Check out my recent article on New York’s proposed Deep Fakes legislation in the August 2019 edition of Electronically In Touch, the official e-newsletter and blog of the Young Lawyers Section of the New York State Bar Association. The article takes a look at the legislation in New York to reassess the right of publicity in light of developments in deep fake technology. If passed, the bill would create civil liability for celebrity deep fakes and deep fake pornography.
Category: Fair Use
The internet is terrible at handling copyright takedown requests, so what can sites and content creators do to improve the DMCA takedown procedures?
- Photojournalist Aaron Lavinsky recently took to Twitter after Universal Music sent the social media site a take down request of his 30 second clip of a gigantic crowd of mourners singing Purple Rain shortly after Prince’s death in April 2016. The Minneapolis Star Tribune employee explained that “DCMA takedowns are an important tool for artists who need to protect their intellectual property online, but a major corporation abusing [the] system to remove a news video shot by a newspaper photographer is inappropriate.” Fortunately, the company later retracted its takedown request. However, the case shows just how easy it is for large corporations to ignore fair use laws and abuse the DMCA’s copyright takedown procedures. Had this reporter not known the law and had the voice, audience, and platform to fight back, this important news report could have been lost forever.
- Other reporters have noticed their content wholly reuploaded on LinkedIn and complained that the company fails to act quickly in removing obviously infringing material from its site. Den Howlett of diginomica.com found his article republished in its entirety on an account that did nothing but repost hundreds of other online news articles in their entirety. Eventually, LinkedIn removed the post and the account after multiple tweets back and forth between the original content creator and the social media site over a course of multiple days.
- TorrentFreak released a recent report that impostors are manipulating Google’s search results in their favor by filing false copyright takedown requests against their competitors. By sending in a request to takedown a competitor’s site under the guise of being the original content creator, impostors are able to boost their own search results on Google. It is important to note that the DMCA only allows copyright holders and authorized third parties to file takedown requests, but the bad faith requesters have ignored this critical requirement to great and damaging effect.
- The BBC is facing criticism that it used YouTube’s takedown regime to censor certain political messages. Earlier this month, the BBC sent takedown requests to YouTube that resulted in the removal of hundreds of videos uploaded by a pro-independence vlogger, Wings Over Scotland. The channel holds steadfast its belief that the videos fell squarely within the fair dealing exemptions to that country’s copyright laws. The user claims the BBC was acting with political bias in targeting pro-independence channels with takedown requests while allowing other political vloggers that shared its anti-independence values to use its content freely. The BBC denied this accusation and admitted to sending takedown requests for channels across the political spectrum. While this user’s defense is no where near as strong as the Purple Rain case above, the incident serves as an example of the fear that DMCA takedown requests may be used to silence certain political speech.
- YouTube operates on a three strike policy which results in an entire channel and account becoming subject to termination after three copyright infringements – a system that many have suggested is subject to abuse and often results in improper infringement determinations. Paul Davids recently received a warning that he was infringing the copyright of his own song. Another YouTuber downloaded a track that he had uploaded, added vocals and a guitar riff, and reuploaded the improved song. Because the sites copyright detection system had determined Paul Davids’ video contained elements within the copycat’s video, Paul Davids received a warning for copyright infringement and was told that any money earned on his video would be redirected to the copycat. This type of thing happens frequently, many YouTubers suspect. In 2015, a YouTuber lost the monies earned from stock footage he uploaded and then licensed to Epic Records, after Sony sent the social media site a request to take down the YouTuber’s original content. Even Justin Bieber struggled to upload a new song after a fan beat him to hit in 2010.
- Recently, YouTube launched its Copyright Match pilot program which identifies full reuploads of original content on YouTube and allows the original poster to review it and decide to take action. In its announcement, YouTube was already cognizant that the new tool would be rife with abusers. It warned that intentional or repeated misuse of the system, attempted probing, or reverse engineering would result in loss of the feature. The company is putting the fair use determination in the hands of the original creator who may then request YouTube remove the infringing content from its site. In a sense, the company is crowd sourcing its copyright infringement prevention procedures back to the content creators themselves. However, some content creators have already criticized YouTube for keeping this and similar services in the dashboards of only a selected few. Others have suggested that this and similar tools are too risky – as the tools often result in unfair content deletion or channel removals. If the program is successful, its not hard to see how this regime could easily be expanded on YouTube and implemented across other social media sites like Facebook, Twitter, and Instagram as well as blog and web-hosting services.
About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby attended the University of Florida Levin College of Law in order to pursue an in-house legal career at an entertainment or media corporation. He has interned at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He graduated in May 2018 and passed the New York Bar Exam in July 2018.
Mavrix’s Misguided Guidelines: An Offense Against the DMCA Safe Harbor Defense
I am incredibly proud to announce that my article Mavrix’s Misguided Guidelines: An Offense Against the DMCA Safe Harbor Defense has been published in the Journal of Technology Law and Policy. This case comment was a labor of love for almost a year on a topic that I am deeply interested in – online copyright infringement. In the article, I argue that the Ninth Circuit’s guidelines for determining whether a website may seek limited liability in the Digital Millennium Copyright Act’s safe harbors are too stringent and prevent worthy websites from the protection they so desperately need to foster a strong online marketplace for speech and trade. I hope you all enjoy my argument, and I would love to hear your opinions about not only my article but also about how we choose to enforce copyright laws on the internet.
New Case Law in Entertainment, Media, and IP Law
- Uber’s Terms of Service are Binding whether You Read or Understood Them. The United States Court of Appeals for the Second Circuit just held a potentially landmark case in favor of apps hoping to avoid lengthy and costly public trials with their users. The court ruled that Uber’s mandatory arbitration clause is binding, even in cases where the user did not read or understand the ride-hailing app’s Terms of Service. The district court decided the clause was unenforceable because it was not reasonably conspicuous, but the appellate court disagreed. Despite the fact that users have no bargaining power to negotiate the contract’s provisions, the appellate court explained that Uber’s ToS were easily accessible from the app, since the additional terms were available to the user by visiting Uber’s website via hyperlink. The case will likely be cited by other apps – especially those that use “sign-in wraps” where users agree to the terms by registering for the app – to show that the user was on inquiry notice. Apps should be advised that courts may still find for users if the link to their ToS is not sufficiently conspicuous, such as the small link on Amazon’s cluttered page at issue in Nicosia v. Amazon.
- Patent for Podcasting Invalidated. The United States Court of Appeals for the Federal Circuit affirmed the United States Patent and Trademark Office’s decision to invalidate a patent for podcasting, since podcasting existed in the prior art when the patent owner filed for the patent.
- The Right to Record the Police has its Limits. The United States Court of Appeals for the Eighth Circuit recently upheld a lower court’s ruling that dismissed an activist’s First Amendment claim that he had a constitutional right to record another citizen filing a complaint in the lobby of the police department. The constitution protects the right to record police officers acting in their official capacity in public spaces, as a mechanism of monitoring how police exercise the power the public grants them. Some media rights organizations are not afraid the ruling will be abused in future cases, and instead believe the case is in line with precedent that holds there is no general right to be where the news is. However, some were hopeful the right to record police in public spaces could be expanded to provide a right to access other official proceedings.
- Secondary Copyright Infringement is a Crime. The United States District Court for the Northern District of Illinois potentially ended debate about whether secondary copyright infringement is a crime by deciding the founder of KickassTorrents was properly indicted. Despite the defendant residing in Poland, the court found his actions were sufficient to sustain the Government’s theory that the defendant was aiding, abetting, and conspiring with users in the United States who pirated copyrighted television, movies, music, and more.
- Florida Judge will not be Disqualified for Social Media Connection with Lawyer. The Third District Court of Appeal in Florida has held that a judge will not be disqualified from a case simply because she is Facebook friends with a lawyer representing one of the parties. The court explained that social media connections do not automatically denote a close relationship between the judge and lawyer, so a basis for disqualification can only be established with more evidence. The case stands in contrast with ethics opinions and another Florida case where recusal was required where the judge was Facebook friends with the prosecutor. Florida has some of the most restrictive guidelines on judicial use of social media of the eleven states that have issued such guidelines.
- Sarah Palin’s Defamation Lawsuit against the New York Times was Tossed. The United States District Court for the Southern District of New York threw out a defamation lawsuit against the New York Times for an editorial that stated a link existed between a map distributed by Sarah Palin’s PAC in 2010 and the shooting of Rep. Gabby Giffords in 2011. Two days after the initial publication, the New York Times issued a clarification denying the existence of any link between the two. While the judge agreed that the newspaper may have acted negligently, he disagreed with the Alaskan governor’s argument that the New York Times acted with the actual malice necessary to maintain a defamation claim against a public figure. The judge explained that no legal redress was permissible for this mistake, since Palin failed to admit any evidence necessary to establish that the newspaper made the mistake with knowledge of falsity or a reckless disregard for its falsity.
- Walt Disney Settled Infamous “Pink Slime” Lawsuit for $177 Million. Setting a record for media defamation settlements, Beef Products Inc. recently received a rather beefy pay-off from the parent company of ABC News, which aired a report that lead grocers to remove the food company’s “highly textured beef” from their shelves, causing sales to drop more than 50% to a measly 2 million pounds per week. Under South Dakota’s Agricultural Food Product Disparagement Act, Disney faced potential damages in the billions of dollars, if Beef Products was successful in court. The settlement was revealed in the media company’s most recent earnings report, but further details remain confidential.
- Statutory Claims for Tattoo Infringement against Take-Two Games Dismissed. The United States District Court for the Southern District of New York dismissed claims for statutory damages brought by Solid Oak for allegedly infringing its copyrights in the tattoos of NBA athletes featured in Take-Two’s video games. The decision potentially saves the game-maker billions of dollars. However, the copyright owner may continue to pursue claims for actual damages caused by the alleged infringement of eight tattoos. Take-Two is defending itself on fair use and de minimis use grounds. If Solid Oak is successful, it could have major ramifications for every future sports broadcast and video game.
About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby attended the University of Florida Levin College of Law in order to pursue an in-house legal career at an entertainment or media corporation. He has interned at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He graduated in May 2018 and passed the New York Bar Exam in July 2018.
New Case Law in Entertainment, Media, and IP Law
SCOTUS declined to hear two Digital Millennium Copyright Act cases:
- Lenz v. Universal Music Corp. After receiving a DMCA takedown request from Universal Music Group, YouTube removed a video of a baby dancing to Prince’s “Let’s Go Crazy” that fell within the fair use defense. The Ninth Circuit held that copyright owners must reach a “good faith belief” that the material is infringing before filing a takedown request. Advocates against DMCA abuse hoped the Supreme Court would raise the easy, subjective standard to a more rigorous “objectively reasonable” belief in order to prevent censorship, but the court passed on reviewing the case.
- EMI Christian Music Grp., Inc. v. MP3tunes, LLC. Record companies and music publishers sued a digital music storage site for copyright infringement. The jury awarded $48 million to the plaintiffs, despite the district court finding that the site had a reasonably implemented repeat infringer policy as required for safe harbor protection under 17 U.S.C. § 512. The district court then partially granted the site’s post-trial motion for judgment as a matter of law, reducing the award to $12 million by reasoning that the site did not have red flag knowledge or willful blindness regarding two categories of pirated songs. Upon review, the Second Circuit reinstated the original verdict holding that a reasonable jury could find that the site did not have a reasonable repeat infringer policy, because the site did not connect takedown notices to users who repeatedly created links to that pirated content or to users who repeatedly copied that pirated content. Some copyright experts argued the Supreme Court should have taken the case, since the ruling directly conflicts with the DMCA’s “no duty to monitor” rule.
SCOTUS rules on the disparagement clause and copyright separability:
- Matal v. Tam. The U.S. Patent and Trademark Office invoked §2(a) of the Lanham Act to deny “The Slants” trademark registration, since the band’s name was deemed to be disparaging to Asians. The disparagement clause prohibited registration of terms that bring persons, institutions, beliefs, or national symbols into contempt or disrepute. The band, which sought to end the disparaging connotation by reclaiming the racial slur and using it in a positive and empowering way, asserted a free speech defense. Justice Alito agreed that the disparagement clause violated the First Amendment, since “speech may not be banned on the ground that it expresses ideas that offend.” The case also ended decades of Native American activism to strip the Washington Redskins of trademark protection.
- Star Athletica LLC v. Varsity Brands Inc. Venturing into fashion law to address the widespread disagreement among the circuits, SCOTUS reviewed the separability of unprotected useful items (such as clothing) from their protected expressive elements. The fashion industry hoped for a broad definition that would protect their products under copyright, while consumer advocates hoped a narrower approach would increase competition. Clarence Thomas wrote the new test: copyright protects expression that can “be perceived as a two- or three-dimensional work of art separate from the useful article” so long as it qualifies as protectable expression when “imagined separately from the useful article into which it is incorporated.” Some experts questioned whether this ruling would have the unintended consequence of expanding copyright protection to basic fashion tropes such as frequently used colors, stripes, and shapes.
Intellectual property and media law decisions from the lower courts:
- Elliott v. Google, Inc. Google filed a cybersquatting complaint under the Uniform Domain Name Dispute Resolution Policy (UDRP) when Elliott registered 763 domain names inclusive of the word “google.” After the arbitrator sided with the tech giant, Elliott filed a claim to have the trademark cancelled, arguing that it had succumbed to genericide. Genericide occurs when a trademarked brand loses protection, because it has become the generic name for the product or services it protects (e.g. aspirin). This often occurs because the trademark owner has failed to police the mark and prevent others from using its mark to identify competitor’s products or services. Although “google” is used as a verb meaning “to search the internet,” the Ninth Circuit held that Google will not lose trademark protection, because the use of “google” as a verb did not necessarily constitute generic use. The brand passed the “who-are-you/what-are-you” test, since the use of “google” as a verb is used to describe searching the internet but not to describe all search engine services as a category of products or services.
- Corbello v. Devito. The District Court for the District of Nevada overturned a jury verdict against the Broadway musical “Jersey Boys” for copyright infringement of an unpublished autobiography, since a fair use analysis of the copying showed that only a quarter of a percent was copied from the source content. Most similarities, the court explained, were due to the fact that both works were based on actual historical events, which are not copyrightable.
- Jordan-Benel v. Universal City Studios, Inc. Douglas Jordan-Benel sued Universal City Studios for allegedly using substantial parts of his screenplay for the basis of “The Purge” film series. The implied-in-fact contract claim was based on Universal City Studios’ failure to pay Jordan-Benel. Universal City Studios filed an anti-SLAPP motion, which was denied by the district court because the contract claim did not arise from conduct in furtherance of the right of free speech. The Ninth Circuit affirmed, and the case is expected to continue at a lower court and potentially go to trial.
- Virginia Citizens Def. League v. Katie Couric. Katie Couric was sued for defamation in relation to a nine second pause after the reporter asked gun rights advocates a question in a documentary. The gun rights advocates claimed the footage was manipulated to falsely inform viewers that the subjects had been stumped by the question and had no basis for their opinions. The district court granted Couric’s motion to dismiss, because the interview scene was not false, since the gun rights advocates did not answer the question and “the editing simply dramatizes the sophistry” of the gun rights advocates.
About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby attended the University of Florida Levin College of Law in order to pursue an in-house legal career at an entertainment or media corporation. He has interned at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He graduated in May 2018 and passed the New York Bar Exam in July 2018.