A Legal Blog by Aaron | Sanders, PLLC


New DMCA Registration Regime Starts Today. Don’t Delay!

New DMCA Registration Regime Starts Today. Don’t Delay!

Today is the first day to take advantage of the U.S. Copyright Office’s new electronic registration system for DMCA agents Gone are the days of printing out a form, physically signing it, and physically mailing it in, usually accompanied by a fairly large check (over $100). Now, you just create an account (which means picking a user name and password, alas), fill out a fairly simple form, pay a very small fee—currently, $6.00—by credit card, and you’re done. The whole thing can be accessed here.

I just did it for my firm, and it wasn’t that hard. There are only a couple of tricky things. First, you (i.e., your organization or who you’re representing) is the “service provider,” not, for example, your internet service provider. In this context, “service provider” means anyone providing any type of service over the internet, not just traditional last-mile ISPs. Second, you’ll want to include, as “additional names,” any name by which you or your organization might be known. At present, there’s no additional fee for additional names, so there’s no reason to skimp.

Even if You’ve Registered, You Need to Re-register.

Now for the important bit. Today might be the…

Usually, DMCA takedown notifications don't have such nice handwriting.

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The Aftermarket Holy Grail: Using Software Copyrights to Control Replacement Parts

Intellectual Property and Personal Property: Two Great Tastes That Might Not Taste Great Together

When everything runs on software, then everything will be subject to copyright protection, and you might not like the consequences. Let’s take cars, for example. In the old days, if your car needed a new distributor cap, you’d go down the neighborhood auto supply shop, and you would have several different manufacturers competing for your money, which keeps the price for replacement parts low. One of the manufacturers might be “authorized” by the car manufacturer and appropriately branded. And that one might command a somewhat higher price because of that association and the sense that it will somehow work better with your car. That premium is the result of branding—and trademark law—and years of hard work building up the brand.

The Right to Distribute Distributors

Slap a little computer module on the distributor cap, and the car manufacturer has a lot more control over who can manufacture replacement distributor caps. That’s because the computer module requires software, and software is made up of characters, and that makes it a literary work that is subject to copyright protection. It doesn’t matter if the only characters involved are 0 and…

Plug and play! (But where does the software come from?)

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Does Actual Knowledge Kill or Merely Suppress the Sony-Betamax Rule?

Court: Actual Knowledge Kills Sony-Betamax Dead, and That Might Make a Difference

Hey, I sort of called it. In my last blog post, I embarked on a journey of self-discovery in which I learned that ISPs were not effectively immune to claims for constructive copyright infringement. In this journey, I had to come to terms with the real possibility that the Sony-Betamax rule—that a product cannot create contributory copyright liability if it has substantial non-infringing uses—applies only where the claim is based on “constructive” knowledge (i.e., you should have known, as opposed to, you knew). This explained something that had puzzled me: why was Cox Communications even liable for the claims of contributory copyright infringement brought by Rightscorp? After all, internet service has a tremendous number of non-infringing uses. The answer (in my analysis) was: because Cox had actual knowledge of its customers’ infringement, for the same reason its repeat-infringer policy was such a hilarious shambles.

Actual Knowledge + Current Continuing Relationship

Earlier this week, the court in the Cox Communications case ruled on some post-judgment motions and followed very much the same reasoning in denying Cox’s motion challenging the jury verdict. Regarding the application of the Sony-Betamax rule, the court this…

A Sony Betamax video tape recorder. Weighed about 36 pounds. Copyright owners tried to stop it & lost (barely). Ended up giving copyrighted properties a second life as home video. Ironic, dontchya think? Groundbreaking. Lost out to JVC's VCR. Then VCRs stopped being a thing. Time marches on.

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Is it Time to Furl the DMCA Red Flag?

Did the Second Circuit Just Kill “Red Flag” Knowledge?

Oh, DMCA caselaw, I can never quit you. Even though you really don’t affect my practice much, you’ve become my hobby, such that I can’t resist commenting on every appellate-level decision involving you.

The Basics of “Red Flag” Knowledge

The basics of the DMCA safe harbor are that, if you are an “internet service provider,” you are immune to claims of (civil) copyright infringement under four different circumstances—there are thus four different flavors of DMCA safe harbor—if you meet qualifications specific to the flavor you seeking protection under, and you have and reasonably implement a repeat-infringer policy. The most popular flavor is that the content you are accused of infringing was placed on your computer system at the “direction” of one of your users. This flavor is known as § 512(c). This covers a wide range of common internet services, from comments, to videos uploaded to YouTube or Vimeo, or even stuff stored in the “Cloud.” Although Congress had in mind the first and last of these scenarios, it’s been user-uploaded content to public sites, like YouTube, where the action has been.

To qualify for protection under § 512(c), you need to prove three…

In Soviet Union, you don't see red flags—red flags see YOU! And deprive you of your safe harbors!

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Cox Rocked, Part 2: What the Jury Said (and Why)

Broadband Isn’t a “Draw” for Infringement, but What About Substantial Non-infringing Uses?

Back in late 2014, two of Rightscorp’s clients, BMG Music and Round Hill Music, sued the cable operator and internet-service provider, Cox Communications, for copyright infringement on grounds that Cox was liable for its users’ sharing of the plaintiffs’ copyrighted musical compositions using the BitTorrent protocol.

What’s Right for Rightscorp

Although it wasn’t a party, the case was crucial to Rightscorp. Rightscorp is in the business of investigating the sharing of copyrighted work over BitTorrent protocol and obtaining modest settlement from the BitTorrent users. For example, if Rightscorp thought you had shared “Bad Blood” using BitTorrent, it would send you a settlement demand of, say, $500—or some figure that’s low enough for you to afford but not high enough to be worth fighting over. It’s a low-return–high-volume business. And for it to work, Rightscorp needed to get as many settlement demands to users as possible.

But to do that, Rightscorp needed the cooperation of ISPs. That’s because Rightscorp doesn’t actually know who the user is. It just knows the user’s IP address at the time of the alleged file-sharing. Only the user’s ISP knows which of its users was using a…

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