The High-touch Legal Services® Blog…for Startups!

© 2009-2017 Dana H. Shultz, Attorney at Law

If You Provide a DMCA Takedown Notice, Provide It Properly

Logo of Perfect 10, a company involved in DMCA takedown notice litigation

In Terms of Use and the Digital Millennium Copyright Act (DMCA) I described the six elements that a copyright owner must include in a DMCA takedown notice sent to a service provider that is hosting infringing content. Perfect 10 v. Google shows that a DMCA takedown notice will not be effective if it lacks the required information.

Perfect 10, which creates and sells photos of nude models, brought suit against Google, alleging, among other things, copyright infringement based on caching and hosting of photos.

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Open Source Developer Wins Big – But Can He Collect?

BusyBox Logo

BusyBox Logo

Erik Anderson developed certain software that he contributed to BusyBox, a compact set of embedded Linux utilities licensed under the GNU General Public License, Version 2 (the “GPL”). In October 2008, Anderson registered a copyright on the code that he contributed.

On September 2, 2009, Anderson’s counsel notified Westinghouse that it was infringing Anderson’s copyright because it was distributing BusyBox – both integrated into Westinghouse televisions and separately with other software – on terms that are more restrictive than the GPL. Westinghouse continued infringing Anderson’s copyright.

Anderson and the Software Freedom Conservancy brought suit against Westinghouse and 13 other defendants on December 14, 2009. Westinghouse initially mounted a defense, but stopped participating in the suit when it filed for bankruptcy.

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No, You Can’t Just Scrape Someone Else’s Website

The following question was posed recently on LinkedIn: Let’s say that I want to scrape amazon’s and ebay’s product reviews and use on another site? I want to understand the legal fall-out that may happen in doing so.

Here, slightly edited, is the answer that I provided:

  1. You would be committing copyright infringement.
  2. You would be breaching Amazon’s Conditions of Use, which expressly prohibit “any use of data mining, robots, or similar data gathering and extraction tools”.
  3. Similarly, you would be breaching ebay’s User Agreement, which says that “You agree that you will not use any robot, spider, scraper, or other automated means to access the sites for any purpose without our express handwritten permission.”
  4. Other companies’ sites with well-thought-out terms of use have similar prohibitions.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.

Copyright: If You’re Going to Register, Register Right Away

Several months ago (Copyright Registration: Whether, When and Why), I wrote about the benefits of registering a copyright. A recent case in the U.S. District Court for the Northern District of California (Dongxiao Yue, et al., v. Chordiant Software, Inc., et al.) shows that if you are going to register a copyright, you should register it right away.

Plaintiffs accused defendants of copyright infringement with respect to two pieces of software that were covered by registered copyrights. The defendants moved for a summary judgment that plaintiffs were not entitled to statutory damages and attorney fees because the alleged infringement began before the plaintiffs registered their copyrights.

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Copyright Infringement Twofer: Website Designer and Customer Jointly Liable

Nick Starr, doing business as Master Maintenance, hired West Central Ohio Internet Link, Ltd. to redesign and host the website for Master Maintenance’s janitorial services.

The redesigned website included four photos owned by, but not properly licensed from, Corbis Corporation.

In Fall 2006, Corbis discovered Master Maintenance’s unauthorized use of its pictures. On November 17, 2006, Corbis sent Master Maintenance a letter informing it of the infringement. Master Maintenance directed West Central to remove the pictures, which West Central did. On December 7, 2007, Corbis filed suit for copyright infringement against Master Maintenance and West Central (Corbis Corporation v. Nick Starr).

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Copyright Infringement: Public Announcement was Barking up the Wrong Tree

In Bridgeport Music v. UMG Recordings, the United States Court of Appeals for the Sixth Circuit held that the song “D.O.G in Me” by Public Announcement willfully infringed Bridgeport’s copyright in the 1982 song “Atomic Dog” by George Clinton.

What intrigues me is that the finding of infringement was based the substantial similarity of only a limited amount of the lyrics: Use of the phrase ?Bow wow wow, yippie yo, yippie yea?, repetition of the word ?dog? in a low tone of voice at regular intervals, and the sound of rhythmic panting.

The court rejected UMG’s assertion of a fair use defense, noting, in particular, that although the substantial similarity pertained to relatively small elements of ?Atomic Dog?, they were the most distinctive and recognizable elements of the song.

What this case teaches us: Using even a small portion of someone’s copyrighted work can constitute infringement if that portion is sufficiently distinctive and recognizable.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.

Can I Create my Standard-form Contract by Starting with Someone Else’s?

Logo of LinkedIn, where Dana Shultz answered a question about creating a standard-form contractThis question was asked a few days ago (in different form) on LinkedIn. [Please note that the question is no longer available online because LinkedIn removed its Q&A feature.] The question was whether one can create a standard-form contract by starting with someone else’s standard-form contract.

The following is an edited version of the answer that I provided:

Case Outcome Depends on Facts

As is always the case with alleged copyright infringement, the outcome of the case will depend on the facts.

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Louis Vuitton Wins $10.8 Million from ISPs

Louis Vuitton Logo

On August 28, a federal court jury awarded Louis Vuitton Malletier, S.A. $32.4 million in a suit against two Internet Service Providers and their owner. The suit alleged trademark and copyright infringement.

Louis Vuitton Wins at Trial

The jury concluded that:

  • The ISPs knew, or should have known, that their customers were selling, online, counterfeit goods that infringed LV trademarks and copyrights.
  • The ISPs willful contributed to sales of the counterfeit goods.
  • The ISPs were not entitled to the “safe harbor” protections of the Digital Millennium Copyright Act (see How Websites Can Avoid Liability for User-provided Content).

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“Fair Use”: One Term, Two Different Meanings

Button labeled "OK", symbolizing fair use

Fair use” is a legal term that does not necessarily mean what people often assumes it means (a free pass to use other people’s intellectual property). Indeed, the term has two different meanings, depending on whether copyrights or trademarks are at issue.

Copyright

Copyright protects works of authorship. See Copyright Protection in One Easy Lesson. The copyright owner has the exclusive right (as applicable) to reproduce, distribute, publicly perform, publicly display, and make derivative works of the copyrighted work.

Copyright infringement is the unauthorized exercise of one of the exclusive rights by someone other than the copyright owner. Thus, for example unauthorized copying of someone else’s music or movie constitutes copyright infringement.

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How Websites can Avoid Liability for User-provided Content

Two U.S. District Court cases – Io Group, Inc. v. Veoh Networks, Inc. (8/27/2008) and UMG Recordings, Inc. v. Veoh Networks, Inc. (9/11/2009) – offer a recipe by which Internet-based service providers can avoid liability for user-provided content.

Update: UMG v. Veoh was affirmed by the Court of Appeals for the Ninth Circuit on December 20, 2011.

The cases are similar. Veoh operates an Internet-based service that allows users to share videos with others free of charge. Io and UMG (Universal Music Group) brought separate suits, each alleging that Veoh engaged in various forms of copyright infringement because it allowed users to upload videos that infringed the plaintiffs’ copyrights.

In each case, Veoh obtained a summary judgment in its favor based on compliance with the “safe harbor” provision of the Digital Millennium Copyright Act (DMCA), codified at 17 U.S.C. Section 512 (Limitations on liability relating to material online).

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