A Legal Blog by Aaron | Sanders, PLLC

DMCA Circuit Split Averted: New Rule but the Holding Remains the Same

Also, UMG’s Home-Run Stroke Still Need Work


Last year* there were two much-anticipated, important decisions about the scope of the major DMCA safe-harbor defenses: the Ninth Circuit in UMG Recordings v. Shelter Capital (better known as the “Veoh case”), which was issued first, and then the Second Circuit in Viacom v. YouTube. They mostly agreed with each other, but diverged on a major point and on a minor point.** I blogged at length about both of them: Veoh here, here and here; and YouTube here and here.

* If by “last year” you mean “2012 plus the tail end of 2011.”

** A quick recap of the the basic mechanics of the two major DMCA safe-harbors are set out here. Remember: there are four requirements that you have to meet in order to take advantage of the safe harbors, simplified somewhat: (1) you implement a reasonable repeat-infringer policy; (2) you are genuinely unaware that content in question is infringing, whether through actual knowledge or indirect “red flag” knowledge”; (3) you don’t both benefit financially and directly from the infringement and have the right and ability to control the infringing activity; and (4) you expeditiously remove content when you receive…


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Spotify: A New Hope (Part 13 of our Online Music Services Series)

Or, the Attractions (and Distractions) of Licensing

Spotify has been available in the United States for a few months now. Until the recent kerfuffle involving its Facebook integration, the reviews have been positive. If you review the features list with which we started this Online Music Services Series, you’ll see that Spotify comes as closer to giving consumers what they want than any other service. In fact, it’s not even that close:

Portability: check: with Spotify Premium, you can listen to longs off-line and you gain access to Spotify’s mobile apps.
On-demand: check: you can listen to any song you want to in either your or Spotify’s catalog;
Music discovery: half-check: Spotify has a feature that allows others to share music with you, which should help you discover music you like, but nothing quite as robust as Pandora’s Music Genome.
Extensive catalog: check: Spotify’s catalog has about 15 million songs.
Low cost: half-check: Spotify Free has all of the features above except portability; for that, you need to shell out $9.99 a month, and you lose all access should your subscription expire.*

* If I were starting this series over again, I might have added “ownership” to this list. It’s important to me personally,…

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Copyright and Digital Content: A 40,000-Feet View (Part 2 in our Online Music Services Series)

Seven Things to Keep in Mind…

Last time, we looked at what customers want from online music services. To help you understand how copyright law governs online digital content (such as music files), we thought we’d provide a 40,000-feet overview of copyright law, emphasizing those aspects of copyright law most related to digital content.  These are guiding principles, not a comprehensive description of the law, and it’s sometimes a bit tongue-in-cheek.  There are details, nuances and exceptions that might apply to a specific set of facts and (as is the nature of copyright law) really change the result.

1.  Copyright law isn’t a moral code.  Yes, you will hear lawyers describe copyright infringement as “theft.” And, yes, you’ll hear that the purpose of copyright is either to vindicate the author’s creativity (the French version) or to incentivize people to create (the Anglo-American version).  But, in the end, copyright law is, for the most part, a highly detailed and technical set of laws (with one major exception*).  Well-meaning people infringe copyright all the time; and shady characters sometimes find ways around it.

*  That exception is fair use, which is about as non-technical as you can get.

To be sure, Congress might…

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“Filter Bubbles”: Be Aware but Don’t Despair

We Control the Web More than the Web Controls Us

I tweeted a little while ago about The Economist’s review of Eli Pariser’s, The Filter Bubble:  What the Internet Is Hiding from You.  Pariser is a pretty big deal–definitely one of thought leaders about the internet.  You can read his TED profile here.  Pariser is of the view that the internet is–or should be–a socially transformative force.  He became alarmed, however, when he noticed that people of different political views received different results when entering the same search queries.  The story is that he noticed this when he noticed that his conservative friends started disappearing from his Facebook page.

In trying to give you want they think you want, online providers like Google, Amazon, Netflix and Pandora, have algorithms that guess at what you’d like.  Thus, you tend to see more and more of the things you already know you like.  The problem is that the main source of data for these algorithms is you, maybe your social network (made of people who are mostly like you), and, of course, some sort of relevant market.  Thus, these algorithms are very good at telling you what you like based on what you…

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The Thrilling (Anti)Climax of WestCoast Anonymity Case

Why the Judge’s Decision Was Right (but Feels Wrong)

In my last two posts, I described the general contours of the First Amendment right to speak online anonymously, the steps a plaintiff must take to reveal an anonymous defendant’s identity, and how a defendant can try to assert those First Amendment rights.  Keep the principles, problems and paradoxes that I described in my last two posts in mind as we discuss Judge Kollar-Kotelly’s opinion, and as I explain why I think she was correct, and yet I’m dissatisfied with the result.

If you’ve been keeping up so far, you know that the filmmakers’ first step was to file a lawsuit against a number (5829!) of “John Does.”  Then they asked the court for permission to serve subpoenas earlier than you’re normally allowed–because there can’t really be a case without the subpoenas.  They did that, too, and the court said OK.  Then they duly issued and served the subpoenas, many of which were arguably defective, to the various major ISPs.  And some of the ISPs responded quickly with customer identities*, and others brought motions to “quash” the subpoenas.  In addition, many of the defendants, upon learning of the subpoenas, sought to quash…

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