Rights Holders Must Consider Fair Use for DMCA Takedown

The “good faith belief” standard for issuing a DMCA takedown notice requires copyright holders to consider whether the use of a copyrighted work falls within fair use exceptions to the Copyright Act (Lenz v. Universal Music Corp., N.D. Cal., No. 07-3783).

 

In a matter of first impression, Judge Jeremy Fogel held that, though an extensive investigation is not required, a copyright holder must have a subjective belief that a use of a copyrighted work is infringing and does not fall within fair use exceptions in order to issue a DMCA takedown notice in good faith. He also stated that “Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that ‘the fair use of a copyrighted work… is not an infringement of copyright[,]‘ ” at 17 U.S.C. § 107.  The plaintiff, Stephanie Lenz, videotaped her young children dancing in her family’s kitchen. The song “Let’s Go Crazy” by the artist known as Prince played in the background. The video is twenty-nine seconds in length.

 

The record company failed to consider fair use, and issued a takedown notice solely to appease an artist whose song played in the background of a video clip uploaded to YouTube.  These allegations were sufficient to state a DMCA misrepresentation claim against the label, the court held.

 

MA Court blocks MIT students from showing MBTA hack

A U.S federal judge in Massachusetts has ordered three MIT students to cancel a presentation for Sunday (8/11) at the infamous Defcon hackers’ conference in Las Vegas.  The students planned to show security flaws in the automated fare system used by Boston’s very own Massachusetts Bay Transit Authority (MBTA) subway system (called the Charlie Card). The MBTA sued the students and MIT in United States District Court in Massachusetts on Friday, claiming that the students violated the Computer Fraud and Abuse Act (CFAA) by delivering information to conference attendees that could be used to defraud the MBTA of transit fares.  (We will talk about the CFAA more in class)

The temporary restraining order (full text pdf), issued by a Massachusetts U.Sdistrict court judge prevented the college students from demonstrating how to use the vulnerabilities to get free rides. 

The Electronics Frontier Foundation (EFF), which is representing MIT students Zack Anderson, R.J. Ryan and Alessandro Chiesa, plans to fight the order, said Jennifer Granick, the group’s civil liberties director.  Granick also said that that the students were simply trying to share their research and planned to omit key information that would make things easier for anyone who actually wanted to hack the payment system.  More coverage. 

Federal Bill to Create IP Czar

Sens. Patrick J. Leahy (D-Vt.) and Arlen Specter (R-Pa.) introduced the Enforcement of Intellectual Property Rights Act of 2008 on July 24^th.  The bill, S. 3325, is the Senate counterpart to the Pro-IP Act, H.R. 4279, which passed the House in May. Like the IP enforcement provisions in the Trade Enforcement Act of 2008 (H.R. 6530) introduced a week earlier by Rep. Charles B. Rangel (D-N.Y.), the Leahy-Specter bill seeks to bolster anti-piracy enforcement tools at the executive-branch level.

 

The law would allow the DOJ to bring civil actions for copyright infringement, and create a new “advice-and-consent” level intellectual property coordinator within the executive branch.  This position has been dubbed the “IP Czar” by the media.

 

While IP Czar is a nice title, the position would actually be titled “Intellectual Property Enforcement Coordinator.”  This person would require Senate confirmation and serve in the executive office of the president to coordinate inter-agency enforcement of intellectual property rights.

 

Also the bill would delete the registration requirement for a copyrighted work before a criminal infringement suit could be brought.

 

The bill will be referred to the Senate Judiciary Committee.  Congress expects final legislation will be presented to the president by the end of the year.

 

Some advocates are worried.  Gigi B. Sohn, president of the citizens’ advocacy group Public Knowledge, criticized the bill’s enhanced executive-branch enforcement authority.  In a published statement, Sohn claimed that the bill “would turn the Justice Department into an arm of the legal departments of the entertainment companies by authorizing the DOJ to file civil lawsuits for infringement, forcing taxpayers to foot the bill.” 

UK Parents may be Punished for Childrens’ Piracy

The UK government recently announced a deal with ISP’s that would punish parents whose children download music and films illegally.  The parents will be blacklisted and have their Internet access curbed.  Initially parents would have a warning period, under a rule similar to a measure under consideration in France (“three strikes and you’re out”).  However, parents that ignore warnings would be subjected to on-line surveillance and their Internet speeds will be purposely reduced.  More available here.  Also, the Guardian reports that this move is related to an overall goal of decreasing illegal file-sharing of music and films in the UK by up to 80% over the next three years.

Will ASCAP and RIAA try to broker a similar deal in the US?

Boston’s Own “Duck Tours” Trademark Case

The First Circuit has ruled that a lower federal district court erred in concluding that the term “duck tour,” with respect to a sightseeing tour conducted on an amphibious vehicle, is not generic.  The court also ruled that the lower court erred in ruling that the defendant amphibious tour company’s logo (“Super Duck Tours” in Portland, Maine) is likely to cause confusion with the plaintiff’s design mark. (Boston’s Duck Tours) Boston Duck Tours LP v. Super Duck Tours LLC, 1st Cir., No. 07-2078.

This decision, and many other First Circuit decisions, is available at the First Circuit’s Opinions page.

Colorado Ethics Bar Metadata Opinion

The Colorado Bar’s Ethics Committee decided that ethics rules permit a Colorado lawyer to search for and review metadata embedded in an electronic document received from opposing counsel or a third party unless the lawyer was notified before reviewing the document that confidential information was inadvertently transmitted.

The burden, then, of protecting any sensitive metadata rests with sending lawyers, not with the receiving lawyers.  The full text of the opinion is available at the CBA’s Ethics website.  Prof. Andrew Perlman, of my alma mater Suffolk Law, has a good summary of the case and a look at other metadata ethics decisions in the U.S. at the Legal Ethics Forum Blog .

Canadian Net Neutrality Bill Introduced

Citizens using peer-to-peer applications in Canada experienced some of the same poor treatment by ISPs as their American counterparts have in recent weeks.  Some of Canada’s largest ISPs, including Bell Canada Inc. and Rogers Communications Inc., have limited their customers’ uses of the Internet. Bell and Rogers claim that a small percentage of customers have been congesting their networks by using peer-to-peer applications such as BitTorrent, so they have purposely slowed the Internet down at peak times of the day.

As a result, The New Democratic Party (NDP) has introduced a private member’s bill, C-552, which is a Net Neutrality bill.  The four-page bill seeks to amend the Telecommunications Act and “prohibit network operators from engaging in network management practices that favour, degrade or prioritize any content, application or service transmitted over a broadband network based on its source, ownership or destination, subject to certain exceptions.”

You can find the full text of the Act, and subscribe and receive XML updates on the Act, at LEGISinfo, the Canadian Parliament’s excellent website for legislative research.  It is a highly recommended research source.

Software Sale on eBay Satisfies First-Sale Doctrine

 

A federal court in Washington has issued declaratory relief that a plaintiff’s sale of authentic, used copies of AutoCAD software over eBay is not infringing, because the copyright author’s distribution rights in that particular copy have been exhausted under the first sale doctrine. Case name is Vernor v. Autodesk Inc., W.D. Wash., No. 07-1189, 5/20/08.

The court relied heavily on the Ninth Circuit’s 1977 opinion in United States v. Wise, 550 F.2d 1180 (9th Cir. 1977). Wise held that after “first sale,” a vendee “is not restricted by statute from further transfers of that copy.”  Wise had to do with motion picture film prints.  In relying on Wise, the court rejected other rulings issued the Ninth Circuit, [including a case we read in class MAI Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir. 1993)].  In rejecting the later opinions, the court said, “Where opinions of three-judge Ninth Circuit panels conflict, the court must rely on the earliest opinion.”

The facts in the present case – an AutoCAD ”sale” on eBay, with onerous restrictions on use – was not a license, for purposes the First-Sale doctrine, which the court found similar to the Wise case.

Supreme Court Rules on Internet Child Pornography Case

The Court recently held in United States v. Williams, that the challenged portions of the PROTECT Act were not unconstitutionally broad or vague.  As we discussed in class, the PROTECT ACT is a law intended to prevent child abuse, but has cyberlaw elements.  The Williams case challenged the part of the Act that criminalized anyone who knowingly

advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct. [18 USC §2252A(a)(3)(B)]

The Supreme Court ruling reversed a prior ruling by the US Court of Appeals for the Eleventh Circuit, which found that although the content described in subsections (i) and (ii) is not constitutionally protected, speech that advertises or promotes such content does have the protection of the First Amendment.  Read the Supreme Court’s Opinionat their official website.  LII’s Supreme Court Collection has the document divided by majorty opinion, concurrence, and dissent.  Also, see SCOTUSblog for great post-case analysis.

First Music Case May Get a New Trial

A Minnesota woman ordered to pay $222,000 in the nation’s first music download trial may get another chance with a jury. The issue is whether record companies have to prove anyone else actually downloaded their copyrighted songs, or whether it is enough to argue that a defendant made copyrighted music available for copying. U.S. District Court Judge Michael J. Davis instructed jurors that making sound recordings available without permission violates record company copyrights “regardless of whether actual distribution has been shown.” However, Davis said that may have been a mistake.

He wrote that he researched a 1993 ruling from the 8th Circuit Court of Appeals, which covers Minnesota, that said infringement requires “an actual dissemination of either copies or phonorecords.”  Oral arguments on the question of a new trial are planned for July 1 in Duluth, where the trial was held.