A Legal Blog by Aaron | Sanders, PLLC


Is it Time to Furl the DMCA Red Flag?

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

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)

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

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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The Force Toys Around: Can You Post a Picture of Your Favorite Star Wars Action Figure?

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

DMCA = Darth’s Malicious Copyright Attack

Warning: careful about clicking some of the links. There may be spoilers. Well, a spoiler.

I have it on good authority that Star Wars fans were surprised to discover an action figure of a major character from the upcoming Star Wars: The Force Awakens movie for sale at their local Walmart. What’s more, said action figure might constitute something of a spoiler because the packaging depicts the character as holding … something that might give away a hitherto unknown secret about the character. Excited, these people took pictures of the toy (with packaging) and uploaded to websites, such as Star Wars Action News and plain-old Facebook and Twitter. Disney and/or LucasFilm then got those images removed by sending DMCA take-down notices to their hosts. TorrentFreak has details. Fortune and Ars Technica have also covered.

If you’re OK learning a possible spoiler, here’s the photograph at issue.

Ah, the delicate balance between fandom and intellectual-property enforcement! This seems a little heavy-handed, no? Maybe an instance of automation gone overboard? Or, perhaps the toy was mistakenly released early and someone wants to stop a certain spoiler from getting out? Relating to the last theory: the DMCA notifications have described…

figures1

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Cox Rocked but DMCA Safe Harbors Remain Unshaken

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

All We Really Learned Is that Even Big Corporations Don’t Always Run Things by Counsel.

We have learned quite a lot about the contours of the DMCA safe harbors over the last few years, thanks to record labels swinging for the fences, Viacom and Google’s tenacity in fighting over early-days YouTube, and a rare sighting of a certain kind of “red flag.” But these cases haven’t addressed the fuzziest area of the DMCA safe-harbors: the requirement for a “repeat infringer” policy. As I’ve argued before, this requirement is service providers’ greatest point of vulnerability. Because of the law’s fuzziness, service providers can’t be certain they’re in compliance. What’s more, if they’re, they lose all protection from DMCA safe harbors. But, for some reason, the rights holders have been reluctant to attack it.

To get clarity about a law, you need a case that is forced to address the difficult questions. Remember that courts only rule on the issues presented to them, and their findings and reasoning are only precedential to the extent they are necessary for the court’s decision. Courts don’t give advisory opinions, just because it would help clear things up. Thus, if there’s an easy way and a difficult…

Cox runs its graduated response to copyright infringement out of this trailer, far away from any legal counsel

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Lenz, the DMCA and Dancing Babies: Don’t Go Crazy, OK?

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

tl;dr Summary

The DMCA’s procedure for taking down allegedly infringing material is (ahem) nearly universally disliked. Rights holders can’t figure out why it’s so hard to take infringing material down, and consumers and service providers can’t figure out why it’s so easy to take obviously non-infringing down. Lenz v. Universal thus appeared a perfect test case for those who wished to clip the wings of the DMCA’s takedown procedure. When Universal saw Ms. Lenz’s video of her toddler dancing to “Let’s Go Crazy” in the background, it got the video removed. Although Ms. Lenz was able to get it put back up, she was angry enough to sue Universal under §512(f), which forbids knowingly representing that a work subject of a takedown notice is infringing. Her theory was that her video was so obviously a fair use, Universal’s takedown notice constituted a knowing misrepresentation. She knew, however, that she had a tough road, because at most all Universal had to prove was that it had a subjective belief that her video wasn’t fair use, a very low standard indeed.

At trial, she successfully fended off a motion to dismiss and a motion for summary judgment, in which Universal argued that it…

This seismometer measures changes to copyright law, starting in 1909. The big disturbance is either the 1976 Act or possibly the Sony Betamax case. Note that it's been a while since the needle has moved significantly.

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