Copyright and the DMCA IM 350 Ed LamoureuxSteve

Copyright and the DMCA IM 350 © Ed Lamoureux/Steve Baron

Important issues l DVR/Music Lockers – Copies? – Performances? – Enacted by? (does it matter? ( l DMCA copyright safe harbor l Illegal downloading & penalties l Universal Library

Cartoon Network v. CSC l Who’s Who? – CN owns copyrights to movies and tv programs l Content owner – CSC operates cable tv system l Content distributor

Cartoon Network v. CSC l What are they fightin’ about? – CSC plans to launch Remote Storage DVR System Customers can record shows on central hard drives housed and maintained by CSC at remote location l CSC did not seek a license from CN l – CN sues for direct copyright infringment l Seeks declaration and injunction

Cartoon Network v. CSC l Who won in the District – Cartoon Network l Court? Court finds RS-DVR directly infringes CN copyrights – Briefly storing data in ingest buffer – Copying programs onto server – Transmitting data from server to customers Summary judgment entered against CSC l Injunction against CSC to prevent operating RSDVR withou a license l

Cartoon Network v. CSC l Where did the legal fight start? – Federal District Court (New York)

Cartoon Network v. CSC l What happens on appeal to the Second Circuit? – The decision is reversed and remanded back to the District Court

Cartoon Network v. CSC l Rationale of appellate decision: – Analysis of “transitory duration” No bit of data remains in buffer for more than a fleeting 1. 2 seconds l So, the act of buffering does not create a “copy” under copyright law l

Cartoon Network v. CSC l Rationale of appellate Court: – Who makes the copy? CSC or customer? l Court holds that customer makes copy and so CSC is not liable for direct copyright infringement. l – CSC “closely resembles a store proprietor who charges customers to use a photocopier on his premises…”

Cartoon Network v. CSC l Rationale of appellate court: – Is RS-DVR playback a transmission of a performance to the public? – Answer: No. Because each playback transmission is made to a single subscriber using a single unique copy produced by that subscriber, such transmissions are not “public” and do not infringe any exclusive right of public performance

Viacom v. You. Tube UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK l VIACOM INTERNATIONAL INC. , COMEDY PARTNERS, COUNTRY MUSIC TELEVISION, INC. , PARAMOUNT PICTURES CORPORATION, and BLACK ENTERTAINMENT TELEVISION LLC, Plaintiffs, 07 Civ. 2103 (LLS) l -againstl YOUTUBE, INC. , YOUTUBE, LLC, and GOOGLE, INC. , Defendants l

VIACOM’s STORY LINE: You. Tube has harnessed technology to willfully infringe copyright on a huge scale, depriving writers, composers and performers of the rewards they are owed for effort and innovation, reducing the incentive of America’s creative industries, and profiting from the illegal conduct of others as well. Using the leverage of the Internet, You. Tube appropriates the value of creative content on a massive scale for You. Tube’s benefit without payment of license. You. Tube’s brazen disregard of the intellectual property laws fundamentally threatens not just the Plaintiffs, but the economic underpinnings of one of the most important sectors of the United States economy. Defendants actively engage in, promote and induce this infringement. You. Tube itself publicly performs the infringing videos on the You. Tube site and other websites. Thus, You. Tube does not simply enable massive infringement by its users. It is You. Tube that knowingly reproduces and publicly performs the copyrighted works uploaded to its site. You. Tube deliberately built up a library of infringing works to draw traffic to the You. Tube site, enabling it to gain a commanding market share, earn significant revenues, and increase its enterprise value. You. Tube has deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site. Because You. Tube directly profits from the availability of popular infringing works on its site, it has decided to shift the burden entirely onto copyright owners to monitor the You. Tube site on a daily or hourly basis to detect infringing videos and send notices to You. Tube demanding that it “take down” the infringing works.

Viacom’s claims 1. Public performance – the defendants have, without permission of the copyright owner, publicly performed and authorised the public performance of the infringing uploaded videos; 2. Public display – the defendants have, without permission of the copyright owner, publicly displayed and authorised the public display of the infringing uploaded videos; and 3. Reproduction – the defendants have, without permission of the copyright owner, reproduced and authorised the reproduction of the infringing uploaded videos through the You. Tube website. 4. Inducement of copyright infringement – the defendants areliable for inducing the infringing acts of You. Tube users, who infringe the plaintiff’s copyright by uploading infringing videos to the You. Tube website. 5. Contributory copyright infringement – the defendants are liable for contributing to the infringing acts of You. Tube users, who infringe the plaintiff’s copyright by uploading infringing videos to the You. Tube website. 6. Vicarious copyright infringement – the defendants are vicariously liable for the infringing acts of You. Tube users, who infringe the plaintiff’s copyright by uploading infringing videos to the You. Tube website.

You. Tube’s response Viacom’s complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act (DMCA). The DMCA balances the rights of copyright holders and the need to protect the Internet as an important new form of communication. By seeking to make carriers and hosting providers liable for Internet communications, Viacom’s complaint threatens the way hundreds of millions of people legitimately exchange information, news, entertainment and political and artistic expression. Google and You. Tube respect the importance of intellectual property rights, and not only comply with their safe harbor obligations under the DMCA, but go well and beyond what the law requires. You. Tube and Google’s defence, essentially denies each of the allegations in Viacom’s complaint and raises 12 defences in their favour. These defences include the safe harbors, licence, fair use, failure to mitigate, failure to state a claim, innocent intent, copyright misuse, estoppel, waiver, unclean hands, laches and substantial non-infringing uses.

Key issues Is the infringement volitional? Or does You. Tube’s technology work behind their backs in ways for which they are not responsible? l Does You. Tube qualify for DMCA safe harbor protection? l – Esp. have they been red flagged enough to know that the stuff often infringes? l Could they be expected to be able to identify which, and block it? – To what degree do they financially benefit from the infringements? Another case: Perfect 10 v Google, reminds us that one has to do takedowns properly (according to the procedures) in order for them to “count”

Viacom v. You. Tube l Decision of District Court – June 23, 2010 – Summary judgment in favor of You. Tube – You. Tube is entitled to safe harbor immunity under Section 512 c of the DMCA – Defendants are granted summary judgment that they qualify for the protection of 17 U. S. C. (section) 512 (c), as expounded above, against all of plaintiffs' claimsfor direct and secondary copyright infringement. Plaintiffs' motions for judgment are denied. l You. Tube won the appeal and the USSC refused to review the decision – Goldman’s analysis of their appeal

Protecting ISPs DMCA safe harbor (section 512): exempts ISPs from liability for the infringing actions of their users, if ISPs satisfy certain conditions l Communications Decency Act, 47 U. S. C. § 230 : – Section 230(c)(1) provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others – Does not apply to intellectual property rights, though we cover it when we get to defamation which IS a form of IP law. l Electronic Communications Privacy Act of 1986 l – Protects electronic communication from government, third parties, and interception, but not from employers.

Tannenbaum v. RIAA l Rassert-Thomas l RIAA v. Tannenbaum

Universal Library l Google Books Deal Scuttled By Judge – We should make clear, as part of our discussion over how unfair the system is: Google has already committed MASSIVE copyright infringement. Probably enough to put them totally out of business if at full price. Yet, no one is going to sue them for all of it; instead, various parties have tried to cut deals with them l And Google has gotten some relief – We’ll get to the orphan issue next time. For now l l Is the value (access for all) worth the risks (having one-private, not public-- gatekeeper and breaking/bending the law for them along the way)? The whole thing is a MESS