Renew It or Lose It: New Rules Set for DMCA Safe Harbor Protection

Effective December 1, 2016, nearly five years after issuing an initial notice of proposed rules, the U.S. Copyright Office will be implementing new rules intended to govern the designation and maintenance of Digital Millennium Copyright Act (DMCA) agent information under a new electronic system. This is a significant action by the Copyright Office, for at least two reasons. First, in order for the safe harbor under the DMCA to be effective, all designations, including those previously submitted, must be made on the new electronic system. All new registrations as of December 1, 2016, must be completed online, while previously filed paper designations continue to be effective until the service provider has registered using the new online system or through December 31, 2017, whichever is earlier. Second, there is a new three-year renewal period for designations, which will be reset after a service provider either amends or resubmits its designation through the online system. Continue Reading

DOJ Appeals Decision Affecting Music Licensing

Lost in the news of the election, on Nov. 11, the Department of Justice (DOJ) filed a notice of appeal from an adverse decision issued by Judge Louis Stanton, who rejected a DOJ interpretation that licensees applauded and ASCAP, BMI, songwriters and publishers opposed.

ASCAP and BMI collect and distribute payments to their members – songwriters and music publishers – for the public performance of their works. Today, when licensing a piece of music, a licensee must secure the rights to the composition and the rights to the sound recording. But beginning in 1941, when the law only recognized the copyright of the composition, the DOJ took action against ASCAP because it perceived ASCAP and the music publishers to have too much power over valuable repertoires. ASCAP negotiated a consent decree with the DOJ requiring ASCAP to offer blanket licenses for all music in its repertoire on equivalent terms to any licensee, which now includes radio (AM/FM and digital), physical venues and television broadcasters. If licensees do not agree to the blanket license terms, they can file a petition in the Southern District of New York (rate court) to set the terms. These blanket licenses must be nonexclusive, and the ASCAP members must retain the right to individually license their works. BMI agreed to similar conditions that same year.  Continue Reading

Comparing Social Media Intellectual Property Policies: Part 2 – Social Media User Agreements

Social media users come in all shapes and sizes, ranging from individuals to large corporations. Users post text, images, video and sound files on social media sites. As discussed in part 1, all of this content is protected by copyright law, and in some cases other rights may apply to the content, such as rights of publicity, trademark rights and the like. The question becomes this: What rights do users have once they post content on a social media page? This article surveys popular social media user agreements with this question in mind.

Overall, as some might expect, the policies provide the social media sites broad rights to use content. In every policy, the social media site received a “worldwide, non-exclusive and royalty free” right to use the posted content. The bundle of rights granted with each license, however, varies from site to site. In the following table, we compared the specific license granted and the term of the license for several social media sites. Continue Reading

Is hyperlinking copyright infringement? EU vs. US

Over in Europe, the Court of Justice of the European Union (CJEU) has been hyperactive in the area of hyperlinking and copyright, at least as compared with the United States. The CJEU issued a much-anticipated ruling in September concerning hyperlinking’s legality in GS Media v Sanoma Media Netherlands and Others (C-160/15). It held that posting a hyperlink to a site where a copyrighted work is being displayed without the copyright owner’s consent does not necessarily violate the copyright owner’s right to authorize or prohibit any “communication to the public” under the relevant European directive (EU Directive on copyright and related rights in the information society 2001/29/EC, or the “InfoSoc Directive”). Rather, a person posting such a hyperlink makes a “communication to the public” only where that person has knowledge that the site to which it linked did not have permission to display the copyrighted work. If the hyperlink was posted for “financial gain,” the court will presume the person posting the link knew this fact. The presumption is then rebuttable by the one posting the link.

While the decision acknowledges that the internet is “of particular importance to freedom of expression and of information” and that “hyperlinks contribute to its sound operation and to the exchange of opinions and information,” it has been criticized for nothing short of potentially disrupting the flow of information over the internet as we know it. Critics deduce that many or most websites could fall into the category of linking for “financial gain” and therefore will be presumed to know they linked to a site with unauthorized content simply by placing a hyperlink. Continue Reading

Not Dat Function, Dis Function

 

When we talk these days about the role of functionality in determining the copyrightability of a useful article, we are generally talking about the 10 different separability tests currently duking it out at the Supreme Court in the Varsity Brands case. Our posts on that case are here, here and here. These tests enforce the Copyright Act’s restriction that extends protection to pictorial, graphic or sculptural works “only if, and only to the extent that, such design incorporates PGS features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

The 10 tests developed by courts take various factors into consideration, such as the designer’s intent or whether the copyrightable element could stand alone without impacting the article’s functionality. The tests generally exist on a continuum – on the one end is a trade-dress-like prohibition against protecting any functionality through copyright, and on the other is a more design-patent-like multiplicity of forms analysis that could admit some protection for functionality where there are multiple ways to design the same function. Continue Reading

Comparing Social Media Intellectual Property Policies: Part 1 – Social Media Infringement

Social media is an unchecked wild fire that burns throughout society. Whether the motivation is pure entertainment, the ability to connect and interact, or perhaps the promise of fame and fortune, children and adults flock to the various social media outlets and pour content in. This content, whether created by the user or obtained from another source, is subject to copyright law and may touch on other property rights such as trademark, publicity or privacy rights. In addition, other regulations apply to govern posting of sponsored content. Finally, end-user agreements that are given about as much attention as the wrapper on a candy bar often govern disputes over these rights. These agreements also address the consequences for improper or unlawful conduct and the rights of the social media site to make additional use of posted content, user interactions and data obtained therefrom. Apart from the individual user, corporate users must consider the implications of employee-posted content, sponsored content, third-party posts or interactions with their social media, and infringement of intellectual property rights.

The following series of posts will look at the current legal landscape on popular social media sites to better understand the rights and ramifications relating to their use. This post starts with a comparison of intellectual property provisions in Facebook, Pinterest, Twitter, YouTube, Vimeo and Instagram. Additional posts will look at the user agreements to see what rights users have when they post material, and what rights the social media sites obtain in posted content. Continue Reading

A Darker Shade of Red Flags: Second Circuit Raises the DMCA Bar for Proving Internet Service Providers’ Knowledge of Copyright Infringement

In a significant across-the-board victory for internet service providers hosting user-generated content (UGC), on June 16, 2016, the Second Circuit Court of Appeals issued its much anticipated decision in Capitol Records, LLC v. Vimeo, LLC.  The ruling reaffirmed and clarified the Digital Millennium Copyright Act (“DMCA”) safe harbor for hosting potentially infringing UGC when they are unaware of the infringement. The Court closed a major gap in the application of the DMCA to find that the safe harbor applies to pre-1972 sound recordings, an unresolved issue with conflicting results in district and state courts to date. The Second Circuit also held that, for a service provider to be disqualified from the safe harbor, the burden is placed squarely on the copyright holder to prove the service provider’s actual or red flag knowledge of specific copyright infringement obvious to an ordinary person, i.e., a non-lawyer, non-expert, and mere interaction by a service provider’s employees with user videos incorporating recognizable songs did not meet that bar. In a similar vein, the Court found that Vimeo employees’ mere suspicion that infringement was taking place on the site and sporadic incidents of alleged employee encouragement of user infringement, was insufficient to demonstrate Vimeo’s willful blindness and remove it from DMCA safe harbor protection.

Although most commentators have focused their attention on the significant impact of the Court’s pre-1972 recordings decision, the Court’s holdings on establishing proof of red flag knowledge and willful blindness are critical to service providers’ entitlement to the protections of the DMCA’s safe harbor and the long term viability of the UGC business model. This post focuses on the Court’s red flag knowledge and willful blindness rulings concluding with key takeaways for service providers. Continue Reading

A Circuit Split at Last: Ninth Circuit Recognizes De Minimis Exception to Copyright Infringement of Sound Recordings

For the past 10 years, the Sixth Circuit Court of Appeals has stood alone in having addressed the issue of whether a de minimis amount of copying used in a song sample constitutes infringement of a copyrighted sound recording. While the Sixth Circuit’s admonition of “get a license or do not sample” has gained little traction in the district courts outside of the Sixth Circuit, neither did its sister circuit courts take the contrary position – until now.

On June 2, 2016, the Ninth Circuit held in VMG Salsoul, LLC v. Ciccone that a 0.23-second “horn hit” sampled from the song “Love Break” for use in Madonna’s song “Vogue” did not infringe the copyright in either the sound recording or the musical composition of the sampled song. Affirming the district court, the Ninth Circuit held that the de minimis exception to copyright infringement “applies to infringement actions concerning copyrighted sound recordings, just as it applies to all other copyright infringement actions.” Continue Reading

Supreme Court Clarifies Test for Fee-Shifting in Copyright Cases

The Supreme Court on June 16 issued a unanimous ruling clarifying the test for awarding attorneys’ fees to successful copyright litigants.  The decision, in Kirtsaeng v. John Wiley & Sons, Inc., is sure to have lasting impact on how both plaintiffs and defendants weigh the risk of litigating a copyright case to completion.

BACKGROUND

The underlying facts are fairly straightforward.  Kirtsaeng was a Cornell graduate student who learned that foreign versions of certain textbooks were sold at lower prices than identical versions in the U.S.  Seeing an opportunity, Kirtsaeng bought lawful copies of the books overseas and then shipped them to the U.S., where he sold them for less than the publisher’s U.S. price, pocketing a nice profit.

Continue Reading

Court of Appeals Upholds FCC’s Net Neutrality Rules and Regulatory Authority

On June 14, 2016, the D.C. Court of Appeals ruled 2-1 in favor of the Federal Communication Commission’s (FCC) net neutrality rules, which the commission approved on February 26, 2015 (published March 12, 2015). This reclassified broadband internet access service (BIAS) as a telecommunications service under Title II of the Communications Act, affording the FCC greater regulatory authority over Internet Service Providers (ISPs) or BIAS providers. In response to the reclassification, the United States Telecom Association, a trade group representing various telecomm giants, joined by other companies and groups, filed a Protective Petition for Review of FCC’s net neutrality rules.

Read the original post.

LexBlog