Advanced Copyright Issues on the Internet - Fenwick & West LLP

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copying, the defendants removed the copied materials. After removal of the copied materials,but before the plaintiffs knew that the copied materials had been removed, the plaintiffs sent twoDMCA notices to the OSPs hosting the defendants’ web site. In both instances, the OSPs shutdown the defendants’ web site in response. The defendants claimed that the plaintiffs’ noticesunder the DMCA violated Section 512(f) and sought an injunction preventing the plaintiffs fromfurther interfering with their web site. 2039The court ruled the defendants had failed to present sufficient evidence that the plaintiffsknowingly materially misrepresented to the OSPs that the defendants’ web site was infringing.The plaintiffs had submitted ample evidence and testimony that they believed the defendants’web site violated their copyright when the DMCA notices were submitted. Accordingly, thecourt denied the defendants’ claim under Section 512(f). However, the court granted apreliminary injunction barring the plaintiffs from sending additional DMCA notices in view ofthe fact that the court had ruled that the defendants’ web site, after the copied materials had beenremoved, was not substantially similar to the plaintiffs’ web site. 2040(vi) Lenz v. Universal Music Corp.In Lenz v. Universal Music Corp., 2041 Stephanie Lenz videotaped her toddler son dancingin the family’s kitchen to the song titled “Let’s Go Crazy” owned by the plaintiff, and posted thevideo on YouTube.com. The plaintiffs sent a DMCA takedown notice to YouTube, whichresponded by removing the video from the site. Lenz sent YouTube a counter-notification underthe DMCA, demanding that her video be re-posted because it did not infringe the plaintiff’scopyrights, and the video was then re-posted by YouTube. Lenz then filed an action against theplaintiffs under Section 512(f) seeking redress for the plaintiffs’ alleged misuse of the DMCAtakedown process, arguing that her posting was a self-evident non-infringing fair use. 2042The court rejected Lenz’s claim. Citing the Rossi case discussed in subsection (i) above,the court ruled that Lenz must show a knowing misrepresentation on the part of the copyrightowner in filing the takedown notice in order to establish liability under Section 512(f). The courtnoted that the plaintiffs had not conceded that the posting was a fair use, and Lenz had failed toallege facts from which a misrepresentation could be inferred or why her use of the song was aself-evident fair use. Accordingly, Lenz’s claim was dismissed with leave to amend. 2043Lenz then amended her complaint, alleging that the plaintiffs had issued the DMCAtakedown notice only to appease the musician known as “Prince,” the author of the song “Let’sGo Crazy.” 2044 Specifically, Lenz alleged that Universal issued its DMCA notice to YouTube at2039 Id. at *1-3.2040 Id. at *30-31.2041 2008 U.S. Dist. LEXIS 44549 (N.D. Cal. Apr. 8, 2008) (Order Granting Defendants’ Motion to Dismiss withLeave to Amend) (not for citation).2042 Id. at *1-3.2043 Id. at *8-9.2044 Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1152 (N.D. Cal. 2008).- 442 -
Prince’s behest, based not on the particular characteristics of the video or any good faith beliefthat it actually infringed, but rather to appease him, as evidenced by an October 2007 statementto ABC News, in which Universal made the following comment:Prince believes it is wrong for You-Tube, or any other user-generated site, toappropriate his music without his consent. That position has nothing to do withany particular video that uses his songs. It’s simply a matter of principle. Andlegally, he has the right to have his music removed. We support him and thisimportant principle. That’s why, over the last few months, we have askedYouTube to remove thousands of different videos that use Prince music withouthis permission. 2045Universal moved to dismiss the case for failure to state a claim upon which relief couldbe granted. The issue raised by the motion, which the court found to be an issue of firstimpression, was whether the requirement of Section 512(c)(3)(A)(v) that a notice issued underSection 512(c) contain a statement that the complaining party has a good faith belief that use ofthe material in the manner complained of is not authorized by the copyright owner, its agent, orthe law, requires a copyright owner to consider the fair use doctrine in formulating its good faithbelief. Universal contended that Section 512(c)(3)(A)(v) does not require copyright owners toevaluate the question of fair use prior to sending a takedown notice because fair use is merely anexcused infringement of copyright rather than a use authorized by the copyright owner or by law.Universal also contended that even if a copyright owner were required by the DMCA to evaluatefair use with respect to allegedly infringing material, any such duty would arise only after acopyright owner received a counter-notice and considered filing suit. 2046The court ruled that a copyright owner does have a duty to consider the applicability ofthe fair use doctrine before issuing a takedown notice:An activity or behavior “authorized by law” is one permitted by law or notcontrary to law. Though Congress did not expressly mention the fair use doctrinein the DMCA, the <strong>Copyright</strong> Act provides explicitly that “the fair use of acopyrighted work … is not an infringement of copyright.” 17 U.S.C. § 107.Even if Universal is correct that fair use only excuses infringement, the factremains that fair use is a lawful use of a copyright. Accordingly, in order for acopyright owner to proceed under the DMCA with “a good faith belief that use ofthe material in the manner complained of is not authorized by the copyrightowner, its agent, or the law,” the owner must evaluate whether the material makesfair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that acopyright owner acted in bad faith by issuing a takedown notice without properconsideration of the fair use doctrine thus is sufficient to state a misrepresentationclaim pursuant to Section 512(f) of the DMCA. 20472045 Id. at 1152-53.2046 Id. at 1153-54.2047 Id. at 1154-55 (footnotes omitted).- 443 -
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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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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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Page 395 and 396: Because RemarQ had received adequat
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Page 399 and 400: policy that provides for the termin
Page 401 and 402: Turning first to the issue of knowl
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Page 405 and 406: inducement as a matter of law.” 1
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Page 409 and 410: Section 512(c)(3)(B)(ii). 1875 In a
Page 411 and 412: e. The Aimster/Madster Lawsuits. Th
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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.
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Page 437 and 438: arguing that linking to or publishi
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Page 441 and 442: Finally, the court ruled that, as a
Page 443: give rise to a claim under Section
Page 447 and 448: DMCA are served by requiring copyri
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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
Page 457 and 458: 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
Page 465 and 466: [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
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Page 477 and 478: 2. The Digital Performance Right -
Page 479 and 480: 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
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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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