A Legal Blog by Aaron | Sanders, PLLC


You’re No Fung Anymore: There Really Is Such Thing as Red Flag Knowledge in Copyright Law

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.

Also, There Really Is Such Thing as Copyright Inducement

Hot on the heels of the new and improved opinion in the Veoh case (discussed last time), we also have Columbia Pictures Industries, Inc., et al. v. Gary Fung & IsoHunt Web Technologies, Inc., another important 9th Circuit decision construing the major DMCA safe harbors. We’ve actually discussed the case before because it was—and as far as I am aware—the only case in which a service provider was found to have had enough “red flag” knowledge to be deprived of the DMCA safe harbor.

The rare yellow-bellied sapsucker is a close relative of the even rarer red-flagged sapsucker. Photo by Phillippe Boissel, under Creative Commons license.

The Red-Flagged Sapsucker

I’ve said previously that “red flag” knowledge will be found only in extraordinary situations, and nothing since then has changed my mind. The problem is that “red flag” knowledge is clearly objective knowledge (in contrast to the subjective nature of actual knowledge). Lawyers are actually used to these standards, more classically stated as “knew or should have known.” In many cases, knowledge requirements are important, but even so, we don’t like to limit them to purely subjective knowledge because it becomes too easy…

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The Case Against Grooveshark: Uploading Trouble (Online Music Service Series, Part 4)

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.

Through the Grooveshark’s Jaws

In my last two posts, we took an overview of copyright law as it applies to online music services, and at six of the major new such services.  We’ll now turn our focus to the specific services, starting with the inspiration for this series of posts, Grooveshark (which is currently a defendant in a lawsuit here in Nashville).  Grooveshark’s business model is so interesting, it’ll take three posts to get through it all.  Recall that Grooveshark has two interactive ends:  on one end, users are invited to upload music files; on the other end, those music files are streamed to users on demand.  This means there are two separate opportunities for infringement.  On top of that, Grooveshark relies on a complex defense, the DMCA safe-harbor.

In this post, we’ll analyze the “uploading content” end of Grooveshark’s service.  In the next post, we’ll look at the “streaming” end.  And in the post after that, we’ll examine its DMCA safe-harbor defense.

Uploading Content

Right off the bat, we know that Grooveshark isn’t subject to direct liability for the “uploading content” end of its service.  That’s because Grooveshark isn’t doing the uploading; its users are.  But if you needed an example for…

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