“Blurred Lines” between Copyright and Inspiration

The number one hit song of 2013, “Blurred Lines” by Robin Thicke, garnered over seven million copies in sales, and over 341 million views on YouTube.1 Thicke, who admitted that he was inspired by Marvin Gaye2, filed a preemptive suit in the District Court of Central District of California seeking declaratory judgment subsequent to the song’s release after Gaye’s heirs threatened to sue for copyright infringement.3 Also in the suit was Pharrell Williams, who produced the song, and Clifford “T.I.” Harris Jr., who provided the rap in the song.4 Thicke, Williams, and Harris argued in their complaint that they were not copying Gaye’s songs, that “Blurred Lines” was original, and the song merely has the same “feel” and “sound” as Gaye’s song, and thus not a copyright infringement.5

Gaye’s children, Frankie and Nona Gaye, and Bridgeport Music countered the preemptive suit, suing the trio for copyright infringement.6 The Gayes also sued EMI, a subsidiary of Universal Music Group, arguing that the company breached its fiduciary duties by not responding to the infringement claims.7 The children inherited the copyright of the composition to “Got to Give It Up,” which they are claiming Thicke copied off of.8 Bridgeport Music, owner of the band, Funkadelic’s, song, “Sexy Ways,” similarly claims copyright infringement9, but dropped out of the suit after the parties came to an agreement.10

Thicke principally argued that his song’s feeling was the essential style of a particular genre, and thus not copyrightable under copyright law.11 Thicke asserted that the Gayes were claiming to own the entire genre, and not a particular song.12 Under copyright law, to sustain a copyright infringement claim, the appellant must show: “(1) they owned a valid copyright in the work alleged to have been infringed, and (2) the infringing party copied protected elements of that work.”13 The protected element of the work was only the compositional notes which, Thicke argued, was different from the “lyrics, rhythm, and melody” of his song.14

In addition to admitting that his song was influenced by Gaye, Thicke disclosed during his deposition that he was on alcohol and drugs when collaborating for the song, and it was Williams who mainly wrote it.15 After the incident, Thicke tried to convince the jury by singing a number of songs in front of the twelve-member audience.16 Unpersuaded by his performance and arguments, the jury found “Blurred Lines” to have infringed on “Got to Give It Up” and awarded Gaye’s children $7.4 million, $4 million for the amount Gaye’s children would have received if the song was licensed, and $3.4 million in profits.17

While a victory for copyright holders, many musical artists and companies worry this judgment will affect the production and release of new songs when it holds to a similar style of a certain genre.18 In response to this, a number of artists have grouped together and submitted an amicus curiae brief to try and persuade the court that its ruling will impede on an artist’s creativity and will in essence, “punish songwriters for creating new music that is inspired by prior works . . . .”19 More than 200 artists have joined together to submit it, a number of whom are well-known in the industry.20 Stating that there is no hardline rule or test placed for the judge or jury to go by, many fear this will lead to a floodgate of litigation whenever a new song comes out.21 Thus begging the question: When is a song copying another song, and when is a song influenced by another song?

Streaming the Illegal

For those who are old enough to have lived through the rise and fall of Napster, the fear of punishment for being caught downloading music illegally was enough to make any one stop. For those who are not old enough to know what Napster is, Napster was one of the first music file sharing sites that allowed users to download music that someone else had on their computer.1

Napster made its debut in late 1999 and in 2000, record labels saw the first drop “in global record sales.”2 Lawsuits ensued and the founders of Napster even abandoned their creation as they “had been ordered to start charging [for the music] or else close entirely.”3 While the shutdown of Napster led to the creation of programs like iTunes and Spotify, it was not the end of pirating.

The litigation that enveloped the world because of Napster, and other filed sharing sites such as KaZaA, has not stopped people from hosting pirating sites, in which illegal music and movies are available for download and streaming without authorization.4 However, “[r]ecord labels, movie studios, and ISPs have joined forces for an industry-led warning system that will notify users when they are suspected of illegally downloading music, TV shows, or movies.”5 This is the essence of the Copyright Alert System. It is enforced by having the internet service providers (“ISPs”) send warnings to the users, which, if ignored, allows the ISPs to “turn to ‘Mitigation Measures’” which include such things as “temporary reductions of Internet speeds or redirection to a landing page until you contact your ISP to discuss the matter.”6

The question remains: what happens when a user streams pirated copyrighted works?

For sophisticated users, many believe they will not get caught by using a virtual private network (“VPN”) server, which allows the user to have an internet connection between the user’s router and a proxy server in a different location.7 This causes the internet protocol (“IP”) address to be linked to the proxy server.8 The internet traffic that is seen from the IP address linked to their home is the traffic between their home router and that proxy server.9 That traffic is encrypted, which means no one can really tell what the user is doing.10

For users that read the prior paragraph and still do not understand what using a VPN server is, the bottom line is the risk of being caught is still there. A “site that ‘makes available or facilitates the availability’ of rights-owners’ content without their permission is unlawful.”11 For the people that stream the content from these sites, it “is generally legal.”12 This activity becomes illegal “[w]hen the user downloads even part of a file . . . [a] when the user streams content as a ‘public performance.’”13 But user beware, even if there is no plan to do anything illegal, there is the “risk of exposure to viruses. . . poor quality, pop-up ads, and other annoyances” that may not make that free show or movie worth it.14

Control Your Cloud So It Will Not Rain on You

The Digital Millennium Copyright Act (DMCA) creates a “safe harbor” provision exempting an internet service provider’s (“ISP”) contributory liability for the copyright infringement of the work that ISP user uploaded to the ISP’s hosting environment.[1] However, the protection is available to the ISP only when it “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.”[2] The question arose from this requirement is whether “the provider must know of the particular case before he [sic] can control it.”[3]

In Viacom Int’l, Inc. v. YouTube, Inc., the Federal Court of Appeal of Second Circuit ruled that the safe harbor provision of the Digital Millennium Copyright Act (DMCA) does not require an ISP have specific knowledge of the infringement activity in order to control the content the ISP user uploaded to the ISP’s cloud storage and cloud service.[4] In its ruling, the Second Circuit explicitly rejected the Ninth Circuit’s holding that “’until [the service provider] becomes aware of specific unauthorized material, it cannot exercise its ‘power or authority’ over the specific infringing item.’”[5] Therefore, the Second Court’s ruling created circuit splits and an uncertainty of whether an ISP can quality for DMCA’s safe harbor protection where it does nothing to control the infringement activities occurring in its cloud services because its unawareness of specific infringements.

Furthermore, the Second Circuit applauded one case in which the ISP “institute a monitoring program . . . [and] forbade certain types of content . . . .”[6] This case exemplifies that “the service provider exert[ ] substantial influence on the activities of users, without necessarily—or even frequently—acquiring knowledge of specific infringing activity.”[7] The dictum seems to suggest that, for establishing the ability to control, an ISP shall implement some proactive monitoring measurements over the contents uploaded to its cloud service or cloud storage. And, it may create two issues. First, what level of monitoring and actions will be sufficient to control. Second, whether the monitoring program will adversely infringe the ISP user’s right of privacy.

[1] 17 U.S.C. § 512(c)(1) reads as follows “[a] service provider shall not be liable for monetary 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.”

[2] 17 U.S.C. § 512(c)(1)(B).

[3] Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 36 (2d Cir. 2012).

[4] Id. at 38 (holding that “§ 512(c)(1)(B) does not include a specific knowledge requirement . . . .”).

[5] Id. at 38 (citing MG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022, 1041 (9th Cir. 2011)).

[6] Id. at 38 (citing Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1173 (C.D. Cal.2002)).

[7] Id. at 38.

A Possible Solution to the Copyright Troll Epidemic?

The term copyright troll has been gaining in its public recognition since 2010 when Voltage Pictures filed a lawsuit against 5000 unnamed defendants (“Does”) for illegally distributing a copyrighted work called The Hurt Locker.[1] This film was distributed using an internet-based file sharing protocol called BitTorrent.[2] Rather than downloading a file from a single source server, the BitTorrent protocol allows users to join a “swarm” of hosts to download and upload from each other simultaneously.[3] When suing potential copyright infringers, the copyright holder has the option to either sue for actual damages caused by the infringement combined with any profit the infringer may have generated or for statutory damages.[4] In the event that the court determines that the infringement was willful, the court has the authority to raise the statutory damage award to $150,000.[5] Combining the fact that copyrighted works are often distributed by large numbers of individuals simultaneously utilizing the BitTorrent protocol with the ability to opt for statutory damages up to $150,000 many copyright holders seek damages not as compensation, but as an additional revenue stream.[6]

This model of litigation is made possible by the unequal bargaining power between the copyright holders and the defendants. Joining large groups of defendants, copyright holders and their council rely on scare tactics as well as basic economics to illicit settlements out of hundreds of defendants at a time with few expenditures. After a copyright holder identifies a particular IP address that has distributed a copyrighted work using techniques beyond the scope of this discussion, it must pair the IP address with an actual person. To accomplish this, copyright holders initiate suits against multiple Does and then subpoena internet service providers (“ISPs”) to match the IP addresses with actual people.[7] ISPs often respond to these subpoenas by sending letters to their subscribers stating that they have been named in a lawsuit and unless they file a motion to quash the subpoena, they may be liable for damages up to $150,000. This letter alone can often be enough to elicit settlements out of Does for fear of losing and having to pay the maximum statutory fine. Another fact that encourages settlements is that the typical amounts of the settlement offers are often far less than the cost of representation should the defendant contemplate litigation.[8]

Some have suggested that the proper response to deal with this copyright litigation model should be to remove statutory damages.[9] Although removing statutory damages seems like a very straightforward method of deterring this particular type of litigation, it poses some problems. Due to the nature of the BitTorrent protocol, determining the actual damages to the copyright holder may be exceedingly difficult if possible at all. If the actual damages cannot be determined, this may deny the copyright holder his or her day in court, an option which should not be entertained. A more appropriate response would be to alter the statutory damages to reflect current developments in technology. For example, a statutory damage amount could be imposed for material distributed over peer to peer networks which more accurately reflects the value of the copyrighted works, instead of an amount differing by orders of magnitude.

[1] Complaint at 1, Voltage Pictures, LLC v. Does 1-5,000, No. 1:10-cv-00873 (D.D.C. May 24, 2010), ECF No. 1.

[2] Voltage Pictures, LLC v. Does 1-5,000, 818 F. Supp. 2d 28, 31 (D.D.C. 2011)

[3] BitTorrent, Wikipedia (last visited August 11, 2012), http://en.wikipedia.org/wiki/BitTorrent.

[4] 17 U.S.C. § 504(c)(1).

[5] 17 U.S.C. § 504(c)(2).

[6] Ben Jones, Copyright Trolls, Not Just for Patents Anymore, Torrentfreak (Sept. 20, 2010), http://torrentfreak.com/copyright-trolls-not-just-for-patents-anymore-100920/.

[7] E.g., Motion to Quash Subpoena at 4, Voltage Pictures, LLC v. Does 1-5,000, No. 1:10-cv-00873 (D.D.C. Oct. 5, 2010), ECF No. 11.

[8] Robert W. Zelnick, Guest Post: Open Season on Copyright Infringement Claims? All Hail, or Hate, the ′′Troll′′?, Patently-O (Sept. 21, 2010), http://www.patentlyo.com/patent/2010/09/zelnick-copyright-trolls.html.

[9] James DeBriyn, Shedding Light on Copyright Trolls: An Analysis of Mass Copyright Litigation in the Age of Statutory Damages, 19 UCLA Ent. L. Rev. 79, 103 (2012).

The Legalities of Linking

As technology progresses and faster ways of transferring information develop, legal issues surrounding not only the ownership of property, but control over its accessibility (when, where, why, and how it is obtained), are emerging. Indeed, something as simple, inherent, and seemingly harmless as creating a hyperlink[1] (hereinafter “link”), has caused a spike of intense litigation.[2] Not surprisingly, many of these actions allege at least one count of intellectual property infringement.

When one website contains a link to another, a web user, due to the speed of modern connectivity, is almost instantly – upon clicking – looking at the destination page of the link.[3] Thus, the speed, nature, and character of links and their transitions may implicate two distinct intellectual property doctrines.[4] For copyright theorists, when a user clicks certain types of links, the instantaneous request and display of another page is essentially a taking of intellectual property.[5] Ignoring the code-based behind-the-scenes forwarding operations that take place when the user clicks the link, copyright theorists contend that Page X’s link to Page Y, by virtue of the instantaneous nature or subtle/elusive character of its link, is essentially displaying the content of Page Y without the author’s consent.[6]

Alternatively, trademark theorists argue that the act of linking itself is never a taking of property; but instead, a recipe for confusion, necessarily obfuscating the true source or author of the subject material.[7] For trademark theorists, when a user on Page X clicks Page X’s link to Page Y, the instantaneous transfer or character of the link to Page Y may confuse the user, making it difficult or impossible for them to discern the true author or origin of the now displayed material.[8] Worse yet, they argue, the user may obtain the mistaken belief that the now displayed material is actually the property or authorship of the creator of Page X.[9]

In Jones Day v. Blockshopper LLC, a law firm (Jones) sued a real estate website (Blockshopper) in equity, for posting an article about a few of their attorneys’ recent home purchases, with in-text links to the attorneys’ biography pages on the Jones firm site.[10] Jones argued trademark infringement, based on allegations of market dilution and confusion.[11] In essence, Jones argued that Blockshopper’s links would either dilute Jones’ name by creating the erroneous impression that the two companies were affiliated, or confuse users as to the true origin of the material, or nature of the relationship between the companies.[12]

Holding Jones’ trademark claims sufficiently plausible to state a claim for relief, the district court denied Blockshopper’s motion to dismiss.[13] Faced with mounting legal fees, Blockshopper settled, agreeing to amend its linking practices with respect to Jones.[14]

[1] A clickable reference to another source that transfers the user to that source when clicked on. See <http://www.webopedia.com/TERM/L/link.html> (accessed Aug. 11, 2012).

[2] See Eugene R. Quinn, Jr., Web Surfing 101: The Evolving Law of Hyperlinking, 2 Barry L. Rev. 37, 43 (2001).

[3] Id. at 44.

[4] Id. at 44-46.

[5] Id.

[6] Id.

[7] Id. at 46-47.

[8] See id.

[9] Id.

[10] Jones Day v. Blockshopper LLC, No. 08CV4572, 2008 WL 4925644, at *1 (N.D. Ill. Nov. 13, 2008).

[11] Id. at *2.

[12] Id. at *3-4.

[13] Id. at *4.

[14] BlockShopper v. Jones Day: The right of Web sites to link, SLATE.COM (Feb. 12, 2009, 4:49 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2009/02/linked_out.html.

This is a Message About the “Copyright Alert System”

The newly formed Center for Copyright Information (“CCI”) is set to launch its first educational initiative by year’s end with the Copyright Alert System (“CAS”).[1]  CAS is the formal moniker for the six-step gradual plan in development for the past four years to combat copyright infringement perpetrated through peer-to-peer (“P2P”) file sharing on the Internet.[2]  The CCI is comprised of representatives of the Motion Picture Association of America (“MPAA”),[3] Recording Industry Association of America (“RIAA”),[4] and Internet Service Providers (“ISPs”),[5] all having a particular interest in combating copyright infringement through the Internet.[6]  Content providers lose revenue from the unauthorized sharing and downloading of their content on P2P platforms and the ISPs have to spend money to implement procedures to track infringers and comply with subpoena responses and other investigative requests by copyright holders.

The CAS provides ISP subscribers suspected of being repeat infringers with six alerts, primarily by email, warning them of their status as a repeat offender and of future action that will be taken against them if they do not cease their infringing activity.[7]  The expected substantive alerts will consist of the following:

Alert 1

ISP sends written alert informing the subscriber that his/her account has been suspected of infringing activities.

  • Educational resources recommendation
  • Security check recommendation
  • Theft protection procedures
  • Lawful resources for copyrighted content
Alert 2

Significantly replicates the first but will emphasize the educational messages

  • ISPs have option to skip right to the third alert.
Alert 3

At this point the account has been completely flagged as an infringer and the ISP will issue an alert through a “conspicuous mechanism” like a pop up window or landing screen when the user goes online.

  • User must acknowledge receipt of warning
  • Notice of occurrence of prohibited use
  • Notice of legal consequences of infringement
Alert 4 This alert also significantly resembles Alert 3.
Alert 5

The fifth alert is where the ISP takes the opportunity to begin its mitigation measures against the subscriber.

  • Reduce internet speeds
  • Withhold internet connection until
    • Mandatory live conversation with ISP rep, or
    • Subscriber must review and respond to educational material
Alert 6

This final alert may act as a number of initiatives.

  • Mitigation measures
  • Notice if suit filed[8]

Recipients of the alerts have a means of responding to the allegations upon them by initiating an appeal, for $35, to have the CCI begin a review procedure.[9]  Nonetheless, the CCI believes there will be very few appeals as the alert system is meant to thwart the infringement early on without interrupting the subscriber’s Internet use patterns.[10]

The CCI’s Executive Director, Jill Lesser, affirms that this program will be focused on educating the public rather than assume the role of a disciplinary agency.[11]  It is believed that an abundant amount of infringement takes place because subscribers do not understand the protections and restrictions of copyright law.  Lesser further explains that the CAS is “approaching on the theory that most consumers want to do the right thing and will do the right thing if they understand.”[12] The CCI confirms that its place is not to terminate anyone’s Internet access; the CCI provides a structured program for ISPs and content owners to work together to enforce their respective copyright policies and rights.[13]

While the initiatives taken by the industry are commendable in comparison to its prior program in the early 2000’s, where it filed some 35,000 lawsuits against music consumers, the question still lingers whether the CAS will work.[14]  A much discussed possible shortcoming in the program is the accuracy of infringer identifications.[15]  In response, the program is being carefully scrutinized and developed by content owner representatives who will develop written methodologies for identifying instances of P2P online infringement.  Impartial technical experts will also conduct subsequent ongoing reviews of those methodologies.[16]  The reviews will be conducted “with the goal of ensuring and maintaining confidence on the part of the content owner representatives, the participating ISPs, and the public in the accuracy and security of the methodologies.”[17]

Although the possibility of the CAS causing ISPs to aggressively search for infringers and make wrongful accusations would be detrimental to the ISPs relationship with its customer and undoubtedly infringe on the customer’s peaceable enjoyment of their internet service, the CAS is the most promising non- judicial means of copyright enforcement.  The CAS takes all of the players in the world of P2P file sharing into consideration and this inclusiveness is what will drive the program’s success rate.  Ultimately, CCI’s dedication to maintaining a fair and transparent program will be proven by its ability to circumvent consumer dissidence about CAS tactics and gain more industry participants, particularly ISPs.

[1] Jill Lesser, The Copyright Alert System: Moving to Implementation, Center for Copyright Information (Oct. 18, 2012), http://www.copyrightinformation.org/node/709; Cyrus Farivar, “Six Strikes” System Goes Live this Fall, Appeals to Cost $35, ars technica (Oct. 18, 2012, 12:02 PM), http://arstechnica.com/tech-policy/2012/10/six-strikes-system-goes-live-this-fall-appeals-to-cost-35/.

[2] Copyright Alert System (CAS), Center for Copyright Information http://www.copyrightinformation.org/alerts (last visited Nov. 11, 2012) [hereinafter CAS].

[3] Motion Picture Association of America, http://www.mpaa.org (last visited Dec. 21, 2012).

[4] Recording Industry Association of America, http://www.riaa.com (last visited Dec. 21, 2012).

[5] What is an ISP?, wiseGeek, http://www.wisegeek.com/what-is-an-isp.htm (last visited Dec. 21, 2012).

[6] About, Center for Copyright Information, http://www.copyrightinformation.org/about (last visited Nov. 11, 2012).

[7] CAS, supra note 2.

[8] Andrew Couts, Six Strikes and You’re Screwed: What the Upcoming Piracy Crackdown Means for You, Digital Trends (Mar. 29, 2012), http://www.digitaltrends.com/web/six-strikes-and-youre-screwed-what-the-upcoming-piracy-crackdown-means-for-you/.

[9] Id.

[10] Farivar, supra note 1.

[11] Id.

[12] Id.

[13] Id.

[14] Erika Morphy, 6-Strike Copyright Warning System: Can You Hear Us Now?, ECT News Network (Sept. 13, 2012, 11:55 AM),  http://www.ectnews.com/story/76152.html.

[15] Id.

[16] Id.

[17] Id. 

Drawing the Digital Line: Why Social Bookmarking is not Copyright Infringement

Social bookmarking websites provide users that have similar interests with a dumping ground to share the web addresses of third-party websites that provide free access to, inter alia, copyrighted content. Bookmarking sites do not host any content on their own servers, however, but merely function as a gateway to where material, sometimes copyrighted, can be found on the Web.

Flava Works, a gay porn production company, sued myVidster, a social video bookmarking website, after discovering that myVidster users were sharing websites that host illegal copies of its copyrighted videos, thereby bypassing Flava’s pay wall and allegedly reducing their income by about $100,000.[1] During trial, the district judge granted a preliminary injunction in favor of Flava Works after finding that myVidster’s social bookmarking operation made them an infinger’s accomplice.[2]

The Seventh Circuit Court of Appeals vacated the preliminary injunction because it held that myVidster merely provided information and that, without more, this was not evidence of direct or contributory infringement.[3] Firstly, the Copyright Act makes it unlawful to “perform . . . transmit or otherwise communicate a performance of the [copyrighted] work . . . to the public. . . .”[4] On appeal, Judge Posner compared the role of myVidster to a newspaper, stating that, “By listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them. It is not ‘transmitting or communicating’ them.”[5] Similarly, myVidster, like the New Yorker, is merely disseminating the name and address of websites that host, inter alia, Flava’s videos. Accordingly, because myVidster is not actually transmitting, performing, or communicating Flava’s videos on its website, its operation did not amount to direct infringement.

Consistently, the Seventh Circuit Court of Appeals also held that myVidster is not liable of contributory infringement. Contributory infringement is “personal conduct that encourages or assists the infringement.”[6] Again, Judge Posner found that myVidster only gave web surfers the hyperlinks to where they can find free Flava videos but found no indication that myVidster “encourages or assists”  its users to copy or distribute Flava’s videos. As Judge Posner put it, “Someone who uses one of those addresses to bypass Flava’s pay wall and watch a copyrighted video for free is no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket.”[7] Essentially, websites like myVidster are not contributory infringers because their operation’s purpose, to provide information, does not amount to or facilitate infringement.[8] The infringers in this case are the persons who upload and host illegal copies of Flava’s material. [9]

With all that explained, there still seems something inherently wrong with what social bookmarking websites do. Their entire operation seems like a conspicuous way to facilitate online pirating. However, because they are not actually hosting any illegal copies on their own servers, they are not deemed to “communicate, transmit, or perform” the work and, thus, cannot be deemed direct infringers. No objections there, since their role is, in fact, that of an intermediary. Nevertheless, it seems like Judge Posner used the same reasoning to also justify why they are not contributory infringers. His exact words, “The facilitator of conduct that doesn’t infringe copyright is not a contributory infringer.”[10] In other words, if myVidster’s conduct did not directly infringe Flava’s copyright than, according to Posner, they cannot be found to contributory infringe. Apparently, the line between direct and contributory infringement, thus, does not even exist.

However, if the direct infringement is the illegal copy being linked to, why is myVidster not partly to blame for increasing the web traffic directed to the infringer’s domain? This certainly seems to constitute assisting the infringement. Accordingly, Posner leaves the intellectual property advocates in despair with this opinion by providing a veil for social bookmarking operations. On the other hand, social networks like Facebook would be prudent to argue this logic if, for instance, they are defending against a suit where one of their users link to pirated materials.

[1] Flava Works, Inc. v. Gunter, No. 11-3190, 2012 WL 3124826, at *6 (7th Cir. Ct. App. Aug. 2, 2012).

[2] Id. at *1.

[3] Id.

[4] Id. at *7.

[5] Id.

[6] Id. at *4.

[7] Id.at *3.

[8] See id.

[9] Id.

[10] Id. at *3.