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

DMCA Designated Agent List Going Online

Logo of US Copyright Office, which announced that its DMCA designated agent paper filings will transition to an online systemThe U.S. Copyright Office maintains designated agent records under the Digital Millennium Copyright Act (DMCA). The Office recently announced that will be moving from paper to an online system.

DMCA Background

The DMCA protects online service providers against liability for user-provided content that infringes third parties’ copyrights. (Please see Terms of Use and the Digital Millennium Copyright Act (DMCA) .) However, there are several requirements for that protection to exist. (more…)

Consider Fair Use Before Sending DMCA Takedown Notice

Logo for YouTube, which was involved in a case illustrating why one must consider fair use before sending a DMCA takedown noticeThis post is based on a recent federal appellate case, Lenz v. Universal Music. That case held that one must consider fair use as a possible defense for an online service provider before sending a takedown notice under the Digital Millennium Copyright Act (DMCA).

DMCA Background

I provided an overview of the DMCA in Terms of Use and the Digital Millennium Copyright Act (DMCA). Quoting a portion of that post: (more…)

Fraudulent Takedown Notice Leads to $25,000 Judgment

Logo for WordPress, which won a lawsuit about a fraudulent takedown noticeEarlier this month, the U.S. District Court for the Northern District of California ordered the author of a fraudulent takedown notice under the Digital Millennium Copyright Act to pay more than $25,000.

U.K. Student Journalist Oliver Hotham has a blog on WordPress.com, which is operated by San Francisco-based Automattic Inc. (more…)

DMCA Takedown: How Soon is “Expeditiously”?

Copy of takedown notice on Dana Shultz letterhead

A client’s former employee / co-founder departed to form a competing business. Violating the client’s copyrights, he posted dozens of the client’s images on his website and blog. I sent takedown notices to the website’s and the blog’s service providers (see “Terms of Use and the Digital Millennium Copyright Act [DMCA]”). I wondered how expeditiously the service providers would respond.

17 USC Section 512(c)(1)(C) provides a “safe harbor” incentive for service providers to remove, or disable access to, infringing works expeditiously. Unfortunately, “expeditiously” is not defined (see “Defining Expeditious: Uncharted Territory of the DMCA Safe Harbor Provision“).

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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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Fair Use, Trash Talk, and the DMCA

Over the weekend, I answered a LinkedIn question about whether posting a copyrighted photo of another company’s product with disparaging comments about that product might be protected by the “fair use” defense to copyright infringement. I am reproducing the question and answer, in edited form, below.

Q. My website is copyrighted and the newest product is trademark and patent pending. The image was “clipped/copied” by an individual and placed on a website without my permission to do so. Am I right that this is not “fair use” of my work?

A. The “Fair Use” Defense: One Term, Two Different Meanings discusses the four elements of copyright fair use. The analysis always is highly fact-specific, so it is difficult to say whether use on cpaptalk.com qualifies for that defense, but I think there is a reasonable argument that it does.

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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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Ralph Lauren’s Abuse of DMCA Backfires

This Ralph Lauren ad Ralph Lauren ad that let to DMCA takedown noticeshas been making the rounds of the Internet and television, recently. The reason: Photo retouching to the point of absurdity, producing a supermodel (Filippa Hamilton) who looks more like a Bratz doll than a human being.

I’m not raising this issue to jump into the debate about skinny models and self-esteem of girls and women, which is being addressed at length elsewhere. (Disclosure: I have a wife and two daughters.) I’m more interested in a legal issue.

As soon as criticisms appeared online, Ralph Lauren lawyers issued takedown notices under the Digital Millennium Copyright Act. (See Terms of Use and the Digital Millennium Copyright Act.)

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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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Terms of Use and the Digital Millennium Copyright Act (DMCA)

Logo of US Copyright Office, symbolizing the DMCARecently, several clients with existing websites asked me to review their online Terms of Use (“TOU”). While the TOU were respectable, there were areas where each could be improved. Interestingly, the area where all of the clients had made mistakes was with regard to the Digital Millennium Copyright Act (the “DMCA”). A summary of the DMCA is available from the U.S. Copyright Office. (more…)