Thankfully the Second Circuit in Viacom v. YouTubeÂ has reversed Judge Stantonâ€™s see no evil, speak no evil opinion which had granted summary judgment to YouTube. But in response to the “most important” issue the appellate court stated it faced, that court dropped the ball.
The issue was whether the actual and red flag standards in Â§ 512(c)(1)(A)(i) and (ii) of the DMCA each required actual knowledge of specific and identifiable infringements.
April 16, 2012
February 27, 2012
The genesis of this post is a recent copyright infringement case we handled that dealt with a relatively unexplored corner of the Digital Millennium Copyright Act (â€śDMCA), defendantâ€™s removal of copyright management information (CMI) and the statutory damages that arise from that DMCA violation.
Three DMCA Issues that Divide the Courts
In researching the DMCA claims, we noted that three issues have divided the courts:
(a) is CMI as defined in Â§1202 of the DMCA restricted to digitally encoded information contained in an automated copyright protection or rights management system or does CMI extend to any identifying information about a copyrighted work, digital or not;
(b) does the DMCA only protect CMI if itâ€™s on the face of a copyrighted work or does protection include CMI that is elsewhere on the page where the work appears; and
(c) what constitutes a violation of the DMCA for purposes of computing statutory damages.
February 17, 2012
Andrew to Moderate Internet Hot Topics Discussion at the ABA Litigation Section Annual Conference in D.C.
Andrew will moderate a panel discussion at the ABA Litigation Sectionâ€™s Annual Conference in D.C.Â The topic will be â€śInternet and Social Media in the Forefront: Current Hot Issues and Developments.â€ť The program will take place on Thursday April 19, 2012 between 3-4 pm.
Speakers with be Peter Jaszi, Professor of Law at American University Law School; David Perrot, Research Director at Decisionquest; Stanley Pierre-Louis, Vice President and Associate General Counsel for Intellectual Property and Content Protection at Viacom Inc.; and Mozelle Thompson, former Commissioner of the Federal Trade Commission and CEO of Thompson Strategic Consulting.
December 27, 2011
The safe harbor created by Section 512(c) of the Digital Millennium Copyright Act (DMCA) may now be an Internet service provider’s Bali Hai.
Thatâ€™s because on December 20, 2011, the Ninth Circuit held in UMG v. Veoh that a webhost will only lose its safe harbor immunity under this section if it has specific knowledge of infringing content on its site and fails to take down that content.
July 25, 2011
â€śAppealing YouTube: The Experts Debate!â€ť Program in DC on Wedensday July 27 Sponsored by the Copyright Society
The Copyright Society is sponsoring a very interesting event this Wednesday July27 in D.C. The program is entitled Appealing YouTube: The Experts Debate!â€ťÂ The program will debate the many safe harbor issues in Viacom v. YouTube now on appeal to the Second Circuit.
Moderating will be Robert Kasunic, the Deputy General Counsel, U.S. Copyright Office. The fine panelists are: Jonathan Band of Jonathan Band PLLC; Patrick Coyne ofÂ Finnegan, Henderson, Farabow, Garrett & Dunner LLP; Russell Frackman of Mitchell Silberberg & Knupp LLP; Ron Lazebnik: Fordham University School of Law; and Mary Rasenberger: Skadden, Arps, Slate, Meagher & Flom LLP.
April 27, 2011
The Advanced IP Forum for Advertising Counsel will take place in NY from April 27-29. The program offers an impressive list of speakers from the content and media industries. Andrew will moderate a panel at this Forum on April 28. The program brochure is here
The April 28 panel will focus on combating IP infringement on the internet.
January 31, 2011
More on Agence France v. Morel: A Publisher May Now Face a DMCA Claim For Removing Almost Any Copyright Management Information Even If It Was Not on the Work Itself
The Agence France decision may be even more important because of its expansive interpretation of what constitutes copyright management information under the Digital Millennium Copyright Act (â€śDMCAâ€ť). Copyright management information (â€śCMIâ€ť), defined in 17 U.S.C. Â§ 1202(c), includes the workâ€™s title, author or copyright owner and the terms and conditions governing the use of the work.
As mentioned in my earlier post, Morel placed on his TwitPic page a number of Haiti earthquakes photos.
December 6, 2010
Viacom/YouTube: Will The 2d Circuit Continue to Shield YouTube from Liability under the DMCA for Welcoming Infringement On Its Site?
The Viacom/YouTube copyright infringement case is a classic, 4-year fight between two media goliaths that is now atÂ the Second Circuit. Hopefully that court will give some guidance about the scope of safe harbor protections for internet service providers (ISPs) under the Digital Millennium Copyright Act (â€śDMCAâ€ť). Viacom lost the first round when the district court granted YouTube’s motion for summary judgment dismissing Viacomâ€™s copyright infringement claims.
October 3, 2010
Secondary Liability under the DMCA: Has the DMCA Shrunk Contributory Infringement and Vicarious Liability?
The common law doctrines of contributory infringement and vicarious liability are a staple of copyright infringement law. But the Digital Millennium Copyright Act (â€śDMCAâ€ť) has significantly reshaped these doctrines.
Naomi Jane Gray, Esq., in her remarks to the Copyright Subcommittee of the Intellectual Property Litigation Committee of the ABA on September 28, 2010,Â clearly charted the changes the DMCA has made to secondary liability.
July 30, 2010
Viacom v. YouTube: Can A Web Host Welcome and Profit From Infringing Activity and Then Claim Not to Know About It?
Is Judge Stantonâ€™s decision in Viacom v. YouTube vulnerable on appeal? You bet. Before I explain why some background.
The Action and Motions
In 2007 Viacom sued YouTube for copyright infringement alleging that YouTube posted on its site tens of thousands of Viacomâ€™s videos without permission. Viacom argued in its summary judgment motion:
YouTubeâ€™s founders single-mindedly focused on geometrically increasing the number of YouTube users to maximize its commercial value.