Advanced Copyright Issues on the Internet - Fenwick & West LLP

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copyright infringement against MP3.com, based on MP3.com’s new “My.MP3” service. 108According to the complaint, this service allowed users to gain access through the Internet, anddownload digital copies of, commercial CDs, using one of two component services:“Instant Listening Service” – Under this service, a user could place an order for a commercialCD through one of several online CD retailers cooperating with MP3.com, and then immediatelyhave access to the song tracks on that CD stored on an MP3.com server, before arrival of theshipment of the physical CD ordered by the user. 109“Beam-it” – Under this service, a user could insert a commercial CD or a copy thereof(authorized or unauthorized) into his or her computer CD-ROM drive. If the MP3.com serverwas able to recognize the CD, the user was then given access to the song tracks contained on theCD stored on an MP3.com server. 110In order to offer the My.MP3 service, MP3.com purchased and copied the tracks fromseveral tens of thousands of commercial CDs onto its servers. 111 When users accessed soundrecordings through My.MP3, it was these reproductions made by MP3.com that were accessed,and not any copies made from the users’ own CD. 112 The plaintiffs sought a ruling that thecopying of the commercial CDs onto the MP3.com servers constituted willful infringement ofthe copyright rights of the plaintiffs.The case raised the very interesting issue of whether, assuming that users who are theowners of a lawful copy of a CD could lawfully upload a copy thereof to an MP3.com server fortheir own private use under Section 1008 113 of the Audio Home Recording Act of 1992 114 orunder the fair use doctrine, it should be lawful for MP3.com to assist users in accomplishing that,and, if so, whether it should be permissible to do so by advance copying of tracks in anticipationof a user ordering or already owning a CD containing those tracks.The court ruled that the copying by MP3.com of the commercial CDs made out a primafacie case of direct copyright infringement, 115 and rejected the defendant’s assertion that such108109110111112113114115Complaint for <strong>Copyright</strong> Infringement, UMG Recordings, Inc. v. MP3.com, Inc., No. 00 Civ. 0472 (S.D.N.Y.Jan. 21, 2000).Id. 4 & App. A.Id.UMG Recordings Inc. v. MP3.com Inc., 92 F. Supp. 2d 349, 350 (S.D.N.Y. 2000).Id.Section 1008 provides: “No action may be brought under this title alleging infringement of copyright based onthe manufacture, importation, or distribution of a digital audio recording device, a digital audio recordingmedium, an analog recording device, or an analog recording medium, or based on the noncommercial use by aconsumer of such a device or medium for making digital musical recordings or analog musical recordings.” 17U.S.C. § 1008.Pub. L. No. 102-563, 106 Stat. 4244 (1992).“Thus, although defendant seeks to portray its service as the ‘functional equivalent’ of storing its subscribers’CDs, in actuality defendant is re-playing for the subscribers converted versions of the recordings it copied,- 38 -
copying was a fair use. The court ruled that the first fair use factor (purpose and character of theuse) weighed against the defendant because the defendant’s purpose for the use was commercial– although defendant was not charging users a fee for the service, “defendant seeks to attract asufficiently large subscription base to draw advertising and otherwise make a profit.” 116 Thecourt rejected the defendant’s argument that the copying was transformative because it allowedusers to “space shift” their CDs into another format in which they could enjoy their soundrecordings without lugging around physical CDs, ruling that the argument was “simply anotherway of saying that the unauthorized copies are being retransmitted in another medium – aninsufficient basis for any legitimate claim of transformation.” 117With respect to the second factor (nature of the copyrighted work), the court held that,because the copyrighted works at issue were creative musical works, this factor weighed againstdefendant. 118 The third factor (amount and substantiality of the copyrighted work used) alsoweighed against the defendant because the defendant had copied, and the My.MP3 servicereplayed, the copyrighted works in their entirety. 119Finally, with respect to the fourth factor (effect of the use upon the potential market foror value of the copyrighted work), the court noted that the defendant’s activities “on their faceinvade plaintiffs’ statutory right to license their copyrighted sound recordings to others forreproduction.” 120 The defendant argued that its activities enhanced the plaintiffs’ sales, sincesubscribers could not gain access to recordings through MP3.com unless had already purchased,or agreed to purchase, their own CD copies of those recordings. The court rejected thisargument on the following rationale:Any allegedly positive impact of defendant’s activities on plaintiffs’ prior marketin no way frees defendant to usurp a further market that directly derives fromreproduction of the plaintiffs’ copyrighted works. This would be so even if thecopyrightholder had not yet entered the new market in issue, for acopyrightholder’s “exclusive” rights, derived from the Constitution and the<strong>Copyright</strong> Act, include the right, within broad limits, to curb the development of116117118119120without authorization, from plaintiffs’ copyrighted CDs. On its face, this makes out a presumptive case ofinfringement under the <strong>Copyright</strong> Act of 1976 ….” 92 F. Supp. 2d at 350.Id. at 351.Id. Contrast this holding with the Ninth Circuit’s statement in RIAA v. Diamond Multimedia Sys., 180 F.3d1072, 1079 (9th Cir. 1999), in which the Ninth Circuit found space shifting of a recording from a CD onto the“Rio” portable MP3 player device (through a process known as “ripping,” or re-encoding of music dataencoded in CD format into the MP3 file format) to be “paradigmatic noncommercial personal use entirelyconsistent with the purposes of the [Audio Home Recording Act].”UMG, 92 F. Supp. 2d at 351-52.Id. at 352.Id.- 39 -
Page 1 and 2: ADVANCED COPYRIGHT ISSUESON THE INT
Page 3 and 4: 6. Peer-to-Peer File Sharing 57(a)
Page 5 and 6: (xv) Craigslist v. Naturemarket 140
Page 7 and 8: (iii) Gordon v. Nextel Communicatio
Page 9 and 10: (a) Facebook v. Power Ventures 263C
Page 11 and 12: l. UMG Recordings v. Veoh Networks
Page 13 and 14: 3. The MetroGuide Litigation 5134.
Page 15 and 16: crucial question whether the MAI ap
Page 17 and 18: machine or device. The term “copi
Page 19 and 20: terminal emulation program is not s
Page 21 and 22: describes the status of transition.
Page 23 and 24: sections of the Uruguay Round trade
Page 25 and 26: (b) The WIPO Copyright</str
Page 27 and 28: ecording industries, opposed any op
Page 29 and 30: in the case of Article 7, an earlie
Page 31 and 32: fact that copyright law has traditi
Page 33 and 34: and downloading of unauthorized cop
Page 35 and 36: downloads. “She provided the faci
Page 37 and 38: The defendant also argued that it c
Page 39: copying enhanced the defendants’
Page 43 and 44: were brought against MP3.com as wel
Page 45 and 46: The principle distilled from these
Page 47 and 48: ecorded, the appropriate packets co
Page 49 and 50: commands and engages in no volition
Page 51 and 52: loaded the original copies of the s
Page 53 and 54: (b) Notwithstanding the provisions
Page 55 and 56: would have “independent economic
Page 57 and 58: such sound recordings because they
Page 59 and 60: (o) use in certain other cases of m
Page 61 and 62: matter belongs entirely to the jury
Page 63 and 64: 7. The Immunity of the Audio Home R
Page 65 and 66: playlists with title and artist inf
Page 67 and 68: ecordings, other than with respect
Page 69 and 70: performance right was implicated by
Page 71 and 72: performances because the RS-DVR cus
Page 73 and 74: “[w]here a transmission is of a d
Page 75 and 76: although the court noted that the O
Page 77 and 78: images to allow users to recognize
Page 79 and 80: prima facie case of infringement as
Page 81 and 82: The district court concluded that t
Page 83 and 84: was no greater than necessary to ac
Page 85 and 86: court concluded that Google’s use
Page 87 and 88: The Ninth Circuit agreed, however,
Page 89 and 90: would likely succeed in establishin
Page 91 and 92:
of its secondary liability claims b
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of ownership, or by rental, lease,
Page 95 and 96:
(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
Page 111 and 112:
Section 602(a) was obviously drafte
Page 113 and 114:
potentially site the infringement a
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“fixation,” and the fixed copy
Page 117 and 118:
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
Page 127 and 128:
6. “Sound recordings, and audiovi
Page 129 and 130:
of circumventing a technological me
Page 131 and 132:
(iii) Sony Computer Entertainment A
Page 133 and 134:
injunction prohibiting the defendan
Page 135 and 136:
measures protected Blizzard’s rig
Page 137 and 138:
(xi) CoxCom, Inc. v. ChafeeCoxCom l
Page 139 and 140:
The court rejected a number of defe
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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
Page 147 and 148:
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
Page 185 and 186:
software constitutes a violation of
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intended to ban only those circumve
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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
Page 195 and 196:
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
Page 225 and 226:
concerned that digital television b
Page 227 and 228:
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
Page 241 and 242:
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
Page 251 and 252:
server other than the original serv
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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
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The court also found that Field sho
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[Plaintiff] argues that merely by v
Page 263 and 264:
The court ruled that, as a result o
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liability for contributory infringe
Page 267 and 268:
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
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
Page 307 and 308:
Judge Posner, the Supreme Court in
Page 309 and 310:
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
Page 323 and 324:
The Court also noted that even Grok
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In the absence of other evidence of
Page 327 and 328:
With respect to the first principle
Page 329 and 330:
It is mindful of the limitations fa
Page 331 and 332:
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
Page 337 and 338:
It is important to recognize that t
Page 339 and 340:
include any details of the filterin
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
Page 347 and 348:
argument as insufficient, noting th
Page 349 and 350:
summary judgment. The court denied
Page 351 and 352:
were engaged in copyrighted infring
Page 353 and 354:
(a) The Netcom Case and its Progeny
Page 355 and 356:
content found within the sites maki
Page 357 and 358:
On appeal, the Ninth Circuit affirm
Page 359 and 360:
district court granted the defendan
Page 361 and 362:
infringed its trademarks and copyri
Page 363 and 364:
satisfied because Master had the po
Page 365 and 366:
BitTorrent users had taken place in
Page 367 and 368:
obligation of providing Defendants
Page 369 and 370:
(1) Safe Harbors - Definition of a
Page 371 and 372:
not make a copy of the material dur
Page 373 and 374:
contributory copyright infringement
Page 375 and 376:
The Ninth Circuit found that there
Page 377 and 378:
and the material was transmitted th
Page 379 and 380:
On appeal, the Seventh Circuit affi
Page 381 and 382:
Banned WebmasterIf a webmaster, ide
Page 383 and 384:
it operated in order to provide its
Page 385 and 386:
infringement, it would need to be a
Page 387 and 388:
transmission of such material to a
Page 389 and 390:
Thus, Google’s cached meets the r
Page 391 and 392:
identification of the copyrighted w
Page 393 and 394:
identified them “with sufficient
Page 395 and 396:
Because RemarQ had received adequat
Page 397 and 398:
supply the preceding two elements,
Page 399 and 400:
policy that provides for the termin
Page 401 and 402:
Turning first to the issue of knowl
Page 403 and 404:
court noted that because LoopNet’
Page 405 and 406:
inducement as a matter of law.” 1
Page 407 and 408:
that a defendant can look for enfor
Page 409 and 410:
Section 512(c)(3)(B)(ii). 1875 In a
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e. The Aimster/Madster Lawsuits. Th
Page 413 and 414:
could not control such sales. 1899
Page 415 and 416:
With respect to the issue of contro
Page 417 and 418:
epeat infringer’s access, suggest
Page 419 and 420:
listings to Amazon’s attention, t
Page 421 and 422:
platform amount to a right and abil
Page 423 and 424:
link to view all 16 lower resolutio
Page 425 and 426:
Finally, with respect to the issue
Page 427 and 428:
servers to be accessed by other mea
Page 429 and 430:
and such a holding would be contrar
Page 431 and 432:
The court also rejected UMG’s arg
Page 433 and 434:
Louis Vuitton v. Akanoc Solutions.
Page 435 and 436:
failing to satisfy the requirement
Page 437 and 438:
arguing that linking to or publishi
Page 439 and 440:
from websites and the initiation of
Page 441 and 442:
Finally, the court ruled that, as a
Page 443 and 444:
give rise to a claim under Section
Page 445 and 446:
Prince’s behest, based not on the
Page 447 and 448:
DMCA are served by requiring copyri
Page 449 and 450:
infringing could not be a “materi
Page 451 and 452:
On Nov. 3, 1998, the Copyri
Page 453 and 454:
the Internet, and encompasses the d
Page 455 and 456:
D. Linking and FramingThe practice
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found. Linking to a site containing
Page 459 and 460:
and programming services to Total N
Page 461 and 462:
MasterCard prominence over any othe
Page 463 and 464:
6. The Intellectual Reserve CaseIn
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[H]yperlinking does not itself invo
Page 467 and 468:
defendant web page’s text and adv
Page 469 and 470:
The court found stronger evidence o
Page 471 and 472:
Batesville dealer, the Veterans Soc
Page 473 and 474:
ight of public performance and the
Page 475 and 476:
agreed that AM/FM webcasting was no
Page 477 and 478:
2. The Digital Performance Right -
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digital transmission services, impo
Page 481 and 482:
(b) Eligible Nonsubscription Servic
Page 483 and 484:
proceeding. To be eligible for the
Page 485 and 486:
On June 18, 2003, the Copyr
Page 487 and 488:
On Aug. 23, 2007, SoundExchange als
Page 489 and 490:
- On June 1, 2001, Launch and other
Page 491 and 492:
genres and unrated quota. 2249 Alth
Page 493 and 494:
embodied in phonorecords or digital
Page 495 and 496:
allow users to listen to songs on t
Page 497 and 498:
to assert claims based on the makin
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companies and to any digital music
Page 501 and 502:
F. First Sales in Electronic Commer
Page 503 and 504:
This provision seems to have been d
Page 505 and 506:
thereof. 2297 In February of 2003,
Page 507 and 508:
(b) Wells Fargo v. WhenU.comSimilar
Page 509 and 510:
(c) 1-800 Contacts v. WhenU.comA th
Page 511 and 512:
the domain name www.www1800Contacts
Page 513 and 514:
pop-up and pop-under ads from appea
Page 515 and 516:
copyright holder’s rights, then t
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