Advanced Copyright Issues on the Internet - Fenwick & West LLP

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to stream copyrighted music over the Internet. The new rates abandoned the existingpercentage-of-revenue scheme in favor of an annual flat per-station rate structure up to aspecified cap, coupled with a per-performance rate for services that exceed the cap, where“performance” is defined as the streaming of one song to one listener. The annual per-channeland per-station rate for non-commercial webcasters not exceeding 159,140 aggregate tuninghours per month and for Commercial Webcasters was set at $500 per year. The per-performancerates for transmissions in excess of that limit by non-commercial webcasters, and for anytransmissions by Commercial Webcasters, retroactive to Jan. 1, 2006, were set at:$0.0008 for 2006$0.0011 for 2007$0.0014 for 2008$0.0018 for 2009$0.0019 for 2010These rates were inclusive of both the Section 114 license fees and the royalty payable underSection 112 for ephemeral recordings used solely to facilitate transmissions for which it paidroyalties. 2225The CRB’s decision caused great controversy and protest, particularly among smallwebcasters, who claimed the rates were so high that they would put the webcasters out ofbusiness. Several bills were introduced in Congress and negotiations with SoundExchange tookplace to reduce the rates for small webcasters. On May 22, 2007 SoundExchange announcedthat it would extend for another three years (through 2010) the previous, lower rates under theSWSA for small webcasters (i.e., 10% of gross revenue up to $250,000 and 12% of revenueexceeding that amount). 2226 On Aug. 21, 2007, SoundExchange set out certain conditions thathad to be met by a small webcaster to qualify for the favorable rates – the webcaster had to earnless than $1.2 million in total annual revenue and could not exceed a total of 5 million aggregatetuning hours each month. Should the threshold be exceeded, the webcaster would be required topay the CRB’s published rates. SoundExchange announced that the agreement would apply onlyto performance royalties collected on behalf of the 20,000 recording artists and 3,500 recordlabels represented by the collective – royalties due to other artists and labels would be payableunder the CRB’s rates. Interested webcasters had until Sept. 14, 2007 to accept the offer. 22272225 72 Fed. Reg. 24084, 24111 (May 1, 2007). The CRB’s decision was initially set forth in a report published onits web site on Mar. 2, 2007. Representatives of the Intercollegiate Broadcasting System Inc., DiMA, NationalPublic Radio, the Radio Broadcasters, Royalty Logic Inc., WHRB (FM), SoundExchange, and many smallcommercial webcasters filed a series of motions seeking a rehearing on the royalty scheme. On April 16, 2007,the CRB rejected the motions. On July 11, 2007, the U.S. Court of Appeals for the D.C. Circuit denied apetition filed by webcasters seeking to stay the CRB’s determination. “SoundExchange Offers WebcastersReprieve After D.C. Court Denies Petition to Stay,” BNA’s Patent, Trademark & <strong>Copyright</strong> Journal (July 20,2007) at 345.2226 Id.2227 “SoundExchange Agrees to Separate Royalty Deals Between Large and Small Webcasters,” BNA’s Patent,Trademark & <strong>Copyright</strong> Journal (Aug. 31, 2007) at 530.- 484 -
On Aug. 23, 2007, SoundExchange also announced an accord on the amount of feessome large webcasters would pay – specifically, that a $50,000 cap would replace the $500 perstationminimum fee set by the CRB. In return for the cap, the signatory webcasters agreedwithin six months to begin collecting and reporting census information on all songs streamedover the Internet. SoundExchange and DiMA also agreed to form a committee designed toanalyze the issue of audio stream-ripping and technological solutions that might be available.The agreement did not, however, disturb the CRB’s per-performance royalty fees. 2228On Aug. 10, 2007, the <strong>Copyright</strong> Office, acting under the provisions of the CRDRA,formally terminated all open proceedings under the old CARP system. 2229(c) New Subscription ServicesOn Feb. 12, 2001, the <strong>Copyright</strong> Office announced the initiation of the six-monthstatutory voluntary negotiation period for determining reasonable rates and terms for thestatutory license for new subscription services. 2230 No agreements were reached. After the closeof the negotiation period, the <strong>Copyright</strong> Office received petitions requesting that a CARP beconvened to establish terms and rates for the statutory license covering new subscriptionservices. The petitioners also requested that the <strong>Copyright</strong> Office consolidate the proceeding fornew subscription services with the proceeding for pre-existing satellite digital audio radioservices and pre-existing subscription services. 2231 As discussed in the previous subsection, inMay of 2003, the Digital Media Association, the American Federation of Television and RadioArtists, the American Federation of Musicians of the United States and Canada, and the RIAAagreed on a proposal for royalty rates to be paid by new subscription services for the period from1998 through Dec. 31, 2004, and submitted the proposal to the <strong>Copyright</strong> Office for possibleadoption without a CARP. On May 20, 2003, the <strong>Copyright</strong> Office published the proposal forcomment. 2232 On Feb. 6, 2004, the <strong>Copyright</strong> Office adopted the proposal as a final rule. 2233As noted in the previous subsection, on Nov. 30, 2004, the <strong>Copyright</strong> Royalty andDistribution Reform Act of 2004 2234 was enacted, with an effective date of May 31, 2005. ThatAct eliminated the CARP system and replaced it with three permanent <strong>Copyright</strong> RoyaltyJudges. In addition, the Act terminated the voluntary negotiation proceeding initiated by the<strong>Copyright</strong> Office in February 2004 to set rates for the 2005-2006 period for new subscriptionservices. 2235 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 subscription2228 Id. at 529.2229 72 Fed. Reg. 45071 (Aug. 10, 2007).2230 66 Fed. Reg. 9881 (Feb. 12, 2001).2231 66 Fed. Reg. 58180 (Nov. 20, 2001).2232 68 Fed. Reg. 27506 (May 20, 2003).2233 69 Fed. Reg. 5693 (Feb. 6, 2004).2234 Pub. L. No. 108-419, 118 Stat. 2341 (2004).2235 69 Fed. Reg. 5196 (Feb. 3, 2004).- 485 -
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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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platform amount to a right and abil
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link to view all 16 lower resolutio
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Finally, with respect to the issue
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servers to be accessed by other mea
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and such a holding would be contrar
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The court also rejected UMG’s arg
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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
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Page 463 and 464: 6. The Intellectual Reserve CaseIn
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Page 469 and 470: The court found stronger evidence o
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Page 479 and 480: digital transmission services, impo
Page 481 and 482: (b) Eligible Nonsubscription Servic
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Page 485: On June 18, 2003, the Copyr
Page 489 and 490: - On June 1, 2001, Launch and other
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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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