A Legal Blog by Aaron | Sanders, PLLC


New DMCA Registration Regime Starts Today. Don’t Delay!

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.

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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Who Needs Guidance from Above? District Court Finds its Own Way in Viacom v. YouTube

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.

But Is the Trail Worth Following?

Well, that wasn’t so hard.

As has been chronicled in this blog (here and especially here), the district court in the Viacom v. YouTube case had originally granted summary judgment to YouTube, but the Second Circuit decided that the district court was too quick to make a couple of important factual findings, had applied the wrong law in one instance and had overlooked a legal doctrine in another instance. So it punted the case back to the district court with very specific instructions about what it must do—but without giving it much in the way of actual legal guidance.

I didn’t say so explicitly, but I was concerned that, with the lack of guidance, the district court would freeze up, afraid that it’ll just get reversed and remanded again, no matter what it did. I’m glad to say that the district court was up to the challenge, and almost one year after the remand, it issued a confident, firm decision (once again in YouTube’s favor). Your mileage may vary, but at least we’ll get this kicked back up to the Second Circuit very quickly.

Pictured: the District Court Judge following the map provided…

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DMCA Circuit Split Averted: New Rule but the Holding Remains the Same

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, UMG’s Home-Run Stroke Still Need Work

 

Last year* there were two much-anticipated, important decisions about the scope of the major DMCA safe-harbor defenses: the Ninth Circuit in UMG Recordings v. Shelter Capital (better known as the “Veoh case”), which was issued first, and then the Second Circuit in Viacom v. YouTube. They mostly agreed with each other, but diverged on a major point and on a minor point.** I blogged at length about both of them: Veoh here, here and here; and YouTube here and here.

* If by “last year” you mean “2012 plus the tail end of 2011.”

** A quick recap of the the basic mechanics of the two major DMCA safe-harbors are set out here. Remember: there are four requirements that you have to meet in order to take advantage of the safe harbors, simplified somewhat: (1) you implement a reasonable repeat-infringer policy; (2) you are genuinely unaware that content in question is infringing, whether through actual knowledge or indirect “red flag” knowledge”; (3) you don’t both benefit financially and directly from the infringement and have the right and ability to control the infringing activity; and (4) you expeditiously remove content when you receive…

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Willful Blindness, Substantial Influence and Uncertainty in the Law of DMCA Safe Harbors

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.

Part 2 of 2: The Second Circuit Punts on Third Down

Last time, I laid out the context for the Second Circuit’s decision in the Viacom v. YouTube case–i.e., the state and open issues of the law of the DMCA safe harbors. This time, I’ll get into what the Second Circuit actually said, pointing out where the Second Circuit agrees with, and diverges from, the Ninth Circuit’s reasoning in Shelter Capital v. UMG (the “Veoh case”).

Knowledge Requirement Is Limited to Specific Knowledge

The Second Circuit agrees with the Ninth Circuit that only knowledge of specific acts of infringement may defeat the Knowledge Requirement, whether under the actual knowledge or “red-flag” prongs.

The Second Circuit goes a bit further and describes “red-flag” knowledge as “objective” knowledge, as opposed to subjective knowledge. I.e., a reasonable person would have had knowledge (without conducting an investigation!) regardless of his or her actual knowledge. If that’s the case, the scope for red-flag knowledge must be very narrow indeed, since a person with so much awareness would almost always have enough facts to constitute actual (subjective) knowledge.

As it happens, the Second Circuit found instances that arguably show actual knowledge, in the form of emails from YouTube executives that…

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YouTube Decision Muddies the Water for DMCA Safe-Harbor Law–for Now

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.

Part 1 of 2: Second Circuit on DMCA Safe Harbor: It’s Complicated

Well, if you were hoping that the DMCA safe-harbor law would clear up with the Second Circuit’s long-awaited opinion in Viacom v. YouTube–that we’d get to the point where folks would know the contours of the safe harbor without having to consult with a lawyer–then last Thursday was, indeed, as Prof. Goldman put it, a “bummer.” There were things to criticize in last December’s Ninth-Circuit decision in Shelter Capital v. UMG (better known as the “Veoh case”), and certainly rights-holders were unhappy with it, but at least you knew where things stood. The basic lesson from Veoh was: comply with the DMCA notice-and-takedown regime, watch out for notices of infringement by non-rights holders, and things’ll probably be OK.

But YouTube muddies the waters–at least, for a while. That’s not really meant as a criticism. Simplicity and “bright line rules” are nice because it saves business folks and consumers money (fewer legal fees) and worry. But an appellate court’s job is, in this case, to interpret a statute. Sometimes the best interpretation is also a complex or “fuzzy” one. True, lawyers are the main beneficiaries, but appellate courts don’t care…

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