day 7

Copyright and the DMCA
IM 350
© Ed Lamoureux/Steve Baron
Important issues
DVR/Music Lockers
– Copies?
– Performances?
– Enacted by? (does it matter?(
DMCA copyright safe harbor
 Illegal downloading & penalties
 Universal Library
Cartoon Network v. CSC
Who’s Who?
– CN owns copyrights to movies and tv programs
 Content owner
– CSC operates cable tv system
 Content distributor
Cartoon Network v. CSC
What are they fightin’ about?
– CSC plans to launch Remote Storage DVR
Customers can record shows on central hard drives
housed and maintained by CSC at remote location
CSC did not seek a license from CN
– CN sues for direct copyright infringment
 Seeks declaration and injunction
Cartoon Network v. CSC
Who won in the District Court?
– Cartoon Network
 Court finds RS-DVR directly infringes CN
– Briefly storing data in ingest buffer
– Copying programs onto server
– Transmitting data from server to customers
Summary judgment entered against CSC
Injunction against CSC to prevent operating RSDVR withou a license
Cartoon Network v. CSC
Where did the legal fight start?
– Federal District Court (New York)
Cartoon Network v. CSC
What happens on appeal to the Second
– The decision is reversed and remanded back to
the District Court
Cartoon Network v. CSC
Rationale of appellate decision:
– Analysis of “transitory duration”
 No bit of data remains in buffer for more than a
fleeting 1.2 seconds
 So, the act of buffering does not create a “copy”
under copyright law
Cartoon Network v. CSC
Rationale of appellate Court:
– Who makes the copy?
 CSC or customer?
 Court holds that customer makes copy and so CSC
is not liable for direct copyright infringement.
– CSC “closely resembles a store proprietor who charges
customers to use a photocopier on his premises…”
Cartoon Network v. CSC
Rationale of appellate court:
– Is RS-DVR playback a transmission of a
performance to the public?
– Answer: No. Because each playback
transmission is made to a single subscriber
using a single unique copy produced by that
subscriber, such transmissions are not “public”
and do not infringe any exclusive right of
public performance
Viacom v. YouTube
 -against YOUTUBE, INC., YOUTUBE, LLC, and GOOGLE, INC., Defendants
YouTube has harnessed technology to willfully infringe copyright on a huge scale,
depriving writers, composers and performers of the rewards they are owed for effort and
innovation, reducing the incentive of America’s creative industries, and profiting from the
illegal conduct of others as well. Using the leverage of the Internet, YouTube appropriates
the value of creative content on a massive scale for YouTube’s benefit without payment
of license. YouTube’s brazen disregard of the intellectual property laws fundamentally
threatens not just the Plaintiffs, but the economic underpinnings of one of the most
important sectors of the United States economy.
Defendants actively engage in, promote and induce this infringement. YouTube itself
publicly performs the infringing videos on the YouTube site and other websites. Thus,
YouTube does not simply enable massive infringement by its users. It is YouTube that
knowingly reproduces and publicly performs the copyrighted works uploaded to its site.
YouTube deliberately built up a library of infringing works to draw traffic to the YouTube
site, enabling it to gain a commanding market share, earn significant revenues, and
increase its enterprise value. YouTube has deliberately chosen not to take reasonable
precautions to deter the rampant infringement on its site. Because YouTube directly
profits from the availability of popular infringing works on its site, it has decided to shift
the burden entirely onto copyright owners to monitor the YouTube site on a daily or
hourly basis to detect infringing videos and send notices to YouTube demanding that it
“take down” the infringing works.
Viacom’s claims
1. Public performance – the defendants have, without permission of the copyright owner,
publicly performed and authorised the public performance of the infringing uploaded
2. Public display – the defendants have, without permission of the copyright owner,
publicly displayed and authorised the public display of the infringing uploaded videos;
3. Reproduction – the defendants have, without permission of the copyright owner,
reproduced and authorised the reproduction of the infringing uploaded videos through
the YouTube website.
4. Inducement of copyright infringement – the defendants areliable for inducing the
infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading
infringing videos to the YouTube website.
5. Contributory copyright infringement – the defendants are liable for contributing to the
infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading
infringing videos to the YouTube website.
6. Vicarious copyright infringement – the defendants are vicariously liable for the
infringing acts of YouTube users, who infringe the plaintiff’s copyright by uploading
infringing videos to the YouTube website.
YouTube’s response
Viacom’s complaint in this action challenges the careful balance established by
Congress when it enacted the Digital Millennium Copyright Act (DMCA). The
DMCA balances the rights of copyright holders and the need to protect the
Internet as an important new form of communication. By seeking to make
carriers and hosting providers liable for Internet communications, Viacom’s
complaint threatens the way hundreds of millions of people legitimately
exchange information, news, entertainment and political and artistic expression.
Google and YouTube respect the importance of intellectual property rights, and
not only comply with their safe harbor obligations under the DMCA, but go well
and beyond what the law requires.
YouTube and Google’s defence, essentially denies each of the allegations in
Viacom’s complaint and raises 12 defences in their favour. These defences
include the safe harbors, licence, fair use, failure to mitigate, failure to state a
claim, innocent intent, copyright misuse, estoppel, waiver, unclean hands, laches
and substantial non-infringing uses.
Key issues
 Is the infringement volitional? Or does YouTube’s
technology work behind their backs in ways for which they
are not responsible?
 Does YouTube qualify for DMCA safe harbor protection?
– Esp. have they been red flagged enough to know that the stuff
often infringes?
 Could they be expected to be able to identify which, and block it?
– To what degree do they financially benefit from the infringements?
Another case: Perfect 10 v Google, reminds us that one has
to do takedowns properly (according to the procedures) in order
for them to “count”
Viacom v. YouTube
Decision of District Court – June 23, 2010
– Summary judgment in favor of YouTube
– YouTube is entitled to safe harbor immunity
under Section 512c of the DMCA
– Defendants are granted summary judgment that they qualify for the
protection of17 U.S.C. (section) 512 (c), as expounded above, against all
of plaintiffs' claimsfor direct and secondary copyright infringement.
Plaintiffs' motions for judgment are denied.
YouTube won the appeal and the USSC
refused to review the decision
– Goldman’s analysis of their appeal
Protecting ISPs
DMCA safe harbor (section 512): exempts ISPs from liability for the
infringing actions of their users, if ISPs satisfy certain conditions
 Communications Decency Act, 47 U.S.C. § 230 :
– Section 230(c)(1) provides immunity from liability for providers
and users of an "interactive computer service" who publish
information provided by others
– Does not apply to intellectual property rights, though we cover
it when we get to defamation which IS a form of IP law.
 Electronic Communications Privacy Act of 1986
– Protects electronic communication from government, third parties,
and interception, but not from employers.
Tannenbaum v. RIAA
 RIAA v. Tannenbaum
Universal Library
Google Books Deal Scuttled By Judge
– We should make clear, as part of our discussion
over how unfair the system is: Google has already
committed MASSIVE copyright infringement.
Probably enough to put them totally out of business
if at full price. Yet, no one is going to sue them for
all of it; instead, various parties have tried to cut
deals with them
And Google has gotten some relief
– We’ll get to the orphan issue next time. For now
Is the value (access for all) worth the risks (having one-private, not public-- gatekeeper and breaking/bending the
law for them along the way)?
The whole thing is a MESS