YouTube Case Heard By Second Circuit

Last month, the Second Circuit heard arguments in the Viacom v. YouTube appeal.

Summary of the district court decision: Part I, Part II, Part III

While Viacom claimed that YouTube was well aware of infringing materials being posted and that the Court should not allow rampant infringement, YouTube countered that there were no instances where the infringing works were not taken down following notice from the owner. During the arguments,
YouTube touted its ability to remove the infringing works within hours of the notice of infringement and have developed software to detect copyrighted works.

One of the problems expressed by the panel was how to calculate damages. One judge expressed that he believed that Viacom could be looking for some type of license arrangement. However, by taking the case this far, it would seem that Viacom is interested in more than a licensing arrangement. YouTube has arrangements with other companies. Viacom included several references and comparisons to Grokster.

Ultimately, the question about who should bear the burdens regarding copyright infringement will need to be answered. YouTube claims they need notice to determine whether something that is posted on YouTube is infringing the work of another.

It will likely be several months before a decision is reached.

Banned in the United States (and Canada)

As a follow up to the Second Circuit decision in the Salinger case, there is a reported settlement. Defendant Colting wrote an alleged sequel to the Salinger book The Catcher in the Rye. As part of the settlement, Colting's book will not be sold in the U.S. and Canada. The book will be available in other countries.
Further, Colting's book will make no references to Salinger or his book nor can the author use the copyright lawsuit to promote the book.

BARBIE BRATZ
Opening arguments are set to begin soon on a jury trial on remand regarding the Mattel (Barbie) vs. MGA (Bratz). Link to previous blog entry. There are several copyright claims remaining from the first generation of Bratz dolls and a few others; however, copyright infringement claims on many subsequent generations of Bratz dolls were thrown out by the Ninth Circuit. The trial will also include trade secret misappropriation claims stemming from MGA's hire of Carter Bryant from Mattel.

Viacom Appeals

As widely expected, Viacom has appealed the June 2010 district court ruling in Viacom v. YouTube to the Second Circuit. (I previously discussed the district court's decision granting summary judgment to YouTube in a 3 part post: Part I, Part II, Part III.) Viacom has a full text of the appeal as filed on their website.

Interestingly, Viacom has primarily focused on the factual findings of the district court in granting summary judgment for YouTube as an internet service provider under Section 512(c). Section 512(c) provides a defense to copyright infringement for certain activities carried out by internet service providers. (Further explanation available here.)

Viacom has stated three reasons why Section 512(c) should not apply to YouTube:

1. YouTube had knowledge that the content on YouTube was infringing or were aware of facts and circumstances that the content was infringing and did nothing to stop infringement. Viacom claims that YouTube’s general knowledge of infringing activity on its website should be sufficient to prevent YouTube’s service provider defense under Section 512(c).
   
   Viacom alleges that YouTube selectively enforced against copyright infringement when YouTube had programs available to weed out infringing works and ignoring community flagging systems that would have pointed out infringing works. Viacom also claims that YouTube was aware of the predominant amount of infringing works that were available on its site and encouraged these videos because YouTube received more “hits” from these videos.
   
   The court found that YouTube took appropriate action when advised of the alleged infringing web posts by Viacom. The court found specific knowledge was needed in order for the Section 512 defense to not apply.
2. YouTube had the ability and control over the infringing content and received a direct financial benefit. Viacom claims that YouTube gained financial benefits from advertising revenue due to the increased audience at its website. Viacom points to certain facts that YouTube realized that a major part of its success were videos that infringed on copyrights.
   
   Viacom also reiterates that YouTube could have taken action against infringing activities but did not. The district court found that YouTube must have specific knowledge of the infringing content in order to be able to control the infringing activity.
3. YouTube’s activities went beyond the storage function of a service provider under Section 512(c). Viacom claims that YouTube’s actions in posting user content includes more than just storage – including display, reproduction, performance and licensing content to others.
   
   The district court found that YouTube’s activities in placing the user’s content on its website was incidental to the acts of storage and thus was within the parameters of the Section 512(c) defense.

Viacom also seeks that summary judgment be reversed and granted in its favor. A number of amici have filed briefs on Viacom’s behalf including Business Software Alliance, Motion Picture Association of America, Microsoft, and members of the publishing and music industries.

For the first 2 reasons set forth by Viacom, it would seem heavily reliant on Grokster and general principles from the case. Based on the district court decision, Viacom would argue a couple of small changes and Grokster would not have been guilty of infringement. (This may be true.)

It will be interesting to see how the Second Circuit handles the issue of the district court’s finding regarding specific knowledge of infringement is necessary, not general knowledge.

I think the best that Viacom may be able to hope for from the Second Circuit is that there are triable issues of fact and summary judgment for YouTube was unwarranted. (Based on the number of facts presented by Viacom, this seems to be its strategy.)

The third reason set forth by Viacom is by far the more interesting legal argument. While Viacom is surely unhappy with the result of district court under Reasons 1 and 2 above and would like a ruling in its favor based on the facts it presents, it seems that Reason 3 would be the best argument to obtain summary judgment in Viacom’s favor. The more interesting questions facing the Second Circuit are not argued fully until nearly 50 pages into the Opening Brief.

Catcher in the P.I. (preliminary injunction)

The April 30, 2010 decision by the Second Circuit has been the subject of many reports – predominantly regarding the likelihood of success for the Trustees of the J.D. Salinger literary trust. However, there is a separate and independent significance within the decision – the scope of the eBay decision by the Supreme Court [547 U.S. 388 (2006)] on injunctive relief. The Second Circuit’s decision remanded and vacated the preliminary injunction order (with a ten day stay to allow for Salinger’s estate to seek a temporary restraining order).

Weekly Wednesday Wrapup - May 5, 2010

This week the Second Circuit and rappers bring the headlines in copyright news:

• Remember: Copyright does not cover ideas including pureeing vegetables to “sneak” them into kids' diets. The Second Circuit Court of Appeals, upheld a lower court’s decision that no copyright infringement occurred as Jessica Seinfeld’s cookbook Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food was “very different” from Missy Chase Lapine’s cookbook The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals. See order here.


• Second Circuit upholds RIAA’s method of obtaining identities of alleged copyright infringers who downloaded music through subpoenas of internet service providers. See order here.


• Second Circuit vacates preliminary injunction and remands to district court to follow the Supreme Court’s decision in Ebay v. MercExchange where court finds likelihood of copyright infringement of The Catcher in the Rye and its main character Holden Caufield by Fredrik Colting and his book 60 Years Later: Coming Through the Rye. See order here.

Now onto the rappers:

• Lil Wayne has been sued for copyright infringement by rapper Dirahn Gilliams who claims Lil Wayne used portions of his song “Grinding Like A Goon” in the multi-platinum hit “Lollipop”.


• Continuing with the hip hop theme, Akon filed a copyright lawsuit in the Southern District of New York against Konvict cosmetics over their Konvict fragrance. According to the rapper, he had been in talks with the company over a fragrance line, however no deal was actually finalized.

And in other news:

• Don Henley has sued the Republican Senate hopeful Chuck DeVore for copyright infringement after Devore retooled Henley’s songs “The Boys of Summer” and “All She Wants to Do is Dance” to “Hope of November” and “All She Wants to Do is Tax” in campaign videos.
  See complaint here.

While fair use is likely to be raised by DeVore, I don’t think that he has the same arguments in the You Tube / Prince lawsuit. Nor do I think that a claim of parody could be successful – it is difficult to comprehend how a political attack ad to drum up political campaign contributions [there goes the whole not for profit angle] can be seen as a parody of the Don Henley songs. DeVore and other Defendants claim that they were making a political point as Henley represents the entertainment industry. [This is not only a weak argument but also leads anyone to believe DeVore could have taken any song by any artist and claim that they represent the entertainment industry.]