The "Safe Harbor" Provisions of the DMCA Become Safer and More Harbory.
Two recent decisions have provided context for the DMCA's "safe harbor" provisions and have given
an expansive reading to such provisions.
In the Ninth Circuit Court of Appeals, the decision in a case called UMG v. Veoh (even though there are dozens of parties) has affirmed a district court's decision that a video sharing site (Veoh) qualified for the safe harbor provisions and therefore was not liable for copyright infringement. This case was decided on December 20, 2011.
In the Southern District of New York, summary judgment was entered for Photobucket.com and the Kodak Imaging Network against Sheila Wolk, an artist that claimed that Photobucket was liable because several of her works had appeared on Photobucket. For example, see here for examples on the day this post was written. The case is styled Wolk v. Photobucket and was decided on December 21, 2011.
In UMG v. Veoh, Veoh allows people to share video content over the internet. The service is free and Veoh makes its money through related advertising.
The Digital Millennium Copyright Act ("DMCA") allows "service providers" "safe harbor protection" if the service provider: (i) does not have actual knowledge that the material on the system is infringing; (ii) is not aware of facts or circumstances from which infringing activities are apparent; (iii) upon obtaining actual knowledge acts expeditiously to remove or disable access to such infringing material; or (iv) does not receive a financial benefit in cases where the service provider has the right and ability to control such activity.
Veoh employed the standard methods of having its customers agree not to upload any infringing material and the customers give Veoh a license to use and display such material. When a video is uploaded, the software resident at Veoh's site automatically (i.e. without human intervention), breaks the video into 256 kilobytes chunks that facilitates streaming and converts the video into Flash 7 format. If the customer is a "Pro" user, the software further converts the files to Flash 8 and MPEG-4 formats. The software also extracts metadata to aid in the search function for the videos. No Veoh employees review videos before they are posted.
However, Veoh uses “hash filtering” software. When Veoh is aware of an infringing video and disables access to it, the hash filtering software automatically disables access to any identical video and prohibits any subsequently submitted duplicates. Veoh also used another filtering system that compares audio on a video to a database of copyright content and if it finds a match, the video never becomes available for viewing. After obtaining this software, Veoh applied it to their catalog of previously uploaded videos and as a result, removed more than 60,000 videos, including some that supposedly infringed on UMG’s copyrights. Despite the precautions, UMG and Veoh agree that some UMG copyrighted material is on Veoh’s site. The parties also agree that UMG never gave Veoh notice of any infringing material before UMG filed this suit.
Veoh asserted as an affirmative defense that it was entitled to protection under the safe harbor provisions of the DMCA. UMG alleged that Veoh was not entitled to such safe harbor because its activities were not “infringement of copyright by reason of the storage [of material] at the direction of a user”, that Veoh had actual knowledge of infringing acts or was “aware of facts or circumstances from which infringing activity [wa]s apparent and that Veoh “receive[d] a financial benefit directly attributable to …infringing activity” that it had the right and ability to control.
The court disagreed with UMG on all three issues.
UMG had asserted that the language required that the infringing conduct be limited to storage and that Veoh’s facilitation of access to the material went beyond “storage”. The court said the statute language was “by reason of storage” and that the language was clearly designed to cover more than “mere electronic storage lockers”. The court reasoned that if Congress had intended the safe harbor to extend only to web hosts, it would not have included the language “by reason of storage”.
The court followed a line of other cases that said that just because a defendant had been notified of some infringing activities that this put it on notice for other infringing activities. It was undisputed that Veoh removed all material for which it was put on notice and that it could identify from such notices, even though UMG had not provided any such notices.
The court further stated that the “right and ability to control” requires control over specific infringing activity that the provider knows about. “A service provider’s general right and ability to remove materials from its services is, alone, insufficient. Of course, a service provider cannot willfully bury its head in the sand to avoid obtaining such specific knowledge.” The court found that Veoh had not acted in such manner.
In the Wolk v. Photobucket case, Ms. Wolk is an artist that depends on her paintings and sculptures as her sole source of income. She alleges that Photobucket facilitates the infringing of her copyrights and is not entitled to the protections of the safe harbor.
In its analysis, the court found that Photobucket met the definition of a service provider because the court believed that the definition of service provider includes a “broad set of Internet activities”. Photobucket also had a policy that allowed copyright holders to submit a takedown notice, had made that policy available on its website and had acted to remove infringing material when given notice. It also found that Photobucket met the other requirements for safe harbor and dismissed Ms. Wolk’s pro se complaint.
Both of these cases allowed immunity from activities that go substantially beyond the mere storage of materials. Decisions of this type, which most likely accurately apply the legislative intent of the DMCA, would probably come down differently under the recently proposed SOPA legislation.
This will not be the last we’ve heard of these issues.
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resources around the country to facilitate in the creation and fostering of small companies. 
another case where anonymity is sought comes through the Northern District of California. In 
consequently, could be prevented by Autodesk.
Hart was a college football player that played for Rutgers. EA Sports incorporated Mr. Hart's likeness into several versions of its video games, including 
long and detailed decision
tattoo and Muhammad Ali's catch phrase have in common? They all serve to illustrate some aspect of intellectual property law.
er II. Mike Tyson, former heavy weight champion of the world and famous pigeon lover was in both. The tattoo on his face was featured prominently and in Hangover II, one of the actors ends up with an almost identical tattoo and this is shone on some of the advertisements for the movies. The tattoo design was originated by a tattoo artist in Missouri and the artist retained all rights in the design. He brought suit for damages for copyright infringement and for an injunction to stop the release of the film. In a preliminary hearing, the judge found that the artist had a likelihood of success in the trial and stated that a copyright could exist in the medium of expression here (Mike Tyson's face). The judge declined to issue an injunction against the release of the film by finding that damages would be sufficient remedy. This ruling induced the parties to settle and while the settlement is confidential it is likely that as part of the settlement, the movie company will alter the advertisements to obscure the similarities in the tattoos.
people advising him got a trademark on the phrase. Kobo, Inc. has been using the phrase as a part of its advertising for its electronic reader and using it prominently in several print advertisements. Ali's licensing company has filed suit, alleging that this improperly suggests that Ali endorses the product and since he apparently has not been paid to do so, it is apparent that he doesn't endorse it. 
This bill passed the Senate by a vote of 95 to 5, so given the political climate in Washington today, you almost have to assume that it doesn't do much, but that might be unfair. Some of its features include:
maintenance for Oracle software. Unfortunately, TomorrowNow chose to reduce its operating costs by pirating a bunch of Oracle software and then using it in its business. 
information 
Boop" character was a "functional aesthetic component" of a product upon which it was printed and therefore, like 
Names and Numbers (ICANN) was proposing opening up the top level domain game to everybody. ICANN has now 
bill, but it could have some ramifications for companies that enlist language that purports to let contracts automatically renew, unless one of the parties takes some affirmative action..jpg)
a settlement with a Disney subsidiary for violation of COPPA (Children's Online Privacy Act of 1998) and why paying attention to the construction and organization in the drafting of a contract can be extremely important.
and what use can be made of such information. The Federal Trade Commission accused Playdom, an online game provider, of violating COPPA by collecting information from children without parental consent and by violating its own stated privacy policy. Playdom is a subsidiary of the Disney company. The 
her employment agreement. The Court found that she violated the obligation of loyalty but not the non-solicitation clause. Her contract had an attorneys' fee provision where the prevailing party is entitled to its fees. The real estate firm prevailed on the breach of the duty of loyalty but the employee prevailed on the issue about non-solicitation. The attorneys' fee provision was included in the non-solicitation clause and gave fees to the party that prevailed "hereunder". Since the "hereunder' was in the particular clause, the Court reasoned that it applied only to that clause and not the contract or the relationship as a whole. Hence, the employee was entitled to her attorneys' fee, which were approximately $1,000,000, even though she had "prevailed" on only half of the issues. In the lessons learned department for us attorneys, if you intend to make a provision apply to the contract as a whole and not just a specific clause, move the provision into a section of its own or make it very clear that it is applicable to the whole contract.
fendant from using the trademark as a search term going forward..jpg)
generally enjoy safe harbor protection from copyright infringement under the Digital Millennium Copyright Act and protection from liability for information provided by third parties under Section 230 of the Communications Decency Act, but does that protection extend to protection from contributory trademark infringement liability? Courts increasingly have answered that question in the negative.
the area of corporate law. The Superior Court of Delaware has now given approval for the expansion of the tort of tortious interference with a contract right.
and could certainly have some impact on consulting firms in the technology arena.
we have been talking about lately, unless you are the one depending on trade secret protection. 
which allowed you to view streamed videos from the cloud via a DVD that you rent played on a DVD player that you rent. Of course, you never see or possess either, given that they reside somewhere in a Zediva leased data center.
You may have read recently that ICANN (Internet Corporation For Assigned Names and Numbers) has approved the 
of videos, since there is no "sale" involved. We surmised that this would increase costs because Netflix would have to license the videos from the copyright holders rather than just buy the DVD and rent it out.
stream the video over the internet to the subscriber's device. So, according to Zediva, it is like renting the DVD and player and the player just has a really long cord (with the cord serving as a metaphor for the cloud). Surely, says Zediva, that must be allowed under the "first sale" doctrine. If DVD copyright holders take umbrage at this arrangement, they might say that the "first sale" doctrine requires physical transfer of the medium and "Don't call me Shirley". (gratuitous Leslie Nielsen homage)
intellectual property attorneys, a hypothesis not yet proven) would read the title of this post essentially as follows: Blah, blah, blah, Betty Boop, blah, blah, blah, blah.
Department of Commerce and others.
plaintiff here, Allvoice, was an U.K. company with an office in the Eastern District of Texas but with no employees there or anywhere in the U.S. Calls there were transferred to their office in the U..K. Allvoice was incorporated in Texas but had done so 16 days before the suit was filed. Forum shop much? 
domain names. ICANN (The Internet Corporation for Assigned Names and Numbers) has proposed a new procedure to allow additional entities to act as domain registrars. Included in this was the opportunity to propose an infinite variety of domain extensions and not be limited to the ones heretofore approved (and originally suggested) by ICANN. 
seeking Social Security benefits. Disability Group, Inc. is a competing law firm involved in the pursuit of the same clients. In 2006, Disability Group purchased the words "Binder and Binder" as a Google AdWord. As a result, some Google searches for the law firm Binder and Binder resulted in having Disability Group appear high in the sponsored search rankings. Binder and Binder had registered trademarks for the use of their name. Binder and Binder brought suit against Disability Group alleging: (i) infringement of a registered trademark; (ii) false advertising; and (iii) unfair competition.
of substantial time since the infringement (2006).
variety, e.g. .com, .edu, .org or the country code variety e.g. .AQ (Antartica), .CO (Columbia) or .VA (Vatican City). There are presently 21 generic top level domains and approximately 250 country code top level domains.
old grandmother and a 26 year old entrepreneur (who both apparently loved dogs). Their business grew over the years and one of their products is the "
patents in 2010. This is 31% more than was granted in 2009 and 29% more than granted in the next busiest year (2007). Granted applications took a big jump around 1998 when software patents began to be granted with more regularity (thanks, 
annoying "Smiling Bob" and a plethora of thinly disguised puns and props to indicate that the supplement would increase the size, durability and apparently the appearance of your external genitalia. Imagine our surprise when the makers and distributors were accused of deception, fraud and a number of other transgressions, including money laundering. During the investigation, the government compelled an internet service provider to release e-mails more than 180 days old without getting a warrant. The government relied on a provision in The Stored Communications Act 18 U.S.C. §§ 2701 et seq., which allowed for such shenanigans when the e-mails were of such an age.
night "raves" or for extended sexual encounters. In this case, the defendant Diaz attempted to sell Ecstasy to a police informant. A sale was made, an arrest ensued and Mr. Diaz's cell phone was taken from his person. An hour and a half later, back at the station, an investigator looked at text messages on the phone and found the text: "6 4 80". This apparently means that the defendant offered to sell six tablets for $80. The defendant was shown the text and promptly confessed..jpg)
application and 
programmers to try to promote the sale, play and mention of such CDs. UMG does not charge for the CDs but it does put notices on the CDs. 
opening the notebook, finding her password and using it to access her gmail account. Supposedly he found that she was in fact, having an affair with her second ex-husband. Our hero is hubbie number 3. Hubbie number 2 (the one now getting the action) had been convicted of beating the wife in question in front of her child (the progeny of hubbie number 1). Still with me? Our hero (hubbie number 3) was concerned about the possibility of continued abuse and took the information he found to hubbie number 1. The wife, of course, found out, contacted the prosecuting attorney and hubbie number 3 (our hero) is now charged with violating the following statute:
buy a large number of DVDs of a particular title from the distributor, usually at at discounted price and mail them out to subscribers. Netflix could do this free of any copyright claims because of the First Sale Doctrine. Netflix also was quick to recognize the utility and convenience of providing such material in the form of streaming video through Roku, XBox and other platforms. The problem arises in that .jpg)
he U.S. at a discount, imported them and began selling them at a price lower than Omega sells them domestically. Omega sued Costco alleging copyright infringement. Costco replied that they were not copyrightable and even if they were, the First Sale Doctrine applied. Omega said, "Not so fast, Costco" (or words to that effect), "there is an image of a globe on the back of each watch that is half a centimeter in diameter and that gives us copyright rights". Costco, in a haughty rejoinder, said "Well, so's your Mom and we can do this because of the First Sale Doctrine" (I made up the Mom part). Omega then pointed out that the Copyright Law states in pertinent part that the First Sale Doctrine set out in the copyright act applies only to copies "lawfully made under this title" [Section 109(a)]. Omega said since the watches were made outside the U.S. they were not "made under this title" and hence no First Sale Doctrine. 
M contained a software program that was licensed and not sold, then the First Sale Doctrine also does not apply and resale of the used discs can be prevented under the copyright provisions. The case was Vernor vs. Autodesk and .jpg)
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The Low-Profit Limited Liability Company (L3C) is the newest entity to be recognized by at least eight states and will probably be available in 
The House Oversight and Government Reform committee is set to 