Keyword advertising raises interesting questions beyond the run-of-the-mill trademark infringement and unfair competition issues typically discussed. For instance, if a sponsored ad can be clicked in three separate countries, can the Courts of each of those countries take jurisdiction to hear and determine a dispute? The Court of Justice of the European Union has given a strange answer to this question, which you’ll probably want to know about if you, or your competitors, do any business online. Continue reading »
The Second Circuit Court of Appeals has just delivered its Opinion in Viacom v. YouTube, and it has held, unanimously, that YouTube is not entitled to summary judgment on Viacom’s $1bn copyright claim. The decision reverses the Southern District of New York’s finding that YouTube didn’t need to go to trial to determine whether it was entitled to safe-harbor protection under the DMCA.
The decision is below. Commentary will follow in due course.
On Saturday, March 24, 2012, Pinterest emailed users to say it was updating its Terms of Service. Make no mistake – this is a pretty significant re-write, and kudos to Pinterest for making both sets readily available so we can compare and contrast them. The “proposed” terms come into effect on April 6, 2012 and while they attempt to bring clarity, there are areas that will concern Users, particularly if they are artists themselves.
YouTube does not cite the relevant DMCA language in its latest series of arguments because it has no answer to it, according to the reply letter brief filed yesterday in the Second Circuit by Viacom and The Football Association (et al.). In October, the parties in Viacom’s $1bn copyright lawsuit against YouTube for historic infringements of its audio-visual works were ordered by the Court to submit further arguments on: 1) whether “storage” under the DMCA includes syndicating files to third parties on commercial terms; and 2) how knowledge of “specific” URLs can be mandated in the DMCA’s “red flag” regime, and they have now completed their filings (here and here). Viacom is seeking reversal of a 2010 decision in which District Judge Louis L. Stanton, sitting in the District Court for the Southern District of New York, sent Viacom’s lawsuit to the cutting room floor without a trial.
The briefs make for interesting reading, and this was certainly Viacom’s most aggressive submission to date. There was plenty in both sides’ filings that I have not found persuasive, or have wholeheartedly disagreed with, but two points have clearly come out. Continue reading »
This is pretty big breaking news from New York. After last week’s oral argument in Viacom v. YouTube (2d. Cir. 10-3270), the Second Circuit has reportedly asked YouTube two questions regardings its affirmative defense under 17 U.S.C. § 512(c)(1) (the DMCA) to Viacom’s copyright infringement claims.
According to Twitter GC @amac, from whom I got the story, the Second Circuit has asked:
- whether and how the red-flag knowledge provision [§ 512(c)(1)(A)(ii)] would apply under the Defendants’ “specific” knowledge construction of § 512(c)(1)(A); and
- whether YouTube’s “syndication” of videos to third parties falls outside the scope of safe harbor protection for activities that occur “by reason of . . . storage at the direction of a user” under § 512(c)(1).
The timing for this could have been better though; I submitted an article on the proceedings at 2.00am this morning, which will now have to be amended. Oh well, at least these were the two issues I had thought were going to be difficult for YouTube.
No sign of the questions having been published online yet. As soon as they are I’ll post additional details here.
UPDATE: The Order is now available below, courtesy of Justia. The questions are as stated above. YouTube has until November 1, 2011, to provide its brief; Viacom and the FA must respond by November 8, 2011. The storage question was pretty much skipped over in oral arguments, so I’m pleased it’s being looked at in more detail now (even if the limited scope of the question means the Second Circuit is already with YouTube regarding all acts other than syndication). I thought Viacom’s points about knowledge (i.e. YouTube’s interpretation renders neighboring parts of the statute redundant, so must be wrong) had a lot of force in the briefs and at the hearing, but I’m sure YouTube will have a good response already prepared. Looking forward to reading them next week…
The DMCA should allow businesses to ignore their own conclusions about the extent of copyright infringement on their systems until a copyright owner notifies it of individual, specifically identifiable materials on the site, according to YouTube at today’s summary judgment oral arguments at the Second Circuit in Viacom v. YouTube. In other words, service providers wanting to grow their business should be allowed to “wind it up” and let it go unless and until someone forces them to stop what they are doing. Viacom disputes this, saying such an approach ignores the requirements of §512(c) and would leave copyright holders with the “single, grossly inadequate tool” of takedown notices, which can only operate after the fact.
The arguments before the Court were focussed on whether there was a material factual dispute as to YouTube’s protection under §512 DMCA, or whether, construing all the allegations about YouTube “welcoming” copyright infringing clips to the site in the light most favorable to Viacom, the District Court’s judgment should be overturned and Viacom’s $1bn claim should proceed to trial.
The hearing was good natured, for the most part, but the frustration that must be felt by the parties was evident in those listening in in the pews of the Ceremonial Courtroom. Counsel for the Premier League said YouTube’s arguments required content owners to engage in an “endless whack-a-mole” of takedown notices, Counsel for YouTube called Viacom’s arguments on material fact “just plain crazy”, while Counsel for Viacom described YouTube’s argument that Viacom posting promotional material undermined their position on YouTube’s knowledge was “a red herring”.
Viacom came to Court hoping to overturn the District Court’s finding that, as a matter of law, YouTube is entitled to protection under §512, and that Viacom’s claims for direct, contributory and vicarious liability could not proceed. There was no real discussion about Viacom’s claims at this hearing, and even the §512 argument quickly focussed in on its standard of knowledge and the relationship between §512(c) and §512(m). Financial benefit and “right and ability to control activity” got a mention, but what the statute means by “storage” was not explored. Viacom will hope this indicates that the bench was with them on the other points so that further argument was not necessary. Certainly, the judges seemed to wonder how a factual assessment could be avoided, but YouTube was adamant: even if Viacom could prove all its allegations, as a matter of law generalized knowledge of infringements and a hands-off approach to their continued presence on YouTube does not take them outside the DMCA regime. A sort of “we might have created a monster, and ‘welcomed’ others feeding it, but unless Viacom tells us what foods it should not be eating we have no obligation to do anything”.
So, watch this space, though I think it will be some time before the Second Circuit issues its Opinion. The arguments were finely balanced today, but I thought that Viacom prevailed (just) on paper and that Counsel for the Premier League (et al.) was very persuasive, particularly given the high standard required for summary judgment and the bad taste left by some of the documents cited by Viacom in its brief and to which the judges drew attention. There was a sense that summary judgment was just a step too far, even though YouTube may well prevail at a trial. Certainly, no-one disputed that damages would be almost impossible to accurately calculate, which lead to some not-too-subtle hints, including from the bench, that a settlement might be a good outcome.
I will be publishing a detailed note on the case so far, including a review of today’s oral arguments, in the Winter edition of the New York State Bar Association’s IP Journal “Bright Ideas”. This post may also be updated throughout the day so please check back or follow me on Twitter.
As any celebrity – and certain governments and law firms – will tell you, there are risks as well as benefits in being connected to publicly accessible networks. Individuals and collectives such as Wikileaks, Anonymous and LulzSec have embarrassed the US government, the law firm ACS:Law, and now Scarlett Johannson and Jessica Alba by exposing their private, err, “data” online for public consumption.
This is not a new phenomenon, but still far few of us take data theft and cyber (or “digital”, if the word “cyber” scares you) threats seriously. Perhaps it’s because we don’t really understand them. Hacks happen for different reasons – which is perhaps the best insight into how to prevent them in the first place – different targets experience different damages, and different victims have different tools at their disposal to try to fix what has gone wrong. For example, secretions of government data are often carried out in the name (or at least under the pretense) of civil rights and accountability; disclosures of usernames and passwords, credit card details, and private photos, on the other hand, are often carried out opportunistically to humble a giant or for no more than purient voyeurism.
Brand owners are likely to be unimpressed by Google’s latest update to its AdWords program, which gives purchasers of third party trademarks increased prominence for their ads. The change, which is already in operation, means “organic” search results will be pushed further out of view by sponsored ads, whose format now looks like some categories of organic results. Continue reading »
A District Court in New York has become the latest to find that using a competitor’s trademark in Google’s AdWords program can be trademark infringement. District Judge Roslynn R. Mauskopf found that the Defendants’ selection of “PILLOW PETS” and similar marks as a trigger for Google Ads is likely an infringement of the Plaintiff’s registered trademarks “MY PILLOW PETS” and “IT’S A PILLOW, IT’S A PET”, and granted Plaintiff’s motion for a preliminary injunction. The case is CJ Products LLC v. Snuggly Plushez LLC, 11-CV-0715 (RRM)(SMG), NYLJ 1202512398696, at *1 (EDNY, Decided August 22, 2011). Continue reading »
Fashion designers, as a class, should gain only limited IP protection, according to Judge Victor Marrero of the Southern District of New York. Giving judgment in Christian Louboutin SA et al v. Yves Saint Laurent America, Inc et al., 1:11-cv-2381 (NYSD August 10, 2011), Judge Marrero acknowledged that the world famous Louboutin house has acquired extensive reputation and goodwill in their red soles – to the point that said soles have acquired a secondary meaning of designating Louboutin footwear only – yet ruled that this meant nothing because their goods are items of fashion.
The decision is curious since Judge Marrero relies, at least in part, on a comparison between apples and oranges. Continue reading »