DMCA/CDA

Mavrix v. LiveJournal: The Incredible Shrinking DMCA

June 7, 2017

While many performing artists and record companies complain that the Digital Millennium Copyright Act (the “DMCA”) puts them to the unfair burden of sending endless takedown notices, and argue that the law should require notice and “stay down,” supporters of Internet intermediaries and websites argue that court decisions have unreasonably narrowed the DMCA safe harbor. A recent decision by the influential Ninth Circuit Court of Appeals (which includes California) adds to the concerns of the latter group. LiveJournal, the defendant in this case, displayed  on its website 20 photographs owned by Mavrix. Mavrix responded, not by sending DMCA “takedown” notices, as you might expect, but by filing suit for copyright infringement. LiveJournal responded that it was protected by the DMCA. However, to successfully invoke the DMCA’s safe harbor  LiveJournal had to satisfy all of the legal requirements of the DMCA. A key requirement is that infringing content have been posted “at the direction of the user.” In other words, the DMCA is designed to make websites immune from copyright infringement based on postings by users; it doesn’t protect a site from content posted or uploaded by the site itself – that is, by the site’s employees.  The photos at issue were submitted by users and posted at their direction and therefore, LiveJournal argued, it satisfied this DMCA requirement. However, when it comes to the DMCA, the devil is in the details, and the…

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Gesmer Updegrove Client Advisory re New DMCA Agent Registration Requirement

November 17, 2016

The U.S. Copyright Office has issued a new rule that has important implications for any website that allows “user generated content” (UGC).  This includes (for example), videos (think Youtube), user reviews (think Amazon or Tripadvisor), and any site that allows user comments. In order to avoid possible claims of copyright infringement based on UGC, website owners rely on the Digital Millennium Copyright Act (the “DMCA”). However, the DMCA imposes strict requirements on website owners, and failure to comply with even one of these requirements will result in the loss of protection. One requirement is that the website register an agent with the Copyright Office. The contact information contained in the registration allows copyright owners to request a “take down” of the copyright owner’s content. The Copyright Office is revamping its agent registration system, and as part of this process it is requiring website owners to re-register their DMCA agents by the end of 2017, and re-register every three years thereafter. Gesmer Updegrove LLP’s Client Advisory on this new rule is embedded in this post, below.  You can also click here to go directly to the pdf file on the firm’s website.

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Lets Go Crazy! The Dancing Baby, the DMCA and Copyright Fair Use

September 16, 2015

It’s not often that a case involving a 29 second video of toddlers cycling around on a kitchen floor goes to a federal court of appeals, much less results in an important,  precedent-setting copyright decision. But that is exactly what happened in Lenz v. Universal Music Corp. The cases arises from an issue inherent in the Digital Millennium Copyright Act. The DMCA allows copyright owners to request the “takedown” of a post that uses infringing content. But, what does the copyright owner have to do to determine, first, whether fair use applies? Does it need to do anything at all? This question has finally been decided by the Ninth Circuit in a much-anticipated decision issued on September 14, 2015. The case had inauspicious beginnings. In 2007 Stephanie Lenz posted to YouTube a 29 second video of her toddler son cycling around the kitchen, with Prince’s song “Let’s Go Crazy” playing in the background. Universal sent a DMCA takedown notice to YouTube, but Ms. Lenz contended her use of the song was fair use, and therefore was non-infringing. Eventually the dispute made its way to federal court in California, with Ms. Lenz asserting that her use of the song was protected by fair use, and that Universal had failed to take fair use into consideration before requesting takedown of her video. The issue before the court was whether, before sending a DMCA takedown…

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Viacom v. Youtube: Mother of All DMCA Copyright Cases Settles

March 20, 2014

According to my count, I’ve written seven posts on the Viacom v. Youtube DMCA copyright case. The first time I mentioned Youtube and the DMCA was in October 2006, over 7 years ago. Referencing Mark Cuban’s comment that Youtube would be “sued into oblivion” I stated: 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 third parties . . ..? In fact, Youtube was acquired by Google for $1.65 billion. It was then sued by a group of media companies, resulting in a marathon lawsuit that never went to trial, but yielded two district court decisions and one Second Circuit decision on the issues I identifed in 2006. As I described in a two-part post in December 2013/January 2014, the second appeal to the Second Circuit had been fully briefed and was awaiting oral argument. Now the case has settled, on confidential terms of course. However, demonstrating the extent to which the interests of the media companies and Youtube have converged, the joint press release contained the unusual statement that the “settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together.” We may never know the terms of the settlement, but rumor has it that the plaintiffs received…

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MyMovingReviews.com Unable to Obtain Dismissal Under CDA

March 14, 2014

According to Massachusetts U.S. District Court Judge O’Toole the defendants in Moving and Storage, Inc. v. Payanatov are in the moving business and operate a web site at MyMovingReviews.com which, they claim, reflects neutral consumer reviews of moving companies. Not true, assert some of their competitors and the plaintiffs in this case. The plaintiffs allege that MyMovingReviews manipulates the reviews, deleting positive reviews of the plaintiffs and deleting negative reviews of their own company. Web sites that allow consumer reviews are protected from copyright infringement under the DMCA, and from tort (e.g. defamation) claims under the Communications Decency Act (CDA) assuming, in each instance, that they meet the often strict requirements of the statutes. The defendants claimed the protection of the CDA, and moved to dismiss under that law. Not so, held Judge O’Toole – The plaintiffs’ claims do not arise from the content of the reviews, whether they be disparaging, laudatory, or neither, but instead, the defendants’ alleged ill-intentioned deletion of positive reviews of the plaintiffs’ moving companies and deletion of negative reviews of their own company, coupled with various representations – that the website offers “accurate” data, that it is “serious about reviews quality,” and that readers “see the most accurate and up to date rating information to base your decision on.” The manner in which the information is presented, or withheld, is the conduct at issue, as well as the allegedly misleading ratings which…

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My Interview on the DMCA on URBusiness Network

February 11, 2014

A couple of weeks ago I returned to the offices of the URBusiness Network to discuss the Digital Millennium Copyright Act (DMCA). This was my second trip to the URBusiness Network, an online radio network with a wide range of business shows. The subject of the first show, recorded last October, was web site liability for third party postings under the Communications Decency Act (CDA). However, the CDA does not protect web sites for user postings that violate copyright law, so copyright liability and the DMCA were the topics of the current show. Once again it was a pleasure to be interviewed by Ruck Brutti, who was joined on this occasion by co-host Nathan Roman. You can listen to the new show here.

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Viacom v. YouTube, Mother of All DMCA Copyright Cases (part 2 of 2-part post)

January 26, 2014

[This is part 2 of a 2-part post. To read part 1, click here] [Update: Viacom v. Youtube was settled before the Second Circuit rendered its decision on the appeal discussed in this post] After the events described in part 1, Kevin Kickstarter, founder of YouPostVid, meets with his lawyer, Mr. Jagger, to discuss whether YouPostVid needs to change its approach to managing copyrighted videos posted by users of the site. In preparation for this meeting Kevin has read the decisions in Viacom v. YouTube, and Mr. Jagger* has familiarized himself with YouPostVid’s compliance practices under the DMCA. *[Note] Mr. Jagger’s name is a  play on the infamous  lawyer in Great Expectations, by Charles Dickens. Kevin Kickstarter: Mr. Jagger, what I don’t understand is this – we comply with valid DMCA takedown notices. We take down thousands of video clips a month in response to takedown notices. However, the DMCA also says that we can lose our  immunity if we have “actual knowledge” of infringement, or if we are “aware of facts or circumstances from which infringing activity is apparent” — what you call “red flag” knowledge — or if we engage in “willful blindness,” a concept I don’t understand at all. At the same time the DMCA says that we have no obligation to monitor for infringement. How can I run a business based on this confusing set of rules?…

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Viacom v. YouTube, Mother of All DMCA Copyright Cases (part 1 of 2-part post)

December 28, 2013

[This is the first of what will be a two-part post on Viacom v. YouTube] [Update: Viacom v. Youtube was settled before the Second Circuit rendered its decision on the appeal discussed in this post] It seems unlikely that the drafters of the DMCA — a law enacted in 1998, the same year Google was incorporated — anticipated how difficult the courts would find application of this complex, near-5,000-word statute. There may be no better case to illustrate this than Viacom’s long-running suit against YouTube (a company owned by Google). As of November 2013 briefs had been filed in the second appeal in Viacom v. YouTube, and the case is likely to be scheduled for oral argument before the Second Circuit sometime in the first few months of 2014.* *[Note]: I have written about Viacom v. YouTube several times during its long history (the case was filed in 2007). See, e.g., YouTube Scores Big Victory on Remand in Viacom DMCA Copyright Case; Second Circuit to YouTube (i.e., Google): Remanded for Trial; Decision in Viacom v. YouTube: Dog Bites Man (Mark Cuban was wrong). To say that the appeal briefs are a hard slog would be an understatement. The parties and the courts have immersed themselves in legal obscurities that will be of almost no interest to most non-lawyers, and which are likely to be incomprehensible to lawyers unwilling to bury themselves in the nuances of the…

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I Was a Guest on URBusiness Network’s “CHAOS Tuesday” Internet Radio Show

October 3, 2013

Whew, that is a mouthful.  I was a teenage werewolf?  No, I was a guest on URBusiness Network’s CHAOS Tuesday Internet Radio Show. Here’s what it means. URBusiness Network, or “URBN,” is, in its own words, an “online radio station streaming 24/7 with business specific programing.”  This is, needless to say, not your father’s radio station. In fact, it is “radio” only by analogy. Think “entirely new business technology model made possible by increases in Internet bandwidth.” In other words, this is a relatively new industry, with minimal barriers to entry (low cost, no FCC regulation) and unlimited geographic reach. URBN is a small but serious player in this market. One of the many Internet radio shows URBN produces is “CHAOS Tuesday,” the brainchild of Jim Johnson, founder of The Standish Group.  The Standish Group is an organization with expertise in large (and I mean very large) software projects.  Many large software implementation projects to over cost or fail, and Standish’s mission is to figure out why and try to reduce the frequency of failure. One of my clients retained Standish to consult in a litigation involving a large software implementation, and I made the acquaintance of Jim Johnson. Recently, he asked me if I would be a guest on The Standish Group’s weekly Internet radio show, CHAOS Tuesday, hosted by URBN. I agreed to discuss the Communications Decency Act…

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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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