A Legal Blog by Aaron | Sanders, PLLC

Tara’s Webinar “Content Wars” Now Available for CLE

Tara’s webinar “Content Wars: A History of the Recent Battles Between Owners and Users of Intellectual Property” is now available.  Tara delivered the webinar to the Tennessee Bar Association on June 27th.  The presentation covers the last fifteen years of the copyright law behind the lawsuits, legislation, and every new online content delivery service to come down the pike, as well as thoughts about where the fight between content owners and users might be headed next.  One hour of general CLE credit is available in Tennessee.  The cost is $45.00 for members of the Tennessee Bar Association and $65.00 for non-members – a great bargain for CLE or for anyone wanting to catch up on what’s been going on in copyright!

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Universal Copyright Knowledge: No Red Flags for Veoh

Think the DMCA Is Outmoded? Complain to Congress, Not to the Courts

This is the second post on the recent Ninth Circuit opinion in the “Veoh case” (actually styled, UMG Recordings v. Shelter Capital). Last time, we focused on (marveled at, really) Universal’s surprising leading argument: that pretty much any website that makes user-uploaded content publicly accessible (with a probable exception for pure displayed text) is not covered by the DMCA safe harbor on grounds that the safe harbor covers only passive storage, not display, performance or internal copying. We also worried about the fate of user-created videos of cute kittens.

In this post, we’ll look at one of Universal’s two remaining arguments, which are much more conventional.

Recall that, to be eligible for the DMCA safe harbor governing user-provided content, the website must meet three general requirements: (1) a knowledge requirement (or, more accurately, an ignorance requirement); (2) a financial-benefit requirement (or, more accurately, a financial-non-benefit requirement); and (3) a notice-and-takedown requirement (which is intertwined with the first requirement*). Universal attacked both the knowledge and financial-benefit requirements.

* As we’ll see next time, it turns out all three requirements are intertwined with each other.

This Mess We’re In

The main policy point is: who…

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UMG Swings for the Copyright Fences … And Misses Everything

Ninth Circuit: It’s OK to Let the Public Access User-Uploaded Content

I think by now you’ve read a few headlines about Ninth Circuit’s decision in UMG Recordings v. Shelter Capital, which is better known as the “Veoh case,” just before Christmas. Mostly, the headlines say something like: Veoh Dodges Universal Music’s Copyright Claims, or Universal Loses DMCA Lawsuit Against Veoh.

But when you read the opinion, you should be struck by two things that have nothing to do with Veoh. First, Universal Music wasn’t just trying to get some compensation from a specific video site–it was trying to put video sites out of business. There’s no other way to explain the strategic choices Universal Music made. Second, as a result, in part, of Universal Music’s choices, the Ninth Circuit has just made Viacom’s life a lot harder for its case against YouTube.

Understanding Universal’s Peculiar Legal Strategy

If you’ve been reading my blogs on the DMCA defense (mostly in connection with the Nashville lawsuit against Grooveshark), you know that, even after 12 years, there are several very basic unanswered questions about DMCA safe-harbor protection. Off the top of my head, the most significant are:

What does it mean to have actual knowledge of infringement,…

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ReDigi Finale: Comparing Apples to Amazons (Part 20 in Our Online Music Services Series)

And Other Loose Ends.

This is going to be (I hope) the last post about the ReDigi situation, at least for a while. I’ll admit I got distracted by the RIAA’s little missive to ReDigi. I want to sum up and wrap up. First, the summing:

The Three Legal Obstacles to a Digital First-Sale Right

Looking over the five (!) previous posts about ReDigi, we see three obstacles to its legality:

Do the consumers who wish to sell their digital singles actually own, or merely license, the music files? That’s what Vernor helps us answer, as discussed here.
Is the First-Sale Doctrine limited to the same physical item that was the subject of the “first sale”? I discuss this question here and here.
By what right can ReDigi make the temporary, intermediate copies necessary to transfer the song file? I discuss this issue here and here.

So. There. Now, let’s tie up a few loose ends.

What About Amazon?

When I first discussed whether ReDigi’s system could comply with Vernor (to answer the question of whether the potential sellers “own” the digital downloads), I focused exclusively on the iTunes Store license agreement. I did so because (1) iTunes by far the most popular source of legal digital downloads,…

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ReDigi Redux: Essentials of the Essential Step Defense (Part 16 of our Online Music Services Series)

Digital Content: Dumb Data or Clever Instructor?

I received so many comments on my ReDigi post that I need to write a couple of follow-up posts to address the good questions. This post and the next will focus on questions raised about the fact that ReDigi needs to make an intermediate copy of the song files, and the one after that will clean up some lingering issues about the first sale doctrine itself.

The Intermediate Copy

My last post was focused on the first-sale doctrine and the Vernor decision, but several people pointed out that, in order to transfer a music file from the seller to the buyer, ReDigi has to make at least one intermediate copy. It doesn’t matter ReDigi erases the seller’s copy of the file at the same time it makes a copy of the file on its own server–it’s still making a copy, and making a copy requires exercise of the reproduction right. See Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992). So, assuming ReDigi isn’t licensed* and assuming ReDigi may avail itself of the first-sale doctrine**, what defense might it have against a claim that this intermediate copy is an infringement?

* And I don’t know if this is an accurate assumption. No…

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