Advanced Copyright Issues on the Internet - Fenwick & West LLP

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Specifically, under Section 512(a), a Service Provider is not liable for monetary relief,and is subject only to limited injunctive relief, for “transmitting, routing, or providingconnections for, material through a system or network controlled or operated by or for theservice provider, or by reason of the intermediate and transient storage of that material in thecourse of such transmitting, routing, or providing connections, if:(1) the transmission of the material was initiated by or at the direction of a person otherthan the service provider;(2) the transmission, routing, provision of connections, or storage is carried out throughan automatic technical process without selection of the material by the service provider;(3) the service provider does not select the recipients of the material except as anautomatic response to the request of another person;(4) no copy of the material made by the service provider in the course of suchintermediate or transient storage is maintained on the system or network in a manner ordinarilyaccessible to anyone other than anticipated recipients, and no such copy is maintained on thesystem or network in a manner ordinarily accessible to such anticipated recipients for a longerperiod than is reasonably necessary for the transmission, routing, or provision of connections;and(5) the material is transmitted through the system or network without modification of itscontent.”This safe harbor will not be available to a Service Provider that initiates, selects, ormodifies the content of a transmission, or stores it on a system in a way that its content becomesgenerally accessible to third parties.The safe harbor of Section 512(a) has been tested in the following cases to date:a. The Napster Case. In the Napster case, discussedextensively in Section III.C.2.(c)(1) above, Napster moved for summary judgment that it wasimmune from the plaintiffs’ claims by virtue of the Section 512(a) safe harbor. Napster arguedthat it fell within the subject matter of the safe harbor because its “core function” was to offer the“transmission, routing, or providing of connections for digital online communications” byenabling the connection of users’ hard-drives and the transmission of MP3 files “directly fromthe Host hard drive and Napster browser through the Internet to the user’s Napster browser andhard drive.” 1686 Napster argued that it satisfied the preceding five specific conditions for the safeharbor because “(1) a Napster user, and never Napster itself, initiates the transmission of MP3files; (2) the transmission occurs through an automatic, technical process without any editorialinput from Napster; (3) Napster does not choose the recipients of the MP3 files; (4) Napster does1686 A&M Records Inc. v. Napster, Inc., 54 U.S.P.Q.2d 1746, 1749 (N.D. Cal. 2000).- 368 -
not make a copy of the material during transmission; and (5) the content of the material is notmodified during transmission.” 1687The court rejected the applicability of the Section 512(a) safe harbor to Napster forseveral reasons. First, the court held that the safe harbor could not provide a complete defense toNapster’s entire system because the system performed more than just the functions oftransmission, routing, and providing of connections. Specifically, the court noted that Section512(n) of the DMCA provides that the four safe harbors “describe separate and distinct functionsfor purposes of applying this section. Whether a service provider qualifies for the limitation onliability in any one of those subsections shall be based solely on the criteria in that subsectionand shall not affect a determination of whether that service provider qualifies for the limitationson liability under any other such subsections.” 1688 The court ruled that the Napster system,through its index of user files and its “hot list” feature that each functioned as an “informationlocation tool,” undisputedly performed some information location functions which, if thosefunctions were to be immunized, must satisfy the separate provisions of the safe harbor set forthin Section 512(d) (discussed in subsection (iv) below). 1689Napster argued that, even if its system functioned in part as an information location tool,that function should be considered incidental to the system’s core function of transmitting MP3music files, and the safe harbor of Section 512(a) should therefore provide a complete defense toits system. The court rejected this argument, holding that because the parties disputed materialissues regarding the operation of Napster’s index, directory and search engine, the court couldnot hold for purposes of summary judgment that the information location tool aspects of theNapster system were peripheral to the alleged infringement, or that they should not be analyzedseparately under Section 512(d). 1690The court then rejected the applicability of Section 512(a) to Napster for two principalreasons. First, the court noted that the preamble of Section 512(a) makes the safe harborapplicable only to service providers “transmitting, routing or providing connections for, materialthrough a system or network controlled or operated by or for the service provider” (emphasisadded). The court found it undisputed that MP3 files do not pass “through” Napster’s servers,but rather “through” the Internet, and ruled that the Internet could not be considered “a system ornetwork controlled or operated by or for the service provider.” 1691 The court rejected Napster’sargument that its system should be deemed to include the Napster browser on its users’computers and that the MP3 files were transmitted “through” that browser: “[E]ven if eachuser’s Napster browser is part of the system, the transmission goes from one part of the system to1687 Id.1688 17 U.S.C. § 512(n).1689 Napster, 54 U.S.P.Q.2d at 1750.1690 Id. at 1750.1691 Id. at 1751.- 369 -
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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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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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Page 357 and 358: On appeal, the Ninth Circuit affirm
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Page 369: (1) Safe Harbors - Definition of a
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Page 381 and 382: Banned WebmasterIf a webmaster, ide
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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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