Posts Tagged: "DMCA"

In the first part of a two-panel hearing today on whether the Digital Millennium Copyright Act (DMCA) is working for the 21st Century, Senate Judiciary Committee, Subcommittee on Intellectual Property Ranking Member Senator Chris Coons (D-DE) said he was struck by the conclusion of a recent Copyright Office report that found that Congress’ original intended balance for section 512 “has been tilted askew.” Subcommittee Chairman, Senator Thom Tillis (R-NC), added that fixing the problems may require designing an entirely new system, as “the grand bargain of the DMCA is no longer working and not achieving the policy goals intended.”

Senate IP Subcommittee Chair, Senator Thom Tillis (R-NC), yesterday led the second in a series of Subcommittee hearings addressing the possibility of updating the U.S. Digital Millennium Copyright Act (DMCA). The hearing, titled “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?”, was aimed at examining foreign copyright laws in order to consider what may or may not be beneficial if adopted by the United States. The first of two panels included four witnesses from academia while the second panel included members of industry and a former member of EU Parliament.

Senator Thom Tillis (R-NC) and Senator Chris Coons (D-DE) this week held the first in a series of eight tentative hearings scheduled for this year on the topic of updating and modernizing the U.S. Digital Millennium Copyright Act. Tillis’ goal is to address changes to the internet since the DMCA was passed in 1998, and by December 2020 to release the text of a draft reform bill for stakeholder comment. Senator Coons pointed out that the IP Subcommittee has been the most active subcommittee on the Senate Judiciary Committee, and Tillis said that the process will take place in the same vein as last year’s patent eligibility hearings, which involved gathering extensive input from a variety of stakeholders.

Trademark and copyright enforcement remains a significant challenge for licensors of popular brands across sports, entertainment, fashion and other industries. The Organization for Economic Cooperation and Development, a group of three dozen industrial countries, estimates counterfeit goods account for 3.3% of global trade. Brand owners cannot rely on the belief that their trademark and copyright registrations will be respected, and they cannot confine their enforcement to demand letters and traditional intellectual property litigation. Rather, a brand owner must avail itself of additional approaches to address both traditional and newer platforms offering infringing products. We continue to see an increase in online infringements, especially in connection with certain e-commerce sites and targeted advertisements on social media. Under the current law, enforcement against online providers can be difficult, particularly when compared to traditional infringement hot sports in the brick-and-mortar marketplace. Flea markets, swap meets and other brick-and-mortar shopping venues reported verdicts and settlements in the last 10 years that confirm commercial landlords/owners can be held liable for the trademark infringement activity of their tenants, with courts around the country extending liability for trademark infringement beyond just the party selling infringing products.

On Monday, the U.S. Supreme Court invited the United States Solicitor General to file a brief expressing its views in the long-running case of Google LLC v. Oracle America Inc. The case highlights the complexities of protecting software via IP rights. As with patents, the courts often struggle to apply copyright concepts to software, leaving companies bleeding time and resources. Determining what can be protected and what can’t be is complex—even for appellate courts.“ These software piracy cases are convoluted because there can be both literal and nonliteral copying, as shown by the Google v. Oracle case,” said Brian Darville, chair of the trademark and copyright practice group at Oblon. “It’s critical for companies to legally safeguard their software and ensure they’re not infringing on their competitors.”

New technologies create novel issues and inform our understanding of existing laws. The statutes that form the basis of the U.S. IP regime are decades old and, as such, could not have contemplated how technology (and technology-assisted infringement) would evolve. As a result, traditional methods of IP enforcement often lag behind the rapidly changing online environment. Though Congress has taken steps to modernize these sometimes antiquated laws—for example, the America Invents Act made significant changes to the U.S. patent system in 2016 and the Music Modernization Act updated the music licensing and royalty framework to account for digital streaming platforms like Spotify in 2018—these updates almost always function as an ex post solution to a problem that was already present. The core questions of what is “protectable,” what is “infringement” and what is “willful” in view of the fundamental shifts in technological advancement remain squarely in the gray.

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.

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.