Advanced Copyright Issues on the Internet - Fenwick & West LLP

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oker’s listing. Under this service, Yachtbroker.com copied and pasted certain content,including pictures and descriptions (but not the HTML for the entire web page), from yachtlistings on Yachtworld.com and posted the content on Yachtbroker.com in a different format.Although the copied content posted on Yachtbroker.com contained many of the same descriptiveheadings as the original listings on Yachtworld.com, the court found that the headings were theindustry standard for yacht listings on yacht brokering web sites. 2348NSM filed an action for a declaratory judgment that its two services did not infringeBoats.com’s copyrights, which the court granted. The court ruled that Boats.com’s copyright ofYachtworld.com’s public web pages in order to extract from yacht listings facts unprotected bycopyright law constituted a fair use. 2349 The court further ruled that the copyrights in the picturesand descriptions of yachts copied by the valet service were owned by the individual yachtbrokers, not Boats.com, and such copying was therefore not infringing. Nor was copying of theheadings an infringement, because the headings, being industry standards, were not protected bycopyright. 2350 Boats.com also claimed a copyright in the look and feel of the Yachtworld.comweb site that it alleged had been copied by Yachtbroker.com. The court rejected this claim,finding that the two web sites were quite dissimilar in appearance. 2351 Finally, the court rejecteda claim of infringement in a compilation copyright over the yacht listings on Yachtworld.com.The court held that, because the format used by NSM to display on Yachtbroker.com the contentcopied from Yachtworld.com differed from the format used by Yachtworld.com to display thesame information, the compilation of yacht listings on Yachtbroker.com was not virtuallyidentical and was therefore not infringing. 2352IV. CONCLUSION<strong>Copyright</strong> law provides one of the most important forms of intellectual propertyprotection on the Internet. Considerable challenges are presented, however, in adaptingtraditional copyright law, which was designed to deal with the creation, distribution and sale ofprotected works in tangible copies, to the electronic transmissions of the online world in whichcopies are not tangible in the traditional sense, and it is often difficult to know precisely where acopy resides at any given time within the network.The most difficult aspect of adapting copyright law to the online world stems from thefact that virtually every activity on the Internet – such as browsing, caching, linking,downloading, accessing information, and operation of an online service – involves the making ofcopies, at least to the extent the law treats electronic images of data stored in RAM as “copies”for purposes of copyright law. In short, “copying” is both ubiquitous and inherent in the verynature of the medium. If the law were to treat all forms of “copying” as infringements of the2348 Id. at 3-4.2349 Id. at 4.2350 Id. at 5.2351 Id. at 6.2352 Id. at 7.- 512 -
copyright holder’s rights, then the copyright holder would have very strong control over Internetuse of the copyrighted work. Which forms of copying the law should deem to be within thecontrol of the copyright owner and which should not presents a very difficult challenge.The cumulative effect of the copyright holder’s rights being implicated by every use of awork on the Internet may be to give the copyright owner the equivalent of exclusive rights of“transmission and access” of information. Indeed, the WIPO <strong>Copyright</strong> Treaty and the WIPOPerformances and Phonograms Treaty each make such rights express. However, the DMCAdoes not set up separate rights of transmission and access, although the draft European <strong>Copyright</strong>Directive would recognize such rights explicitly. Thus, the implementing legislative regimesadopted by various signatory countries to the WIPO treaties may result in varying scopes and/ordenominations of rights, which runs contrary to the goal of the WIPO treaties to harmonizecopyright law in the digital environment throughout the world.The ubiquitous nature of “copying” on the Internet raises other difficult issues. Forexample, the practice of dividing copyright rights (such as the reproduction right, the publicperformance right, and the distribution right) among separate rights holders, as is common in themovie and music industries, will raise difficult issues of overlapping rights when a work isexploited through the Internet, because the exercise of all such rights will involve the making of“copies.” Licensees may therefore need to seek permission from multiple rights holders thatmay not have been necessary in traditional media. 2353Moreover, the traditional divisions of the bundle of copyright rights may no longer makesense on the Internet. For example, it is common for different entities to hold the right toreproduce copies of a movie, to distribute copies of the movie, and to grant licenses for publicperformance of the movie. Under that division of rights, who has the right to make the movieavailable on the Internet for on-demand viewing by users, since on-demand viewings willinvolve the making of copies of the movie, the distribution of copies, and the public performanceof the movie? Or should it be the holder of the new right of transmission and access under theWIPO treaties? 2354 Because of the overlapping nature of copyright rights when applied to theInternet, new definitions and divisions of those rights will probably be necessary for onlineusage of copyrighted works. Corresponding new economic and royalty models and industrypractices will also have to evolve. In the meantime, many existing licenses will be unclear as towhich entity has rights to control online usage of a work, and one can expect to see muchlitigation over the interpretation of existing licenses. 23552353 See Lemley, supra note 6, at 568-72.2354 Because the new right of transmission and access in the WIPO treaties will be in addition to the other rights thatmay be implicated by Internet uses of copyrighted works, these new rights can be expected to increase theproblem of overlapping rights. For example, existing licenses will be silent on these new rights, and there willtherefore be great uncertainty as to whether the licensor retains such rights, or whether the licensee has a licenseunder such rights and, if so, of what scope.2355 See Lemley, supra note 6, at 572-74. One commentator has considered several possible ways of dealing withthe overlap of exclusive copyright rights that occurs on the Internet (placing the burden of overlap on the user;placing the burden of overlap on the copyright owner; and establishing a new right of transmission over a- 513 -
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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
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Finally, the court ruled that, as a
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give rise to a claim under Section
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Prince’s behest, based not on the
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DMCA are served by requiring copyri
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infringing could not be a “materi
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On Nov. 3, 1998, the Copyri
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the Internet, and encompasses the d
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D. Linking and FramingThe practice
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found. Linking to a site containing
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and programming services to Total N
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MasterCard prominence over any othe
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Page 479 and 480: digital transmission services, impo
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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: pop-up and pop-under ads from appea
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