Advanced Copyright Issues on the Internet - Fenwick & West LLP

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Napster based its allegations of misuse on unduly restrictive licensing requirements of theplaintiffs’ online music venture, MusicNet, with which Napster had entered into a licenseagreement. That agreement prevented Napster from entering into any licensing agreement withany individual plaintiffs until March 1, 2002 and provided that even after March 2002, if Napsterentered into any individual license with any of the plaintiffs, MusicNet could terminate theagreement upon 90 days notice. Additionally, the license set up a pricing structure under whichNapster would be charged higher fees if it failed to use MusicNet as its exclusive licensor forcontent. 1329 The court held that these provisions effectively granted MusicNet control overwhich content Napster licensed. “The result is an expansion of the powers of the three MusicNetplaintiffs’ copyrights to cover the catalogs of the two non-MusicNet plaintiffs.” 1330 The courtnoted that further inquiry into the actions of MusicNet, and whether those actions should beimputed to the plaintiffs, was warranted. 1331The court also found that Napster had raised substantial issues of whether the plaintiffs’entry into the digital distribution market constituted antitrust violations. “[E]ven a naïf mustrealize that in forming and operating a joint venture, plaintiffs’ representatives must necessarilymeet and discuss pricing and licensing, raising the specter of possible antitrust violations. Thesejoint ventures bear the indicia of entities designed to allow plaintiffs to use their copyrights andextensive market power to dominate the market for digital music distribution. Even on theundeveloped record before the court, these joint ventures look bad, sound bad and smell bad.” 1332Accordingly, the court granted Napster’s Rule 56(f) motion for further discovery into theantitrust and misuse issues raised by Napster. 1333 Such discovery was subsequently stayed as theresult of filing of bankruptcy by Napster in June of 2002. On August 9, 2002, Napster’s assetswere placed up for auction in the bankruptcy proceeding. 13341329 Id. at 1105-06.1330 Id. at 1106.1331 Id. at 1107. The court further noted that, if the plaintiffs were engaged in misuse, they could not bring suitbased on their rights until the misuse ended, although the misuse would not ultimately preclude recovery forinfringement: “The doctrine [of misuse] does not prevent plaintiffs from ultimately recovering for acts ofinfringement that occur during the period of misuse. The issue focuses on when plaintiffs can bring or pursuean action for infringement, not for which acts of infringement they can recover.” Id. at 1108.The court also rejected the plaintiffs’ argument that Napster should not be allowed to assert a misuse defensebecause of its own unclean hands. Because the plaintiffs had themselves sought equitable relief from the court,Napster should not be barred from bringing an equitable defense. Id. at 1110-11. In any event, upon abalancing of equities, the court concluded that “the potential for public injury and the fact that Napster has shutits doors to infringement justifies allowing Napster to assert a misuse defense to obtain additional discovery.”Id. at 1113.1332 Id. at 1109 (citations omitted).1333 Id. at 1113.1334 Scarlett Pruitt, “Napster Assets Go Up for Auction” (Aug. 12, 2002), available as of Aug. 12, 2002 atwww.infoworld.com/articles/hn/xml/02/08/12/020812hnnapster.xml.- 300 -
(2) The Scour.com LawsuitAnother case challenged the legality of peer-to-peer file sharing through a service similarto the Napster service. On July 20, 2000, several leading motion picture studios, recordcompanies, and music publishers filed a copyright infringement action in federal district court inNew York against Scour, Inc., operator of an online file sharing service known as the ScourExchange. Unlike the Napster service, which was limited to the exchange of music files in MP3format, the Scour Exchange enabled the peer-to-peer exchange of both music and motion picturefiles among the hard drives of Scour users. The Scour website featured a banner containing a“Top Five” search list, identifying current hit motion picture titles and music recordings that hadbeen requested most frequently by Scour users. 1335Like the Napster service, Scour’s website provided users with free copies of itsproprietary file sharing software, which users could use to connect to Scour’s servers and choosewhich content files stored on their computer hard drives they wished to make available for otherScour users to download. Scour then inventoried the files each user had so designated andcombined them in a database and directory that was made available on Scour’s servers to allScour users currently logged on. Users could search the directory and initiate downloads ofdesired material from other users’ computers. 1336 Unlike Napster, however, Scour also madeavailable through a partnership with a third party a service that provided secure storage space forfiles on a remote server. The service provided what Scour promoted as “free, secure, onlinestorage space for all the multimedia files that you find on Scour.” Through this service, Scourusers were able to upload their files onto this remote server for other Scour users to download,regardless of whether the originating user was logged on to Scour’s servers. 1337 The plaintiffsalleged that Scour was contributorily and vicariously liable for the infringing downloads ofcopyrighted material by Scour’s users. 1338The defense of the lawsuit proved too costly for Scour, and on October 13, 2000, Scourfiled for Chapter 11 bankruptcy protection. 1339 On Nov. 14, 2000, Scour announced that itwould shut down its exchange service in order facilitate a resolution of the copyrightinfringement litigation and the sale of its assets, which Listen.com had offered to purchase for $5million in cash and more than 500,000 shares of stock. 13401335 Complaint, Twentieth Century Fox Film Corp. v. Scour, Inc., No. 00 Civ. 5385 (GBD) (S.D.N.Y., filed July 20,2000) 1-2, available as of Dec. 16, 2000 at www.mpaa.org/press/scourcomplaint.htm.1336 Id. 58.1337 Id. 60.1338 Id. 71.1339 Jim Hu, “Scour Files for Bankruptcy Protection” (Oct. 13, 2000), available as of Dec. 16, 2000 athttp://news.cnet.com/news/0-1005-200-3178822.html.1340 Steven Musil, “Scour to End File-Swapping Service” (Nov. 14, 2000), available as of Dec. 16, 2000 athttp://news.cnet.com/news/0-1005-200-3689821.html.- 301 -
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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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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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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
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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
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Page 285 and 286: The Ninth Circuit’s view of the v
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Page 289 and 290: On appeal in Napster I, the Ninth C
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Page 293 and 294: plaintiffs’ reading of the paragr
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Page 299 and 300: Next, the court turned to Napster
Page 301: Napster’s standing to challenge t
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Page 307 and 308: Judge Posner, the Supreme Court in
Page 309 and 310: The court also rejected a challenge
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Page 313 and 314: Turning to the material contributio
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Page 319 and 320: As explicated below, the Supreme Co
Page 321 and 322: The Required Threshold of Showing o
Page 323 and 324: The Court also noted that even Grok
Page 325 and 326: In the absence of other evidence of
Page 327 and 328: With respect to the first principle
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Page 341 and 342: eferences to “reasonable” knowl
Page 343 and 344: infringements were occurring and ha
Page 345 and 346: over the course of three or four ye
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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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