Advanced Copyright Issues on the Internet - Fenwick & West LLP

More documents

Recommendations

Info

New Subscription ServicesInternet Streaming ofAM/FM Broadcastsprogramming, such as news, talk, sports or businessprogramming. For such non-music channels and stations,the licensee must pay 0.0762 cents per aggregate tuninghour.Minimum Annual Fee: $2,500Ephemeral Recordings: These rates will be deemed toinclude the royalties payable for ephemeral recordingsOptions of paying royalties as follows:Per Performance Option – 0.0762 cents per performancefor digital audio transmissionsAggregate Tuning Hour Option – 1.17 cents per aggregatetuning hour for all channels and stations except channelsand stations where the programming consists of non-musicprogramming, such as news, talk, sports or businessprogramming. For such non-music channels and stations,the licensee must pay 0.0762 cents per aggregate tuninghour.Percentage of Subscription Revenues Option – 10.9% ofsubscription service revenue, but in no event less than 27cents per month for each person who subscribes.Minimum Annual Fee: $2,500Ephemeral Recordings: These rates will be deemed toinclude the royalties payable for ephemeral recordingsStreaming: 0.88 cents per aggregate tuning hourEphemeral Recordings: The rate for ephemeral recordingsby business establishment services is 10% of grossproceeds.Webcasters wishing to take advantage of the SWSA Agreement were required to submita completed and signed election form to SoundExchange no later than 30 days after thepublication of the rates and terms in the Federal Register, or for those webcasters who had notyet made a digital audio transmission as of such publication, no later than the first date on whichthey would be obligated to make royalty payments.On August 21, 2003, the <strong>Copyright</strong> Office published proposed rates and terms fornoncommercial webcasters who elected not to operate under the rates and terms set under theSWSA Agreement. 2217 Those proposed rates and terms were the same as those that were set forthe period ending December 31, 2002 in the Order of the Librarian of Congress published July 8,2002 at 67 Fed. Reg. 45239. On Feb. 6, 2004, the <strong>Copyright</strong> Office adopted the proposed ratesand terms as a final rule for the 2003 and 2004 statutory licensing period. 22182217 68 Fed. Reg. 50493 (Aug. 21, 2003).2218 69 Fed. Reg. 5693 (Feb. 6, 2004).- 482 -
On June 18, 2003, the <strong>Copyright</strong> Office issued a final rule governing SoundExchange asthe authorized agency to collect and distribute the statutory royalties for subscription digitaltransmission services and webcasting, including small webcasters. 2219 The rules governing thecollection, distribution, and audit of royalties by SoundExchange may be found at 37 C.F.R. §§260.3 & 260.6.As noted earlier, on Nov. 30, 2004, the <strong>Copyright</strong> Royalty and Distribution Reform Actof 2004 (“CRDRA”) 2220 was enacted, with an effective date of May 31, 2005. That Acteliminated the CARP system and replaced it with a <strong>Copyright</strong> Royalty Board (CRB) comprisedof three permanent <strong>Copyright</strong> Royalty Judges (CRJs). The Act also reformed the waywebcasters participate in the rate setting process. Webcasters must file a petition to participate,which costs $150 to file, but parties with similar interests may split the cost by filing a jointpetition. The CRJs provide a list of participants to all parties, who then have three months tonegotiate their own royalty rates. If the parties are unable to agree, the CRJs will accept writtencomments for four to five months. These comments may include witness statements, testimonyand exhibits to be presented in the proceeding, as well as other information necessary to establishterms and rates. The comment period is followed by a 60-day discovery period. Finally, theparties have one more opportunity to negotiate their own settlement at a settlement conferencescheduled by the CRJs to take place outside the presence of the CRJs. Only then will the CRJsbegin proceedings to set the rates. 2221The Act also terminated the voluntary negotiation proceeding initiated by the <strong>Copyright</strong>Office in January 2004 to set rates for the 2005-2006 period for eligible nonsubscriptionservices. 2222 On Feb. 8, 2005, as required by the Act, the <strong>Copyright</strong> Office published a noticethat the rates and terms for the statutory licenses in effect on Dec. 31, 2004, for new subscriptionservices, eligible nonsubscription services, and services exempt under Section 114(d)(1)(C)(iv),as well as the rates and terms for small webcasters published in the Federal Register under theauthority of the SWSA for the years 2003-2004, would remain in effect for at least 2005. 2223 OnFeb. 16, 2005, again as required by the Act, the <strong>Copyright</strong> Office published a notice initiating aproceeding, and requesting petitions to participate therein, to establish or adjust rates and termsfor the statutory licenses for new subscription services and eligible nonsubscription services forthe period commencing Jan. 1, 2006 through Dec. 31, 2010. 2224After two years of testimony, on May 1, 2007, the CRB published in the Federal Registerits final rule and order setting forth its decision as to the royalties that “Commercial Webcasters”(i.e., non-interactive new subscription services and eligible non-subscription services, includingsimultaneous digital audio retransmissions of over-the-air AM or FM radio broadcasts) must pay2219 68 Fed. Reg. 36469 (June 18, 2003).2220 Pub. L. No. 108-419, 118 Stat. 2341 (2004).2221 Allison Kidd, “The Beginning of the End of the Internet Radio Royalty Dispute,” Journal of Internet Law, Oct.2005, at 15, 22.2222 69 Fed. Reg. 689 (Jan. 6, 2004).2223 70 Fed. Reg. 6736 (Feb. 8, 2005).2224 70 Fed. Reg. 7970 (Feb. 16, 2005).- 483 -
Page 1 and 2:
ADVANCED COPYRIGHT ISSUESON THE INT
Page 3 and 4:
6. Peer-to-Peer File Sharing 57(a)
Page 5 and 6:
(xv) Craigslist v. Naturemarket 140
Page 7 and 8:
(iii) Gordon v. Nextel Communicatio
Page 9 and 10:
(a) Facebook v. Power Ventures 263C
Page 11 and 12:
l. UMG Recordings v. Veoh Networks
Page 13 and 14:
3. The MetroGuide Litigation 5134.
Page 15 and 16:
crucial question whether the MAI ap
Page 17 and 18:
machine or device. The term “copi
Page 19 and 20:
terminal emulation program is not s
Page 21 and 22:
describes the status of transition.
Page 23 and 24:
sections of the Uruguay Round trade
Page 25 and 26:
(b) The WIPO Copyright</str
Page 27 and 28:
ecording industries, opposed any op
Page 29 and 30:
in the case of Article 7, an earlie
Page 31 and 32:
fact that copyright law has traditi
Page 33 and 34:
and downloading of unauthorized cop
Page 35 and 36:
downloads. “She provided the faci
Page 37 and 38:
The defendant also argued that it c
Page 39 and 40:
copying enhanced the defendants’
Page 41 and 42:
copying was a fair use. The court r
Page 43 and 44:
were brought against MP3.com as wel
Page 45 and 46:
The principle distilled from these
Page 47 and 48:
ecorded, the appropriate packets co
Page 49 and 50:
commands and engages in no volition
Page 51 and 52:
loaded the original copies of the s
Page 53 and 54:
(b) Notwithstanding the provisions
Page 55 and 56:
would have “independent economic
Page 57 and 58:
such sound recordings because they
Page 59 and 60:
(o) use in certain other cases of m
Page 61 and 62:
matter belongs entirely to the jury
Page 63 and 64:
7. The Immunity of the Audio Home R
Page 65 and 66:
playlists with title and artist inf
Page 67 and 68:
ecordings, other than with respect
Page 69 and 70:
performance right was implicated by
Page 71 and 72:
performances because the RS-DVR cus
Page 73 and 74:
“[w]here a transmission is of a d
Page 75 and 76:
although the court noted that the O
Page 77 and 78:
images to allow users to recognize
Page 79 and 80:
prima facie case of infringement as
Page 81 and 82:
The district court concluded that t
Page 83 and 84:
was no greater than necessary to ac
Page 85 and 86:
court concluded that Google’s use
Page 87 and 88:
The Ninth Circuit agreed, however,
Page 89 and 90:
would likely succeed in establishin
Page 91 and 92:
of its secondary liability claims b
Page 93 and 94:
of ownership, or by rental, lease,
Page 95 and 96:
(1) Cases Holding That Mere Posting
Page 97 and 98:
unauthorized copy of a sound record
Page 99 and 100:
(2) Cases Holding That Mere Posting
Page 101 and 102:
version of the image displayed in t
Page 103 and 104:
was downloaded at least once [by pe
Page 105 and 106:
Copyright Act.”
Page 107 and 108:
e able to make an end run ar4ound t
Page 109 and 110:
original and copies of their works
Page 111 and 112:
Section 602(a) was obviously drafte
Page 113 and 114:
potentially site the infringement a
Page 115 and 116:
“fixation,” and the fixed copy
Page 117 and 118:
transmission.” It is not relevant
Page 119 and 120:
equire treaty signatories to provid
Page 121 and 122:
2. Literary works, including comput
Page 123 and 124:
already adequately addressed the co
Page 125 and 126:
the exemption only to “computer f
Page 127 and 128:
6. “Sound recordings, and audiovi
Page 129 and 130:
of circumventing a technological me
Page 131 and 132:
(iii) Sony Computer Entertainment A
Page 133 and 134:
injunction prohibiting the defendan
Page 135 and 136:
measures protected Blizzard’s rig
Page 137 and 138:
(xi) CoxCom, Inc. v. ChafeeCoxCom l
Page 139 and 140:
The court rejected a number of defe
Page 141 and 142:
entire files within the software wh
Page 143 and 144:
user detection feature would not pr
Page 145 and 146:
that it was not supposed to be able
Page 147 and 148:
The paper also raised concern about
Page 149 and 150:
microchip contained a computer prog
Page 151 and 152:
[T]he statutory exemption found in
Page 153 and 154:
DeCSS), and not dissemination of th
Page 155 and 156:
within the games themselves,” whi
Page 157 and 158:
check the validity of the CD Key co
Page 159 and 160:
(vi) Sony Computer Entertainment Am
Page 161 and 162:
Provisions(13) Other Cases Filed Un
Page 163 and 164:
Streambox Ferret corrupted complete
Page 165 and 166:
In addition, the court, citing Nimm
Page 167 and 168:
1201(a)(3)(B) provides that a techn
Page 169 and 170:
Links “to sites that automaticall
Page 171 and 172:
Having rejected all constitutional
Page 173 and 174:
under the Copyright</strong
Page 175 and 176:
Department to block it from prosecu
Page 177 and 178:
DVD player has the authority of the
Page 179 and 180:
industry, which included a financia
Page 181 and 182:
set to “Restricted,” including
Page 183 and 184:
portion of the analog signal, the p
Page 185 and 186:
software constitutes a violation of
Page 187 and 188:
intended to ban only those circumve
Page 189 and 190:
authentication sequence required th
Page 191 and 192:
If any single byte of the Toner Loa
Page 193 and 194:
that the defendant had copied the T
Page 195 and 196:
code in sequence to be sent to the
Page 197 and 198:
demonstrating the homeowner’s wil
Page 199 and 200:
The court’s statements might impl
Page 201 and 202:
Chamberlain’s operating software
Page 203 and 204:
and fix the malfunction. The Federa
Page 205 and 206:
- Second, the court’s interpretat
Page 207 and 208:
With respect to the first reason, t
Page 209 and 210:
The plaintiff brought a claim for v
Page 211 and 212:
copyright owner. The plaintiff alle
Page 213 and 214:
copy and the scanned copy did not r
Page 215 and 216:
crawler’s operation. 955 The cour
Page 217 and 218:
plaintiffs also alleged that the de
Page 219 and 220:
characteristics or uses of an accus
Page 221 and 222:
found that Filipiak knew at the tim
Page 223 and 224:
(iv) MDY Industries, LLC v. Blizzar
Page 225 and 226:
concerned that digital television b
Page 227 and 228:
An important thing to note is that
Page 229 and 230:
In March of 2005, a German court, o
Page 231 and 232:
and, if reproduced in digital forma
Page 233 and 234:
ackup copies may not be distributed
Page 235 and 236:
(f)Protection of Certain Industrial
Page 237 and 238:
(4) Adaptations of Unprotectable El
Page 239 and 240:
awarded “shall constitute compens
Page 241 and 242:
copyrighted songs through peer-to-p
Page 243 and 244:
Finally, the court rejected the RIA
Page 245 and 246:
efall Fatwallet as opposed to its s
Page 247 and 248:
(2) abrogate or restrict the limita
Page 249 and 250:
On Line (AOL), may constitute infri
Page 251 and 252:
server other than the original serv
Page 253 and 254:
to material on a site to a single u
Page 255 and 256:
could argue that caching inherently
Page 257 and 258:
4. Cases Adjudicating Caching Under
Page 259 and 260:
The court also found that Field sho
Page 261 and 262:
[Plaintiff] argues that merely by v
Page 263 and 264:
The court ruled that, as a result o
Page 265 and 266:
liability for contributory infringe
Page 267 and 268:
However, the court was careful to n
Page 269 and 270:
that online users saved in their de
Page 271 and 272:
Napster argued that its users’ do
Page 273 and 274:
drive do not constitute a “digita
Page 275 and 276:
have not shown that the majority of
Page 277 and 278:
erroneously concluded that sampling
Page 279 and 280:
established artists’ songs render
Page 281 and 282:
generalized knowledge that the Naps
Page 283 and 284:
Napster “when linked to demonstra
Page 285 and 286:
The Ninth Circuit’s view of the v
Page 287 and 288:
[C]ontributory liability may potent
Page 289 and 290:
On appeal in Napster I, the Ninth C
Page 291 and 292:
“All parties shall use reasonable
Page 293 and 294:
plaintiffs’ reading of the paragr
Page 295 and 296:
fundamentally altered copyright lia
Page 297 and 298:
works and files. This burden-shifti
Page 299 and 300:
Next, the court turned to Napster
Page 301 and 302:
Napster’s standing to challenge t
Page 303 and 304:
(2) The Scour.com LawsuitAnother ca
Page 305 and 306:
trafficking in copyrighted material
Page 307 and 308:
Judge Posner, the Supreme Court in
Page 309 and 310:
The court also rejected a challenge
Page 311 and 312:
when the user logged off, that user
Page 313 and 314:
Turning to the material contributio
Page 315 and 316:
how “probable” the noninfringin
Page 317 and 318:
also warned existing Australian use
Page 319 and 320:
As explicated below, the Supreme Co
Page 321 and 322:
The Required Threshold of Showing o
Page 323 and 324:
The Court also noted that even Grok
Page 325 and 326:
In the absence of other evidence of
Page 327 and 328:
With respect to the first principle
Page 329 and 330:
It is mindful of the limitations fa
Page 331 and 332:
Whether the Seventh Circuit’s app
Page 333 and 334:
product to be used to infringe sugg
Page 335 and 336:
make some effort to mitigate abusiv
Page 337 and 338:
It is important to recognize that t
Page 339 and 340:
include any details of the filterin
Page 341 and 342:
eferences to “reasonable” knowl
Page 343 and 344:
infringements were occurring and ha
Page 345 and 346:
over the course of three or four ye
Page 347 and 348:
argument as insufficient, noting th
Page 349 and 350:
summary judgment. The court denied
Page 351 and 352:
were engaged in copyrighted infring
Page 353 and 354:
(a) The Netcom Case and its Progeny
Page 355 and 356:
content found within the sites maki
Page 357 and 358:
On appeal, the Ninth Circuit affirm
Page 359 and 360:
district court granted the defendan
Page 361 and 362:
infringed its trademarks and copyri
Page 363 and 364:
satisfied because Master had the po
Page 365 and 366:
BitTorrent users had taken place in
Page 367 and 368:
obligation of providing Defendants
Page 369 and 370:
(1) Safe Harbors - Definition of a
Page 371 and 372:
not make a copy of the material dur
Page 373 and 374:
contributory copyright infringement
Page 375 and 376:
The Ninth Circuit found that there
Page 377 and 378:
and the material was transmitted th
Page 379 and 380:
On appeal, the Seventh Circuit affi
Page 381 and 382:
Banned WebmasterIf a webmaster, ide
Page 383 and 384:
it operated in order to provide its
Page 385 and 386:
infringement, it would need to be a
Page 387 and 388:
transmission of such material to a
Page 389 and 390:
Thus, Google’s cached meets the r
Page 391 and 392:
identification of the copyrighted w
Page 393 and 394:
identified them “with sufficient
Page 395 and 396:
Because RemarQ had received adequat
Page 397 and 398:
supply the preceding two elements,
Page 399 and 400:
policy that provides for the termin
Page 401 and 402:
Turning first to the issue of knowl
Page 403 and 404:
court noted that because LoopNet’
Page 405 and 406:
inducement as a matter of law.” 1
Page 407 and 408:
that a defendant can look for enfor
Page 409 and 410:
Section 512(c)(3)(B)(ii). 1875 In a
Page 411 and 412:
e. The Aimster/Madster Lawsuits. Th
Page 413 and 414:
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
Page 421 and 422:
platform amount to a right and abil
Page 423 and 424:
link to view all 16 lower resolutio
Page 425 and 426:
Finally, with respect to the issue
Page 427 and 428:
servers to be accessed by other mea
Page 429 and 430:
and such a holding would be contrar
Page 431 and 432:
The court also rejected UMG’s arg
Page 433 and 434: Louis Vuitton v. Akanoc Solutions.
Page 435 and 436: failing to satisfy the requirement
Page 437 and 438: arguing that linking to or publishi
Page 439 and 440: from websites and the initiation of
Page 441 and 442: Finally, the court ruled that, as a
Page 443 and 444: give rise to a claim under Section
Page 445 and 446: Prince’s behest, based not on the
Page 447 and 448: DMCA are served by requiring copyri
Page 449 and 450: infringing could not be a “materi
Page 451 and 452: On Nov. 3, 1998, the Copyri
Page 453 and 454: the Internet, and encompasses the d
Page 455 and 456: D. Linking and FramingThe practice
Page 457 and 458: found. Linking to a site containing
Page 459 and 460: and programming services to Total N
Page 461 and 462: MasterCard prominence over any othe
Page 463 and 464: 6. The Intellectual Reserve CaseIn
Page 465 and 466: [H]yperlinking does not itself invo
Page 467 and 468: defendant web page’s text and adv
Page 469 and 470: The court found stronger evidence o
Page 471 and 472: Batesville dealer, the Veterans Soc
Page 473 and 474: ight of public performance and the
Page 475 and 476: agreed that AM/FM webcasting was no
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: proceeding. To be eligible for the
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
Page 495 and 496: allow users to listen to songs on t
Page 497 and 498: to assert claims based on the makin
Page 499 and 500: companies and to any digital music
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
show all

Advanced Copyright Issues on the Internet - Fenwick & West LLP

Create successful ePaper yourself

Delete template?

Save as template?