DMCA/CDA

Judge Stearns to Take on Wrongful DMCA Takedown Notice Based on Fair Use – Maybe

May 2, 2013

The Digital Millennium Copyright Act (DMCA) allows a copyright holder to send a takedown notice to an online service provider that is hosting a copyright-protected work posted by a third party. But, lest the law be used to suppress lawful speech, the DMCA requires that a takedown notice contain (among other things) a “statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” and certify, under the penalty of perjury, that the information in the notification is accurate. What if someone sends a takedown notice that is authorized by the law, and does so in bad faith? The law provides that – [a]ny person who knowingly materially misrepresents under this section . . . that material or activity is infringing . . . shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer . . . as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing . . .. But there is a hidden nuance to the law: what if the takedown notice demands takedown of a work that the complaining party owns, but where the use that is the subject of the notice is protected by the copyright fair use doctrine?  In other…

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Slides From Copyright/Trademark CLE

April 27, 2012

I’ve posted the slides from a CLE talk I gave on Wednesday, April 25th.  Hopefully, the  slides are informative standing alone.  They address the very recent DMCA decisions by the 9th Circuit (Veoh) and 2nd Circuit (Youtube), the copyright “first sale” doctrine as applied to digital files in the Redigi case pending in SDNY, and recent trademark “keyword advertising” cases decided in the 4th and 9th Circuits (Rosetta Stone in the 4th Circuit, Network Automation and Louis Vuitton in the 9th).  There are also some slides devoted to the CFAA, including the 9th Circuit’s en banc decision in the Nosal case. If the embedded Scribd document doesn’t appear on your computer directly below, click here to go directly to Scribd Copyright and Trademark Issues on the Internet

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Second Circuit to Youtube (i.e., Google): Remanded for Trial

April 5, 2012

I’ll be reading this decision, issued today, more carefully in the next day or two, but my first impression is that it’s a win for supporters of the DMCA safe harbor statute based on various legal rulings, and a loss for Youtube based on the really dumb behavior of Youtube’s founders.  Of course, these guys didn’t know, back in 2005, that seven years later the courts would be judging whether they were aware that they were hosting copyrighted videos.  If they had known, they might not have emailed each other comments like these: “[W]e need views, [but] I’m a little concerned with the recent [S]upreme [C]ourt ruling on copyrighted material” “[S]ave your meal money for some lawsuits!” “concentrate all of our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil” “our dirty little secret . . . is that we actually just want to sell out quickly” And there’s more like that. Ouch! In the future companies with Youtube-like businesses will, one hopes, not create evidentiary grist of this sort for content owners to use in lawsuits against them.  So, this case may turn out to be a great lesson for the online industry (careful what you say), and an expensive lesson for Google, which will likely have to add some dollars to the $1.65 billion it paid for Youtube in 2006. Second Circuit decision in Viacom v….

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File Under "Hell Hath No Fury" or, "If You’re Protected By CDA 230, Don’t Waive Your Protection"

May 8, 2009

Cicilia Barnes’ choice in men was worthy of a Darwin Award. After she broke up with her boyfriend, he created fake personal ads for her on Yahoo and impersonated her on online forums. As the Ninth Circuit described it in Barnes v. Yahoo: Barnes did not authorize her now former boyfriend to post the profiles, which is hardly surprising considering their content. The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex. Barnes demanded that Yahoo take the information down, but Yahoo didn’t do so, despite a policy that it would remove fake profiles if the complaining party supported its request with a drivers license. However, attention from the press did get Yahoo to focus, at least for a short while. Again, from the court: . . . a local news program was preparing to broadcast a report on the incident. A day…

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Boston Bar Association CLE: Hot Issues in Internet Law, CDA Section 230

May 2, 2009

We had a great CLE at the BBA on Wednesday evening. The lucky folks who attended received three hours of (almost) nonstop legal info, and we barely scratched the surface of the topics. I spoke on CDA Section 230, which has seen a great deal of activity lately, and there are no signs it’s slowing down. Below, via scribd.com, are the slides and paper that I prepared for the program. CDA Section 230 Article, BBA April 2009

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Judge Gants Holds StubHub Not Protected by CDA Section 230 (relying on Roommates.com Decision)

April 24, 2009

On January 26, 2009, in what may have been Judge Ralph Gants’ last opinion before departing Suffolk Superior Court for the Supreme Judicial Court on January 29, 2009, Judge Gants ruled on a number of issues in the New England Patriots lawsuit against StubHub.com. The claims are based on the fact that StubHub provides an online marketplace for the scalping of Patriot’s tickets, something that really pisses off the Patriots’ owners, who attempt to exercise a high degree of control over their ticket sales.  The Patriots’ various causes of action arise out of their claim that the tickets are a “revocable license” with printed terms, and civil claims related to the Massachusetts anti-scalping statute, G. L. c. 140, Section 185A. The discussion on 47 USC Section 230 is only a small part of the decision (which addresses a number of defensive theories set forth by StubHub on summary judgment, rejecting most of them) is as follows: CDA immunity “applies only if the interactive computer service provider is not also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole or in part,’ for the creation or development of the offending content.” Roommates, 521 F.3d at 1162;47 U.S.C. § 230(f)(3). The Ninth Circuit has interpreted the term “development” as “referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other…

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The EFF “Unintended Consequences” White Paper Update Marks the Ten Year Anniversary of the DMCA

November 10, 2008

It’s easy to forget that the Digital Millennium Copyright Act is really two separate laws. One protects publishers from “inadvertent” copyright infringement by creating the “notice-and-takedown” regime that requires copyright owners to demand that publishers take down copyrighted works published by third parties before asserting infringement. The other part of the DMCA is the anti-circumvention rule that generally prevents anyone from from bypassing copy protection schemes. The Electronic Frontier Foundation (“the leading civil liberties group defending your rights in the digital world”) has published the fifth update to its comprehensive white paper, “Unintended Consequences: Ten Years Under the DMCA.”This 19 page report details the extent to which the DMCA’s anti-circumvention provisions have been used to not to mount legal challenges against pirates who develop technologies to circumvent copy protection, but against consumers, scientists, and legitimate competitors in ways not fully anticipated when the law was passed. The EFF paper provides a comprehensive history of this side of the DMCA, including the famous “Felton/SDMI challenge” incident in 2000 (“bet you can’t defeat this protection. You did? Well, any disclosure of that would violate the DMCA, so put a sock in it”), and the efforts to claim that an end-user license agreement may constitute an access control measure protected by the DMCA. This is a “must read” document for anyone interested in anti-circumvention enforcement under the DMCA. Articles by Joe Laferrera of my…

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New Hampshire Federal District Court Issues Comprehensive Ruling on Communications Decency Act

July 30, 2008

“[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. … [n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. . . . . [However this law] shall [not] be construed to limit or expand any law pertaining to intellectual property.” Communications Decency Act (“CDA”), 47 U.S.C.

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Recent Cases Under the Communications Decency Act

November 27, 2007

My partner Joe Laferrera recently wrote this article on the Communications Decency Act (CDA) which provides important legal protections to internet service providers. I have written often on this topic (see here, here and here) and Joe’s article discusses two recent cases applying this important law, one protecting a web site from liability, the other refusing immunity. . . . But although Section 230 of the CDA provides broad immunity for online service providers, that does not mean that there are no legal risks inherent in the business of providing online services on the web. … continue reading  

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First Circuit Applies the CDA to Protect Lycos

June 20, 2007

I’ve written often about Section 230 of the Communications Decency Act (CDA), which protects “interactive computer services” as follows: No provider or user of an interactive computer service shall be treated as the publisher or speaker or any information provided by another information content provider And – No provider or user of an interactive computer service shall be liable on account of – (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected � Put simply, this law allows web site operators to avoid liability for certain types of publications on their sites by people outside their control, and to police their sites as they wish. The most obvious example is any kind of bulletin or message board that allows comments by members of the public. The site operator is not the “publisher,” and therefore is not liable for tort claims, such as defamation. The First Circuit Court of Appeals recently applied this law for the first time in this circuit, in the case of Universal Communication Systems, Inc. (UCS) v. Lycos, Inc. Lycos, the owner of the Raging Bull website, allows the public to discuss the fortunes of public companies. The Raging Bull message board for UCS…

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Viral Video, YouTube and Whack-a-Mole, or Why Mark Cuban is Wrong

October 19, 2006

I quote from News.com on September 28th: Cuban, co-founder of HDNet and owner of the NBA’s Dallas Mavericks, also said YouTube would eventually be “sued into oblivion” because of copyright violations. “They are just breaking the law,” Cuban told a group of advertisers in New York. “The only reason it hasn’t been sued yet is because there is nobody with big money to sue.” * * * Cuban said “anyone who buys that (YouTube) is a moron” because of potential lawsuits from copyright violations. “There is a reason they haven’t yet gone public, they haven’t sold. It’s because they are going to be toasted,” said Cuban, who has sold start-ups to Yahoo and CompuServe. The outspoken (to put it mildly) Cuban, billionaire owner of the Dallas Mavericks and Chairman of HDTV cable network has repeated this message loudly and often, both before and after Google’s $1.6 billion purchase offer to YouTube. Many other media sources appear to have picked up the tune, and the media-giant mouthpieces have added to the volume by rattling their sabers, implying that its only a matter of time before this “mother of all lawsuits” is forthcoming. Don’t believe a word of it. Surprisingly few observers have asked the pertinent question here: do the Supreme Court’s 1995 Grokster decision and the DMCA (the Digital Millennium Copyright Act) protect YouTube from liability for copyright-protected works posted by…

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Of iPods, Lock-Ins and the DMCA

August 15, 2006

As an ambivalent owner of an Apple iPod I’ve given a lot of thought to the fact that songs I download from Apple’s iTunes will not play on a portable device other than an Apple iPod. If I want to play my iTunes music collection on another manufacturer’s MP3 player, today or five years from now, I’ll be unable to play the tunes downloaded from iTunes. The Digital Millennium Copyright Act prevents competitors from reverse engineering the protection Apple embeds in these files, and therefore Apple has, in effect, a government enabled lock-in. The only legal way around this restriction requires users to burn the iTunes songs to a CD and then import (rip) them back into iTunes as MP3 files. This eliminates Apple’s digital rights management (DRM) and “frees” these tunes, but what a hassle and disincentive to buy music from iTunes. Do I do this? Yes. Do I like it? Ah …. (If you’d like to gain a better understanding of how iTunes DRM works and how to avoid it, click here.) Cory Doctorow has written a scathing editorial in Information Week discussing the policy and legal issues involved in Apple’s DRM program. A few choice quotes from the article: Reverse engineering is a common practice in most industries. You can reverse-engineer a blender and make your own blades, you can reverse-engineer a car and make your own…

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