Advanced Copyright Issues on the Internet - Fenwick & West LLP

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motion, ruling that existing authority did not resolve the legal issue, and Futuredontics’complaint therefore sufficiently alleged a copyright infringement claim. 2102 Interestingly,however, the court had previously denied Futuredontics’ motion for a preliminary injunction,ruling that Futuredontics had failed to establish a probability of success. 2103On July 23, 1998, in an unpublished opinion, the Ninth Circuit affirmed the districtcourt’s denial of the preliminary injunction. 2104 The Ninth Circuit found that Futuredontics hadpresented no evidence whatsoever of tangible, let alone irreparable, harm from the defendant’sframed link to its site. In addition, the Ninth Circuit ruled that “Futuredontics’ claim, that theAAI framed link ‘falsely implies that AAI – not Futuredontics – is responsible for the success ofFuturedontics’s dental referral service’ even if true, is not tied to any tangible loss of business orcustomer goodwill.” 21055. The Bernstein CaseIn Sept. of 1998, a California judge dismissed without comment a copyright infringementlawsuit, Bernstein v. J.C. Penney, Inc., 2106 in which the plaintiff, a professional photographer,sought to hold liable several defendants who maintained links on their websites that eventuallyled to a Swedish university website where two allegedly infringing photographs of actressElizabeth Taylor owned by the plaintiff were displayed. Specifically, persons visiting J.C.Penney’s website could, through a chain of no less than six links, reach the photographs on theSwedish website. 2107 The plaintiff Bernstein insisted that J.C. Penney deliberately designed itswebsite so that visitors would be able to see the two photographs of Elizabeth Taylor. Bernsteinalleged that the defendants had previously licensed one of the photographs, suggesting that thedefendants were trying to benefit from the photographs without paying for them. 2108 Thedefendants labeled the suit as based on a bizarre and unprecedented theory that, if accepted,would destroy the Internet as a means of worldwide communication, and the judge apparentlyagreed. 21092102 Id. at 2010.2103 Id. at 2006.2104 Futuredontics, Inc. v. Applied Anagramatics, Inc., 1998 U.S. App. LEXIS 17012 (9th Cir. July 23, 1998).2105 Id. at *3.2106 50 U.S.P.Q.2d 1063 (C.D. Cal. 1998).2107 Id. at 1063; “Judge Dismisses <strong>Copyright</strong> Claims Based on Linking,” Andrews Computer & Online IndustryReporter (Oct. 6, 1998) at 3, 3. Defendant Arden, manufacturer of a perfume called “Passion” that wasendorsed by Taylor, recited the chain of links that a user would need to follow from Penny’s site to reach theallegedly infringing photographs: from Penney’s main home page to (1) “Elizabeth Taylor’s Passion,” a part ofthe Penney’s site, to (2) “Biography,” a part of the “Passion” site containing information about Taylor’s life, to(3) “work on screen,” which took the user to (4) an Internet Movie Database Ltd. (IMDB) site, a completelyseparate site with no connection to Penney’s, to (5) “FTP,” a link on the IMDB site that took the user to theSwedish site, from where the user could (6) access the infringing photographs. Id.2108 Id.2109 The defendants argued that the plaintiff’s theory of infringement by multiple linking would have a devastatingimpact on the Internet and argued that the claim should be dismissed for three reasons: “(1) a company whose- 460 -
6. The Intellectual Reserve CaseIn Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 2110 the plaintiff was theowner of the copyright in a Mormon Church work titled the “Church Handbook of Instructions”(the “Handbook”). After the defendants were ordered to remove copies of the Handbook fromtheir website, the defendants posted a notice on their website stating that the Handbook wasonline, and posted three links to other website addresses where the Handbook could be found.The plaintiffs sought to hold the defendants liable for inducement of infringement andcontributory infringement.The court ruled that the defendants were not liable for inducement of infringement,because there was no evidence that the defendants had any direct relationship with the otherwebsites on which the Handbook was available, nor that the defendants had induced theoperators of those websites to post the Handbook. 2111The court concluded, however, that the defendants could be liable for contributoryinfringement. Turning first to whether there was any direct infringement to which the defendantscould be contributing, the court concluded that when visitors to the sites on which the Handbookwas posted displayed the Handbook, an infringing copy of the Handbook was made in the users’RAM. 2112 The court then concluded that the defendants were contributorily liable for suchinfringement because they had actively encouraged it, 2113 based on the following facts:The defendants posted on their website the comment “Church Handbook of Instructionsis back online!” and provided three links to websites containing the Handbook.product is merely displayed on another entity’s website cannot be held liable for any infringement by the authorof that website; (2) linking cannot constitute direct infringement because the computer server of the linkingwebsite does not copy or otherwise process the content of the linked-to site; and (3) multiple linking cannotconstitute contributory infringement because (a) Internet users viewing of the material at issue is not infringingand thus there was no direct infringement in the United States to which Arden could contribute; (b) linking ‘iscapable of substantial noninfringing uses’ and thus cannot support a claim for contributory infringement; and(c) the Court cannot infer from the facts alleged that [defendants] knew the photos had been posted to [one ofthe websites in the chain] and multiple linking does not constitute substantial participation in any infringementwhere the linking website does not mention the fact that Internet users could, by following the links, findinginfringing material on another website.” Bernstein, 50 U.S.P.Q.2d at 1064 (citations omitted). The courtdismissed the complaint without leave to amend without articulating any specific reasons therefor. Id.2110 53 U.S.P.Q.2d 1425 (D. Utah 1999).2111 Id. at 1427.2112 Id. at 1428, citing MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) and Marobie-Fl., Inc. v. National Ass’n of Fire Equip. Distrib., 983 F. Supp. 1167, 1179 (N.D. Ill. 1997).2113 The court noted that “[l]iability for contributory infringement is imposed when ‘one who, with knowledge ofthe infringing activity, induces, causes or materially contributes to the infringing conduct of another.’”Intellectual Reserve at 1427 (quoting Gershwin Publ’g Corp. v. Columbia Artists Mgt., Inc., 443 F.2d 1159,1162 (2d Cir. 1971)).- 461 -
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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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policy that provides for the termin
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Turning first to the issue of knowl
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court noted that because LoopNet’
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inducement as a matter of law.” 1
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that a defendant can look for enfor
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Section 512(c)(3)(B)(ii). 1875 In a
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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
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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
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Page 461: MasterCard prominence over any othe
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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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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
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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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