Posts Tagged: "digital millennium copyright act"

Under normal circumstances, infringement and misappropriation of the intellectual property (IP) rights of others are subject to civil liability under U.S. federal (and some states’) law; the remedies for those whose rights have been violated typically include money damages or some form of equitable relief, such as an injunction. However, sometimes the conduct of offenders is so egregious and the remedies so inadequate that pursuit of a private cause of action is insufficient to make IP owners whole. To make matters worse, civil remedies do little to deter further infringement or misappropriation on the part of individuals and entities with more than enough money to game the system. Known as efficient infringers, according to some IP practitioners, they have mastered the business practice of paying out as little in damages as possible and refusing to negotiate licenses with IP owners, all the while bullying IP owners into spending their much smaller fortunes in order to defend their IP rights or to forfeit them—the end result sometimes being the invalidation or cancellation of their IP. Accordingly, lawmakers have enacted legislation with the goal of creating true deterrents against infringement and misappropriation by imposing criminal sanctions on a narrow set of conditions associated with infringement and misappropriation. However, the law does not criminally punish infringement of a particular type of IP: patents.

One of the new exemptions for motion pictures includes the expansion of the exemption of TPMs protecting motion picture clips on DVDs, Blu-Rays and streaming services to include fictional films; the prior exemption only protected documentary filmmakers circumventing TPMs on those tech platforms to capture movie clips. Fictional filmmakers are now able to circumvent TPMs on the same platforms where the circumvention is intended to capture a clip for use in parody or where the clip is significant for biographical or historical reasons.

This case stems back to a complaint filed by Zuma Press in August 2016, a few months after Getty displayed and offered thousands of images for commercial use that were credited to Les Walker. However, the 47,048 images making up that collection were either once owned or licensed by Zuma. Zuma requested that Getty take down the images in May and Getty complied after having earned less than $100 in total revenues for those pictures. In its lawsuit, Zuma and the other plaintiffs alleged that had committed copyright infringement and violated the integrity of copyright management information under Section 1202 of the Digital Millennium Copyright Act (DMCA) for intentionally altering the copyright attribution information embedded in those images.

U.S. District Judge Stephen V. Wilson of the Central District of California recently issued an order granting-in-part and denying-in-part a motion for summary judgment made by Detroit, MI-based automaker General Motors in a copyright case brought by a Swedish artist who painted a street mural which GM used in its marketing materials. Although Judge Wilson granted summary judgment in favor of GM on the plaintiff’s Digital Millennium Copyright Act (DMCA) and punitive damages claims, the artist’s claim for copyright infringement has been allowed to proceed to trial.

Innovators often face the question of how to best protect their new ideas.  Patents immediately come to mind for new products and processes.  However, copyright protection should also be considered.  While patent protection is limited to the claims in a particular patent, copyright protection can be broader, particularly where 3D works of art are concerned.  Additionally, copyright protection may provide some protection where a 3D rendering is made of a known 2D work.

The opinion acknowledges, in a footnote on page 3, that videos of the type that the Klein’s created, is not unique. Instead, it is part of a growing genre of “reaction videos” in which portions of an original video are interspersed with commentary to create a new creative work… Luckily for the Kleins, their fans were ready and willing to create a legal fund for their use. YouTube has also taken action to protect some content creators subject to false DMCA notices. However, with over 800 unique users, and over 100 hours of new videos being uploaded every minute, clearly YouTube cannot be required to protect all of its content creators from false copyright infringement allegations. In light of this decision, perhaps we are approaching a time where reconsideration, and revision, of the DMCA, is warranted.

ACTION for Trade asks Lighthizer to consider advocating for strong IP protections and robust enforcement to benefit a diverse group of industries, including digital content producers and distributors, biopharmaceutical firms and software developers… Along with strong patent policy, ACTION for Trade calls for the establishment of regulatory data protection (RDP) provisions which are consistent with U.S. law, especially where medical innovations are concerned. The letter to USTR Lighthizer notes that U.S. law recognizes a 12-year period of RDP for biologic treatments and a 5-year period of RDP for small molecule treatments. Such provisions would allow the original innovators of novel medicines to submit data on the safety and efficacy of medicines while shielding that data from others who might produce generics based on the data.

On February 1, 2018, the U.S. Court of Appeals for the Fourth Circuit issued a decision in the case, BMG Rights Management LLC v. Cox Communications, Inc. The Fourth Circuit affirmed in part the district court’s granting of summary judgment to BMG on the § 512(a) Digital Millennium Copyright Act (DMCA) safe harbor defense. Ultimately, the Fourth Circuit agreed with the district court’s decision that Cox was not entitled to the safe harbor defense, finding that Cox’s 13-strike policy for repeat infringers was effectively no policy at all, and far less than the termination policy required in order to maintain safe harbor protections.

In 2017, there were several noteworthy decisions relating to the Digital Millennium Copyright Act (DMCA). Specifically, the Ninth Circuit addressed two separate cases, one dealing with safe harbor provisions, the other on anti-circumvention. This article discusses three separate decisions including Mavrix Photographs LLC v. LiveJournal Inc., 873 F.3d 1045 (9th Cir. 2017)(on DMCA safe harbor), and Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017)(anti-circumvention provisions).

Every three years the U.S. Copyright Office analyzes whether to revise and/or renew the Digital Millennium Copyright Act (DMCA) anti-circumvention provision. The latest triennial rulemaking review under the DMCA relating to anti-circumvention provisions began on June 30, 2017, when the Copyright Office published a Notice of Inquiry requesting petitions to renew existing exemptions, and as well as petitions for new exemptions.

Understanding the Digital Millennium Copyright Act (DMCA) has become increasingly important for companies that want to protect their digital content. The DMCA was created primarily as a solution for service providers such as YouTube that host content uploaded by third parties rather than create their own original content. Service providers benefit from the DMCA because it protects them from liability in the event content uploaded to their site infringes another’s copyrights. While the DMCA addresses a number of copyright issues, the “safe harbor” provision remains one of its most important aspects.

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.