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…
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…
January 8, 2016 | Category: Blog | Tags: contributory infringement, copyright, DMCA, file-sharing, making available theory, repeat-infringer policy, Rightscorp, safe-harbor, secondary liability, statutory damages, vicarious liability | Comments: 0
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…
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…
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…