Tag Archives: DMCA

No safe harbor for this shark.

Originally posted 2013-04-29 12:04:55. Republished by Blog Post Promoter

Matthew David Brozik

One groovy shark.

Generally, one doesn’t expect to find copyright decisions of note in state courts, but every so often one will crop up. One really doesn’t expect to find interesting decisions on state-court motions to dismiss a party’s fourteenth affirmative defense… and yet here we are, reading with great interest the April 23, 2013, decision of the New York State Supreme Court, Appellate Division, First Department in UMG Recordings, Inc. v. Escape Media Group, Inc.

Defendant Escape Media Group owns and runs an online music streaming service called Grooveshark, where users can upload audio files, usually songs, to an archive maintained on Escape’s servers; other users can search the servers and stream the files to computers and other devices. The setup is designed to be on the up-and-up, though; it isn’t 1999 Napster. Escape “has taken some measures to ensure that Grooveshark does not trample on the rights of those who own copyrights in the works stored on its servers,” reads the First Department decision. “For example, it is a party to license agreements with several large-scale owners and licensees of sound recordings. In addition, it requires each user, before he or she uploads a work to Grooveshark servers, to confirm ownership of the recording’s copyright or license, or some other authorization to share it.”

Alas! Read More…

Best of 2009: The DMCA and the search engine

DMCA 1998Posted on August 6, 2009.

Traverse Legal:

Mary Roach has a great post at CircleID on an area that we have talked about extensively, namely, copyright takedowns under the Digital Millennium Copyright Act.  Mary’s post covers the more specific strategy of sending takedown notices to search engine providers, such as Google, Yahoo, and MSN, to effectively reduce access to stolen creative materials.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

That’s worth checking out.  How does it work?  As Mary writes,

[R]ather than identifying the infringing copyrighted material itself, rights owners must instead identify the search result or directory page which links to a webpage containing the infringing material. For example, this would require providing the keyword or keyword phrase used in a search or directory query, plus the URL(s) which point to the infringing websites in the DMCA complaint.

You can just imagine the bells going off in my head when I read that formulation.

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YouTube, the DMCA and politics — again

Originally posted 2008-10-15 21:03:04. Republished by Blog Post Promoter

Slashdot reports:

It appears that CBS and Fox have submitted DMCA takedown notices to YouTube for videos from the McCain campaign. The campaign is now complaining about YouTube’s DMCA policy making it too easy for copyright holders to remove fair-use videos. I hope they pursue this by addressing flaws in the DMCA.

The McCain complaint is based on the fact that YouTube will wait at least 10 and up to 14 days before re-posting a video, upon the posting party’s compliance with the counter-notice procedure under the DMCA — even where, as appears to be the case here, the DMCA complaints are not meritorious.  That’s a long period for a political campaign to wait between now and election day, if in fact you believe political videos on YouTube actually matter.  The campaign is asking YouTube to establish special procedures for videos posted by official political campaigns.

Maybe.  This would be a more compelling point if it appeared that the DMCA were not being utilized evenhandedly by these MSM outfits.  Is there any evidence to that effect, such as outtakes from CBS and Fox (yeah, after all — we’re talking about Fox here) utilized by Obama people and not resulting in DMCA notices?

We’d figured YouTube would get back to them in, like, 10-14 days.  But we were wrong — it didn’t take 10-14 days!  YouTube slapped down the McCain campaign’s request almost immediately!  Declan McCullough:

YouTube has rejected a request from John McCain’s presidential campaign for a legal review of political videos that are the subject of deletion requests.

The Google-owned company said Tuesday evening in a response to McCain’s organization that it could not give campaigns special treatment and that it was “not in a position to verify” whether infringement complaints made under the Digital Millennium Copyright Act were legitimate or not.

“Not in a position to verify”?  Lame.  Here’s coverage from TechDirt, too (via Andie).

UPDATE:  Glenn Reynolds:  “But it’s also amusing to see McCain suddenly notice the dangers of politically-throttled speech.”  Yes, true!

UPDATE:  A good analysis of the trademark issues from Paul Alan Levy, via Overlawyered.

DMCA abuse, YouTube, politics and blogs? Same old, same old (UPDATED — but still same old)

My friend Patterico has done it again — but, then again, it has been done, as I’ll remind shortly.  The scoop for today?  In a post about one Songhai “Sunny” Armstead, he links to a video on YouTube of some embarrassing campaign comments — which was promptly pulled down by YouTube per a DMCA claim by someone named Gail Copeland, to wit:

In the post I did about Armstead’s disgusting views, I linked the full video of her remarks. When you click on the YouTube URL for that video now, you see this:

Screen Shot 2014-05-22 at 8.12.35 AM

Looks like I got someone’s attention, huh?

So who is Gail Copeland, the person who filed the copyright claim? Well, for one thing, she appears to be a supporter of Armstead’s. (Surprise!)

And all that will have to be worked out.  Surprisingly, to some extent, the fact that it’s so easy to quash expression by a unilateral claim of copyright infringement is something that should have been worked out some time ago.

It was just this, as those who did not come in late will recall, the impetus for the founding of the old Media Bloggers Association.  There the New York Times abused the DMCA by yanking a parody of its correction page off blogger Bob Cox’s server.  I helped out a little.  That’s all gone now, as is Bob’s blog, but the whole thing is preserved for the ages at this link.

Problem solved?  For Bob, yes, but not for the next person to say something others did not want heard — especially in the political realm, as I explained to America per the video at right, which was actually a variation of the DMCA problem involving a spurious claim of trademark infringement that led to a politically-motivated takedown:
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Likelihood of baloney

Originally posted 2007-05-10 17:53:03. Republished by Blog Post Promoter

IP Law Chat chats about how “paranormalist” charlatan Uri Geller got all bent out of shape over Brian Sapient, a member of the “Rational Response Squad,” posting a video debunking Geller’s nonsense on YouTube. Using the last refuge of scoundrels — a DMCA takedown notice (the video incorporated a few seconds of Geller’s own media) — Geller had the video removed.

The EFF has now responded on Sapient’s behalf to the effect that Geller should just plain get bent. They’ve sued his company for misuse of the DMCA. Yay.

UPDATE:  Resolved.

Digg this

Originally posted 2007-05-02 18:36:24. Republished by Blog Post Promoter

Encryption key Dugg.

UPDATE: Here’s more, from no less than Ed Felten (via Instapundit). If you need a program to follow what the heck’s going on here, try Ben Manevitz.  And if you don’t mind a brainache, read this from Marty.

DMCA takedown backlash

Originally posted 2007-03-23 00:04:52. Republished by Blog Post Promoter

The EFF is suing Viacom over their DMCA takedown notice for a Stephen Colbert parody clip on YouTube which EFF says is non-infringing. Viacom sent out about 37 million of those puppies, based on the well known legal-analytical principle of “what the heck!”

But you’re not supposed to do that under the DMCA.

EFF has annoyed me in the past with its unfathomable selectivity about which cases to take, and which cases to ignore. (Okay, like mine.)  But I have to admit, this works for me.

DMCA – Dumb Management of Copyright Accusations?

Fleet week! 26

Not every big stick makes sense in every context

Idiotic DMCA takedown notices:  They’re all the rage.  Tim Bukher links to this item from Mike Masnick, riffing on some of the “best of” DMCA takedown notices published by Google and initially combed through for brickheadedness by TorrentFreak.  Meanwhile, Jonathan Bailey anoints GoDaddy.com “DMCA Overreactor Extraordinaire.”

Follow that?

Tim notes that this may be the by-product of “automated” or otherwise outsourced-to-non-lawyers IP enforcement programs or firms.

That’s giving lawyers a lot of credit for non-dumbness, wouldn’t you say?

 

 

 

The DMCA and the search engine

Traverse Legal:

Mary Roach has a great post at CircleID on an area that we have talked about extensively, namely, copyright takedowns under the Digital Millennium Copyright Act.  Mary’s post covers the more specific strategy of sending takedown notices to search engine providers, such as Google, Yahoo, and MSN, to effectively reduce access to stolen creative materials.

That’s worth checking out.  How does it work?  As Mary writes,

[R]ather than identifying the infringing copyrighted material itself, rights owners must instead identify the search result or directory page which links to a webpage containing the infringing material. For example, this would require providing the keyword or keyword phrase used in a search or directory query, plus the URL(s) which point to the infringing websites in the DMCA complaint.

You can just imagine the bells going off in my head when I read that formulation.

DMCA 1998There are a lot of “effective” things you can do with DMCA takedown notices, and not all of them are legitimate.  And unlike trademark enforcement, the DMCA is “automatic” or self enforcing:  The recipient of a DMCA takedown notice must comply first and complain second, or else.  You don’t get to do to a neutral first; the tradeoff, supposedly, is the “safe harbor” that exempts third parties such as ISP’s from contributory infringement liability.

Ironically, the safe harbor was why, as part of an International Anti-Counterfeiting Coalition task force years ago, I went to Washington and lobbied Congress not to extend DMCA-type power to the Lanham Act.  Trademark, we told the legislators and their staffs, is not copyright, for all kinds of reasons.  Our concern was, simply, to make sure that eBay did not get a legislative bye from contributory liability in connection with all the sales of counterfeits that fatten its coffers.  Little did we know that this would hardly make a difference, seeing as how U.S. courts in the subsequent years have (so far) consistently ruled that eBay’s fuzzy awareness of counterfeiting doesn’t reach the level of legal “knowledge” sufficient to impute such liability anyway.

Ron Coleman

These days my interests in the matter are somewhat different.  The inclination toward suspicion comes naturally to LIKELIHOOD OF CONFUSION®, of course, but indeed on reading the original post, I wonder, why does the CircleID article keep referring to “brand owners” when we’re talking about copyright?  Is copyright really about brand protection?  Isn’t that trademark’s job?

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