of the control Groupon had in selling these products: from sourcing the goods, to purchasing and then reselling them. Defendants do not dispute these facts. As Groupon selected and profited from Golden Moon’s products, the Court finds that Groupon does not qualify for the safe harbor. Accordingly, the Court GRANTS LA Gem’s Motion on this issue.
* Bain v. Film Independent, 2:18-cv-04126-PA-JEM (C.D. Cal. August 6, 2020). Actress’ clip reel is fair use
* Bork v. Quynh, 2020 WL 4474485 (M.D. Fla. Aug. 4, 2020): “Bork also requests injunctive relief against Etsy. But she did not notify Etsy and give them a chance to appear. See 17 U.S.C. § 512(j)(3) (“Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided[.]”). Nor did explain why injunctive relief against an absent party is proper. The Court denies relief against Etsy.”
* The Makeup Blowout Sale Group, Inc., Plaintiff, v. All that Glowz, Inc., 2020 WL 5535533 (S.D. Fla. Sept. 15, 2020). 512(f) claim survives motion to dismiss.
* Mandala v. Tire Stickers, LLC, 2020 WL 5814496 (11th Cir. Sept. 30, 2020): “the district court did not err in dismissing the claims under the DMCA [512(f)] because Mandala alleged the defendants filed false notices of trademark infringement. He did not allege any violations concerning copyright infringement.”
* Techdirt: In 10 Years Of Existence, The Long-Running French Farce Known As Hadopi Has Imposed Just €87,000 In Fines, But Cost Taxpayers €82 Million
* Amanda Reid, Social Utility of Music: A Case For A Copyright Exemption For Therapeutic Uses, Cornell Journal of Law and Public Policy (2020)