Advanced Copyright Issues on the Internet - Fenwick & West LLP

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(iii) Facebook v. Power VenturesIn this case, the defendants operated an Internet service called Power.com that collecteduser information from Facebook’s web site outside of the “Facebook Connect” applicationprogrammer’s interface (API). After a user provided his or her user names and passwords, thePower.com service used the access information to scrape user data from those accounts.Facebook’s Terms of Use broadly prohibited the downloading, scraping, or distributing of anycontent on the web site, except that a user was permitted to download his or her own usercontent. Facebook alleged that it had implemented specific technical measures to block accessby Power.com after the defendants informed Facebook that they intended to continue theirservice without using Facebook Connect, and that the defendants then attempted to circumventthose technological measures in violation of the anti-circumvention provisions of the DMCA.The defendants brought a motion to dismiss the DMCA claims, arguing that the unauthorized userequirement of a Section 1201(a)(1) claim was not met because it was the users who werecontrolling access (via Power.com) to their own content on the Facebook web site. The courtdenied the motion, in view of the fact that the defendants’ argument relied on an assumption thatFacebook users were authorized to use Power.com or similar services to access their useraccounts, and the Terms of Use barred users from using automated programs to access theFacebook web site. 527(iv) Bose v. ZavalaIn this case, the defendant sold Bose Lifestyle Media Centers in auctions on eBay. In hisauctions, he offered to unlock the region coding within the Media Center’s DVD player byaltering Bose’s firmware in the device or to give the purchaser directions on how to do so.Unlocking the region code would permit the Media Centers to play DVDs distributed anywherein the world. Bose brought claims against the defendant under Section 1201 of the DMCA andthe defendant moved to dismiss them under Fed. R. Civ. Pro. 12(b)(6) on the ground that Boselacked standing to assert the claims because it was not the type of party protected by the DMCA,since it did not sell digital media or region code-changing services. The court rejected thisargument, ruling that a party who controls the technological measures that protect copyrightedworks is a “person injured” by the circumvention of the measures within the meaning of Section1203(c). 528 The court concluded, “Bose controls region coding, a technological measure thatprotects copyrighted DVDs. This is sufficient to allege that it is a ‘person injured’ within themeaning of the DMCA.”(2) Prohibition on DevicesThe DMCA also outlaws devices and technology directed to circumvention oftechnological copyright protection measures. Specifically, Sections 1201(a)(2) and 1201(b)prohibit the manufacture, import, offer to the public, or trafficking in any technology, product,service, device, component, or part thereof that is primarily designed or produced for the purpose527528Facebook, Inc. v. Power Ventures, Inc., 2009 U.S. Dist. LEXIS 42367 (N.D. Cal. May 11, 2009) at *1-2, 9-10& 13-14.Bose BV v. Zavala, 2010 U.S. Dist. LEXIS 2719 (D. Mass. Jan. 14, 2010) at *1-5.- 126 -
of circumventing a technological measure that effectively “controls access to” a copyrightedwork or “protects a right of a copyright owner,” or has only limited commercially significantpurpose or use other than to circumvent such technological measure, or is marketed for use incircumventing such technological protection measure. Section 1201(b)(2) provides that atechnological measure “effectively protects a right of a copyright owner” if the measure “in theordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of acopyright owner.” Although trafficking in these types of prohibited devices might wellconstitute contributory infringement, Sections 1201(a)(2) and 1201(b) make it a direct statutoryviolation subject to criminal and civil penalties.It should be noted that, although Sections 1201(a)(2) and 1201(b) in combination prohibitdevices designed to circumvent both technological measures that control access to a copyrightedwork and that protect a right of a copyright owner, Section 1201(a)(1) prohibits conduct that isdirected only to the former, but not the latter. The rationale for this distinction was apparently abelief that anyone should be free to circumvent a measure protecting rights of a copyright ownerin order to make fair use of a work, 529 whereas gaining access in the first instance to acopyrighted work without the owner’s permission cannot be a fair use. 530Unlike the case of the prohibition of circumvention to gain unauthorized access to a workunder Section 1201(a)(1), the prohibitions of Sections 1201(a)(2) and 1201(b) were notsuspended for a two year period and went into effect immediately under the DMCA. Thus, theDMCA set up the curious situation in which, for the initial two year period, it did not directlyprohibit circumvention of a technological measure to gain access to a work, but did prohibit themanufacture, sale or importation of devices that would enable or assist one to gain such access.Another curious aspect of the DMCA is that it authorizes the Librarian to createadditional exceptions via rulemaking only to Section 1201(a)(1), but not to Sections 1201(a)(2)and 1201(b). Thus, the DMCA appears to allow the Librarian to permit acts of circumvention inadditional situations, but not the devices necessary to enable or assist such acts.529530See The Digital Millenium <strong>Copyright</strong> Act of 1998, U.S. <strong>Copyright</strong> Office Summary (Dec. 1998) at 4(explaining that the distinction between Section 1201(a) and (b) as to the act of circumvention in itself was “toassure that the public will have the continued ability to make fair use of copyrighted works. Since copying maybe a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing atechnological measure that prevents copying.”). Similarly, the <strong>Copyright</strong> Office noted in its rationale for thefirst set of exemptions it established from the prohibition against circumvention of technological measurescontrolling access to a work: “The decision not to prohibit the conduct of circumventing copy controls wasmade, in part, because it would penalize some noninfringing conduct such as fair use.” 65 Fed. Reg. 64556,64557 (Oct. 27, 2000).Realnetworks, Inc. v. DVD Copy Control Ass’n, 641 F. Supp. 2d 913, 942 (N.D. Cal. 2009) (“The prohibitionon individual circumvention conduct only applies with respect to access protection technologies (because fairuse can never be an affirmative defense to the act of gaining unauthorized access), not to technologies thatprevent copying.”); Inna Fayenson, “Anti-Circumvention Provisions of The Digital Millennium <strong>Copyright</strong>Act,” Journal of Internet Law, Apr. 1999, at 9, 10.- 127 -
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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
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matter belongs entirely to the jury
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7. The Immunity of the Audio Home R
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playlists with title and artist inf
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ecordings, other than with respect
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performance right was implicated by
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performances because the RS-DVR cus
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“[w]here a transmission is of a d
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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
Page 103 and 104: was downloaded at least once [by pe
Page 105 and 106: Copyright Act.”
Page 107 and 108: e able to make an end run ar4ound t
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Page 111 and 112: Section 602(a) was obviously drafte
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Page 117 and 118: transmission.” It is not relevant
Page 119 and 120: equire treaty signatories to provid
Page 121 and 122: 2. Literary works, including comput
Page 123 and 124: already adequately addressed the co
Page 125 and 126: the exemption only to “computer f
Page 127: 6. “Sound recordings, and audiovi
Page 131 and 132: (iii) Sony Computer Entertainment A
Page 133 and 134: injunction prohibiting the defendan
Page 135 and 136: measures protected Blizzard’s rig
Page 137 and 138: (xi) CoxCom, Inc. v. ChafeeCoxCom l
Page 139 and 140: The court rejected a number of defe
Page 141 and 142: entire files within the software wh
Page 143 and 144: user detection feature would not pr
Page 145 and 146: that it was not supposed to be able
Page 147 and 148: The paper also raised concern about
Page 149 and 150: microchip contained a computer prog
Page 151 and 152: [T]he statutory exemption found in
Page 153 and 154: DeCSS), and not dissemination of th
Page 155 and 156: within the games themselves,” whi
Page 157 and 158: check the validity of the CD Key co
Page 159 and 160: (vi) Sony Computer Entertainment Am
Page 161 and 162: Provisions(13) Other Cases Filed Un
Page 163 and 164: Streambox Ferret corrupted complete
Page 165 and 166: In addition, the court, citing Nimm
Page 167 and 168: 1201(a)(3)(B) provides that a techn
Page 169 and 170: Links “to sites that automaticall
Page 171 and 172: Having rejected all constitutional
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Page 175 and 176: Department to block it from prosecu
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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
Page 515 and 516:
copyright holder’s rights, then t
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