Friday, December 23, 2011

"Hitler Reacts to SOPA"

Sooner or later, someone was bound to do a Hitler "Downfall" parody about SOPA.

Best humorous line: "Don't cry. Disney owns the rights to that emotion."

Best serious line:  "Piracy is a service problem.  The way to defeat piracy is to provide a better service than the pirates. . . . You don't get to destroy the Internet because it doesn't fit your business model!"

Tuesday, December 20, 2011

UMG v. Veoh Affirmed!

Today the Ninth Circuit affirmed UMG v. Veoh, holding that Veoh's user-generated content website is entitled to the "safe harbor" protection of 17 U.S.C. § 512.  This is great news for the Internet.  I'll update this later to provide an analysis of the opinion.

UPDATE:  I first wrote about this case back in May, when I reported on the oral argument in the case -- see that link for details.  Briefly, UMG v. Veoh is about UMG's claim that Veoh's user-generated content (UGC) web site contains copies of UMG's copyrighted music, and that Veoh should be secondarily liable when its users post allegedly infringing music on the Veoh site.  The trial court had granted summary judgment to Veoh on the grounds that it was immune from suit since it complied with the “safe harbor” notice-and-takedown procedures of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c).  The case raises many of the same issues as the Viacom v. YouTube case presently pending in the Second Circuit Court of Appeals, where the trial court also granted summary judgment to YouTube's video service, which is similar in many respects to Veoh's service.

The Ninth Circuit affirmed Veoh's safe harbor under § 512 on all relevant issues:
  • "Storage at the direction of a user": "By its terms, § 512(c) presupposes that service providers will provide access to users’ stored material, and we would thus contravene the statute if we held that such access disqualified Veoh from the safe harbor."  On this issue, the Court cited EFF's amicus brief (which I co-authored): "As amici note, these access activities define web hosting — if the web host only stored information for a single user [as UMG argued], it would be more aptly described as an online back-up service."  The Court thus agreed that Veoh stored content at the direction of a user.  Storage "encompasses the access-facilitating processes that automatically occur when a user uploads a video."
  • The "knowledge" requirements: UMG argued that Veoh's general knowledge that there were music videos on its web site meant that Veoh had knowledge of alleged infringing activity.  The Court disagreed for several reasons.  First, "As an initial matter, contrary to UMG’s contentions, there are many music videos that could in fact legally appear on Veoh. . . . Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not."  Thus, the Court held that "merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one’s services could be used to share infringing material, is insufficient to meet the actual knowledge requirement under § 512(c)(1)(A)(i)."  Instead, the statute requires "specific knowledge of particular infringing activity."
  • No requirement to filter: The Court declined to require that a service provider like Veoh was obligated to implement filtering technologies. The Court rejected plaintiffs' argument that "Veoh should have taken the initiative to use search and indexing tools to locate and remove from its website any other content by the artists identified in the notices."
  • The financial benefit and control requirement: The Court held that "the 'right and ability to control' under § 512(c) requires control over specific infringing activity the provider knows about."
  • The Court rejected UMG's argument that proof of vicarious liability would automatically disqualify a service from the safe harbor.
This is a big victory for service providers, user-generated content sites, the viewing public, and the Internet generally.

Other posts discussing the case include those by EFF, Techdirt, the Hollywood Reporter, the Courthouse News Service, and Gigaom.

When Pigs Fly: EFF Files Amicus Brief Supporting . . . Viacom

Yesterday EFF filed my latest amicus brief, which supports . . . Viacom.  
EFF doesn't normally support Viacom, but in Brownmark v. Comedy Partners, we did.  Brownmark had sued Comedy Partners, Viacom, and other defendants for copyright infringement over Brownmark's music video.  An episode of South Park included a parody of Brownmark's video -- it's well established that such parodies are fair use.  The trial court granted Viacom's motion to dismiss the case on fair use grounds, and Brownmark appealed.  Brownmark claimed it was improper for a court ever to dismiss a case on fair use grounds without discovery and possibly a trial.  EFF supported the defendants on this legal issue.  
It's important for courts to be able to dispose of fair use cases quickly when the fair use is obvious (which it was in this case; see the videos here if you want to).  Requiring artists and others to go through a trial even when fair use is clear-cut will discourage them from fighting the claims and from innovating in the first place, as EFF's press release explains

Best of luck to Viacom and Comedy Partners on this particular appeal.

Sunday, December 18, 2011

Turn Off Your Computer and Go to Sleep

Read THIS when you're done with the Internet for the evening.

Thursday, December 8, 2011

Judge Newman Sure Likes Patents

Judge Newman of the U.S. Court of Appeals for the Federal Circuit has a reputation for being in favor of strong patent protection,  In case there was any doubt, read her dissenting opinion today in In Re Construction Equipment Co.  In the opinion, she basically says that the ex parte reexamination statute is unconstitutional if it can be used to invalidate a patent that already survived a validity challenge.  Fortunately, I don't think many people agree with Judge Newman on this.

It's Hard to Imagine, But SOPA/PROTECT-IP Will Be Worse Than This

In case you think that SOPA or PROTECT-IP will be bad without judicial supervision of takedowns, read this TechDirt article to see how bad things can be even with judicial supervision.  Here are the first two paragraphs of the article:

Imagine if the US government, with no notice or warning, raided a small but popular magazine's offices over a Thanksgiving weekend, seized the company's printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine's lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that's a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.

But, in a story that's been in the making for over a year, and which we're exposing to the public for the first time now, this is exactly the scenario that has played out over the past year -- with the only difference being that, rather than "a printing press" and a "magazine," the story involved "a domain" and a "blog."
This nightmare happened to a blog represented by my former partner Andrew Bridges.  So much for the First Amendment!

Sunday, December 4, 2011

Dave Barry's Holiday Gift Guide!

It's time for . . . Dave Barry's annual Holiday Gift Guide! This year the Guide is so good that I am actually tempted to buy one of these (the Wrap-a-Nap, of course).

Friday, December 2, 2011

Stephen Colbert Explains SOPA

In the first video, don't miss the Mickey Mouse doll with an anti-infringement slogan.  And the fact that the FBI admits that its estimate of the dollar amount lost to piracy has no factual support.  In the second video, don't miss Colbert's and Zittrain's debate about whether Justin Bieber should go to jail.  (They seem to agree that he should, but for different reasons.)

Federal Circuit Orders Venue Transfer Out of Delaware

In recent years, the Federal Circuit has been granting petitions for writs of mandamus and ordering venue transfers of cases filed in the Eastern District of Texas.  Today the CAFC granted such a petition in a case filed in Delaware, against a defendant incorporated in Delaware.  In Re Link_A_Media.  Delaware district courts had been routinely denying venue transfer motions where the defendant was incorporated in Delaware, largely on the theory that the defendant "is incorporated in Delaware and, thus, cannot claim surprise at being brought into the Delaware courts for litigation.”

Today the Federal Circuit ruled that venue transfer motions cannot be denied solely on the basis of the defendant's state of incoroporation, but that all the relevant factors under 28 U.S.C. § 1404(a) must be considered.  The case involved a Northern California-based defendant sued by a Bermuda-based holding company affiliated with a Northern California-based corporation (Marvell).  Thus, all the relevant witnesses on both sides were in Northern California.  The CAFC also commented that the U.S. District Court for the Northern District of California "is equally equipped to address" patent cases as is the District of Delaware (hooray for us).

The Court did not rule on what would have happened if the plaintiff had also been incorporated in Delaware -- that is perhaps the next case.