Advanced Copyright Issues on the Internet - Fenwick & West LLP

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songs played on the station are unrated – meaning the user has never expressed apreference for those songs. If the user attempts to increase her chances of hearinga particular song by rating only a small number of songs – making the user's listof explicitly and implicitly rated songs smaller than 100 – 90% of the songsLAUNCHcast selects for the playlist will be unrated, flooding the playlist withsongs for which the user has never expressed a preference. 2251The court further noted that even the ways in which songs were rated included variablesbeyond the user’s control. For example, the ratings by all of the user’s subscribed-to stationswere included in the playlist selection process. When the user rated a particular song,LAUNCHcast then implicitly rated all other songs by that artist, subjecting the user to manysongs the user may have never heard or did not even like. In addition, a user who heard a songshe liked and wanted to hear again could not do so by logging off and back on to reset the stationto disable the restriction against playing the same song twice on a playlist. Even if the userlogged off then back on and selected the same station, the user would still hear the remainder ofthe playlist to which she had previously been listening with its restrictions still in operation, atleast until the user had listened to at least 42 of the playlist’s songs. LAUNCHcast also did notenable the user to view the unplayed songs in the playlist, ensuring that a user could not siftthrough a playlist to choose the songs the user wished to hear. In short, the only thing a usercould control was to ensure not hearing a particular song on a particular station again by rating itzero. But the court noted that the ability not to listen to a particular song was not a violation of acopyright holder’s right to be compensated when the sound recording was played. 2252Accordingly, the court ruled that, as a matter of law, the LAUNCHcast service was not aninteractive service. 22534. The Reproduction Right – Mechanical Licenses andStreaming/DownloadingA great area of controversy has been whether streaming implicates the reproduction rightof the copyright holder at all and, if so, whether the compulsory mechanical license of Section115 of the copyright statute applies to streaming. As discussed in Sections I.A.1 and I.A.2above, the right of reproduction is potentially implicated when a work is streamed over theInternet because interim whole or partial copies of the work are made in various RAM memoriesin the course of transmission of the work. Entities that conduct streaming have sought to avoidhaving to pay a separate royalty under the right of reproduction based on such interim copies, inaddition to a public performance royalty. In addition, controversy has arisen over what royaltyrates should apply to copies made in the course of limited downloads, as opposed to fulldownloads.Section 115(a) of the copyright statute provides for a compulsory license (referred to inthe industry as a “mechanical license”) to make copies of a nondramatic musical work as2251 Id. at 162-63 (footnotes omitted).2252 Id. at 163-64.2253 Id. at 150.- 490 -
embodied in phonorecords or digital phonorecord deliveries (“DPDs”), provided thatphonorecords of the musical work have been distributed to the public in the U.S. under authorityof the copyright owner. Section 115(d) defines a “digital phonorecord delivery” to mean “eachindividual delivery of a phonorecord by digital transmission of a sound recording which resultsin a specifically identifiable reproduction by or for any transmission recipient of a phonorecordof that sound recording, regardless of whether the digital transmission is also a publicperformance of the sound recording or any nondramatic musical work embodied therein. Adigital phonorecord delivery does not result from a real-time, non-interactive subscriptiontransmission of a sound recording where no reproduction of the sound recording or the musicalwork embodied therein is made from the inception of the transmission through to its receipt bythe transmission recipient in order to make the sound recording audible.” The last sentence ofthis definition might be read to exclude streaming from the definition of DPDs, an issue whichhas been the subject of considerable controversy, as discussed further below.Section 115(c)(3)(A) provides that the compulsory license includes the right to distribute“a phonorecord of a nondramatic musical work by means of a digital transmission whichconstitutes a digital phonorecord delivery, regardless of whether the digital transmission is also apublic performance of the sound recording under section 106(6) … or of any nondramaticmusical work embodied therein under section 106(4).”As in the case of the digital performance right with respect to sound recordings, thecopyright statute provides for royalty rates for the compulsory mechanical license to be setthrough voluntary negotiation proceedings noticed by the <strong>Copyright</strong> Office and, if suchproceedings fail to reach agreements, through CARP proceedings. 2254 The copyright statuteprovides that, in setting the terms and rates for the compulsory license, the CARP “shalldistinguish between (i) digital phonorecord deliveries where the reproduction or distribution of aphonorecord is incidental to the transmission which constitutes the digital phonorecord delivery[usually referred to as “incidental DPDs”], and (ii) digital phonorecord deliveries in general[usually referred to as “general DPDs”].” 2255 Voluntary negotiation and/or CARP proceedingsare generally to be repeated in each fifth calendar year after 1997. 2256 A CARP proceeding,Docket No. 99-4 CARP DPRA, relating to DPDs was initiated and remained open for manyyears, but was terminated by the <strong>Copyright</strong> Office on Aug. 6, 2007 pursuant to the Royalty andDistribution Reform Act of 2004, which eliminated the CARP system and replaced it with theCRB. The <strong>Copyright</strong> Office noted that subsequent proceedings regarding the rates for Section115 must be initiated under the new CRB system. 2257Because Congress did not define what constitutes an incidental DPD, much controversyhas arisen with respect to them:Whether streaming constitutes a DPD at all;2254 17 U.S.C. § 115(c)(3)(C) & (D).2255 Id. § 115(c)(3)(D).2256 Id. § 115(c)(3)(F).2257 72 Fed. Reg. 45071, 45072 (Aug. 10, 2007).- 491 -
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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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failing to satisfy the requirement
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arguing that linking to or publishi
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from websites and the initiation of
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
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Page 469 and 470: The court found stronger evidence o
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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
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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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