Photographer Boffoli Sues Twitter Over His Disparity Series

Seattle photographer Christopher Boffoli sued Twitter in federal court in the Western District of Washington, Seattle.  Boffoli’s Disparity Series “comically pairs teeny human figurines with real-life foods in extreme close-up.”  Patrick Hutchison describes the Disparity Series in greater detail, and includes pictures, in his article Christopher Boffoli’s Strange Little Worlds

The Disparity Series seems to be popular among Twitter users.  Boffoli’s complaint alleges that Twitter users copy his registered Disparity Series photos without license, that the infringing photos are posted on Twitter or third-party servers, and that Tweets advertise or link to each infringing use.  The complaint further alleges that Twitter has not removed infringing uses from its servers or disabled links to infringing uses, despite receiving four Digital Millennium Copyright Act (DMCA) takedown notices from Boffoli.

Boffoli’s allegations against Twitter include copyright infringement, failure to comply with the DMCA and willful copyright infringement.  Boffoli seeks temporary and permanent injunctions, the destruction of infringing copies, actual damages or statutory damages plus damages for willful infringement, and attorney’s fees and costs.

This case is Boffoli v. Twitter, Inc., No. 12-01534, Western District of Washington, Seattle.

YouTube’s Safe Harbor Status Requires More Fact-Finding, Rules Second Circuit

The Second Circuit issued its opinion in Viacom v. YouTube last week.  This case is similar to UMG v. Shelter Capital Partners, LLC in that it addresses issues arising out of applying the Digital Millennium Copyright Act (DMCA) safe harbor provisions to a service provider that permits users to upload videos to its website and view video clips uploaded by others without charge.  See my post Veoh’s Services Protected by DMCA Safe Harbor, Rules Ninth Circuit for details on UMG v. Shelter Capital.  The Second Circuit agreed with some, but not all, of the Ninth Circuit’s DMCA safe harbor analysis.

The plaintiffs in Viacom v. YouTube appealed the district court’s ruling granting YouTube’s motion for summary judgment on the grounds that YouTube was protected by the DMCA §512(c) safe harbor and denying plaintiffs’ cross motions for partial summary judgment.  This case is actually comprised of related actions in which the plaintiffs, including Viacom, film studios, television networks, music producers, sports leagues and class action plaintiffs, are copyright holders who sued YouTube for copyright infringement based on the public performance, display, and reproduction of video clips that appeared on the YouTube website between 2005 and 2008.  The specific video clips at issue are 63,497 clips identified by Viacom and 13,500 clips identified by the class action plaintiffs.  The Second Circuit refers to the clips at issue as “clips-in-suit.”

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Veoh’s Services Protected by DMCA Safe Harbor, Rules Ninth Circuit

Facts Veoh Networks operates a website that allows users to upload and share video content over the Internet.  Universal Music Group (UMG) is a major recorded music and publishing company and also produces music videos.  UMG filed suit against Veoh (pdf) for direct and secondary copyright infringement. 

Veoh asserted Digital Millennium Copyright Act (DMCA) safe harbor protection as an affirmative defense.  UMG and Veoh both filed motions for summary judgment.  The district court ruled in Veoh’s favor, holding that Veoh met all of the requirements and was entitled to DMCA safe harbor protection.  The Ninth Circuit Court of Appeals upheld the district court’s safe harbor rulings.  UMG argued before the Ninth Circuit that Veoh failed to meet three of the DMCA’s requirements, as discussed below. 

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YouTube Purchases RightsFlow to Address Complex Licensing and Royalty Payment Management Issues

YouTube announced its purchase of RightsFlow on its blog last Friday.  RightsFlow works with labels and distributors, artists and music services to simplify copyright licensing.  Mechanical licensing and royalty reporting are RightsFlow’s core services.  A mechanical license (also known as a “compulsory license”) gives anyone the right to make and distribute a recording of a musical work once the copyright owner has distributed a recording of the work to the public in the U.S.  The copyright owner cannot refuse permission for someone else to record the work, but whoever records the work must pay a preset compulsory license royalty.  17 U.S.C. §115 is the applicable statute.  RightsFlow boasts a database of over 10.5 million songs, economies of scale, and flexible, scalable data systems that are integrated with thousands of publishers and societies throughout the world.

The compensation issue was at the heart of the 2010 Viacom v. YouTube case.  Viacom and other content owners accused YouTube of harming their interests by allowing YouTube users to watch a massive library of unlicensed infringing copyrighted works.  They argued that YouTube was not entitled to the DMCA 17 U.S.C. § 512(c) safe harbor and that YouTube knew of infringing activity, but failed to stop it.  The §512(c) safe harbor provides that an online service or network access provider will not be liable for infringing content stored at the direction of a user if the provider meets certain conditions.   Although the district court ruled in YouTube’s favor, YouTube’s copyright protection procedures were scrutinized and criticized.  Since the Viacom case was filed, YouTube has taken steps to improve its protection of the copyrighted works posted on its site.

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Anticircumvention Provisions: Another side of the DMCA

Most people know of the Digital Millennium Copyright Act (DMCA) as a result of its takedown notice and safe harbor provisions.  Those provisions generate frequent discussion, particularly in the wake of a high profile case such as Viacom International, Inc. v. YouTube, Inc. YouTube’s motion for summary judgment in the face of Viacom’s claims of intentional, direct and vicarious copyright infringement was granted on the basis that YouTube was protected by the §512(c) safe harbor.

Anticircumvention is a less well-know side of the DMCA.  The DMCA anticircumvention provisions prohibit hacking software designed to prevent unauthorized copying, for example.  Antcircumvention was one of the topics in I Like (Big) Bots and I Cannot Lie: Bots as Copyright Infringement and DMCA Violations, an excellent post by Drew Boortz on Developing Concerns. Boortz described a recent case in which, as he saw it, the Ninth Circuit ruled that the copyright owner’s right to guard against unwanted access is one of the rights in the copyright bundle and was created by the DMCA. For those who have always believed that §106 defines the copyright bundle of rights, that’s an amazing ruling!   For me, the most intriguing part of the post was Boortz’s reference to the DMCA exemptions.

The DMCA implements two World Intellectual Property Organization treaties and contains five titles. Section 1201 incorporates the anticircumvention provisions. The first sentence reads, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  Under a 2001 court ruling, this meant that people were prohibited from using a decryption computer program to bypass the encryption features of a motion picture DVD so that they could freely copy the DVD. One of the arguments against technologic measures used to protect copyrighted works is that they prevent the fair use of those works.

That seems like a pretty straightforward prohibition, right?  Not so fast!  Section 1201(a)(1) also provides for a rulemaking procedure designed to soften the impact of the circumvention prohibition by exempting users of certain classes of copyrighted works from application of the prohibition.  Every 3 years, the Librarian of Congress, with input from the Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce, sets the rules for the next three years.  The most recent set of rules became effective on July 27, 2010. If the exemptions change every three years, what does that mean for people who have built businesses or livelihoods that depend on the existence of one or more exemptions?

Six classes of works are currently exempt from the circumvention prohibition. Technical protections for motion pictures on DVDs can now be circumvented solely to allow the incorporation of short portions of the film into new works for the purpose of criticism or comment.  The use is limited to educational uses by college and university professors and certain students, to documentary filmmaking and to noncommercial videos.  It looks like some of the people who may have decrypted DVDs for fair use purposes prior to 2001 joined forces to persuade the Librarian of Congress to grant them an exemption. Other classes of exempt works include circumventing computer programs on wireless phones to enable application interoperability and to allow owners of used handsets to access a wireless network, and circumventing controls on personal computer video games to fix security bugs. I wonder how many similarly situated groups of potential fair users there are who could benefit from such an exemption.  It seems that taking advantage of the rule setting process is a great strategy for those who want to make fair use of copyrighted materials that are currently protected by technical measures.