Advanced Copyright Issues on the Internet - Fenwick & West LLP

More documents

Recommendations

Info

DMCA with respect to the DMCA’s impact on, among other things, “the relationship betweenexisting and emergent technology” and Sections 109 and 117 of the copyright statute. The reportrequired under Section 104 was issued in August of 2001 and is available online atwww.loc.gov/copyright/reports/studies/dmca/dmca_study.html.The report concluded that the making of temporary copies of a work in RAM in thecourse of streaming implicates the reproduction right of the copyright holder so long as thereproduction persists long enough to be perceived, copied, or communicated. 2265 The reportnoted considerable uncertainty in the industry concerning the legal status of buffer copies and theexposure of webcasters to demands for additional royalty payments from the owners of streamedsound recordings. The report expressed the belief “that there is a strong case that the making ofa buffer copy in the course of streaming is a fair use,” based largely on the fact that buffer copiesdo not supersede or supplant the market for the original works and the effect on the actual orpotential market for the works appears to minimal or nonexistent. 2266 Because the sole purposefor making the buffer copies is to permit an activity that is licensed by the copyright owner andfor which the copyright owner receives a performance royalty, the report concluded thatcopyright owners appeared “to be seeking to be paid twice for the same activity.” 2267Accordingly, the report recommended:that Congress enact legislation amending the <strong>Copyright</strong> Act to preclude anyliability arising from the assertion of a copyright owner’s reproduction right withrespect to temporary buffer copies that are incidental to a licensed digitaltransmission of a public performance of a sound recording and any underlyingmusical work.The economic value of licensed streaming is in the public performances of themusical work and the sound recording, both of which are paid for. The buffercopies have no independent economic significance. They are made solely toenable the performance of these works. The uncertainty of the present lawpotentially allows those who administer the reproduction right in musical worksto prevent webcasting from taking place – to the detriment of other copyrightowners, webcasters and consumers alike – or to extract an additional payment thatis not justified by the economic value of the copies at issue. Congressional actionis desirable to remove the uncertainty and to allow the activity that Congresssought to encourage through the adoption of the section 114 webcastingcompulsory license to take place.Although we believe that the fair use defense probably does apply to temporarybuffer copies, this approach is fraught with uncertain application in the courts.This uncertainty, coupled with the apparent willingness of some copyright owners2265 See Section III.B.2.a of the Executive Summary of the report, which may be found online atwww.loc.gov/copyright/reports/studies/dmca/dmca_executive.html.2266 Id. Section III.B.2.b.2267 Id.- 494 -
to assert claims based on the making of buffer copies, argues for statutorychange. 2268On Mar. 9, 2001, prior to issuance of the 2001 DMCA report, and in response to apetition by the RIAA for rulemaking or to convene a CARP, the <strong>Copyright</strong> Office initiated arequest for public comments on the interpretation and application of the mechanical and digitalphonorecord compulsory license to certain digital music services, including webcasting. 2269 TheRIAA petition focused on two types of digital music deliveries:“On-Demand Stream,” defined as an “on-demand, real-time transmission using streamingtechnology such as Real Audio, which permits users to listen to the music they want when theywant and as it is transmitted to them”; and“Limited Download,” defined as an “on-demand transmission of a time-limited or other uselimited(i.e. non-permanent) download to a local storage device (e.g. the hard drive of the user’scomputer), using technology that causes the downloaded file to be available for listening onlyeither during a limited time (e.g. a time certain or a time tied to ongoing subscription payments)or for a limited number of times.” 2270Music publishers had taken the position that both On-Demand Streams and LimitedDownloads implicated their reproduction (mechanical license) rights. The RIAA requested the<strong>Copyright</strong> Office to determine whether On-Demand Streams are incidental DPDs and, if so, toconvene a CARP to set rates for those incidental DPDs. With respect to Limited Downloads, theRIAA suggested that they may be either incidental DPDs or more in the nature of record rentals,leases or lendings. 2271 In either case, the RIAA believed that the compulsory license of Section115 should apply, but asked the <strong>Copyright</strong> Office to conduct a rulemaking proceeding withrespect to the issues:2268 Id. Section III.B.2.c. The report also acknowledged a “symmetrical difficulty” faced in the online musicindustry relating to digital performances that are incidental to digital music downloads:“Just as webcasters appear to be facing demands for royalty payments for incidental exercise of thereproduction right in the course of licensed public performances, it appears that companies that sell licenseddigital downloads of music are facing demands for public performance royalties for a technical ‘performance’of the underlying musical work that allegedly occurs in the course of transmitting it from the vendor’s server tothe consumer’s computer.Although we recognize that it is an unsettled point of law that is subject to debate, we do not endorse theproposition that a digital download constitutes a public performance even when no contemporaneousperformance takes place. If a court were to find that such a download can be considered a public performancewithin the language of the <strong>Copyright</strong> Act, we believe that the arguments concerning fair use and the making ofbuffer copies are applicable to this performance issue as well. It is our view that no liability should result froma technical ‘performance’ that takes place in the course of a download.” Id.2269 66 Fed. Reg. 14099 (Mar. 9, 2001).2270 Id. at 14100.2271 Id.- 495 -
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 and 484: proceeding. To be eligible for the
Page 485 and 486: On June 18, 2003, the Copyr
Page 487 and 488: On Aug. 23, 2007, SoundExchange als
Page 489 and 490: - On June 1, 2001, Launch and other
Page 491 and 492: genres and unrated quota. 2249 Alth
Page 493 and 494: embodied in phonorecords or digital
Page 495: allow users to listen to songs on t
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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?