Category Archives: Copyright Law

Updating Copyright from Tech’s Perspective

cropped-logos_Lux_Law_Firm-2-11.jpgBy Caroline Lau, Staff Writer, AMD LAW

Last week, Congress heard from leaders in various industries that provide creative, copyrighted content, such as businesses in film, music and photography. This Thursday on August 1, the same House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet listened to five technology companies present their assessments and opinions of the role of technology in innovation. In contrast with last week’s overarching push for stronger copyright protection, tech representatives advocated open source, and critiqued aspects of current copyright law. Notable speakers include IT hosting company Rackspace’s VP of Intellectual Property Van Lindberg and electronics retailer Sparkfun CEO Nathan Seidle.

In Lindberg’s testimony before the subcommittee, he raised the issue of the susceptibility of the Digital Millennium Copyright Act (DMCA) to abuse, especially by automated DMCA takedown requests executed by computer system programs designed to recognize copyrighted content. Lindberg brought to the subcommittee’s attention that this kind of computer program may recognize that certain content is copyrighted, but not that the content does not infringe with the permission of holders, leading to abuse of the fair intentions of the DMCA. He also cites purposeful filings of DMCA takedown requests, many of which aren’t copyright claims but are the actions of businesses against their competitors, resulting in unfair competition and impeding free speech.

Online infringement may be hard to prevent, but even discerning real infringement from fake is also daunting. Google’s most recent report indicates over 15 million URLs have been subject to takedown requests, and the company says it takes down 97% of requests. Twitter has also been receiving an influx of takedown requests, with statistics showing a 76% increase over the 6-month period beginning this year January 1, though it takes down 61% of requests. Finally, the copyright case between giant media company Viacom and Youtube, a Google subsidiary, demonstrates how the DMCA has been used in courts; Viacom’s lawsuit against Youtube has failed twice already in the past 7 seven years. The main issue is proving Youtube’s actual knowledge of infringing content on its video-sharing website. U.S. District Judge Louis Stanton ruled in April that Youtube is protected under the DMCA, specifically section 512(c) of the act which provides safe harbor for websites under several conditions, including if the service provider expeditiously removes infringing material upon knowledge or awareness of it.

Viacom applied to the Second Circuit Court of Appeals on July 26 for the remanding of a different judge to preside over the case. In their appellate brief, Viacom attacks the assertion that lacking proof for “clip-by-clip assessment of actual knowledge” according to Judge Stanton renders their suit dismissible, stating that when “the service provider deliberately avoids learning the location of specific infringing Daily Show clips [for example], then under the [judge]’s reading the service provider is not willfully blind.” Instead, this “deliberate ignorance” Viacom points to is, in the company’s opinion, deserving of trial.

Adjudicating what constitutes sufficient legitimate evidence of copyright infringement in this tech era is a problematic area, seeing as excessive takedowns currently coexist with the persistence of copyright violating content online. A different tack in addressing copyright has been offered by tech industry representatives. From the tech forum before Congress, Nathan Seidle of Sparkfun explicated the benefits of open source engineering, while Lindberg  promoted open source technology, the underlying idea being that open source creates jobs, business, and drives innovation—things copyright protection has always claimed to do.

If you have an extravagant, extraordinary or exclusive product or service in need of legal protection, contact Luxury Law Firm.

Sources:

The Hollywood Reporter. (July 30, 2013). “Viacom Demands New Judge in Youtube Copyright Fight.” Retrieved on August 2, 2013 from http://www.hollywoodreporter.com/thr-esq/viacom-demands-new-judge-youtube-595471

The Hollywood Reporter. (April 18, 2013). “Youtube Again Beats Viacom’s Massive Copyright Infringement Lawsuit.” Retrieved on August 2, 2013 from http://www.hollywoodreporter.com/thr-esq/youtube-again-beats-viacoms-massive-442233

GigaOM. (August 2, 2013). “Rackspace helps school Congress on copyright and open source.” Retrieved on August 2, 2013 from http://gigaom.com/2013/08/02/rackspace-helps-school-congress-on-copyright-and-open-source/

 

Making a Case for Modern-day Copyright in Court and in Congress

cropped-logos_Lux_Law_Firm-2-11.jpgBy Caroline Lau, Staff Writer, AMD LAW

This week, copyright issues received considerable federal attention both in the Ninth Circuit of the US Courts of Appeals on Wednesday and in a hearing by the U.S. House of Representatives’ House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet on Thursday. While the court ruled that digital video recorders that automatically skip commercials are permissible under copyright law in Fox v. Dish, the House’s subcommittee held the first of two scheduled hearings during which representatives from various media and entertainment industries called on Congress to bolster copyright protection.

In Wednesday’s ruling, the precedent of the 1984 Supreme Court case Sony Corp. of America v. Universal City Studios, Inc. was invoked to uphold the existence and usage of satellite company Dish’s digital video recorder, the Hopper, presumably thus named for its Auto-Hop feature that automatically skips all the ads of a recorded show. Additionally, the Hopper can automatically record all the prime-time shows on television networks Fox, ABC, CBS and NBC through its Prime Time Anytime feature. With regards to the ad-skipping feature, the court said that because it didn’t entail making copies of Fox’s content, copyright issues weren’t raised. The Sony case already permitted the recording of television shows for time shifting under copyright’s fair use doctrine (at that time the product in contention was Sony’s Betamax VCR). As for the Prime Time Anytime feature, the same fair use principle from Sony’s ruling was applied.

Besides copyright infringement claims, Fox also accused Dish of violating their distribution contract. Judge Sidney Thomas was ultimately not swayed by this particular stance although he seemed to put more stock in it than in the argument for Dish’s copyright liability. As Wednesday’s ruling was the second time the court declined to issue an injunction against Dish, the case may go to trial. Fox said they would “review all of our options”, while Dish stated the court’s decision was “a victory for American consumers” involving “the fundamental rights of consumer choice and control.”

On the Congressional side, representatives from the music, photography, and film industries presented their views to the subcommittee members the current copyright climate, the significance of strong copyrights for industry and the marketplace, for innovation and creativity and economic profit. The House’s hearing included a viewing of 3-D video showing the process of making a Star Trek film segment. Issues such as online copyright infringement and piracy were brought up. For one of the participants, executive director of the American Society of Media Photographers Eugene Mopsik, fair compensation and fair use expansion are the biggest problems for his group. The representatives also emphasized that tech companies are their partners in content creation and distribution, not opponents, and copyright reform would be advantageous for all parties. The subcommittee is to hold a hearing with representatives from the tech industry next week.

In the modern landscape of technology, Internet use and growing intangible assets in intellectual property for industries that run on making and marketing creative content, it is interesting to see the tension between handling copyright issues in court case by case—in this instance supporting a previous expansion of fair use—and dealing with copyright matters legislatively, in Congress. This week’s events reflect the legal system’s complex state in this day and age where copyright, and by extension intellectual property is concerned.

If you have an extravagant, extraordinary or exclusive product or service in need of legal protection, contact Luxury Law Firm.

Sources:

The New York Times. (July 24, 2013). Court Upholds Ruling on Dish Network’s ‘Hopper’. Retrieved on July 27, 2013 from http://www.nytimes.com/2013/07/25/business/media/court-upholds-ruling-on-dish-networks-hopper.html?_r=0

The Washing Post. (July 24, 2013). Court says skipping ads doesn’t violate copyright. That’s a big deal. Retrieved on July 27, 2013 from
http://www.washingtonpost.com/blogs/wonkblog/wp/2013/07/24/court-says-skipping-ads-doesnt-violate-copyright-thats-a-big-deal/

Corporate Counsel. July 25, 2013. Congress Hears Please for Stronger Copyright Protections. Retrieved on July 27, 2013 from http://www.law.com/corporatecounsel/PubArticleCC.jsp?id=1202612419216&Congress_Hears_Pleas_for_Stronger_Copyright_Protections&slreturn=20130627193406