Pinterest’s New Terms Expand Indemnity, Ban Commercial Use, Prevent Users Suing Cold Brew Labs

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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.

Key points.

  1. The controversial Indemnity language has been expanded, not limited.
  2. Commercial use of the Site is now banned completely.
  3. Users must forfeit their rights to fair use of Pinterest Content, but User Content is fair game.
  4. Users cannot sue Pinterest, either individually or as part of a class action.
  5. There are some hints at the future innovations.

Continue reading »

Happy New Year!

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New Year fireworksA quick note to mark the passing of 2011 and the start of 2012. Thank you all for reading and commenting here (and on Twitter) on the stories that have been reported on these pages. I’m looking forward to posting much more in 2012.

There has been plenty to contemplate in the last 12 months and we look forward to new challenges and opportunities in the months that lie ahead.  Several big IP cases look likely to make their mark next year, including Viacom v. YouTube, The Authors’ Guild v. Google and NLA v. Meltwater, and we may begin to see the fallout of the (UK) Supreme Court’s ruling that foreign copyright claims can be adjudicated in the English courts.

Whatever plans you have for next year, I hope they will be realized, that you enjoy the chase, and that you will be challenged by the work that you do.

Streaming Is Not Renting

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Silicon Valley DVD-rental company Zediva has suffered a major blow to its business, which is on the wrong end of an injunction from the District Court in Los Angeles.

Zediva was sued by the MPAA for the unauthorized streaming of movies after it began taking “rental” orders for DVDs which its employees would pick off a shelf and stream online to the customer that had “rented” it.   That way, argued Zediva, it was only providing a physical rental, which doesn’t require permission provided that the physical copy being rented has been lawfully made and purchased.  The parties have settled the dispute, but not on terms that will please Zediva’s investors, with the result that if Zediva wants to continue streaming movies it will have to obtain streaming licenses, and, presumably, compensate the movie studios for past infringements.

None of this is surprising, and this is the only conclusion the Court could have reached.  Unlike the Italian escort website, no doubt, though, there will be some tough questions being asked by Zediva’s investors.

Movie studios win the lawsuit against Zediva.

Viacom Counters YouTube’s “1-in-a-billion” Red Flag and “Unlimited Storage” Arguments

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Red flag, or  is it?

YouTube admitted that it could be a flag, but said only Viacom could confirm its color

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 »

Viacom’s Reply to YouTube DMCA Additional Arguments Is In

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Fresh off Justia this morning is Viacom and The Premier League’s reply to YouTube’s court-ordered letter brief, as covered here.  A copy of the filing in the Second Circuit is below and is well worth a read.  Comments will follow later today.

Viacom v. YouTube – Pls.’ Post Argument Brief (10-3270)

Viacom v. YouTube – YouTube’s Post Argument Brief on “Storage” and “Red Flag Knowledge”

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Here’s YouTube’s post-argument brief on the extent of the “storage” exemption from liability under the DMCA, and clarification of how their assessment of  knowledge under the statute can operate in a “red flag” regime.  Comments will follow in due course, but an initial review suggests a slight rowing back from the position adopted at the hearing, but no real surprises.

File obtained via Justia.

 Viacom v. YouTube – YT Post Argument Brief (10-3270)

UPDATED: Viacom v. YouTube: Second Circuit Asks YouTube To Clarify Its Position On Storage and Red Flags

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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:

  1. 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
  2. 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).

House!

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…

Second Circuit Order for Further Argument in Viacom v. YouTube

Viacom v. YouTube Appeal: “Endless whack-a-mole”, “just plain crazy” and “red herrings”

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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.

Now We Know Who Will Hear Viacom v. YouTube Appeal in Second Circuit

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Have you been wondering who is going to decide Viacom’s Appeal against Judge Louis Stanton’s summary judgment opinion in their $1bn lawsuit against YouTube?  Me too; and now we know.

The Second Circuit has this morning updated its calendar for next week and informs us that the Panel hearing the appeal at the Federal Courthouse on Pearl St next Tuesday (October 18, 2011) will be Miner, Cabranes and Livingston C.JJ.

So, Judge Denny Chin, who presided over Bernie Madoff’s criminal trial, sentencing him to the maximum 150 years in prison, as well as claims involving the Naked Cowboy, and who earlier this year all but ended settlement prospects in the Google Books litigation, will not be participating in this round of litigation.  Google might be pleased about that, given some of the comments made in his GBS order. Continue reading »

More #badIPnews

IP to-do list

Good intentions, but...

With the increasing importance of intellectual property on companies’ balance sheets, and the rise in litigation between them, the law of averages dictates that we’ll be noticing more mistakes in articles discussing the nature of IP and its territorial limits.  You know the sort of thing I mean: bloggers who note how someone is patenting their trademark; Britons telling other Britons that their use of a copyright work is ‘fair use’ (no such defense exists in the UK, yet).

But occasionally some of the big players get it really wrong too. Last month, an employee at the BBC defended their use of photographs and text without permission by telling an aggrieved netizen that:

Twitter is a social network platform which is available to most people who have a computer and therefore any content on it is not subject to the same copyright laws as it is already in the public domain.

That’s an obviously absurd argument, and it was retracted and replaced with a (slightly) better attempt at explaining how the BBC’s practices comply with local IP laws (though it’s questionable whether that aim has been met, even though it may be sincerely pursued).

I’ve also just noticed that The Telegraph is getting in on the act too, with this gem about Apple and Samsung‘s ongoing worldwide litigation over the Galaxy Tab and iPhone 5:

While the Galaxy Tab case was about intellectual property, the hypothetical injunction against the iPhone 5 would be a patent infringement claim.

Err, right. This is a doubly strange comment since patents are usually what most people cite when asked to name an intellectual property right.

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Anyway, there have been so many examples of this type of misinformed reporting recently that I thought we should establish a Twitter hashtag to more easily identify these stories so that we could ask their authors to correct their mistakes. This is especially important when the offending party is a trusted media outlet, such as the BBC or NPR (did you listen to their ‘When Patents Attack’ podcast? I still can’t quite believe what I heard).

So the hashtag we (it was suggested by @TTABlog) have come up with is #badIPnews. Self-explanatory, if not very punchy, but it works for these crowd-sourcing purposes.

So if you come across an article that misrepresents IP, or just gets it plain wrong, get onto Twitter and let us know via the #badIPnews hashtag!