Advanced Copyright Issues on the Internet - Fenwick & West LLP

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measures, but rather to run legitimate PlayStation games, it should probably fall within thesavings clause of Section 1201(c)(3). 660(ii)RealNetworks, Inc. v. Streambox Inc.On Dec. 20, 1999, RealNetworks, Inc., the developer and distributor of various versionsof the “RealPlayer,” which embodied “streaming” technology that allowed Internet users toobtain real-time delivery and instant playback of audio and video content over the Internet,brought suit against Streambox, Inc. 661 RealNetworks’ products embodied anti-piracytechnology. Specifically, RealNetworks supplied copyright holders with a product known as“RealProducer,” which converted ordinary audio and video files into digitized “RealAudio” and“RealVideo” files. RealNetworks also offered a “RealServer” product to copyright holders thatallowed them to distribute their copyrighted material in a secure format designed to interact onlywith RealPlayers to further prevent unauthorized access to copyrighted content. 662RealNetworks based its complaint on the following three products developed anddistributed by Streambox:“Streambox Ripper,” which converted any RealAudio file to a file in the format ofWindows Media Audio (WMA), MPEG-Layer 3 (MP3), or Microsoft WindowsWave Format (WAV). Once in any of these three formats, an audio file could becopied, stored, or freely distributed, thereby circumventing RealNetworks’ securitymeasures. 663“Streambox VCR,” which mimicked a RealPlayer, tricking RealServers into interactingwith it and distributing both RealAudio and RealMedia files to it, thereby alsocircumventing the RealNetworks’ security measures. 664“Streambox Ferret,” which was supposedly designed to work with and enhance thefunctionality of RealPlayers. RealNetworks alleged, however, that Streambox Ferretreplaced the “snap.com” search engine on the RealPlayer’s search bar with a“Streambox” logo that diverted those using the RealPlayer’s search function fromSnap’s search services (with whom RealNetworks had an exclusive arrangement) to acompeting service operated by Streambox. In addition, RealNetworks alleged that660661662663664Band & Issihiki, supra note 611, at 8-9.Complaint for Violation of The Digital Millennium <strong>Copyright</strong> Act, Contributory, Vicarious and Direct<strong>Copyright</strong> Infringement, Tortious Interference with Contract, and Lanham Act Violations, RealNetworks, Inc.v. Streambox Inc., No. C99-2070Z (W.D. Wa. Dec. 20, 1999), available as of Dec. 30, 1999 atwww.realnetworks.com/company/pressroom/pr/99/rnwk_complaint.html.Id. 6.Id. 12-13.Id. 17-19.- 160 -
Streambox Ferret corrupted completely the search functionality of the more recentversions of the RealPlayer. 665RealNetworks alleged, among other things, that (i) by circumventing RealNetworks’technological measures that protect the rights of copyright owners to control whether an end-usercan copy and distribute copyright owners’ works, both Streambox Ripper and Streambox VCRviolated Section 1201(b) of the DMCA, 666 and (ii) because the installation of Streambox Ferretmodified the graphical user interface and computer code of RealPlayer, thereby creating anunauthorized derivative work, Streambox’s distribution of Streambox Ferret made itcontributorily liable for copyright infringement, as well as vicariously liable, since Streamboxallegedly controlled and profited from the infringement. 667In a decision issued Jan. 18, 2000, the court entered a preliminary injunction againstStreambox, enjoining the manufacturing and distribution of Streambox VCR and StreamboxFerret, but not of Streambox Ripper. 668 This case raised three important procedural issues withrespect to the DMCA. First, the case raised the interesting issue of who has standing to invokethe remedies of the DMCA – specifically, whether RealNetworks should be considered a properparty to bring the lawsuit, since the material that Streambox Ripper and Streambox VCR placedinto a different file format (i.e., allegedly circumvented a protection measure for) wascopyrighted, not by RealNetworks, but by its customers. As discussed further below, Section1203 of the DMCA provides: “Any person injured by a violation of section 1201 or 1202 maybring a civil action in an appropriate United States district court for such violation.”Significantly, the reference to “any person” suggests that Section 1203 does not limit its scope tothe copyright owner of the material with respect to which a technological protection measure hasbeen circumvented, and the court so held. Specifically, the court ruled that RealNetworks hadstanding to pursue DMCA claims under Section 1203 based on the fact that it affords standing to“any person” allegedly injured by a violation of Section 1201 and 1202 of the DMCA. 669Second, the case raised the issue of what type of “injury” a plaintiff must show underSection 1203. Neither Section 1203 itself nor the legislative history illuminate this issue. In theinstant case, RealNetworks was apparently relying on the argument that, because its customerswere potentially injured by Streambox’s violation of Section 1201(b), RealNetworks itself wasalso injured. Although the court did not explicitly address this issue, by issuing a preliminaryinjunction, it implicitly accepted that RealNetworks was exposed to injury cognizable by theDMCA.665666667668669Id. 22-24.Id. 33-35 & 41-43.Id. 48-49.RealNetworks, Inc. v. Streambox Inc., 2000 U.S. Dist. LEXIS 1889 (W.D. Wa. 2000).Id. at *15-16. This holding is consistent with CSC Holdings, Inc. v. Greenleaf Electronics, Inc., 2000 U.S.Dist. LEXIS 7675 (N.D. Ill. 2000). In that case the plaintiff was a cable provider bringing suit againstdefendants under the DMCA for selling and distributing pirate cable descrambling equipment. The court heldthat the plaintiff was authorized to bring suit under Section 1203(a), as it was a person injured by a violation ofthe DMCA.- 161 -
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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
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images to allow users to recognize
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prima facie case of infringement as
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The district court concluded that t
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was no greater than necessary to ac
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court concluded that Google’s use
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The Ninth Circuit agreed, however,
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would likely succeed in establishin
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of its secondary liability claims b
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of ownership, or by rental, lease,
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(1) Cases Holding That Mere Posting
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unauthorized copy of a sound record
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(2) Cases Holding That Mere Posting
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version of the image displayed in t
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was downloaded at least once [by pe
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Copyright Act.”
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e able to make an end run ar4ound t
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original and copies of their works
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Page 121 and 122: 2. Literary works, including comput
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Page 127 and 128: 6. “Sound recordings, and audiovi
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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 145 and 146: that it was not supposed to be able
Page 147 and 148: The paper also raised concern about
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Page 159 and 160: (vi) Sony Computer Entertainment Am
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Page 165 and 166: In addition, the court, citing Nimm
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Page 171 and 172: Having rejected all constitutional
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Page 183 and 184: portion of the analog signal, the p
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Page 189 and 190: authentication sequence required th
Page 191 and 192: If any single byte of the Toner Loa
Page 193 and 194: that the defendant had copied the T
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Page 197 and 198: demonstrating the homeowner’s wil
Page 199 and 200: The court’s statements might impl
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Page 205 and 206: - Second, the court’s interpretat
Page 207 and 208: With respect to the first reason, t
Page 209 and 210: The plaintiff brought a claim for v
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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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