Tag Archives: DMCA

No safe harbor for this shark.

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! Escape “concedes that it cannot ensure that each work uploaded… is a non-infringing work.” But Escape has operated Grooveshark under the assumption that it is shielded from infringment claims by copyright owners by the “safe harbor” provision of the Digital Millenium Copyright Act, 17 USC § 512. And why not?

Because, counters the plaintiff, which owns the rights to many popular recordings uploaded to Grooveshark, many of which were made prior to the all-important date February 15, 1972: When the Copyright Act was amended in 1971 to include sound recordings, Congress expressly extended federal copyright protection only to recordings fixed on or after that date. So, by permitting recordings fixed earlier to be shared on Grooveshark, Escape infringed on UMG’s common-law copyright rights, and the DMCA—the safe harbor provision of which is raised in the defendant’s fourteenth affirmative defense—provides no shelter.

In the trial court, Judge Kapnick denied UMG’s motion to dismiss Escape’s fourteenth affirmative defense, so UMG appealed that denial, making its argument to a more sympathetic Appellate Division panel. “Initially,” that panel opined, “it is clear to us that the DMCA, if interpreted in the manner favored by [Escape], would directly violate section 301(c) of the Copyright Act.” That is, the section that provides: “With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this Title until 2067.” (Originally 2047, but extended by Congress in 1998). If the DMCA had never been enacted, UMG would have been able to sue Escape in New York State court to enforce its rights in and to the recordings at issue—as soon as it became aware of the posting of those songs on Grooveshark. If the DMCA applies, however, UMG’s right to immediate action is “eliminated.” “Indeed, the only remedy available to UMG would be service of a takedown notice…. This is, at best, a limitation on UMG’s rights… violative of section 301(c).” And that’s not allowed.

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.

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?

 

 

 

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.