Advanced Copyright Issues on the Internet - Fenwick & West LLP

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1. The Right of Communication to the Public in the WIPO <strong>Copyright</strong>TreatyArticle 8 of the WIPO <strong>Copyright</strong> Treaty provides a new right of “communication to thepublic” as follows:Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii),11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literaryand artistic works shall enjoy the exclusive right of authorizing anycommunication to the public of their works, by wire or wireless means, includingthe making available to the public of their works in such a way that members ofthe public may access these works from a place and at a time individually chosenby them.This new extended right of communication to the public is clearly meant to cover onlinedissemination of works, and in that sense is broader than the existing rights of communication tothe public in the Berne Convention, which are confined to performances, broadcasts, andrecitations of works. Specifically, Article 11(1)(ii) of the Berne Convention provides thatauthors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right ofauthorizing “any communication to the public of the performance of their works.” Article11bis(1)(ii) provides that authors of literary and artistic works shall enjoy the exclusive right ofauthorizing “any communication to the public by wire or by rebroadcasting of the broadcast ofthe work, when this communication is made by an organization other than the original one.”Finally, Article 11ter(1)(ii) provides that authors of literary works shall enjoy the exclusive rightof authorizing “any communication to the public of the recitation of their works.”The new right of communication to the public in the WIPO <strong>Copyright</strong> Treaty appears tobe broader than the existing rights of reproduction, display, performance, distribution, andimportation under current United States law in the following ways:No Requirement of a Copy. The right does not require the making or distribution of“copies” of a work. It therefore removes the potential limitations on the rights ofreproduction and distribution under United States law stemming from the requirementof a “copy.”Right of Transmission. It affords the exclusive right to control any “communicationto the public” of a work “by wire or wireless means.” Although “communication” isnot defined in the WIPO <strong>Copyright</strong> Treaty, the reference to a communication “bywire or wireless means” seems clearly applicable to electronic transmissions of works(a right of transmission). This conclusion is bolstered by the fact that Article 2(g) ofthe WIPO Performances and Phonograms Treaty does contain a definition of“communication to the public,” which is defined in terms of “transmission to thepublic by any medium, other than broadcasting.” 465 This transmission right will465Article 2(f) of the WIPO Performances and Phonograms Treaty defines “broadcasting” to mean “thetransmission by wireless means for public reception of sounds or of images and sounds or of the representationsthereof ....” This definition seems to contemplate isochronous transmission.- 110 -
potentially site the infringement at the place of transmission, in addition to the pointof receipt of a transmitted work (under the reproduction right).Right of Authorization. It also affords the exclusive right of “authorizing” anycommunication to the public. No actual communications to the public are apparentlynecessary to infringe the right.Right of Access. The right of authorizing communications to the public explicitlyincludes “making available to the public” a work “in such a way that members of thepublic may access” the work “from a place and a time individually chosen by them”(a right of access). 466 This access right would seem to allow the copyright holder toremove an infringing posting of a work prior to any downloading of that work. Thisright may also expand potential liability beyond just posters or recipients ofinfringing material on the Internet to include OSPs and BBS operators, who could besaid to make a work available to the public in such a way that members of the publicmay access it.The Agreed Statement for Article 8, however, appears aimed at limiting the breadth ofthe net of potential liability that Article 8 might establish. The Agreed Statement provides: “Itis understood that the mere provision of physical facilities for enabling or making acommunication does not in itself amount to communication within the meaning of this Treaty orthe Berne Convention. It is further understood that nothing in Article 8 precludes a ContractingParty from applying Article 11bis(2).” It is unclear who the “mere” provider of “physicalfacilities” was meant to reference – only the provider of telecommunications lines (such asphone companies) through which a work is transmitted, or other service providers such as OSPsor BBS operators, who may provide “services” in addition to “facilities.”Another unclear point with respect to the scope of the right of communication to thepublic is who the “public” is. Neither the WIPO <strong>Copyright</strong> Treaty nor the European <strong>Copyright</strong>Directive provide any explanation of “to the public,” although the Commission in its 1997commentary to one of the earlier drafts of the Directive stated that “public” included “individualmembers of the public,” but went on to state that “the provision does not cover mere privatecommunications.” 467The right of transmission and access under Article 8 of the WIPO <strong>Copyright</strong> Treaty issimilar to (and potentially broader than) the amendment to U.S. copyright law proposed in theNII White Paper “to expressly recognize that copies or phonorecords of works can be distributedto the public by transmission, and that such transmissions fall within the exclusive distribution466467Although “public” is not defined in the WIPO <strong>Copyright</strong> Treaty, the reference in Article 10 to access bymembers of the public “from a place and at a time individually chosen by them” is very similar to the definitionof display or performance of a work “publicly” in Section 101 of the U.S. copyright statute, which applies“whether the members of the public capable of receiving the performance or display receive it in the same placeor in separate places and at the same time or at different times.”Harrington & Berking, supra note 179, at 4.- 111 -
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ADVANCED COPYRIGHT ISSUESON THE INT
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6. Peer-to-Peer File Sharing 57(a)
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(xv) Craigslist v. Naturemarket 140
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(iii) Gordon v. Nextel Communicatio
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(a) Facebook v. Power Ventures 263C
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l. UMG Recordings v. Veoh Networks
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3. The MetroGuide Litigation 5134.
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crucial question whether the MAI ap
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machine or device. The term “copi
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terminal emulation program is not s
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describes the status of transition.
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sections of the Uruguay Round trade
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(b) The WIPO Copyright</str
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ecording industries, opposed any op
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in the case of Article 7, an earlie
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fact that copyright law has traditi
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and downloading of unauthorized cop
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downloads. “She provided the faci
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The defendant also argued that it c
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copying enhanced the defendants’
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copying was a fair use. The court r
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were brought against MP3.com as wel
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The principle distilled from these
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ecorded, the appropriate packets co
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commands and engages in no volition
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loaded the original copies of the s
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(b) Notwithstanding the provisions
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would have “independent economic
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such sound recordings because they
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(o) use in certain other cases of m
Page 61 and 62: matter belongs entirely to the jury
Page 63 and 64: 7. The Immunity of the Audio Home R
Page 65 and 66: playlists with title and artist inf
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Page 71 and 72: performances because the RS-DVR cus
Page 73 and 74: “[w]here a transmission is of a d
Page 75 and 76: although the court noted that the O
Page 77 and 78: images to allow users to recognize
Page 79 and 80: prima facie case of infringement as
Page 81 and 82: The district court concluded that t
Page 83 and 84: was no greater than necessary to ac
Page 85 and 86: court concluded that Google’s use
Page 87 and 88: The Ninth Circuit agreed, however,
Page 89 and 90: would likely succeed in establishin
Page 91 and 92: of its secondary liability claims b
Page 93 and 94: of ownership, or by rental, lease,
Page 95 and 96: (1) Cases Holding That Mere Posting
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Page 99 and 100: (2) Cases Holding That Mere Posting
Page 101 and 102: version of the image displayed in t
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Page 107 and 108: e able to make an end run ar4ound t
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Page 111: Section 602(a) was obviously drafte
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Page 117 and 118: transmission.” It is not relevant
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Page 121 and 122: 2. Literary works, including comput
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Page 125 and 126: the exemption only to “computer f
Page 127 and 128: 6. “Sound recordings, and audiovi
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Page 131 and 132: (iii) Sony Computer Entertainment A
Page 133 and 134: injunction prohibiting the defendan
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Page 137 and 138: (xi) CoxCom, Inc. v. ChafeeCoxCom l
Page 139 and 140: The court rejected a number of defe
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Page 147 and 148: The paper also raised concern about
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Page 155 and 156: within the games themselves,” whi
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Page 159 and 160: (vi) Sony Computer Entertainment Am
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Streambox Ferret corrupted complete
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In addition, the court, citing Nimm
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1201(a)(3)(B) provides that a techn
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Links “to sites that automaticall
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Having rejected all constitutional
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under the Copyright</strong
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Department to block it from prosecu
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DVD player has the authority of the
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industry, which included a financia
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set to “Restricted,” including
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portion of the analog signal, the p
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software constitutes a violation of
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intended to ban only those circumve
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authentication sequence required th
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If any single byte of the Toner Loa
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that the defendant had copied the T
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code in sequence to be sent to the
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demonstrating the homeowner’s wil
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The court’s statements might impl
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Chamberlain’s operating software
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and fix the malfunction. The Federa
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- Second, the court’s interpretat
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With respect to the first reason, t
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The plaintiff brought a claim for v
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copyright owner. The plaintiff alle
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copy and the scanned copy did not r
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crawler’s operation. 955 The cour
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plaintiffs also alleged that the de
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characteristics or uses of an accus
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found that Filipiak knew at the tim
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(iv) MDY Industries, LLC v. Blizzar
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concerned that digital television b
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An important thing to note is that
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In March of 2005, a German court, o
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and, if reproduced in digital forma
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ackup copies may not be distributed
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(f)Protection of Certain Industrial
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(4) Adaptations of Unprotectable El
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awarded “shall constitute compens
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copyrighted songs through peer-to-p
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Finally, the court rejected the RIA
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efall Fatwallet as opposed to its s
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(2) abrogate or restrict the limita
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On Line (AOL), may constitute infri
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server other than the original serv
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to material on a site to a single u
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could argue that caching inherently
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4. Cases Adjudicating Caching Under
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The court also found that Field sho
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[Plaintiff] argues that merely by v
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The court ruled that, as a result o
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liability for contributory infringe
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However, the court was careful to n
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that online users saved in their de
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Napster argued that its users’ do
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drive do not constitute a “digita
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have not shown that the majority of
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erroneously concluded that sampling
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established artists’ songs render
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generalized knowledge that the Naps
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Napster “when linked to demonstra
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The Ninth Circuit’s view of the v
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[C]ontributory liability may potent
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On appeal in Napster I, the Ninth C
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“All parties shall use reasonable
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plaintiffs’ reading of the paragr
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fundamentally altered copyright lia
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works and files. This burden-shifti
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Next, the court turned to Napster
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Napster’s standing to challenge t
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(2) The Scour.com LawsuitAnother ca
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trafficking in copyrighted material
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Judge Posner, the Supreme Court in
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The court also rejected a challenge
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when the user logged off, that user
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Turning to the material contributio
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how “probable” the noninfringin
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also warned existing Australian use
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As explicated below, the Supreme Co
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The Required Threshold of Showing o
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The Court also noted that even Grok
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In the absence of other evidence of
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With respect to the first principle
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It is mindful of the limitations fa
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Whether the Seventh Circuit’s app
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product to be used to infringe sugg
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make some effort to mitigate abusiv
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It is important to recognize that t
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include any details of the filterin
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eferences to “reasonable” knowl
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infringements were occurring and ha
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over the course of three or four ye
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argument as insufficient, noting th
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summary judgment. The court denied
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were engaged in copyrighted infring
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(a) The Netcom Case and its Progeny
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content found within the sites maki
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On appeal, the Ninth Circuit affirm
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district court granted the defendan
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infringed its trademarks and copyri
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satisfied because Master had the po
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BitTorrent users had taken place in
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obligation of providing Defendants
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(1) Safe Harbors - Definition of a
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not make a copy of the material dur
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contributory copyright infringement
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The Ninth Circuit found that there
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and the material was transmitted th
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On appeal, the Seventh Circuit affi
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Banned WebmasterIf a webmaster, ide
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it operated in order to provide its
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infringement, it would need to be a
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transmission of such material to a
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Thus, Google’s cached meets the r
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identification of the copyrighted w
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identified them “with sufficient
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Because RemarQ had received adequat
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supply the preceding two elements,
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policy that provides for the termin
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Turning first to the issue of knowl
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court noted that because LoopNet’
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inducement as a matter of law.” 1
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that a defendant can look for enfor
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Section 512(c)(3)(B)(ii). 1875 In a
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e. The Aimster/Madster Lawsuits. Th
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could not control such sales. 1899
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With respect to the issue of contro
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epeat infringer’s access, suggest
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listings to Amazon’s attention, t
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platform amount to a right and abil
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link to view all 16 lower resolutio
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Finally, with respect to the issue
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servers to be accessed by other mea
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and such a holding would be contrar
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The court also rejected UMG’s arg
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Louis Vuitton v. Akanoc Solutions.
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failing to satisfy the requirement
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arguing that linking to or publishi
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from websites and the initiation of
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Finally, the court ruled that, as a
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give rise to a claim under Section
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Prince’s behest, based not on the
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DMCA are served by requiring copyri
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infringing could not be a “materi
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On Nov. 3, 1998, the Copyri
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the Internet, and encompasses the d
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D. Linking and FramingThe practice
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found. Linking to a site containing
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and programming services to Total N
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MasterCard prominence over any othe
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6. The Intellectual Reserve CaseIn
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[H]yperlinking does not itself invo
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defendant web page’s text and adv
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The court found stronger evidence o
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Batesville dealer, the Veterans Soc
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ight of public performance and the
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agreed that AM/FM webcasting was no
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2. The Digital Performance Right -
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digital transmission services, impo
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(b) Eligible Nonsubscription Servic
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proceeding. To be eligible for the
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On June 18, 2003, the Copyr
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On Aug. 23, 2007, SoundExchange als
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- On June 1, 2001, Launch and other
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genres and unrated quota. 2249 Alth
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embodied in phonorecords or digital
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allow users to listen to songs on t
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to assert claims based on the makin
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companies and to any digital music
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F. First Sales in Electronic Commer
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This provision seems to have been d
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thereof. 2297 In February of 2003,
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(b) Wells Fargo v. WhenU.comSimilar
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(c) 1-800 Contacts v. WhenU.comA th
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the domain name www.www1800Contacts
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pop-up and pop-under ads from appea
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copyright holder’s rights, then t
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