Advanced Copyright Issues on the Internet - Fenwick & West LLP

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Funeral Depot liable for copyright infringement or contributory infringement, if infringement itis. The possibility of copyright infringement liability on these unusual facts showing suchextensive involvement in the allegedly infringing display should not pose any broad threat to theuse of hyperlinks on the internet.” 215211. Live Nation Sports v. DavisThe facts of Live Nation Motor Sports, Inc. v. Davis, 2153 are discussed in Section II.B.3above. The court granted a preliminary injunction enjoining the defendant from providingInternet links to the plaintiff’s webcasts of its motorcycle racing events or otherwise displayingor performing the plaintiff’s webcasts. 2154 With almost no analysis, the court ruled that theplaintiff had a likelihood of success on its copyright claim because “the unauthorized ‘link’ tothe live webcasts that [the defendant] provides on his website would likely qualify as a copieddisplay or performance of [the plaintiff’s] copyrightable material.” 2155 The court found a threatof irreparable harm to the plaintiff because the defendant’s links would cause the plaintiff to loseits ability to sell sponsorships or advertisements on the basis that its website was the exclusivesource of the webcasts. 2156 Although the unclear facts of this case make its reach uncertain, itcould potentially imply that any unauthorized link that causes material available on another siteto be streamed through an unauthorized site could constitute an infringing public display orperformance.12. Perfect 10 v. Google (aka Perfect 10 v. Amazon)The case of Perfect 10 v. Google involved some important rulings in the context offraming of content taken from third party sites. That case is discussed extensively in SectionII.C.4 above.E. Streaming and Downloading“Streaming” is the digital transmission of a work, usually a musical work, over a networkthat results in an immediate playing of the work at the recipient’s end, without storage of apermanent copy at the recipient’s end. If a permanent copy of a work is stored at the recipient’send as a result of a transmission, the act of transmission is usually referred to as “downloading”and the resultant copy is referred to as a “download.” A “limited download” refers to adownload that can be played only for a limited period of time or a limited number of plays.Streaming potentially implicates at least two rights of the copyright holder in both thesound recording being transmitted and the musical work embodied in the sound recording – the2152 Id.2153 2006 U.S. Dist. LEXIS 89552 (N.D. Tex. Dec. 11, 2006).2154 Id. at *18.2155 Id. at *12.2156 Id. at *15.- 470 -
ight of public performance and the right of reproduction. The right of public performance ispotentially implicated because Section 101 of the copyright statute defines the publicperformance of a work to include the following: “to transmit or otherwise communicate aperformance ... of the work … to the public, by means of any device or process, whether themembers of the public capable of receiving the performance … receive it in the same place or inseparate places and at the same time or at different times.” 2157 The right of reproduction ispotentially implicated because interim whole or partial copies of the work are made in variousRAM memories in the course of transmission of the work through the Internet. 2158 In addition,copies of the works available for streaming generally must be stored on one or more serversoperated by the streaming vendor.Significant legal disputes have arisen over the application of the rights of publicperformance and reproduction, as well as the compulsory statutory licenses afforded by thecopyright statute, to streaming and limited downloads. The nature of these disputes, and thecases decided to date with respect to them, are discussed below.1. The Digital Performance Right – The Section 114(d)(1) Exemption andStreaming by FCC-Licensed BroadcastersSection 106(4) of the copyright statute grants the owner of copyright in a work theexclusive right to perform the work publicly. The right does not apply, however, to soundrecordings, 2159 except with respect to certain public performances by digital transmission. Inparticular, the Digital Performance Right in Sound Recordings Act of 1995 (DPRA) 2160 createdas of February 1, 1996 a limited right to perform a sound recording by means of a “digital audiotransmission.” 2161Certain digital transmissions of performances are exempt from this right under Section114(d)(1). Specifically, the performance of a sound recording publicly by means of a digitalaudio transmission (i) as part of a “nonsubscription broadcast transmission,” 2162 (ii) as part of aretransmission of a nonsubscription broadcast transmission (subject to certain limitations in the2157 17 U.S.C. § 101.2158 See the analysis in Sections I.A.1 & I.A.2 above.2159 17 U.S.C. § 114(a).2160 Pub. L. No. 104-39, 109 Stat. 336 (codified at 17 U.S.C. §§ 106, 114, 115).2161 See 17 U.S.C. § 106(6). Section 114(j)(5) of the copyright statute defines a “digital audio transmission” tomean “a digital transmission as defined in section 101, that embodies the transmission of a sound recording.This term does not include the transmission of any audiovisual work.” Section 101 defines “digitaltransmission” as “a transmission in whole or in part in a digital or other non-analog format.”2162 17 U.S.C. § 114(d)(1)(A). A “broadcast” transmission is “a transmission made by a terrestrial broadcast stationlicensed as such by the Federal Communications Commission.” Id. § 114(j)(3). A "nonsubscription"transmission is “any transmission that is not a subscription transmission.” Id. § 114(j)(9). A "subscription"transmission is “a transmission that is controlled and limited to particular recipients, and for whichconsideration is required to be paid or otherwise given by or on behalf of the recipient to receive thetransmission or a package of transmissions including the transmission.” Id. § 114(j)(14).- 471 -
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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
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With respect to the issue of contro
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epeat infringer’s access, suggest
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listings to Amazon’s attention, t
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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 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 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: Batesville dealer, the Veterans Soc
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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 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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