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

tl;dr Summary

Although 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…

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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RightsCorp’s Lawsuit Against Cox Is Only Partly About Repeat Infringers

RightsCorp Has Some High Hurdles to Clear Before it Even Gets to Repeat Infringers

Typical. I read about a truly significant lawsuit, start blogging about what is obviously the main issue—an issue that has significance beyond the lawsuit—only to discover in analyzing the pleadings that the lawsuit isn’t all it’s cracked up to be.

RightsCorp: A Business Model in Trouble…

You’ve heard of the lawsuit against the major ISP, Cox Communications, for violating the repeat-infringer requirement of the DMCA? (Here’s the complaint.) If not, let me ’splain. No, there is too much. Let me sum up:

There is a company called RightsCorp that is in the business of enforcing copyrights for others. They make money by monitoring BitTorrent networks, finding files whose copyrights belong to its clients, identifying the IP address (and timestamp) and sending short little notices to the ISP that are supposed to be forwarded to the customer. The short little notice says the usual things that lawyers say in cease-and-desist letters that aren’t lies but don’t tell the whole copyright story, to wit: (a) you are a copyright infringer; (b) you “could be” liable for up to $150,000 per infringement; (c) your ISP service “could be suspended”; and (d) the actual…

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Aereo into the Cloud: Further Thoughts About the Aereo Decision

“The Cable Defense,” “The Cloud” and More about Causation and Copyright

Last time, I tried to make sense of the Supreme Court’s decision in ABC v. Aereo. But there are a couple of major issues that I wasn’t able to touch on: (1) What’s all this about Aereo now saying it’s a cable system? (2) I thought maybe the Aereo decision was going to hurt “Cloud”-based industries? and (3) are we no longer to look “under the hood” of technology to resolve our copyright issues (after the Court dismissed on argument as relying on technology “behind the scenes”)? I also (4) have some further thoughts about the causation requirement in copyright cases (i.e., all that business about “volitional conduct” and “proximate causation”).

1. Is Aereo a Cable System?

As we all know by now, the Supreme Court ruled against Aereo essentially because Congress had set out in 1976 to ensure that cable systems (or, more precisely, their direct technological predecessors, community access TV systems) were “performing,” regardless of whether you thought of them as broadcasters, viewers, or mere conduits. Further, the Court held that such performances were public because Aereo looked a lot like a cable company, and cable companies perform their…

Cloud

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My Response to Prof. Menell Regarding the Propriety of Relying on Pre-Enactment Legislative History of the Copyright Act of 1976

Prof. Menell Comments on 15% of My Article; I Respond.

This is the first of a series of blog posts in which I respond, in detail, to the following assertion by Prof. Peter Menell in a recent blog post post made on the Media Institute’s website:
Mr. Rick Sanders also questioned my exploration of legislative history, suggesting that it is improper to consult legislative history predating the enacting Congress. His assertion overlooks Supreme Court opinions in Kirtsaeng, Tasini, CCNV, Abend, Dowling, and Sony [a/k/a “Betamax”] adverting to 1976 Copyright Act legislative history predating the enacting Congress.
Prof. Menell was, indirectly, responding to one (of several) arguments I made in an article I wrote on whether the distribution right includes a “making available” right, i.e., whether just making something (a book or digital song file) available (for sale or download) violates the distribution right. I was, in turn, responding to Prof. Menell’s re-writing of the section of the authoritative treaties on copyright law, Nimmer on Copyright. Prof. David Nimmer, who maintains (and mostly writes) Nimmer on Copyright had previously either (depending on whose recollection you’re using) taken no position on the issue or was leaning against the existence of a “making available” right…

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