Tag Archives: copyright infringement cases

Charlie Crist Apologizes to David Byrne for Copyright Infringement

Charlie Crist has issued a formal apology for using the Talking Heads’ song “Road to Nowhere” in his 2010 campaign for governor of Florida.

Byrne sued Crist for 1 million dollars after Crist’s campaign used the song illegally. Byrne and Crist settled out of court. This video apology by Crist was probably part of the settlement.

Crist lost his election bid. During the campaign, he left the Republican party to run as an independent after a strong push from Tea Party-backed candidate Marco Rubio. Rubio went on to win the election.

Road to Nowhere was released on Talking Heads 1985 album Little Creatures.

Year end sees crackdown on copyright infringement and online piracy

Here are 4 events that show what looks like a growing trend towards taking serious action against copyright infringement on the Internet.

1. LimeWire, the company that issued the popular peer-to-peer (P2P) file-sharing software program is closing it’s doors
. LimeWire tried to retool as a legal music site similar to iTunes after the demise of its P2P service, but the company is now abandoning that effort and closing its doors for good on December 31, 2011. Last October a court-ordered injunction forced LimWire to disable ‘the searching, downloading, uploading, file trading and/or file distribution functionality, and/or all functionality; of it’s P2P file-sharing software,” the company said at the time.

2. In Sweden, the convictions of Pirate Bay founders are upheld on appeal
According to the Los Angeles Times, The Pirate Bay is “one of the world’s largest facilitators of illegal downloading“, and “the most visible member of a burgeoning international anti-copyright or pro-piracy movement”. The Pirate Bay website still exists. It has over 4.5 million registered users and is approximately the 89th most popular site on the Internet worldwide. In 2009, it’s founders were found guilty of assisting copyright infringement. The ruling was appealed. In November 2010 the convictions were upheld by a Swedish appeals court. They decreased the original prison terms but increased the fine to 46 million SEK (about 6.6 million dollars).

3. US Seizes 80+ Torrent and P2P web sites
Immigration and Customs Enforcement (a division of Homeland Security) has seized the web addresses of torrent-finder.com and about 80 other websites for copyright violation. The sites have been sharing copyrighted material for free download. The New York Times reported “By Friday morning, visiting the addresses of a handful of sites that either hosted unauthorized copies of films and music or allowed users to search for them elsewhere on the Internet produced a notice that said, in part: “This domain name has been seized by ICE — Homeland Security Investigations, pursuant to a seizure warrant issued by a United States District Court.”

4. Google Upgrades it’s Copyright Infringement policy
A week after the US government’s torrent crackdown, Google issued its own policy changes regarding copyright infringement.

As the web has grown, we have seen a growing number of issues relating to infringing content. We respond expeditiously to requests to remove such content from our services, and have been improving our procedures over time. But as the web grows, and the number of requests grows with it, we are working to develop new ways to better address the underlying problem.

There are four key changes that will have some impact on how they handle copyright-questionable submissions.
1. Google will be trying to take action on takedown request within 24 hours of submission
2. They will prevent terms associated with piracy from showing up in the autocomplete feature of searches
3. They plan to improve AdSense anti-piracy efforts
4. They’ll look for ways to make authorized content more likely to show up in searches

The Tricky Task of Defining “Fair Use” in an electronic world

Copyright-imageAlmost every copyright infringement dispute regarding the Internet and electronic media comes down to the tricky task of defining what is Fair Use.

The Fair Use provision of US Copyright law was meant to ease the ways in which copyrighted material could be used to facilitate research. Teachers could reproduce portions of copyrighted material to illustrate a lesson, news reporters and broadcasters would not have to worry if copyrighted material was used incidentally during a news report.

This definition was crafted before the Internet was even a speck on the horizon. At that time using copyrighted material posed a bit of a challenge but in today’s world, where copyright infringement is a right-click away, Fair Use has blown up into a political issue with lobbyists now attempting to stretch the initial intent of the law to fit in digital world.

So far, determining how to apply Fair Use to the Internet and electronic media has proven to be a complex task for the courts. In the mammoth Google/YouTube v. Viacom copyright infringement case, the final decision of the court revolved around an interpretation of the Digital Millennium Copyright Act (DMCA), which addresses the liability of the online service provider, while dancing around the proverbial elephant in the room…the definition of Fair Use.

Cory Doctorow has an interesting post in which he discusses a very concise definition of Fair Use put forth by Tim Wu. Wu’s proposed definition of Fair Use is as follows:

If it adds new value, it’s Fair Use. If it substitutes for the original, it’s infringement.

It’s simple enough, to be sure, but it’s far more favorable to the users of content than it is to the creators of that content. It tracks along the lines of the ideas in Lawrence Lessig’s book Remix which argues that creative content should become something freely available to all for the benefit of moving the culture forward (how did our culture ever move forward before Lessig?). With Remix Culture, content can be used and turned into something else without the permission or remuneration of the original creator. Take a Beatles song, put some new beats on it and viola, you’re a composer.

Lobbyists now talk of the Fair Use Industries and a Fair Use Economy. I would ask – Fair Use Economy vs. what? The Copyright Economy? There is some heavyweight positioning going on trying to broaden the interpretation of Fair Use. To me this is almost always being done to restrict or remove the existing rights of content creators.

To see how the digital world can quickly skew the concept of Fair Use, one need only look at homemade videos uploaded to YouTube. Here you have a non-commercial, family video that uses a popular song as a soundtrack (obvious fair use). But then it gets uploaded to YouTube and becomes site content. Fair Use? It’s now an issue of interpretation. Is the content still Fair Use because the user created the content for private use, or does it infringe on copyright because that content is now an asset of YouTube, a money-making enterprise.

Yes, things get murky in an electronic world. Here’s my understanding of copyright and Fair Use. It’s also a simple definition but it’s one that is being rigorously challenged.

If the content in question is not original to your project (not created by you/in-house or work-for-hire) and its usage is contributing to a commercial enterprise then it is not fair use and the media should be legally licensed.

Yoko Ono loses copyright suit over use of Lennon’s Imagine

On June 2nd, the judge in the copyright infringement case Yoko Ono brought against the creators of the film “Expelled” for their use of John Lennon’s song Imagine has ruled in favor of the filmmakers based on a the “fair use” doctrine.

U.S. District Judge Sidney Stein rule that “the doctrine provides that the fair use of a copyrighted work for purposes of criticism and commentary is not an infringement of copyright.”.

You can read the judges entire decision here. Those interested in the fair use doctrine should take the time to read the judges opinion because he very thoughtfully describes and then rules on each of the criteria that make up fair use.

  • The Purpose and Character of the Use
  • The Nature of the Copyrighted Work
  • The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
  • The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work
  • The judge’s decision seemed mainly to rest on a subsection of “The Purpose and Character of the Use”, namely Transformative Use. Here is the ruling.

    ii. Transformative Use
    A work is transformative if it does not “merely supersede the objects of the original
    creation” but “instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” Although transformative use “is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Thus, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”

    There is a strong presumption that this factor favors a finding of fair use where the allegedly infringing work can be characterized as involving one of the purposes enumerated in 17 U.S.C. 107: criticism, comment, news reporting, teaching . . ., scholarship, or research.

    Defendants’ use is transformative because the movie incorporates an excerpt of “Imagine” for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naivety of John Lennon’s views.

    Conclusion Regarding Fair Use
    The balance of factors clearly favors a finding of fair use. Defendants’ use of “Imagine” is transformative because their purpose is to criticize the song’s message. Moreover, the amount and substantiality of the portion used is reasonable in light of defendants’ purpose. Although “Imagine,” as a creative work, is at the core of copyright protection, and defendants’ use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants’ use is transformative. Finally, plaintiffs have not shown that defendants’ use will usurp the market for licensing the song for non-transformative purposes. In sum, allowing defendants’ use would better serve “the copyright law’s goal of promoting the Progress of Science and useful Arts . . . than [would] preventing it.”


    Ono’s position had been that she had the right to control use of the song by reviewing and choosing licenses. She also had the right to reject uses of the song. She brought the suit because she believe the filmmakers had “looted her of the ability to do so”.

    ISPs must take responsibility for stopping illegal file-sharing

    ISPs must take responsibility for stopping illegal file-sharing on its network. So says a court in Belgium in a ruling that sets an important precedent in the fight against piracy.

    The ruling against the ISP Scarlet (formerly Tiscali) was aimed mostly at P2P networks. The judge said that ISPs have the technical means at their disposal to either block or filter copyright-infringing material on P2P networks.

    IFPI Chairman and CEO John Kennedy said: “This is an extremely significant ruling which bears out exactly what we have been saying for the last two years – that the internet’s gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks. The court has confirmed that the ISPs have both a legal responsibility and the technical means to tackle piracy. This is a decision that we hope will set the mould for government policy and for courts in other countries in Europe and around the world.”

    The ruling may be bad news for YouTube, faced as it is with several copyright-infringement lawsuits. This case says that ISPs definitely have some responsibility or obligation for the content that is displayed across their networks. YouTube has argued that it can’t know everything on its site, that it removes content once a DMCA takedown notice is served. However if a notice is never served, then infringing material stays. The Belgian ruling says that, in its purview, YouTube does bear responsibilty for the content it serves.

    Copyright 2.0, a new podcast discussing recent copyright headlines

    I’ve been listening to a fairly new podcast created by Chris Matthieu, the founder of Numly and Jonathan Bailey, writer of the blog Plagiarism Today. In their podcast, titled, the Copyright 2.0 show, they discuss many copyright and intellectual property issues that have made recent headlines. What’s more, links to all news stories they discuss are made available through a del.icio.us page.

    The podcast is fairly low-key and conversational. Both Chris and Jonathan stress that they are not lawyers and are not offering advice on copyright law, they are examining copyright in this era of Web 2.0 and digital information.

    You can hear the podcast by clicking on the “Play” button on the player below. There are several shows to choose from.

    More copyright lawsuits for YouTube

    Add England’s Football Association Premier League as the latest group to sue YouTube for violating copyright law.

    Responding to the suit, Google’s general counsel, Kent Walker, said via email that “these suits simply misunderstand the (DMCA), which balances the rights of copyright holders against the need to protect Internet communications. As a result, they threaten the way people legitimately exchange information.”

    It appears that defining YouTube as a “service provider” under DMCA regulations will be Google/YouTube’s main defense in these copyright infringement cases. But will a judge and jury accept that YouTube can be defined as a mere service provider under DMCA parameters? The DMCA (Digital Millennium Copyright Act), which was passed in 1998 under President Clinton, relieves ISPs or web hosts of liability if one of their hosted sites violates copyright law. Under DMCA, as long as the ISP immediately removes the illegal content and in some cases terminates the offending sites account, then the ISP is not liable for the actions of the hosted site.

    When YouTube’s CEO Chad Hurley was asked about YouTube’s copyright violations by New Jersey Republican, Rep. Mike Ferguson at a May 10th hearing on Capitol Hill, Hurley defended the site’s practices as in compliance with the Digital Millennium Copyright Act.

    I believe, as others do, that YouTube is misapplying the DMCA. Under their interpretation the burden is the copyright holders alone. The copyright holder has to maintain constant vigilance against infringement. While this may be true to some degree, YouTube is also basically saying here that they believe no law is broken as long as they receive no notice that a specific video is violating copyright. What if the copyright holder is unaware of the infringement and does not ask for removal, is there then no liability?

    The truth is, copyright law is broken as soon as one party uses the copyrighted work of another without permission. Further, the law is broken, not at the moment the copyright holder becomes aware of the infringement, the law is broken the moment the work was used. Trying to wrap this simple statement of copyright law into a provision of the DMCA, complicating it with so called “take-down notices” and filtering software, though beneficial to YouTube, is, in my opinion, not going to fly at a copyright infringement trial.

    Google’s Kent Walker interprets the DMCA to say that the exchange of information over the Internet and the need to “protect Internet communications” (not quite sure what that means?) is equally as important as upholding the rights of copyright holders. I don’t believe the DMCA was made law for this reason. It sought to relieve ISPs of liability if, say, one of their sites uploaded a hacked version of Microsoft Word. I don’t think the legislators in 1998 ever envisioned the DMCA being used to offer coverage for a company that freely broadcasts videos that they have no permission to offer.

    YouTube close to preventing copyrighted content uploads

    I’ve been watching with great interest how YouTube handles accusations that it knowingly hosts and broadcasts copyrighted material. It now seems that Google, which acquired YouTube in November of 2006, is close to releasing technology that will help eliminate video uploads which violate intellectual property laws. Claim Your Content is Google’s name for filtering technology that will give content providers and publishers an easy way to alert YouTube that copyrighted material has been uploaded to its site.

    But is a major showdown brewing? This March, Viacom sued Google and YouTube for $1 billion citing massive and intentional copyright infringement. Will this case ever go to court? Google has begun making revenue sharing deals with its major content contributors. If Google and Viacom can agree on revenue sharing terms then Viacom’s copyright infringment suit probably never goes to trial.

    I don’t think there’s any question that YouTube built its vast community, and its brand, while knowingly broadcasting copyrighted material. Now, under Google’s dominion, the site is rapidly making attempts to satisfy copyright regulations.

    Going forward with revenue sharing seems like the smartest way out of the copyright problem. However, will major media companies like Viacom seek compensation for past broadcasting of their content – broadcasting which made YouTube one of the top destinations on the Internet and that led Google to purchase the company for 1 billion dollars?

    By October of 2006, before Google acquired it, an estimated 90 percent of the more than 100 million videos watched daily on YouTube violated copyright laws, according to Josh Bernoff of Forrester Research.

    I’m sure Google/YouTube will work out revenue sharing with its major content providers going forward. The questions to me are:

    1. Will they compensate (or be forced, through the courts, to compensate) for that initial decision to broadcast copyrighted material in the first place?
    2. How will they compensate for that initial decision to broadcast copyrighted material?
    3. Can you create a business that essentially gives everyone else’s products away, and then sell it to a megacorp for $1 billion, and not pay some legal penalty?

    Follow Up: This article from the Washington Post, published on March 24, 2007 Our Case Against YouTube outlines Viacom’s case against YouTube. It was written by Michael Fricklas, general council for Viacom.