Posts Tagged: "DMCA"

When infringement claims are legitimate, Take Downs can be a useful mechanism for getting counterfeit or infringing products taken off the online retail platform website. In turn, sellers protect their hard-earned consumer brand confidence. However, not every seller in the online realm plays fairly, and countless honest and legitimate sellers have found themselves in a position where their products have been removed from online platforms for alleged IP infringement and they do not know what they can do about their situation… If there is an urgency to get back into the online marketplace – for instance, in order to participate in the Holiday shopping season – disadvantaged online sellers who have had their products unfairly removed from an online retail platform through a Take Down Notice need legal recourse, and they need it quickly.

It is one again time to take a moment to look back on the year that was, reflecting on the biggest, most impactful moments of 2016. For us that means looking backward at the most impactful events in the world of intellectual property. This year we received such a good response from our panel of experts that we decided to break this column into two…

LinkedIn recently filed suit in the Northern District of California against Doe Defendants for allegedly “scraping” data about its users from its website through fake profiles and software bots. LinkedIn alleges that the data scraping that was performed using fake profiles and bots was in violation of its user agreement, the Computer Fraud and Abuse Act, and the Digital Millennium Copyright Act, among other things.

The DMCA mandated that the Copyright Office establish a registry of designated agents for service of take-down notices. The initial system now appears to have been primitive. … Beginning December 1, 2016, service providers will be able to submit and update the names and contact information for their designated agents for receipt of take-down notices using a new electronic system. What is more, the fee charged for a paper filing, $105, will be reduced to just $6 for an electronic filing, reflecting the reduced claim on Copyright Office resources to input data and maintain a reliable resource.

An engaging image, be it a photograph or other graphic, can capture the reader’s attention and drive interest in an online post. Bloggers, especially, are well aware of the attention grabbing benefits of a great photograph or graphic. In striving to find just the right image, one may well not think twice about the apparent harmless use of a graphic poached from some obscure corner of the internet. Doing so, however, implicates a wide range of intellectual property rights governing the use of images.

Just how much knowledge about piracy on its system does an online service provider need before it loses its safe harbor protection, which severely limits its potential liability for copyright infringement, under the Digital Millennium Copyright Act (DMCA)? In Capitol Records v. Vimeo, the Second Circuit sets the bar very high, further blurring one of most important lines in copyright law—the line between actual and red flag knowledge—and protecting a not-so-innocent service provider in the process. Worse still, the Second Circuit leaves copyright owners with little chance of a remedy in the face of rampant piracy, even against a service provider that welcomes the infringement.

After nearly twenty years with the DMCA, the Copyright Office has launched a new study to examine the impact and effectiveness of this system, and voices on both sides of the debate have filed comments expressing their views. For the most part, frustrated copyright owners report that the DMCA has not successfully stemmed the tide of online infringement, which is completely unsurprising to anyone who spends a few minutes online searching for copyrighted works. Unfortunately, some commentators are also pushing for changes that that would make things even more difficult for copyright owners.

Collectors love eBay because it allows them access to items them may never otherwise be able to purchase. Bargain hunters love eBay for the ability to buy items at a much lower cost than normal retail. But, sometimes costs are lower because the goods infringe on someone’s intellectual property. Section 512(c) of the DMCA provides a safe harbor from liability for “online service providers” (OSP), like eBay, as long as the OSP: (1) does not receive a financial benefit directly attributable to the infringing activity; (2) is not directly or circumstantially aware of the presence of infringing material; and (3) promptly takes steps to remove purported infringing material upon receiving notice from copyright owners. To streamline this process, eBay created the Verified Rights Owner (VeRO) program. It allows intellectual property rights owners to request that eBay remove listings that infringe on their intellectual property rights, including copyrights, trademarks, and patents.

According to the Association of American Publishers, the publishing industry as a whole has lost $80 to $100 million dollars to online piracy annually. From 2009 to 2013, the number of e-book Internet piracy alerts that the Authors Guild of America has received from their membership had increased by 300%. During 2014, that number doubled. I’m certain that in 2016, the statistics will go even higher.

Automotive software exemptions were only one class of circumvention made allowable by the recent copyright rules which may be exciting for some DIY tech enthusiasts. Jailbreaking, or the process of accessing a device’s operating software to execute software which otherwise could not be run, is now legal in some limited forms for an array of electronic devices. For smartphones and tablets, the Copyright Office favored an exemption for circumvention of operating system software to execute lawfully obtained software applications, or to remove unwanted software from the device. This exemption only applies to “portable all-purpose mobile computing devices” and so only doesn’t extend to specialized devices like e-book readers, vehicle-embedded systems or handheld gaming devices. This rule closely reflects requests made in a petition by the Electronic Frontier Foundation (EFF) despite opposition from the Business Software Alliance (BSA) as well as the National Telecommunications & Information Administration’s (NTIA) opinion that the exemption should also extend to e-book readers and other specialized devices.

In February 2007, Stephanie Lenz uploaded a 29-second video of her son dancing in her kitchen to the Prince song “Let’s Go Crazy” to YouTube. Universal Music Group, Prince’s publishing administrator responsible for enforcing his copyrights, objected to the otherwise-innocuous video, and sent YouTube a warning to remove the video, claiming that it constituted copyright infringement under the Digital Millennium Copyright Act (DMCA). Stephanie Lenz sued, arguing that Universal’s takedown request targeted permissible fair use, which generally permits the use of copyrighted material in limited conditions, such as when used in connection with criticism, parody, commentary or news reporting.

The EFF wants an exemption for people who want to modify their purchased games in order to bypass access controls when a publisher shuts down the server. Specifically, the EFF would like for any piece of software with server-based functions that are shut down by a publisher or developer to be considered “abandoned” six months later. This means that someone who owns a copy of a game that no longer has an online play component would be able to modify the game to eliminate authentication checks or access controls in the game itself so they can still play online using a third party server. This may also include reverse engineering and making intermediate copies of the game, which goes well beyond the skill set of the casual user.