I’m really pleased to have had my review of the Court of Justice’s seminal UsedSoft v. Oracle decision published by the prestigious Society for Computers and Law. Click the image to go there.
I haven’t been able to write here for some time, but I have been writing elsewhere. Here’s a list of my recent copyright articles, with links. A list of my recent trade mark publications is here, and there’s a full list of all publications here.
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.
A 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.
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.
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 »
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.
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.
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…