2007 May archive at Online Publishing Law

Archive for May, 2007

Perfect 10 v. Amazon and Google: other observations

Published by Bertie Cheng May 23rd, 2007 in Copyright. 0 Comments

Here are some other observations on the case.

The 9th Circuit upholds the “server test.” The 9th Circuit upholds the district court’s interpretation of what constitutes a “display” of electronic information on a web site. In order to “display” an image, a computer owner must store the image as electronic information and “serve” that information directly to the user; a computer owner who does not store and directly serve electronic information to a viewer and instead incorporates information stored on another’s computer via in-line links or frames is not “displaying” the information. Whether the information is served directly or is incorporated via in-line links, the information will show up the same way on the screen. Thus, Google’s storage and serving of the thumbnails, absent the fair use defense, may violate a copyright owner’s display right, but showing the full size images in a frame where the full size images resided on another server is not a “display” within the meaning of the Copyright Act.
Here is another context where the server test could come into play: a blogger may embed YouTube-stored content on his or her website, but YouTube is the entity serving it and thus displaying it, not the blogger.
Linking is not distribution. Linking to infringing content is not “distribution” of the content, because the electronic information is coming from another server.

Intent may be imputed. Although the 9th Circuit notes that contributory copyright infringement must be intentional for liability to arise, it thereafter, quoting a principle of tort liability, asserts that intent may be imputed if the defendant knows that infringement is “substantially certain” to result from his or her activities. Basically, if an actor knows that the consequences of his or her actions are “substantially certain” to happen, and the actor goes ahead and acts anyway, the law will treat this situation as if the actor had desired to bring about the result.

9th Circuit hands mixed victory to Google

Published by Bertie Cheng May 18th, 2007 in Copyright and Fair Use. 0 Comments

On Wednesday, Google enjoyed a victory when the 9th Circuit issued its opinion in the copyright infringement case Perfect 10 v. Amazon.com, CV-05-04753-AHM, 2007 WL 1428632 (9th Cir. May 16, 2007), holding that Google’s creation and display of thumbnail versions of Perfect 10’s copyrighted images is fair use.

Here is some background on the case.

Perfect 10 is a company that markets and sells copyrighted images of nude models. Perfect 10 runs a subscription website on the Internet where viewers can appreciate high resolution photos of nude women, and Perfect 10 also sells and distributes Perfect 10’s reduced-size copyrighted images for mobile media.

Google is the borg-like entity that indexes everything on the internet. Among other things, Google runs a search engine that provides responses in the form of images called “Google Image Search.” Google Image Search provides search results as a grid of thumbnail images, which are reduced-size version of full-sized images that appear on websites indexed by Google. Google creates and stores these thumbnail images on its server.

So as fate would have it, Perfect 10 and Google’s paths crossed when third-party webmasters began republishing Perfect 10’s images without Perfect 10’s permission. Google’s search engine automatically indexed the webpages containing the unauthorized images, and thumbnail versions of these images ended up on Google Image Search.

Perfect 10 filed a copyright infringement action against Google, and the district court found that Google’s creation and display of the thumbnail images was direct copyright infringement. Rejecting the fair use argument, the district court enjoined Google from creating and displaying Perfect 10’s images.

An earlier case in the 9th Circuit, Kelly v. Arriba Soft Corp., 336 F.3d 811, (9th Cir.2003), had come to the opposite conclusion on similar facts. In Kelly, a copyright holder brought a copyright infringement action against a search engine that displayed thumbnail images in its search results; the 9th Circuit in Kelly held that the use was fair use.

However, the district court in Perfect 10 v. Google decided that Google’s use was different from Arriba Soft’s use in Kelly. The more commercial the use, the less likely a court will find fair use. Furthermore, if a copy of the original work may harm the market for the original by acting as a market substitute for the original, the less likely a court will find fair use.

The district court in Perfect 10 reasoned that Google’s use was a commercial use and also harmed the market for Perfect 10’s mobile thumbnail downloads. The use was commercial, because some of the websites hosting the full-sized images were participants in Google’s AdSense program, which is a contextual advertising program for web publishers. The thumbnails would lead visitors to these sites using AdSense, thereby allowing Google to directly profit from the use of the thumbnails. Furthermore, since Perfect 10 was in the market for low resolution thumbnail images for use on cell phones, Google’s creation and display of thumbnails would harm the market for Perfect 10’s thumbnail images. In contrast, said the district court, the use in Kelly was not as commercially-driven as Google’s use and Arriba Soft’s use in Kelly did not harm the market for the copyright holder’s images, because the copyright holder was not in the business of selling low resolution thumbnails.

On appeal, the 9th Circuit in Perfect 10 rejected the district court’s reasoning and found for Google. The 9th Circuit reasoned that Google’s use of thumbnails is “highly transformative,” in that it provided an entirely new use for the original work. If a use is found to be “transformative,” it works towards a finding of fair use. The court held that this transformative use outweighs the commercial use of the thumbnails. Furthermore, the potential harm to Perfect 10’s market for cell phone downloads is unproven and “remains hypothetical.” With all fair use factors viewed together, the 9th Circuit held that the district court erred in finding for Perfect 10 and vacated the preliminary injunction.

However, the decision was not a total victory for Google. The 9th Circuit also opened the door for secondary liability on the part of Google and directed the district court to examine whether Google complied with the requirements of the DMCA.

Nonetheless, this latest decision provides some encouragement for Google to continue its conquest of the internet and will most likely serve as guidance in the Google Print Library Project cases (links here and here). As the Google empire expands, so shall the boundaries of fair use.

The full opinion can be viewed here.

Universal Music Group retreats from copyright infringement claims over Michelle Malkin’s anti-Akon video

Published by Bertie Cheng May 17th, 2007 in DMCA, Copyright and Fair Use. 0 Comments

The Electronic Frontier Foundation announced on Monday that Universal Music Group has rescinded its DMCA take down notice in connection with a YouTube video criticizing hip hop megastar Akon. The video was created by conservative blogger Michelle Malkin for her videoblogging site, Hot Air.

On May 3, UMG sent a DMCA take down letter to YouTube asking YouTube to remove a video in which Malkin called Akon, among other things, an “out-of-control animal” and a “thug.” Malkin supported her commentary with 20-30 second clips from his music videos and concert footage at a Trinidad nightclub in which he brings a teenage girl onstage and dances with the girl in a graphic manner.

The video can be viewed at the following link: http://www.youtube.com/watch?v=YZL1IHw6ea8.

On May 8, with help from the EFF, Malkin filed a DMCA counter-notification with YouTube, claiming fair use.

There is no “bright line” rule to determine whether use of a particular copyrighted material is a “fair use.” Fair use is determined on a case by case basis.

There are four factors used in “fair use” analysis: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount of the work used, and (4) effect of the use upon the potential market for the copyrighted work.

A quick analysis on how the four fair use factors would have been applied to Malkin’s use is as follows:

(1) Purpose and character of the use - Malkin’s use of the works was non-commercial and transformative. Use is “transformative” if it adds something new, with a further purpose or different character, altering the original with new expression, meaning, or message. Her commentary certainly gave the works a different character and altered the original with new expression and meaning. This factor works in favor of Malkin.

(2) Nature of the copyrighted work - Creative works like music and art are afforded a high level of protection. The original work is a creative work, so this factor works against Malkin.

(3) Amount of work used - Malkin did not use entire clips of the songs in question. She only used around twenty or thirty seconds of each clip, just enough to illustrate her point by allowing the viewer to appreciate a few bawdy sentences sung by Akon. However, music videos are only three to four minutes long, so this use is more substantial than taking a few sentences out of a feature length film. This factor may work slightly against Malkin.

(4) Effect of use upon potential market for the work - This is the most important factor according to many courts. The issue here is whether Malkin’s video is a market substitute for the original. Would the market for Akon’s work be harmed, because Akon fans who jam to “Smack That” and “I Wanna F*** You” would rather watch Malkin’s version instead? Hardly. It should be noted that any harm suffered by the original as a result of negative commentary is generally irrelevant. See, for example, On Davis v. The Gap, Inc., 246 F.3d 152, 175-176 (2d Cir. 2001), where the court articulated this principle:

If the harm resulted from a transformative secondary use that lowered the public’s estimation of the original (such as a devastating review of a book that quotes liberally from the original to show how silly and poorly written it is), this transformative use will be found to be a fair use, notwithstanding the harm. If, on the other hand, the secondary use, by copying the first, offers itself as a market substitute and in that fashion harms the market value of the original, this factor argues strongly against a finding of fair use.

Malkin comes out the winner.

UMG did the right thing in backing down.

Google responds to Viacom’s copyright infringement lawsuit

Published by Bertie Cheng May 15th, 2007 in DMCA and Copyright. 0 Comments

As expected, in its answer to Viacom’s copyright infringement suit, Google emphasizes that Viacom’s suit contradicts the principles of the Digital Millennium Copyright Act (”DMCA”).

The first paragraph of Google’s answer cuts to the chase:

Viacom’s complaint in this action challenges the careful balance established by Congress when it enacted the Digital Millennium Copyright Act. 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 above and beyond what the law requires.

However, Viacom believes that Google’s response “misses the mark“:

“This response ignores the most important fact of the suit, which is that YouTube does not qualify for safe harbor protection under the D.M.C.A.,” Viacom said. “It is obvious that YouTube has knowledge of infringing material on their site, and they are profiting from it.”

So what is the level of “knowledge” that prevents an internet service provider from enjoying the safe harbor provisions of the DMCA?

To enjoy the safe harbor provisions of 17 U.S.C. § 512(c) an internet service provider must demonstrate that it (1) does not have actual knowledge that the material or an activity using the material on the system or network is infringing, and (2) is not aware of facts or circumstances from which infringing activity is apparent.

The court in Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1108 (W.D.Wash. 2004) explains that actual knowledge requires more than a “general awareness that a particular type of item may be easily infringed.” Instead, the issue is whether defendant “actually knew that specific… vendors were selling items that infringed [plaintiff’s] copyrights.” As to apparent knowledge, the court states the following:

In determining whether a service provider is “aware of facts or circumstances from which infringing activity was apparent,” the question is not “what a reasonable person would have deduced given all the circumstances.” Instead, the question is “whether the service provider deliberately proceeded in the face of blatant factors of which it was aware.” As articulated by Congress, apparent knowledge requires evidence that a service provider “turned a blind eye to ‘red flags’ of obvious infringement.” [citations omitted]

The court gives some examples of terms that qualify as “red flags.” These include words like “pirate” and “bootleg” that are apparent from a “brief and casual viewing” of a website.

Do you believe that Google qualifies for the safe harbor provisions of the DMCA, or do you believe Viacom has a valid argument?

Federal reporter’s shield law introduced

Published by Robert Freeman May 11th, 2007 in Newsgathering and Journalist's Privilege. 0 Comments

Prospects have brightened for a federal reporter’s shield law that would create a qualified privilege for journalists to refuse to disclose confidential sources. Identical bills (known as the “Free Flow Of Information Act”) were introduced, with bipartisan support, in both the House and the Senate on Wednesday May 2. Notably, the bills use a broad definition of journalism as “gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national or international events or other matters of public interest for dissemination to the public,” which would likely cover bloggers and reporters for online news sources in addition to established news outlets.

Link: http://www.broadcastingcable.com/article/CA6438653.html

While the draft legislation contains exemptions where there are privacy, national security, and trade secret concerns, as well as in “ticking bomb” situations, the raising of such concerns would only lead to compelled disclosure if a court held that they outweighed the public interest in unfettered news gathering.

The full text of the bill can be reviewed here:

http://www.boucher.house.gov/images/stories/Boucher/ffia%202007.pdf

Of course, whether this bill, even if passed, could get signed by George Bush is another question. This administration clearly has a pattern of fighting anything that could slow down investigations they deem related to national security, and has been no fan of reporter’s protecting confidential sources. Also, the administration is sure to object to this bill’s loose definition of who is a journalist, arguing that allowing anyone with a web page to avail themselves of such protection could stymie national security investigations at every turn. If this issue proved polarizing enough to prompt a Bush veto, it is unlikely that enough votes to override such a measure could be gathered.

What do you think? Do you support a federal shield law? If so, do you think Congress is being smart in drafting the bill to include Internet based journalists, or would a better strategy be to try to first pass a federal shield law that only applies to journalists for more established news outlets?

Archive for May, 2007

Perfect 10 v. Amazon and Google: other observations

9th Circuit hands mixed victory to Google

Universal Music Group retreats from copyright infringement claims over Michelle Malkin’s anti-Akon video

Google responds to Viacom’s copyright infringement lawsuit

Federal reporter’s shield law introduced

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