Advanced Copyright Issues on the Internet - Fenwick & West LLP

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provisions of subsection (c)(3)(A). 1031 The service provider, upon receipt of the subpoena, “shallexpeditiously disclose” the information required by the subpoena to the copyright owner (orauthorized person). 1032 The issuance, delivery and enforcement of subpoenas is to be governed(to the extent practicable) by the provisions of the Federal Rules of Civil Procedure dealing withsubpoenas duces tecum. 1033(1) Jurisdictional <strong>Issues</strong>The issue of where subpoenas under Section 512(h) must be sought and where they canbe served was tested in two lawsuits brought by Massachusetts universities against the RIAA,Massachusetts Institute of Technology v. RIAA 1034 and Boston College v. RIAA. 1035 In thosecases, the universities challenged the service in Massachusetts of Section 512(h) subpoenasissued by a federal district court in Washington, D.C. The court ruled that Fed. R. Civ. P.45(a)(2) and (b)(2), which require a subpoena to issue from the district in which the productionis to be made, do not permit a Section 512(h) subpoena for production issued in Washington,D.C. to be validly served in Massachusetts. 1036The RIAA contended that service of the subpoenas was proper because of languagewithin the DMCA that the RIAA contended trumps Fed. R. Civ. P. 45. Specifically, the RIAApointed to Section 512(h)(1), which authorizes a copyright owner to request the clerk of “any”U.S. district court to issue a subpoena. Second, Section 512(h)(5) requires the service providerto disclose the requested information “notwithstanding any other provision of law.” Third, whileSection 512(h)(6) provides that the rules regarding service of subpoenas will govern to the“greatest extent practicable,” that provision also contains an important carve out: “unlessotherwise provided by this section.” The court rejected the RIAA’s arguments, ruling thatSection 512(h) does not trump the ordinary rules regarding service of subpoenas under theFederal Rules of Civil Procedure. 1037(2) RIAA v. Verizon Internet ServicesThe scope of Section 512(h) was first tested in the case of In re Verizon InternetServices, Inc. 1038 In that case, the Recording Industry Association of America (RIAA) served asubpoena under Section 512(h) on Verizon Internet Services seeking identifying informationabout an anonymous copyright infringer allegedly using Verizon’s network to download1031 Id. § 512(h)(4).1032 Id. § 512(h)(5).1033 Id. § 512(h)(6).1034 1:03-MC-10209-JLT (D. Mass. Au.g 7, 2003).1035 1:03-MC-10210-JLT (D. Mass. Aug. 7, 2003).1036 “District of Columbia Court Lacks Authority to Issue DMCA Subpoenas to Boston Schools,” BNA’s Patent,Trademark & <strong>Copyright</strong> Journal (Aug. 15, 2003) at 458.1037 Id.1038 240 F. Supp. 2d 24 (D.D.C. 2003).- 238 -
copyrighted songs through peer-to-peer software provided by Kazaa. Along with the subpoena,RIAA provided Verizon with a list of more than 600 files allegedly downloaded by the user onone day. The subpoena included the user’s IP address and the time and date when the songswere downloaded, and a declaration, under penalty of perjury, that the information was sought ingood faith and would only be used in connection with protecting the rights of RIAAmembers. 1039Verizon refused to comply with the subpoena, arguing that, because Section 512(h)requires a notice under Section 512(c)(3)(A) to accompany the subpoena application, thesubpoena power applies only if the infringing material is stored or controlled on the ServiceProvider’s system or network under subsection (c). Verizon further argued that, because it onlyprovided the alleged infringer with an Internet connection, it fell under subsection (a) of Section512 and was thus outside the subpoena authority of Section 512(h). 1040 The RIAA sought toenforce the subpoena against Verizon in court.The district court rejected Verizon’s arguments and ruled that the subpoena power ofSection 512(h) applies to all service providers within the scope of the DMCA, not just to thoseservice providers storing information on a system or network at the direction of a user. Thecourt held that the plain language of Section 512(h) compelled this result, because it employs theterm “service provider” repeatedly, and Section 512(k) provides two definitions of the term“service provider” – one directed to service providers falling under Section 512(a) and anotherdirected to service providers falling under Sections 512(b) – (d). 1041 The court rejectedVerizon’s contention that it should infer that the subpoena authority applies only to subsection(c) in view of the reference in subsection (h)(2)(A) to the notification requirement of subsection(c)(3)(A). The court noted that “the notification provision in subsection (c) is also referencedelsewhere in the DMCA, including in subsections (b)(2)(E) and (d)(3). The latter referencesconfirm the expectation that notifications like that described in subsection (c)(3) will at times beneeded in settings under subsections (b) and (d), and hence are not confined to subsection (c)settings.” 1042 The court also rejected a number of constitutional challenges to the Section 512(h)1039 Id. at 28.1040 Id. at 29.1041 Id. at 31.1042 Id. at 32-33. Verizon also relied on the fact that under subsection (c)(3)(A)(iii) a copyright owner must identifythe infringing material “that is to be removed or access to which is to be disabled.” Verizon argued that inorder to remove or disable access to the material, the material must be stored on its system, thereby indicatingthat Congress intended Section 512(h) to apply only to those service providers who store infringing material ontheir systems. The court rejected this argument. “[A] subpoena issued pursuant to subsection (h) is used toidentify the infringer, not to force the service provider to remove material or disable access to it. Therequirement for the notification is simply that it identify the infringing material to be removed, not that removalbe effectuated. In addition, a copyright owner can meet the requirement under subsection (c)(3)(A)(iii) if it candisable access to material. Here, Verizon certainly can disable access to the material by terminating the accountaltogether.” Id. at 33 n.5. Since Verizon was a Section 512(a) service provider, and the requirement insubsection (c) to remove or disable access to infringing material stored on the service provider’s system is notapplicable to subsection (a), it is unclear what the court’s reference to Verizon’s ability to disable access tomaterial by terminating accounts was intended to mean. Perhaps that service providers who are subject to theSection 512(a) safe harbor must nevertheless terminate the accounts of repeat infringers in order to qualify for- 239 -
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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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Section 602(a) was obviously drafte
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potentially site the infringement a
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“fixation,” and the fixed copy
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transmission.” It is not relevant
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equire treaty signatories to provid
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2. Literary works, including comput
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already adequately addressed the co
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the exemption only to “computer f
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6. “Sound recordings, and audiovi
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of circumventing a technological me
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(iii) Sony Computer Entertainment A
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injunction prohibiting the defendan
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measures protected Blizzard’s rig
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(xi) CoxCom, Inc. v. ChafeeCoxCom l
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The court rejected a number of defe
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entire files within the software wh
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user detection feature would not pr
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that it was not supposed to be able
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The paper also raised concern about
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microchip contained a computer prog
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[T]he statutory exemption found in
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DeCSS), and not dissemination of th
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within the games themselves,” whi
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check the validity of the CD Key co
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(vi) Sony Computer Entertainment Am
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Provisions(13) Other Cases Filed Un
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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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Page 191 and 192: If any single byte of the Toner Loa
Page 193 and 194: that the defendant had copied the T
Page 195 and 196: code in sequence to be sent to the
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Page 199 and 200: The court’s statements might impl
Page 201 and 202: Chamberlain’s operating software
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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
Page 211 and 212: copyright owner. The plaintiff alle
Page 213 and 214: copy and the scanned copy did not r
Page 215 and 216: crawler’s operation. 955 The cour
Page 217 and 218: plaintiffs also alleged that the de
Page 219 and 220: characteristics or uses of an accus
Page 221 and 222: found that Filipiak knew at the tim
Page 223 and 224: (iv) MDY Industries, LLC v. Blizzar
Page 225 and 226: concerned that digital television b
Page 227 and 228: An important thing to note is that
Page 229 and 230: In March of 2005, a German court, o
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Page 235 and 236: (f)Protection of Certain Industrial
Page 237 and 238: (4) Adaptations of Unprotectable El
Page 239: awarded “shall constitute compens
Page 243 and 244: Finally, the court rejected the RIA
Page 245 and 246: efall Fatwallet as opposed to its s
Page 247 and 248: (2) abrogate or restrict the limita
Page 249 and 250: On Line (AOL), may constitute infri
Page 251 and 252: server other than the original serv
Page 253 and 254: to material on a site to a single u
Page 255 and 256: could argue that caching inherently
Page 257 and 258: 4. Cases Adjudicating Caching Under
Page 259 and 260: The court also found that Field sho
Page 261 and 262: [Plaintiff] argues that merely by v
Page 263 and 264: The court ruled that, as a result o
Page 265 and 266: liability for contributory infringe
Page 267 and 268: However, the court was careful to n
Page 269 and 270: that online users saved in their de
Page 271 and 272: Napster argued that its users’ do
Page 273 and 274: drive do not constitute a “digita
Page 275 and 276: have not shown that the majority of
Page 277 and 278: erroneously concluded that sampling
Page 279 and 280: established artists’ songs render
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Page 283 and 284: Napster “when linked to demonstra
Page 285 and 286: The Ninth Circuit’s view of the v
Page 287 and 288: [C]ontributory liability may potent
Page 289 and 290: 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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