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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.


 

New Lawsuits from the Internet invoking IP and Media Law

  • Another Rich Man Sues a Website after Bad Press. In a case that is reminiscent of billionaire Peter Thiel financing Hulk Hogan’s suit against Gawker after the site outed Theil as gay, game developer Jonathan Monsarrat is suing Encyclopedia Dramatica for publishing a wiki-page which cited to stories accusing the millionaire of creating a dating service to collect information on women and allegedly distributing alcohol to teenagers. (This is not the first time Monsarrat has sued a site that published unflattering stories about him. He previously sued a LiveJournal blogger that posted a story about his arrest in 2010. Monsarrat later dropped that case after it became clear that it was brought in bad faith.) The newest suit claims Encyclopedia Dramatica infringed on Monsarrat’s copyright in quotes from forum posts and a photo of Monsarrat in a beaver costume. Encyclopedia Dramatica believes this suit was also brought in bad faith. Follow this case for potential anti-SLAPP litigation, for insight on the recent trend of websites being sued by the rich for publishing unbecoming stories and on the recent trend of websites crowdfunding legal defenses.
  • Spotify Sued after Struggling to Obtain All Necessary Music Licenses. Amongst rumors that the company plans to launch on the NYSE, Spotify was recently hit with two copyright infringement lawsuits (here and here). Spotify has deals to license the sound recordings and other licenses to publicly perform the songs, but songwriters and music publishers are suing for unauthorized use of the song compositions. The streaming service sends out notice of intention letters as required to attain Section 115 compulsory licenses from the songwriters and publishers, but argues that finding each of the co-authors of their entire catalog is too hard a task. Spotify has settled similar cases in the past for tens of millions of dollars. Keep up with these cases to remain fully aware of the development of mechanical licenses in the age of the internet and for insight on class action lawsuits that involve IP infringement.
  • Requesting Access to Social Media Accounts in the Hiring Process. A new lawsuit alleges NBC demanded prospective employees share their personal social media accounts before being offered an interview. Half the states ban prospective employers and universities from requesting access to a prospective employee’s personal social media accounts. Although requesting social media access is not prohibited during the hiring process in New York, providing access to personal social media accounts could potentially reveal protected Equal Employment Opportunity information such as age, religion, and medical information.
  • Sci-Hub Sued Again for Providing Free Access to Scholarly Works. Hoping to mimic a $15 million award for a similar plaintiff in the Southern District of New York, the American Chemical Society is suing Sci-Hub under copyright and trademark law for spoofing the ACS’s website and provided access to over 62 million academic publications (which are published by a collection of sites including ACS, Elsevier, Springer, and more.) Some academics believe the publishing sites are unlikely to receive any of the awarded damages, since Sci-Hub is run out of Russia under a variety of domain names and IP addresses. Other academics, however, intend to use these case as inspiration in their protests against the publishing sites for affordable access to academic publications. Follow this string of cases for insight on collecting damages from defendants overseas and for trends in the licensing of scholarly works.
  • Jenner Shirts Inspire Social Media Outrage, Lawsuits, and Satirical Copycats. Kendall and Kylie Jenner received a cease and desist letter for use of The Doors’ likenesses, after the reality star sisters released a line of $125 t-shirts with the images of the band and other musical icons including Tupac Shakur, Metallica, Pink Floyd, Ozzy Osbourne, and Biggie Smalls. The family of the Notorious B.I.G. took to Instagram to declare that the shirts had no affiliation with or approval from the rapper’s estate, while Sharon Osbourne sent out a tweet critical of the girls’ decision to include her husband in their fashion line. After only two shirts were sold, the line was pulled, and Kendall Jenner tweeted an apology. The photographer behind the Tupac Shakur images is now suing the sisters for copyright infringement, but the Jenner sisters claim to have a valid license for the images. (Shortly thereafter, the rock band Arcade Fire satirized the shirts by making their own versions to mock the Jenner sisters, followed by an apology tweet that mimicked Kendall’s own tweet.) Separately, Kylie Jenner is being sued for copying an artists’ painting of biting lips for an advertisement promoting her upcoming show, Life of Kylie. Keep up with these case for more tweets from celebrities attempting to sound like lawyers.
  • @realDonaldTrump Faces a #realLawSuit after Blocking Twitter Users. The Knight First Amendment Institute at Columbia University is representing a flock of Twitter users who have been blocked by the President’s account. The suit claims @realDonaldTrump is a constitutionally protected public forum and that blocking users unconstitutionally prohibits access to government statements and unconstitutionally prevents petitions for redress of grievances. In a similar case, the United States District Court for the Eastern District of Virginia ruled that a Facebook user’s constitutional rights were violated when a county official blocked his account. Separately, a photographer is suing the Trump Organization for copyright infringement after the company posted the photographer’s copyrighted work on its site and the @realDonaldTrump Instagram account. Follow these cases for insight on how Trump critics are using the First Amendment and IP law as a check and balance against the President.

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.


 

Litigation and Policy Trends in Entertainment, Media, and IP Law

Litigation Trends in Social Media, Music, and Video Streaming:

  • The Most Litigious Firms in Copyright Law Are Boutiques. Small boutique firms (specializing in a certain area such as photojournalism, fashion, and the internet) filed the most copyright lawsuits during the second quarter of 2017. Between April 1 and June 30, Liebowitz Law Firm filed 113 new copyright cases, the most by a single firm. Doniger Burroughs came in second place with 83 new lawsuits this quarter. Doniger has filed at least 40 new copyright lawsuits each quarter for the last two and a half years. Lonstein Law Office came in sixth place with 14 new copyright lawsuits that all alleged bars had illegally shown UFC matches.
  • Paparazzi Plaintiffs Sue Celebrities for Instagram Posts. Celebrities and their social media accounts are being targeted by a string of paparazzi plaintiffs who are suing the celebs for posting photos of the themselves that were candidly taken by the paps. Diddy recently settled an infringement suit brought against him for posting a picture on his Instagram account. The paparazzi plaintiff took the photo of Diddy at the opening of a Harlem charter school. A paparazzi plaintiff also sued Khloe Kardashian after she posted a picture of herself on her Instagram account that the pap had captured of Khloe and Kourtney Kardashian eating out in Miami.
  • Artists Advised Not to Reveal Inspiration behind New Songs. After Pharrell Williams said he was “channeling … that late 70s feeling” of Marvin Gaye’s music which played a pivotal role in William’s younger years, Gaye’s estate was awarded $7.3 million for copyright infringement in Robin Thicke and Pharrell Williams’ “Blurred Lines.” Industry leaders and agents are cautioning artists not to publicly declare the inspirations behind their latest music, out of fear that “inspiration can [now be interpreted as] a catalyst for infringement.” Other artists are required to sign contracts that reveal their inspirations to the record labels, which use those lists to research potential infringement claims before they happen.
  • Beware of the Newest Way to Illegally Stream Content. Mobdro is the one of the latest streaming services that facilitates infringement by directing users to a trove of illegal live and on-demand television shows, movies, and sporting events. While the app isn’t available in the app store, in-the-know users are able to install the app for free online in order to play content directly on their TVs through Google’s Chromecast or Amazon’s Fire TV Stick. The new app has been frequently compared to Kodi, another streaming service that has been the subject of numerous lawsuits.

Policy Trends in Entertainment, Media, and Intellectual Property:

  • Google Influences Policy by Paying Professors for Research. Drawing on a list of IP academics, Google paid between $5,000 and $400,000 for hundreds of research papers that the tech giant then cited in its fight against regulations. Google made the payments either directly or through the think tanks it funds. Some professors gave Google a degree of editorial oversight, allowing the company to review the work and offer suggestions before publication. The professors argue that disclosing research to the company before publication ensures accuracy. Additionally, Google told professors that it appreciates attribution or acknowledgement of its financial support. However, many professors did not disclose their financial incentives. Google argues that it values the independence and integrity of universities, and simply supports IP and tech researchers in hopes of amplifying voices that argue for an open internet. Other tech giants have also paid professors for research. In fact, Microsoft, Qualcomm, Verizon, and AT&T have all paid for negative research on Google. Some have compared this new trend in the tech industry to Big Tobacco’s funding of questionable research into the dangers of smoking.
  • U.S. Tech Companies Unite in Support of Net Neutrality. On July 12, tens of thousands of tech companies and websites protested proposed changes to net neutrality rules in the United States during the Internet-Wide Day of Action to Save Net Neutrality. Sites including Facebook, Netflix, Twitter, Reddit, Amazon, and OkCupid participated by displaying banners or videos and by promoting hashtags or other media to incite their users to oppose the new administration’s attempts to overturn the Obama-era regulations on internet fast-lanes. Other companies including internet service providers like AT&T and Verizon voiced support for net neutrality while opposing the 2015 regulations.
  • “Right to Repair” Bills. Repair rights advocates argue that corporations are abusing copyright law to prevent third-party mechanics from fixing their products. Specifically, The Repair Association takes issue with companies that use the DMCA’s anti-circumvention provision to prevent mechanics from fixing smart machines, since doing so often constitutes a hack punishable by hefty fines and prison time. This leaves customers with only two options: return to the manufacturer for an expensive repair or buy a new device. The point of contention frequently comes down to whether users are owners or licensees of the products – usually, you own the hardware but license the smart software. Twelve states are currently considering “Right to Repair” bills which would require manufacturers to sell parts and manuals to be used by third-party mechanics. On the national stage, the You Own Devices Act, which was introduced to Congress in February, would extend the first sale doctrine to software, by restricting a company’s ability to prevent their customers from reselling or leasing their products. Customers would be able to transfer the licenses of any software on their devices to the new owner.
  • New Bills would have Major Impact on Music Industry if Passed. Congressional representatives have introduced or reintroduced multiple bills that seek to make copyright law apply more evenly and equally across the many different entities in the music industry. Here is a brief look at some of the most important aspects of these pending bills:
    • Fair Play Fair Pay Act of 2017. In an attempt to make copyright law apply to traditional broadcast radio stations as it does to digital streaming services, this bill would require terrestrial stations to pay royalties to copyright owners by giving copyright owners a new exclusive right to perform or authorize the performance of a sound recording by means of any audio transmission. The bill was previously introduced in 2015, but failed to pass after extensive lobbying by the radio industry.
    • Performance Royalty Owners Music Opportunity to Earn Act of 2017. In a different approach to a similar issue, this bill would require terrestrial radio stations to secure permission to use an Artist’s song. While the bill does not change the royalty landscape, Congressman Issa explained that the bill “calls the bluff of both sides in a debate over performance rights” by allowing artists to pull their songs from radio and miss out on the “exposure and promotional value” of radio air time.
    • Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act. Terrestrial radio isn’t the only free-riding target that Congress has its sights set on. This bill would require streaming services to pay a royalty for pre-1972 songs, by applying existing law to songs created before February 15, 1972 in the same way that it is applied to songs created after that date.
    • Allocation for Music Producers Act. This bill would amend Section 114 of the Copyright Act to grant music producers a new right to be compensated for their recordings through the letter of direction process.
    • Register of Copyrights Selection and Accountability Act of 2017. Under current law, the Librarian of Congress has the authority to appoint a Register of Copyrights. The bill seeks to make the position a presidential appointment subject to Senatorial confirmation and limited to a renewable ten-year term. While the position has no power to make law, anyone appointed plays a signification role in shaping copyright policy – a role that expands under this bill.
    • Copyright Office for the Digital Economy Act. Similarly, this bill would make the position of Register a presidential appointment, however the position would not be renewable. This bill also seeks to move the Copyright Office away from the Library of Congress to a more independent position.

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.