Advanced Copyright Issues on the Internet - Fenwick & West LLP

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disabled as a result of mistake or misidentification of the material, provide the person whosubmitted the safe harbor notice with a copy of the counter notification and inform that personthat the Service Provider will replace the removed material or cease disabling access to it in tenbusiness days; and (iii) replace the removed material and cease disabling access to it not lessthan ten, nor more than fourteen, business days following receipt of the counter notification,unless the Service Provider receives notice from the person submitting the safe harbor notice thatsuch person has filed an action seeking a court order to restrain the subscriber from engaging ininfringing activity relating to the material on the Service Provider’s system.As described in more detail in Section II.G.6(h) above, Section 512(h) sets up aprocedure through which a copyright owner may obtain an order through a United States districtcourt directing the Service Provider to release the identity of an alleged direct infringer actingthrough the Service Provider’s system or network.Under Section 512(l), failure of a Service Provider to fit into one of the safe harbors doesnot affect the Service Provider’s claim that its conduct is nonetheless noninfringing, or any otherdefense.Finally, Section 512(m) clarifies that the safe harbors are not conditioned upon arequirement that the Service Provider monitor its system for infringements, or access, remove ordisable access to material where such conduct is prohibited by law (for example, by theElectronic Communications Privacy Act).(6) Injunctions Against Service ProvidersUnder Section 512(j), if a Service Provider is subject to injunctive relief other than underthe first safe harbor, courts are limited to injunctions that restrain the Service Provider fromproviding access to infringing material at particular online sites on its service, that restrain itfrom providing services to a subscriber engaging in infringing activity by terminating thesubscriber, or that otherwise are “necessary to prevent or restrain infringement of specifiedcopyrighted material at a particular online location, if such relief is the least burdensome to theservice provider among the forms of relief comparably effective for that purpose.” If the ServiceProvider is subject to injunctive relief under the first safe harbor, then courts are limited toinjunctions that restrain the Service Provider from providing access to a subscriber engaging ininfringing activity by terminating the subscriber or by taking reasonable steps specified in theorder to block access to a specific, identified, online location outside the United States.Infringement(7) Designation of Agent to Receive Notification of ClaimedTo take advantage of the third safe harbor for innocent storage of infringing information,Section 512(c)(2) requires a Service Provider to designate an agent to receive notifications ofclaimed infringement by providing contact information for that agent to the <strong>Copyright</strong> Office andthrough the Service Provider’s publicly accessible website. Section 512(c)(2) requires the<strong>Copyright</strong> Office to maintain a current directory of designated agents and to make the listingavailable to the public.- 448 -
On Nov. 3, 1998, the <strong>Copyright</strong> Office published interim regulations for the designationof such agents. 2067 Because the DMCA was made effective immediately, the <strong>Copyright</strong> Officedid not have time to conduct rulemaking proceedings. Accordingly, the Office adopted interimregulations, and stated its intent in the next several weeks to publish a notice of proposedrulemaking to seek comments on more comprehensive final regulations governing thedesignation of agents to receive notification of claimed infringement. Upon the adoption of finalrules, Service Providers will have to file new designations that satisfy the requirements of thefinal regulations. 2068Under the <strong>Copyright</strong> Office’s interim rules, the Office does not provide printed forms forfiling interim designations of agents. Instead, Service Providers must file a document entitled“Interim Designation of Agent to Receive Notifications of Claimed Infringement,” identified assuch by a prominent caption or heading. The Interim Designation, which requires a filing fee of$20, must contain the following information: (i) the full legal name and address of the ServiceProvider; (ii) all names under which the Service Provider is doing business; (iii) the name, fulladdress, telephone number, facsimile number, and electronic mail address of the agent to receivenotification of claimed infringement; and (iv) the signature of the appropriate officer orrepresentative of the Service Provider designating the agent, together with the printed name andtitle of the person signing the designation, and the date of signature. 2069 A suggested format forfiling an Interim Designation can be found on the <strong>Copyright</strong> Office’s website athttp://lcweb.loc.gov/copyright/onlinesp/agent.pdf. Each Interim Designation may be filed onlyon behalf of a single Service Provider. Related companies (e.g., parents and subsidiaries) areconsidered separate Service Providers who would file separate interim designations. 2070In the event of a change in the information reported in an Interim Designation, a ServiceProvider must file an amended Interim Designation containing the current information requiredfor such designations, together with a filing fee of $20. A suggested format for filing anamended Interim Designation can be found on the <strong>Copyright</strong> Office’s website athttp://lcweb.loc.gov/copyright/onlinesp/agenta.pdf. Designations and amendments are postedonline on the <strong>Copyright</strong> Office’s website athttp://www.loc.gov/copyright/onlinesp/list/index.html. If a Service Provider terminates itsoperations, it must notify the <strong>Copyright</strong> Office by certified or registered mail. 20716. Limitations of Liability of Online Service Providers under theCommunications Decency ActThe Communications Decency Act (“CDA”), 47 U.S.C. § 230, was passed by Congressto create “a federal immunity to any state law cause of action that would hold computer service2067 63 Fed. Reg. 59233 (Nov. 3, 1998).2068 Id. at 59234.2069 Id. at 59234-35.2070 Id. at 59234.2071 Id. at 59235.- 449 -
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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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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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Page 415 and 416: With respect to the issue of contro
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Page 425 and 426: Finally, with respect to the issue
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Page 441 and 442: Finally, the court ruled that, as a
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Page 455 and 456: D. Linking and FramingThe practice
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Page 463 and 464: 6. The Intellectual Reserve CaseIn
Page 465 and 466: [H]yperlinking does not itself invo
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Page 469 and 470: The court found stronger evidence o
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Page 479 and 480: digital transmission services, impo
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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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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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