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Intellectual Property in Film & Interactive MediaTuesday, March 17, 2015SXSW Film Festival CLE ProgramAustin, Texas
Presented By:Chad EveringhamKellie Johnson
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Agenda
Trademark Issues
• Issues Involving Product Placement/Branded Entertainment
Copyright Issues
• Contemporary Copyright Issues Involving Entertainment Industry
• Issues Regarding Protection from Piracy and Illegal Downloads
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Issues Involving Product Placement/Branded Entertainment
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Historically – Brands Sponsored Content
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More Recently – Product Placement Within Content
Mac & Me (1988)
[Video not available in print materials.]
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More Recently – Product Placement Within Content
Entourage re‐launched Avión Tequila
[Video not available in print materials.]
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Brands Creating Content
• Chipotle• Lexus• Red Bull
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Celebrity Status Changing
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Celebrity Status Changing
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Medium Also Changing
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Avenues Also Changing
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Why the Change?
• New technology• Mobile devices almost body parts
• Almost everyone is “connected”
• Traditional advertising easily skipped• Followers (in the millions, large, specific niche audiences)
• Easy to reach subscribers• Data• Consumers expressing likes
• Ability to target right audience• Ability to talk to audience in real time (constant feedback loop)
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Increase of Distribution Channels / Effect of (Big) Data on Creation + Delivery of Content• More opportunities for monetization• More opportunities for delivering message to niche / targeted audiences• Data collected and analyzed by large, professional research teams• Data helps identify audiences • Data helps identify what content consumers publish• Data helps identify best distribution channels for targeted audience• Data helps Brand #1 (e.g. movie/studio, luxury handbag marketer) associate itself with Brand #2 (Youtuber, “traditional” celebrity, etc.)• Brand #2 doesn’t want to lose “street cred”• Brand #1 to work with someone who appeals to Brand #1’s target audience for message
• Data helps Brand adjust elements of campaign “on the go”• Consumer Feedback as “Data”
• Likes• Subscriptions• Comments• Sharing
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Brand Appears in Content Owned by Producer
Studio
Brand Talent
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Brand Appears in Content Owned by Producer
3‐Sided Deals – Each with its Own Interests to Protect • Brand wants exposure and to protect itself against unfavorable depiction• Producer wants to protect the quality and integrity of content and the overall messaging regarding the content
• Talent wants to protect his or her “image”
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Brand Appears in Content Owned by Producer
• Creative control lies with Producer• Brand must obtain license from Producer to use stills and clips from Content where the Brand appears; talent consents may need to be obtained separately
• Brand must seek approval for use and distribution of Content so that Content integrity, quality and consistency is maintained
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Brand Appears in Content Owned by Producer – Protecting Producer’s Interests
• Brand must give Producer broad, perpetual, irrevocable rights to use the Brand’s name, logo, marks, and product
• Brand must warrant and represent that it owns or has all necessary rights• Brand must agree to waive rights to injunctive relief and cannot rescind rights granted (end result cannot be subject to Brand’s approval)
• Brand can’t stop Content from being released• Brand can’t force Producer to take Brand out of Content after Content was shot
• Producer will require Brand to agree upfront that the intended integration (as described to Brand or shown in script pages) is non‐disparaging and approved
• End result cannot be subject to Brand’s approval
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Brand Appears in Content Owned by Producer – Protecting Brand’s Interests
• Be as involved as possible in production• Carefully review scripts, scene pages where Brand is intended to appear• Negotiate clear parameters for depiction, mention or integration if script unavailable at deal time or Content is unscripted
• Seek limitations of use of Brand within Content (e.g., alcohol)• Seek limitations of use in merchandising and co‐promotions with third party brands
• Negotiate for category exclusivity in the Content itself and in co‐promotions regarding the Content
• Negotiate for minimum guaranteed integration (seconds, specific scenes, interaction with main character, how many verbals, how many visuals)
• If integration doesn’t happen does brand have remedy: if fee was paid for integration ask for reimbursement
• Negotiate upfront with talent to appear in separate promotional content to extend reach of Brand’s message outside the confines of Content
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Brand Appears in Content Owned by Producer – Protecting Talent’s Interests
• Include pre‐approval in talent agreement?
• Does talent have $ skin in the game? Equity?
• Is it revenue share? • Endorsement? FTC guidelines? How to make it not be endorsement?
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Protection for Online and Mobile Celebrities
• Represented by managers, MCNs, lawyers
• New agencies (Grapestory)• Tumblr Creatrs
• Systems in place to assist them to produce content and get deals‐‐traditional Hollywood agencies aggressively surrounding them
• Packaging fees and backend demands• Justified by lower compensation models • Assistance with navigating new landscape
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Brand Owns Content
• Work done by Producer as work made for hire• Brand has creative control• Brand controls depiction and messaging• Brand controls revenue streams
• May enter into revenue share arrangements with distributor, other parties
• Essentially, the Producer and Brand are merged.
Problems with Brand Integration
• Talent back outs?
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Case No. BC539856, California Superior Courts, LA County
Natrol, Inc. v. Brand-In Entertainment
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Natrol, Inc. v. Brand-In Entertainment, LLC et al., No., BC539856 (L.A. Superior Court 2014)
• Natrol, Inc. filed a breach of contract law suit against a production company and its product placement firm.
• Natrol paid $180,000 for Reese Witherspoon’s character to use and promote Natrol’s vitamin products in the movie. Witherspoon backed out of the project, and Defendants did not fully refund Natrol.
• Product placement agreement had a clause that Natrol could terminate the agreement if Witherspoon dropped out of the project.
• Jury trial is currently set for June 5, 2015.
Problems with Brand Integration
What happens in the situation when there is no agreement between the Brand and the studio?
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Case No. 2:10-cv-04328 (C.D. Cal.)
Summit Entertainment, LLC v. B.B. Dakota, Inc. et al.,
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Summit Entertainment LLC v. BB Dakota Inc., No. 2:10-cv-04328 (C.D. Cal. Nov. 21, 2011)
• Facts: Bella’s character wore a jacket that was essentially discontinued by a clothing company. Once she wore it, and it was featured in an entertainment magazine, it became very popular.
• Brand sought to capitalize on the film’s success; used photos on hangtags and re‐introduced the jacket.
• Summary judgment of copyright infringement of the Bella image
• “It is undisputed both that Summit owns the Bella image and that BB copied and caused to be copied by its business partners the Bella image for use on hangtags, in email ‘blasts,’ and on various websites.”
• The Court rejected fair use: “BB’s interpretation of Kelly, and of fair use doctrine more generally, is extraordinarily wooden—at best. Even if a standard fair use analysis was required, BB’s fair use defense fails easily.”
• No evidence of consent or estoppel: “I live in a cave and even I know who’s in those pictures, and I don't even have teenage girls.”
Problems with Brand Integration
Misuse of Brand
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Case No. 1:11-cv-09436 (S.D.N.Y.)
Louis Vuitton Malletier, S.A. v. Warner Bros. Entertainment Inc.,
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Louis Vuitton Malletier, S.A. v. Warner Bros. Entertainment Inc., No. 1:11-cv-09436 (S.D.N.Y.)
• Facts: Louis Vuitton (“LVM”) filed suit against Warner Bros. Entertainment under the Lanham Act for infringing “Louis Vuitton’s famous trademarks that Warner Bros. expressly misrepresents to the public as a genuine product of Louis Vuitton.” LVM pointed to a bag carried by the character played by Zach Galifianakis (“Alan”) that appears to be a (“LVM”) bag, but is actually an infringing bag made by a company called Diophy. In the movie, Alan tells another character, “[c]areful, that is … that is a Lewis Vuitton.”
• Warner Bros. moved to dismiss the lawsuit on the grounds that its use of the Diophy bag in Hangover II was protected by the First Amendment under the framework established by Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989).
• The Second Circuit has held that the Lanham Act is inapplicable to “artistic works” as long as the defendant’s use of the mark is (1) “artistically relevant” to the work and (2) not “explicitly misleading” as to the source or content of the work. See Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989).
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Louis Vuitton Malletier, S.A. v. Warner Bros. Entertainment Inc., No. 1:11-cv-09436 (S.D.N.Y.) (Cont’d)
Holding: Applying the facts to the Rogers two‐part framework, the Court granted Warner Bros.’ motion to dismiss. Regarding the first prong, the Court held:
• Alan's terse remark to Teddy to “[be] [c]areful” because his bag “is a Lewis Vuitton” comes across as snobbish only because the public signifies Louis Vuitton‐to which the Diophy bag looks confusingly similar‐with luxury and a high society lifestyle. His remark also comes across as funny because he mispronounces the French “Louis” like the English “Lewis,” and ironic because he cannot correctly pronounce the brand name of one of his expensive possessions, adding to the image of Alan as a socially inept and comically misinformed character. This scene also introduces the comedic tension between Alan and Teddy that appears throughout the Film.
The Court also addressed LVM’s application of the second prong stating:• Here, the complaint alleges two distinct theories of confusion: (1) that consumers will be
confused into believing that the Diophy bag is really a genuine Louis Vuitton bag; and (2) that Louis Vuitton approved the use of the Diophy bag in the Film. However, even drawing all reasonable inferences in the light most favorable to Louis Vuitton, as the Court is required to do, neither of these allegations involves confusion as to Warner Bros.’ artistic work. Specifically, Louis Vuitton does not allege that Warner Bros. used the Diophy bag in order to mislead consumers into believing that Louis Vuitton produced or endorsed the Film. Therefore, the complaint fails to even allege the type of confusion that could potentially overcome the Rogers protection.
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Issues related to Copyrights, Piracy and Illegal Movie Downloads
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Issues related to Copyrights, Piracy and Illegal Movie Downloads
• Constitutional origins• Protects the expression of ideas, not just the ideas• Ownership issues• Copyright holder has a number of rights
• Defenses• Digital Millennium Copyright Act (DMCA) (service providers)• Fair Use
• Practical Difficulties with Enforcement
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Constitutional Origin
• Article I, Section 8, U.S. Constitution: “The Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
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Case No. 2:14-cv-05877 (D.N.J.)
Tanikumi v. The Walt Disney Company et al.,
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Tanikumi v. The Walt Disney Company et al., No. 2:14-cv-05877 (D. N.J)
Protects Expressions of Ideas, Not Simply Ideas
Facts: Isabella Tanikumi (pen name for Amy Gonzalez), filed a copyright infringement lawsuit against Walt Disney (“Disney”) in the District of New Jersey alleging that Disney plagiarized two of her copyrighted books: “Living My Truth” and “Yearnings of the Heart,” to create the story for the movie “Frozen.”
Disney filed a motion to dismiss the complaint arguing that plaintiff fails to state a plausible claim of copyright infringement because (1) plaintiff’s complaint fails to lead that Disney had access to plaintiff’s self‐published memoir, and (2) Frozen and Yearnings of the Heart are not substantially similar as a matter of law.
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Tanikumi v. The Walt Disney Company et al., No. 2:14-cv-05877 (D. N.J) (Cont’d)
Protects Expressions of Ideas, Not Simply Ideas
Rule: Copyright law protects expression, not ideas. Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 208 (3d Cir. 2005). (“It is a fundamental premise of copyright law that an author can protect only the expression of an idea, but not the idea itself.”). “[G]eneral plot ideas and themes lie in the public domain and are not protected by copyright law.” Winstead v. Jackson, No. CIV.A.10‐5783 SRC, 2011 WL 4407450, at *2 (D. N.J. Sept. 20, 2011) aff’d, 509 F. App’x 139 (3d Cir. 2013).
Holding: The Court granted Disney’s motion to dismiss holding that “Plaintiff only alleges that Disney plagiarized broad thematic elements of her memoir. Most of the 18 similarities in her letter to Disney are tenuous at best. The closest similarities are the generic themes of intense sisterly love and the concealment of a personal characteristic of which the protagonist is ashamed. There are also some minor thematic similarities involving the moon’s connection to romance, mountainous settings, and betrayal by a lover.”
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Case No. 12-57302, U.S. Court of Appeals for the 9th Circuit
Garcia v. Google, Inc., et al.,
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Garcia v. Google, Inc., et al., No. 12-57302 (U.S. Court of Appeals for the 9th Circuit)
• Artist’s copyright in performance
• Issues with implied licenses
• Work for hire
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Garcia v. Google, Inc., et al., No. 12-57302 (U.S. Court of Appeals for the 9th Circuit) (Cont’d)
• Facts: Actress’s performance had been used to create a film that was anti‐Islam. Amid mounting death threats over her participation in a film, actress filed an ex parte application for a temporary restraining order, seeking a take‐down order the on trailer.
• Google and YouTube argued that granting injunctive relief before deciding whether Garcia holds a copyright interest in the film would be an unconstitutional prior restraint and that the film had become part of important public debate.
• Ruling: Reversing and remanding, Google was ordered to remove the trailer for the anti‐Islam film “The Innocence of Muslims” from YouTube because the actress sufficiently showed that she likely had an independent copyright interest in her performance.
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Garcia v. Google, Inc., et al., No. 12-57302 (U.S. Court of Appeals for the 9th Circuit) (Cont’d)
Judge Kozinski’s Majority Opinion:
• The First Amendment doesn’t protect copyright infringement.
• “This is a troubling case. . . . . Garcia needed to sue in order to protect herself and her rights . . . . She’s shown that she is likely to succeed on her copyright claim, that she faces irreparable harm absent an injunction, and that the balance of equities and the public interest favor her position.”
Judge Smith’s Dissent: An injunction was inappropriate; Garcia does not clearly have a copyright interest in her acting performance because her acting performance is not a work and she is not an author.
In November 2014, the Ninth Circuit ordered that the case be reheard en banc. The court heard oral argument on December 15, 2014.
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Garcia v. Google, Inc., et al., No. 12-57302 (U.S. Court of Appeals for the 9th Circuit) (en banc)
• 13 Amici briefs were filed
• Only one brief was filed in support of Appellant Cindy Lee Garcia:• The Screen Actors Guild filed a joint Amicus brief with the Federation of Television and Radio Artists; Actor’s Equity Association; American Federation of Musicians of the U.S. and Canada; International Federation of Actors; Alliance of Canadian Cinema, Television, and Radio Artists; Equity UK; Media, Entertainment and Arts Alliance –Equity Division (Australia & New Zealand); and South African Guild of Actors
• 10 Amici briefs were filed in support of Defendants‐Appellees Google and YouTube, including by:
• Netflix• Adobe Systems• Electronic Frontier Foundation• News Organizations• Computer and Communications Industry Association• International Documentary Association• Law professors
• 2 Amici briefs were filed on behalf of neither party
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Case No. 13-461, Supreme Court of the United States
American Broadcasting Cos., Inc., et al., v. Aereo, Inc.,
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American Broadcasting Companies v. Aereo, Inc., 134 S. Ct. 2498 (2014)
Holding: Aereo’s services, which allowed individual subscribers to view live and time‐shifted streams of over‐the‐air television on Internet‐connected devices, constituted a public performance in violation copyright laws.
The Copyright Act of 1976 gives a copyright owner the “exclusive righ[t]” to “perform the copyrighted work publicly.” 17 U. S. C. § 106(4).
The Act’s Transmit Clause defines that exclusive right to include the right to “transmit or otherwise communicate a performance . . . of the [copyrighted] work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.” § 101.
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American Broadcasting Companies v. Aereo, Inc., 134 S. Ct. 2498 (2014) (Cont’d)
Justice Breyer’s Majority Opinion:• “These behind‐the‐scenes technological differences do not distinguish
Aereo’s system from cable systems, which do perform publicly. Congress would as much have intended to protect a copyright holder from the unlicensed activities of Aereo as from those of cable companies.”
• “When an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it ‘transmit[s] ... a performance’ to them, irrespective of the number of discrete communications it makes and irrespective of whether it transmits using a single copy of the work or, as Aereo does, using an individual personal copy for each viewer.”
Justice Scalia’s Dissent: • Holding Aereo directly liable merely because it “looks like cable TV”
would “sow confusion for years to come.”
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Defenses
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Digital Millennium Copyright Act (DMCA) – 17 U.S.C. §512(c)(1)(A)
(1) In general.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
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676 F.3d 19 (2d Cir. 2012)
Viacom International, Inc., et al., v. YouTube, Inc. et al.
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Viacom Int’l Inc. v. YouTube Inc., 676 F.3d 19 (2d Cir. 2012)
• Holding: When determining whether the safe harbor protections of copyright law apply, the “willful blindness” doctrine can apply to demonstrate that an online service provider knew or was aware of specific instances of infringement under the Digital Millennium Copyright Act (“DCMA”).
• DMCA limits the liability of online service providers for copyright infringement that occurs “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” 17 U.S.C. § 512(c). The safe harbor provision applies when the online service provider does not have knowledge or awareness of the specific acts of infringement. See id.
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Viacom Int’l Inc. v. YouTube Inc., 676 F.3d 19 (2d Cir. 2012) (Cont’d)
On appeal, the Second Circuit interpreted § 512(c) as requiring knowledge or awareness of specific infringing activity. But while the DMCA does not require affirmative monitoring, online service providers shall not make a “deliberate effort to avoid guilty knowledge.”
Knowledge or awareness does not instantly disqualify the service provider from the safe harbor. Rather, a service provider that gains knowledge or awareness of infringing activity can retain safe‐harbor protection if it “acts expeditiously to remove, or disable access to, the material.”
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Viacom Int’l Inc. v. YouTube Inc., 676 F.3d 19 (2d Cir. 2012) (Cont’d) On remand, district court issued another order granting summary judgment
in favor of YouTube.
YouTube had no actual knowledge of any specific instance of infringement of Viacom’s works and therefore could not have “willfully blinded itself.”
YouTube did not have the “right and ability to control” infringing activity because “there is no evidence that YouTube induced its users to submit infringing videos, provided users with detailed instructions about what content to upload or edited their content, prescreened submissions for quality, steered users to infringing videos, or otherwise interacted with infringing users to a point where it might be said to have participated in their activity.”
“The evidence also establishe[d] that YouTube’s search technologies are an ‘automated system’ where ‘users alone choose’ to view infringing content, that YouTube does ‘not participate in those decisions,’ and that YouTube therefore does not control the infringing activity.”
Viacom appealed again, and the parties settled on the eve of oral argument.
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710 F.3d 1020 (9th Cir. 2013)
Columbia Pictures Industries, Inc. v. Fung
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Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013)
• The DMCA safe harbor does not apply to service providers that had “red flag” knowledge that the material was infringing and received financial benefit from activity that they actively promoted.
• Defendant Fung ran torrent websites, primarily isoHunt, which collected and organized torrent trackers. Also ran helpful forums to bittorent users and provided Top 20 lists of movies and active torrents.
• Columbia sued Fung and several John Does. District court granted summary judgment of infringement and held that none of the safe harbors was applicable to Fung.
• The court rejected each of Fung’s arguments for protection under the safe harbor.
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Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013)(Cont’d)
• Transitory digital network communications ‐ Fung’s trackers did not fit that definition of “service provider.” The tracker selects the “points” to which a user’s bittorent client will connect in order to download a file.
• Torrents constituted “information residing on systems or networks at direction of users” – district court was incorrect to find that infringing material does not actually reside on Fung’s servers.
• Actual and “red flag” knowledge of infringing activity ‐ The court pointed out that Fung was actively encouraging infringement, by urging his users to both upload and download specific copyrighted works.
• Financial benefit ‐ Financial benefit does not have to be directly attributable to the infringing activity. Fung generated revenue by selling advertising space on his websites.
• Right and ability to control the infringing activity – requires that the service provider must “exert substantial influence on the activities of users.”
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718 F.3d 1006 (9th Cir. 2013)
UMG Recordings, Inc., et al., v. Shelter Capital Partners LLC, et al.,
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UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013)
• Defendant Veoh operated a website that allowed users to share video content over the Internet.
• UMG filed suit against Veoh for direct and secondary infringement of UMG’s copyrighted songs. District court granted Veoh summary judgment under the 17 USC § 512(c) safe harbor.
• The safe harbor provides that a service provider is not liable for copyright infringement by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by the service provider if the service provider: • (1) does not have “actual knowledge” of infringing material;• (2) is unaware of “facts or circumstances from which infringing activity is apparent;” or
• (3) acts expeditiously to remove or disable access to infringing material upon gaining such knowledge or awareness.
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UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013) (Cont’d)
• The Ninth Circuit affirmed, and addressed many aspects of the safe harbor provision.
• UMG argued that automated processing undertaken to facilitate public access rendered the safe harbor provision inapplicable.
• Court held language of the statute “infringement … by reason of the storage” was broad, and that the safe harbor takedown procedures would be rendered superfluous by UMG’s reading of the statute.
• Notice Requirements and Red Flags – Veoh had received RIAA letters and an email from Disney about infringing conduct, but those “notices” did not provide “actual knowledge” as to other materials. Veoh did not have to take the initiative to search and destroy all other infringing materials.
• “Right and ability to control infringing activity” requires “substantial influence” – it’s not enough to control access; the act requires something more than the mere ability to locate infringing material and terminate users’ access. “Substantial influence” may include high levels of control over activities of users or purposeful conduct.
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Case No. 1:11-cv-08407 (S.D.N.Y.)
Universal Music Group, Inc., et al., v. Escape Media Group, Inc., et al.,
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UMG Recordings Inc. v. Escape Media Group Inc., No. 1:11-cv-08407-TPG (S.D.N.Y.)
• Summary judgment of copyright infringement against the Grooveshark song‐streaming service.
• “The undisputed record evidence demonstrates that Escape received a financial benefit from the infringing employee uploads, which served as a draw for Grooveshark users. Escape relied on the uploaded sound recordings to build a comprehensive music catalog in order to attract users to the service and then monetize the illegal content by generating advertising revenues and other fees.”
• Each time Escape streamed one of plaintiffs’ song recordings, it directly infringed upon plaintiffs’ exclusive performance rights.
• Did not help that evidence had disappeared.• Trial on damages is set for April 2015.
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Practical Problems with Enforcement
• Court decisions make it difficult for producers to rely solely on IP addresses to combat piracy
• Expensive to investigate • Software exists to remove DRM
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BitTorrent
• A file transfer begins “when one user accesses the Internet through an ISP and intentionally makes a digital file of a work available to the public from his or her computer. This file is referred to as the first ‘seed.’ Other users, who are referred to as ‘peers,’ then access the Internet and request the file. These users engage each other in a group, referred to as a ‘swarm,’ and begin downloading the seed file. As each peer receives portions of the seed, that peer makes those portions available to other peers in the swarm.”
• Elaborating on the process, BitTorrent.org explains that to download a file, a peer performs six steps:
• Install BitTorrent (or have done so already);• Surf the web;• Click on a link to a .torrent file;• Select where to save the file locally, or select a partial download to resume;• Wait for download to complete; and• Tell downloader to exit (it keeps uploading until this happens).
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BitTorrent (Cont’d)
• BitTorrent’s key is reciprocity—a peer not only downloads but automatically uploads pieces to other peers. “To keep the torrent operating at maximum capacity, the BitTorrent protocol uses a process called pipelining. Every active peer in a torrent maintains a continuously refreshed queue of requests for pieces, so that no connection is ever left idle after any one piece is downloaded.”
• In addition, the protocol has an internal mechanism that makes sure that those peers who are offering little or nothing to the torrent will get little or nothing from it.
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BitTorrent (Cont’d)
• In sum, BitTorrent is a reciprocal, decentralized network—and a tough nut to crack for copyright holders:
• Data is not stored on a central server. Rather, a user downloads the file in discrete segments from many different users who send data directly to one another. While trackers coordinate and assist peers in locating a swarm, the tracker itself sends out very little data. This makes BitTorrent an extremely efficient mechanism for transferring large files, and at the same time, it insulates the protocol itself from anti‐piracy efforts because there are no central servers to enjoin from unlawfully distributing copyrighted content. Thus, when copyrighted data is transmitted via BitTorrent, the copyright holder is largely limited to holding the individual file sharers liable for infringement.
• Patrick Collins, Inc. v. John Does 1‐28, No. 12‐13670, 2013 WL 359759 (E.D. Mich., Jan. 29, 2013)
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Use of IP Addresses to Bring Copyright Infringement Suits Against BitTorrent Users
• 2011: 25,000 BitTorrent users sued for downloading Hurt Locker23,000 users sued for downloading The Expendables
• Now cases typically involve less than 100 defendants• Why?
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2013-2014 Court Decisions
• Courts sometime skeptical of cases and motives
• Dallas Buyers Club, LLC v. Internet User, et al.i 4:14‐cv‐2218 (S.D. Tex. 2014)(Hughes, J.).
• Sanctions against copyright owners
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752 F.3d 990 (D.C. Cir. 2014)
AF Holdings LLC v. Does 1-1058
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AF Holdings, LLC v. Does 1-1058, 752 F.3d 990 (D.C. Cir. 2014)
• “Porno‐trolling collective” Plaintiff formed by a group of attorneys; obtained copyrights to adult movies and sued 1058 unknown defendants who had shared those movies on a peer‐to‐peer platform.
• Plaintiff served subpoenas on five ISPs to discover the identities of the persons who owned IP addresses used to share one of the copyrighted movies.
• ISPs moved to quash, arguing lack of personal jurisdiction, venue and improper joinder. District court denied the motion.
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AF Holdings, LLC v. Does 1-1058, 752 F.3d 990 (D.C. Cir. 2014) (Cont’d)
• DC Circuit agreed with ISPs • Personal Jurisdiction ‐must have at least a good faith belief that discovery will enable Plaintiff to show that the court has personal jurisdiction over the defendants. Here most of defendants were not in DC. Three of the ISPs did not provide service in DC.
• The court used harsh language: “We cannot escape the conclusion that Plaintiff sought the vast majority of this information for reasons unrelated to its pursuit of this particular lawsuit.”
• Venue – The same analysis applied to venue. Plaintiff argued that defendants may waive venue; the court called it a “speculative possibility.”
• Joinder – Users not part of the same swarm, therefore not “arising out of the same transaction or occurrence.” Court analogized the situation to two players who play at the same blackjack table at different times.
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DRM Issues
• Abbey House Media v. Apple, Inc., et al., No. 1:14‐cv‐2000 (S.D.N.Y.)
• Merely directing purchaser of online books to software that enabled stripping of DRM from books not contributory or induced copyright infringement.
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Questions?
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