Advanced Copyright Issues on the Internet - Fenwick & West LLP

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appeared unlikely to prevail on its copyright infringement claim, a preliminary injunction shouldnot issue. 2124After nearly two additional years of litigation, Tickets.com brought a motion forsummary judgment on Ticketmaster’s copyright claims, which the court granted. 2125 In grantingsummary judgment, the court ruled that the spider’s temporary copying of Ticketmaster’s webpages into RAM in order to extract the factual information about events contained on thosepages constituted a fair use. “In temporarily downloading [Ticketmaster’s] event pages to itsRAM through the use of spiders, [Tickets.com] was not exploiting [Ticketmaster’s] creativelabors in any way: its spiders gathered copyrightable and non-copyrightable information alikebut then immediately discarded the copyrighted material. It is unlikely that the spiders couldhave been programmed to take only the factual information from the [Ticketmaster] web pageswithout initially downloading the entire page.” 2126The court also reaffirmed its earlier ruling on Ticketmaster’s preliminary injunctionmotion that the URLs copied by Tickets.com to allow the deep linking were not copyrightable.Ticketmaster contended that, although the URLs were functional, they should be entitled tocopyright protection because there were several ways to write the URL and, thus, originalauthorship was present. The court rejected this argument. “A URL is simply an address, open tothe public, like the street address of a building, which, if known, can enable the user to reach thebuilding. There is nothing sufficiently original to make the URL a copyrightable item, especiallythe way it is used.” 2127Finally, the court ruled that Tickets.com’s deep linking did not cause an infringing publicdisplay of the Ticketmaster event pages. The court distinguished the Ninth Circuit’s holding inKelly v. Arriba Soft Corp., discussed in Section II.C.2 above, by noting that in Kelly theplaintiff’s images were framed by the defendant’s window and thus were surrounded by the2124 Id.2125 Ticketmaster Corp. v. Tickets.com, Inc., 2003 U.S. Dist. LEXIS 6483 (C.D. Cal. Mar. 7, 2003). Tickets.comalso sought summary judgment on Ticketmaster’s contract claim, based on a notice placed on the home page ofthe Ticketmaster site stating that anyone going beyond that point into the interior pages of the web site acceptedcertain conditions, including that all information obtained from the site was for the personal use of the user andcould not be used for commercial purposes. The contract claim had been rejected as a basis for a preliminaryinjunction in the court’s first opinion in 2000, because the notice was placed at the bottom of the home page sothat a user without an especially large screen would have to scroll down to read the conditions of use.Subsequently, Ticketmaster moved the notice to a prominent place on the home page with a warning thatproceeding further bound the user to the conditions of use. Id. at *6-7. In addition, the court noted thatTicketmaster had submitted evidence that Tickets.com was in fact fully familiar with the conditionsTicketmaster claimed to impose on users, including a letter from Ticketmaster to Tickets.com which quoted theconditions, and a reply by Tickets.com stating that it did not accept the conditions. The court deniedTickets.com’s motion for summary judgment on the contract theory, noting that there was sufficient evidence todefeat summary judgment on the contract theory if knowledge of the asserted conditions of use was had byTickets.com. Id. at *7-8. The court concluded that “a contract can be formed by proceeding into the interiorweb pages after knowledge (or, in some cases, presumptive knowledge) of the conditions accepted when doingso.” Id. at *9.2126 Id. at *17-18.2127 Id. at *20.- 464 -
defendant web page’s text and advertising. In the instant case, whether or not framing occurreddepended upon the settings on the user’s computer, over which Tickets.com had no control, andframing therefore occurred on some occasions but not on others. However, when users werelinked to the Ticketmaster web pages, the user of the Tickets.com site was taken directly to theoriginating Ticketmaster site, containing all the elements of that particular Ticketmaster eventpage, and the Ticketmaster event pages were clearly identified as belonging to Ticketmaster.Moreover, the link on the Tickets.com site contained a notice stating “Buy this ticket fromanother online ticketing company.” 2128 Accordingly, the court granted Tickets.com summaryjudgment on Ticketmaster’s copyright claims. 21298. The MP3Board CaseIn this case, several RIAA member companies brought claims for contributory andvicarious copyright infringement against MP3Board for operating a web site, located atwww.mp3board.com, which provided Internet users with resources to enable them to locate MP3files from publicly available Web sites. No music files were located on the MP3Board web site.Instead, the web site featured an automated search engine that searched for, aggregated andorganized links to media files on the Web, and provided a tutorial offering users instruction onhow to locate and download such files. The site also featured a message board on which userscould post questions or song requests. In response to users’ posts, MP3Board personnelpersonally searched for links to songs and posted the links on the message board, solicited otherusers to provide the requested works, and obtained and posted passwords to enable users toaccess certain music files. 2130The RIAA sent a number of infringement demand letters relating to MP3Board’sactivities before filing suit. On Oct. 27, 1999, and again on Apr. 18, 2000, the RIAA sent lettersto MP3Board’s ISP, identifying artists whose works were being infringed – but no specific songtitles – and demanding that the ISP remove or disable access to the MP3Board site orMP3Board’s links to infringing works. In response to the second letter, MP3Board’s ISPdisabled Internet access to the MP3Board web site, but service was restored after MP3Boardsupplied a counter notification to the ISP asserting that it had removed the infringing materialidentified in the RIAA’s notice. On May 25, 2000, the RIAA wrote directly to MP3Board anddemanded that MP3Board remove all infringing links, this time naming 21 artists and 22 songtitles which were representative of the titles being infringed. The letter also attached printouts of2128 Id. at *21-23.2129 Ticketmaster also brought a trespass to chattels claim against Tickets.com based on Tickets.com’s spidersunauthorized entry into the Ticketmaster site. The court granted Tickets.com summary judgment on this claim,ruling that in order to establish a trespass to chattels claim, there must be some evidence of tangible interferencewith the use or operation of the computer being invaded by the spider. “Since the spider does not causephysical injury to the chattel, there must be some evidence that the use or utility of the computer (or computernetwork) being ‘spiderized’ is adversely affected by the use of the spider. No such evidence is presented here.This court respectfully disagrees with other district courts’ finding that mere use of a spider to enter a publiclyavailable web site to gather information, without more, is sufficient to fulfill the harm requirement for trespassto chattels.” Id. at *12.2130 Arista Records, Inc. v. MP3Board, Inc., 2002 U.S. Dist. LEXIS 16165 (S.D.N.Y. 2002) at *5-6.- 465 -
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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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e. The Aimster/Madster Lawsuits. Th
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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
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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 431 and 432: The court also rejected UMG’s arg
Page 433 and 434: Louis Vuitton v. Akanoc Solutions.
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Page 441 and 442: Finally, the court ruled that, as a
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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: [H]yperlinking does not itself invo
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
Page 493 and 494: embodied in phonorecords or digital
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Page 497 and 498: to assert claims based on the makin
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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
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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