Posts Tagged ‘dmca’

ISP gets DMCA win in USA

Thursday, December 22nd, 2011

The Ninth Circuit has affirmed the trial court’s summary dismissal of UMG copyright claims against Veoh on the basis of §512(c) – the ‘hosting’ safe harbour. UMG argued 3 reasons why §512(c) did not apply:

First, UMG argues that the alleged infringingactivities do not fall within the plain meaning of “infringe-ment of copyright by reason of the storage [of material] at thedirection of a user,” a threshold requirement under§ 512(c)(1). Second, UMG argues that genuine issues of factremain about whether Veoh had actual knowledge of infringe-ment, or was “aware of facts or circumstances from whichinfringing activity [wa]s apparent” under § 512(c)(1)(A).Finally, UMG argues that it presented sufficient evidence thatVeoh “receive[d] a financial benefit directly attributable to. . . infringing activity” that it had the right and ability to control under § 512(c)(1)(B). We disagree on each count, andaccordingly we affirm the district court.

Each of these requirements has a counterpart in our US Free Trade Agreement ‘inspired’ – see s 116AH items 1 and 4 and therefore should repay consideration.

On the knowledge / awareness point:

At [11], Judge Fisher noted that UMG had not notified Veoh of any infringing material under the DMCA before commencing proceedings. After noting at [12] that Congress placed the burden of policing infringements on copyright holders, Judge Fisher continued at [13]:

[13] UMG asks us to change course with regard to§ 512(c)(1)(A) by adopting a broad conception of the knowl-edge requirement. We see no principled basis for doing so.We therefore hold that merely hosting a category of copy-rightable content, such as music videos, with the generalknowledge that one’s services could be used to share infring-ing material, is insufficient to meet the actual knowledgerequirement under § 512(c)(1)(A)(i).
Then at [14], Judge Fisher rejected UMG’s arguments that Veoh should be held to have sufficient awareness of infringing activity:
…. For the same reasons, we hold that Veoh’s general knowledge that it hosted copyright-able material and that its services could be used for infringe-ment is insufficient to constitute a red flag.
In Section 2, Judge Fisher dismissed UMG’s other evidence of awareness. One point of interest was that an email from Michael Eisner CEO of Disney would have been sufficient if from a third party, but was rejected since it was from a copyright holder and did not follow the DMCA process.

The 1709 blog has a good summary and links here.

As Techdirt points out, however, the costs of the litigation drove Veoh out of business.

Next up, presumably, the Ninth Circuit’s decision in the appeal from Viacom v Youtube.

Although, as noted above, the decision has potential ramifications for the corresponding Australian provision, I am not convinced it has much to say on Roadshow v iiNet (which concerned Category A activity, not Category C anyway) where the AFACT Notices seemed to provide specific notice (once properly explained).

UMG Recording Inc v Shelter Capital Partners LLC., Case: 09-55902, 9th Cir. December 20, 2011

New DMCA exemptions

Friday, July 30th, 2010

The Librarian of Congress has announced 6 new categories of exemption from the prohibitions under US law against circumventing DRM mechanisms (what we call TPM and ERMI).

The (Australian) Copyright Council has a nice bullet point summary.

Jonathon Bailey, at Plagiarism Today, looks at the politics and the ramifications from a practical perspective. I wouldn’t be at all surprised if he didn’t spend a fair bit of time on the issue in his weekly podcast, so check back to his site on, say, Monday.

Now, the Librarian of Congress’ exemptions are applicable under US law only. Our law does contemplate the introduction of additional, so-called “ad hoc” exemptions against circumventing access control tpm, by means of the Regulations: s 116AN(9), Sch. 10A of the regs has 6 nice categories of exemption. These were added way back in 2006 around the time we had a review to find out if we should have some more. Wonder if someone, somewhere is thinking we should investigate some more?

Selected microblog posts (w/e 11/09/09)

Sunday, September 13th, 2009

Selected microblog posts from the past week:

  • RT @VogeleLaw: Found: Mary Beth Peter’s testimony (via @cathygellis – thanks!) http://bit.ly/Cijau #gbs_hearing [US Copyright Register opposes Google Book Settlement]
  • Google Book in the EU? http://ff.im/-7OYfA
  • RT @MegLG: A Billion Dollar Test of the DMCA Safe Harbors in Viacom v YouTube http://ow.ly/om66 via Cyberlaw Cases
  • RT @michaelgeist: Microsoft wins stay of injunction on Word. Case arises from patent claim by Toronto’s i4i.http://bit.ly/oDmLU
  • IP Think Tank Blog looks at i4i v Microsofthttp://ff.im/-7zfKp
  • AAR on UWA v Gray – Universities and their employees: who owns developed IP? http://ff.im/-7RmgI
  • Hannahland: Ph D candidate on UWA v Gray http://ff.im/-7WcoR

Practical DMCA problems

Wednesday, August 12th, 2009

Plagiarism Today’s list of top 5 DMCA mistakes (and some things to do to avoid them).

How to find whom to send DMCA notices to

Thursday, July 23rd, 2009

Plagiarism Today outlines 6 steps to try and identify the person you should be sending “notice and take down” notices under the DMCA to.

Apart from complaints under the DMCA there could be some useful hints (apart from the inquiry to the Copyright Register) under our scheme. Although, of course, under reg. 20C the carriage service provider is supposed to publish those details in a prominent place on their website.

Read the suggestions here.

Notice and take down

Tuesday, May 19th, 2009

If you have to send a take down notice to someone under the DMCA, send it to them and not their parent:

Prof. Goldman here; Plagiarism Today here.

Under our legislation, the notice must be sent to the carriage service provider’s “designated representative” (Reg. 20D) and the carriage service provider must publish a notice on its website prominently identifying the designated representative, and their contact details, to whom such notices should be sent: Reg. 20C.

Of course, all this begs the question, what on earth (or in cyberspace) is a “carriage service provider”? (Unhelpful) hint via s 10 of the Copyright Act, look at s 87 of the Telecommunications Act 1997.

Copyright infringement and Twitter

Thursday, May 7th, 2009

Plagiarism Today tries to unravel how Twitter (attempts to) deal with claims that material posted infringes copyright.

Short of the odd haiku or authorisation, shouldn’t there be some prize for  infringing in 149 characters or less?

Blogger (Google) and the DMCA

Wednesday, April 22nd, 2009

Plagiarism Today considers Google’s new Blogger contact form for DMCA notfications here.

A tool bar for detecting hosts etc.

Thursday, March 26th, 2009

If you are trying to work out who is hosting a website and where it is being hosted, you might be interested in this discussion of the Netcraft toolbar.

Note:

  1. this is only for those using Firefox or Internet Explorer.
  2. Use at your own risk!