ISPs Receive DMCA Safe Harbor Protection for Pre-1972 Sound Recordings

Capitol Records and other sound recording copyright owners sued Vimeo for copyright infringement, alleging Digital Millennium Copyright Act (DMCA) violations.  Vimeo is an Internet service provider that allows members to post videos the members create, which the general public can view.  The copyright owners alleged that some of the member-created videos included copyrighted content without authorization from the copyright owners.  The interlocutory appeal from the district court presented three issues to the Second Circuit Court of Appeals.

(i) whether the DMCA §512(c) safe harbor applies to pre-1972 sound recordings.  This is a different issue than copyright owners’ rights under state copyright law for pre-1972 sound recordings.

(ii) whether evidence of some viewing by Vimeo employees of videos that played all or virtually all of ‘recognizable’ copyrighted songs was sufficient to satisfy the standard of red flag knowledge, which would make Vimeo ineligible for the DMCA safe harbor; and

(iii) whether Plaintiffs have shown that Vimeo had a general policy of willful blindness to infringement of sound recordings, which would justify imputing to Vimeo knowledge of the specific infringements.

The Second Circuit affirmed the district court’s rulings in part and vacated in part.  The Second Circuit ruled that the DMCA safe harbor, a federal statute, protects service providers from infringement liability for pre-1972 sound recordings, which are covered by state law.  Secondly, the Second Circuit ruled that some viewing by a service provider’s employee of a video that plays all or virtually all of a recognizable copyrighted song does not disqualify the service provider from safe harbor protection.  Thirdly, the Second Circuit ruled that the copyright owners did not show a policy of willful blindness by Vimeo that would have disqualified Vimeo from safe harbor protection.

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Independent Contractor Content Providers Ruled DMCA Safe Harbor Users

BWP Media owns the rights to a number of celebrity photographs.  BWP sued Clarity Digital Group (n/k/a/ AXS) for copyright infringement when 75 of BWP’s photos appeared without BWP’s permission on Examiner.com, a website owned by AXS.  AXS argued it was protected from liability by the Digital Millennium Copyright Act (DMCA) safe harbor.  The district court agreed and granted AXS’s motion for summary judgement.  The Tenth Circuit affirmed.

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No Record But Still the Same Old Tune

The district court eloquently described the case’s status and defendants’ post-trial motion following a jury verdict in favor of the plaintiffs.  My favorite sentence in this passage is “Ultimately, the goal is to make a dispute understandable to a lay person.”:

While the world has moved beyond the free-MP3-download craze, the parties in this case have not. This hard-fought litigation spans 7 years and 628 docket entries. Numerous substantive motions were heard. And decisions by this Court did not deter the parties from revisiting the same issues time and again. As trial approached, the parties launched salvos of motions in limine seeking to resurrect discovery disputes, relitigate prior motions, and level an impressive array of claims and defenses. 

A primary function of pre-trial litigation is to distill claims. Ultimately, the goal is to make a dispute understandable to a lay person. Despite this Court’s efforts to winnow the issues, the parties insisted on an 82-page verdict sheet on liability and a 331-page verdict sheet on damages that included dense Excel tables, necessitating at least one juror’s use of a magnifying glass. While the jury did its best, their assignment was beyond all reasonable scale.

To understand how this happened, one must look at the impetus for this litigation. Robertson created a business model designed to operate at the very periphery of copyright law.  While Robertson’s business practices sometimes infringed copyrights, many of the Plaintiffs’ claims were just too big to succeed. Plaintiffs’ evidence on their most significant theories of liability—red flag knowledge and willful blindness—was sparse. And Robertson—by his words, actions, and demeanor—came across as unworthy of belief. That led the jury to rely on something other than the evidence in reaching portions of its verdict. For the following reasons, Robertson’s motions are granted in part and denied in part.

(Opinion pdf pages 1-2).

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Haiti Quake Photos Case Offers Multiple Intriguing Issues and $1.2M Jury Award

In late November 2013, a jury awarded Daniel Morel $1.2M against Agence France Presse (AFP) and Getty Images for willfully infringing photos Morel took in Haiti on January 12, 2010, immediately after the earthquake that demolished the country.  Morel, a noted photographer, swiftly contacted AFP and Getty regarding removing his photos from their websites after he found them posted there.  

AFP actually initiated the lawsuit by bringing a declaratory judgment that it did not infringe Morel’s copyrights in his Haiti earthquake photos.  This case presents a number of intriguing issues, including AFP’s and Getty’s claims that they received a license under the Twitter terms of use, AFP’s and Getty’s claims that they were third party beneficiaries of Morel’s Twitter contract, Morel’s contributory infringement and vicarious liability claims against some of the licensees, Morel’s DMCA copyright management information claim, Getty’s claim that it was protected by a DMCA safe-harbor, Morel’s willful copyright infringement claims against AFP and Getty and Morel’s Lanham Act false representation and false advertising claims.  Morel survived motions to dismiss and summary judgment motions brought by AFP and Getty on the way to his jury verdict.  This post discusses why some issues were dismissed, while others remained in the case to be decided by the jury.

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YouTube Protected by DMCA Safe Harbor, Viacom Suit Dismissed on Remand

This post follows up on my post entitled YouTube’s Safe Harbor Status Requires More Fact-Finding, Rules Second Circuit.  Viacom and other plaintiffs who are content owners sued YouTube for copyright infringement.  The district court granted YouTube’s motion for summary judgment, ruling that YouTube was protected by the DMCA §512(c) safe harbor.  On appeal, the Second Circuit ruled in YouTube’s favor on some issues, but remanded the case to the district court to address four specific issues.  On remand, the district court ruled in YouTube’s favor on all four of those issues, granted YouTube’s motion for summary judgment and dismissed the plaintiffs’ complaint.

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Veoh Protected Against UMG Copyright Infringement Claims by DMCA Safe Harbor

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 sued Veoh for direct and secondary copyright infringement, alleging that Veoh’s service allows users to download unauthorized copies of songs for which UMG owns the copyright. 

I previously blogged about this case in Veoh’s Services Protected by DMCA Safe Harbor, Rules Ninth Circuit.  Last week, the Ninth Circuit withdrew its opinion filed December 20, 2011 and filed a superseding opinion.  The Ninth Circuit again upheld the district court ruling that Veoh’s services were protected by a Digital Millennium Copyright Act (DMCA) safe harbor.

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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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