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f. Digital Millennium Copyright Act (DMCA)


July 12, 2013

How to Address Copyright Infringement on the Internet

Almost every single day a prospective or existing client calls and asks how they are to address copyright infringement on the Internet. The answer to the question requires an analysis of what truly is at issue with the copyright infringement. This begins by identifying what the copyright at issue is. For example, is it a photograph, language or other written content, or a video? Once the specific kind of copyright is identified, it is critically important to find out who owns that copyright. While typically the creator of any kind of work is the owner of the copyright, employment issues and work-for-hire doctrines may reveal a different answer. Nonetheless, in order to understand how one is to address copyright infringement on the Internet must begin with confirmation as to ownership of a valid and existing copyright.

Assuming that the work at issue qualifies as a copyright, regardless of if its registered or not, the next step in the analysis is to identify who is making the unlawful use of that copyright. Given that the Internet is available in countries beyond the United States, we first try to determine whether or not we are dealing with a United States entity. There are various ways to confirm this. For example, we can look to domain name registration information, website server hosting information, and other company information to determine whether or not the alleged unlawful user of the copyright is located within the United States. This is important because the DMCA (Digital Millennium Copyright Act) may be an avenue through which a takedown notice can be sent if in fact we are dealing with a United States entity. Alternatively, if we are dealing with an entity located outside of the United States, we need to determine which laws apply to the same. For example, China is a signatory to the Berne Convention and thus allows various ways to address copyright infringement under Chinese and US law alike.

Having identified a copyright, and determined the identity and location of the alleged infringer, a copyright attorney will now advise the client as to its options. While a cease and desist letter is typically a starting point for copyright infringement on the Internet, there may be additional actions that can go with that notice letter. For example, as noted above, a takedown notice via the digital millennium copyright act may also accompany, although separately, any cease and desist letter to an alleged infringer. This will ensure that the web post also provides notice to the alleged infringer and may even extradite the removal of the infringing work if the alleged infringer does not cooperate. Besides letters, it is also important to determine whether a copyright infringer lawsuit can be filed.  In making this determination, it is important to factor in the considerations of the alleged infringers extent of liability, the likelihood of success, the likelihood of collectability, and related factors. Once advised by a copyright lawyer, the client can decide whether or not they wish to pursue a copyright infringement lawsuit.

Ultimately, addressing copyright infringement on the Internet begins with active monitoring of one’s copyrighted content. Knowing how your copyrighted material is being used and by whom allows you to more effectively address instances of copyright infringement on the Internet. Should you identify such infringing activity, you should contact a copyright lawyer who can work through the steps outlined in this post and ultimately address your copyright infringement on the Internet.

August 05, 2010

Terms of Service Lawyer | Court Rules No Liability for Internet Service Provider

The District Court for the Northern District of California granted motion to dismiss without leave to amend in Williams v. Life’s Rad and, 2010 U.S.Dist. LEXIS 46763 (N.D. Cal. 2010) after finding that Plaintiff failed to state a claim upon which relief can be granted. 

In this case, provides goods and services over the internet which allows users, also known as shopkeepers, to upload their custom-made designs to be printed on merchandise, also offered by CafePress, such as t-shirts, posters, coffee mugs and other merchandise.  Shopkeepers then sell their custom-made merchandise on the internet through online shops, also provided by CafePress.  The Plaintiff and Defendant Life’s Rad are shopkeepers on the CafePress site.  The Defendant ,Life’s Rad,  notified CafePress of the Plaintiff’s use of the terms “Life is Rad” to sell his merchandise and that such use infringed its trademark rights in the mark LIFE’S RAD.  In accordance with their Terms of Use agreement, after confirming the trademark registration, CafePress removed infringing material from the alleged infringer's online shopping site in compliance with its shopkeeper and terms of service agreements, which authorizes CafePress to prohibit the sale of goods that it believes “infringes the rights of a third party, including, without limitation, copyrights [and] trademarks,”.  Plaintiff, acting pro se, filed suit against Defendants Life’s Rad and (CaféPress) alleging that Defendants had violated the DMCA, Lanham Act, his constitutional right to due process, and engaged in unfair competition.

The court ultimately concluded that the Plaintiff failed to state a claim and that the complaint could not be cured by amendment.  Read the court's reasoning below:

Continue reading Terms of Service Lawyer | Court Rules No Liability for Internet Service Provider >>
January 09, 2010

Google Argues Digital Millennium Copyright Act (DMCA) Safe Harbor In Viacom YouTube Copyright Infringement Lawsuit

The ABA Journal reports that Google has outlined its defenses in its $1 billion copyright infringement lawsuit with Viacom over the display of copyrighted videos on YouTube.  Verizon originally filed a copyright infringement lawsuit against Google in 2007, alleging that Google had infringed upon its copyright rights by facilitating the posting of over 63,000 Viacom videos on the YouTube service.  Google claims that it is protected by the Digital Millennium Copyright Act's safe harbor provisions, which provide Internet service providers with a statutory safe harbor provided they expeditiously removes copyrighted materials from their servers upon notification.  If you are faced with a copyright infringement lawsuit, or if you believe that your copyrighted content has been stolen and are need of advice concerning the Digital Millennium Copyright Act, contact one of our expert copyright lawyers today at 866.936.7447.

Continue reading Google Argues Digital Millennium Copyright Act (DMCA) Safe Harbor In Viacom YouTube Copyright Infringement Lawsuit >>
November 16, 2009

Interview with William Patry, Author of Moral Panics and the Copyright Wars


ANNOUNCER:  Today’s program is brought to you by Traverse Legal.  A law firm specializing in copyright law, Internet law, domain disputes and technology company representation.  That’s Traverse Legal.  Welcome to Traverse Legal Radio.  Now here’s your host Enrico Schaefer.

Enrico Schaefer:  Welcome to Traverse Legal Radio.  Today we are speaking with Bill Patry, the author of Moral Panics and the Copyright Wars.  This is the second interview of Bill concerning the book, and today we’re going to be talking a little bit about some of the controversy concerning Moral Panics.  How are you doing today, Bill? 

Bill Patry:  I’m doing well.  How are you?

Continue reading Interview with William Patry, Author of Moral Panics and the Copyright Wars >>
January 14, 2008

Does DMCA Cover Attempted Distribution and Copyright Infringement?

On Friday, EFF filed an amicus brief in Atlantic v. Howell, an Arizona lawsuit brought as part of the RIAA's national campaign against individuals for file-sharing. Although the case has received attention recently over the issue of whether CD ripping is legal, the main event in the case is about something different: can the RIAA sue people for attempted copyright infringement?

Continue reading Does DMCA Cover Attempted Distribution and Copyright Infringement? >>
December 17, 2007

Ninth Circuit Addresses “Reasonable Implementation” And Other Elements Of The Digital Millennium Copyright Act

In Perfect 10, Inc. v. CCBill LLC and Cavecreek Wholesale Internet Exchange d/b/a CWIE LLC, No. 04-57143 (9th Cir., March 29, 2007) the Ninth Circuit allowed Perfect 10 to pursue copyright infringement claims against defendants, who provide web hosting and credit card billing services, arising out of the unauthorized posting on the web by their third party customers of “adult” images in which Perfect 10 holds copyrights. Questions of fact precluded a determination of whether defendants were immunized from monetary liability for such claims by the Digital Millennium Copyright Act (“DMCA”). The Court of Appeals held such immunity extends only to service providers who “reasonably implement” a policy for terminating those of their customers that repeatedly infringe copyrights. In considering this question, the Ninth Circuit held courts should consider not only the manner in which the defendants responded to “take down” infringement notices sent by the plaintiff copyright holder, here Perfect 10, but also the manner in which they responded to similar notices from third party copyright holders.  It is evident Courts will consider not only policies concerning take down of infringing content but actual implementation of those policies under the safe harbor provisions of the DMCA.

Continue reading Ninth Circuit Addresses “Reasonable Implementation” And Other Elements Of The Digital Millennium Copyright Act >>
August 14, 2007

Digital Millennium Lawsuit Against Universal Music Publishing

Interview with Marcia Hoffman, a staff attorney for the Electronic Frontier Foundation (EFF) Ms. Hoffman is the lead attorney representing YouTube contributor, Stephanie Lenz, against Universal Music Publishing Group. Universal Music recently shut down Ms. Lenz' YouTube video of her toddler son dancing to a Prince song on the internet with a bogus take down notice to YouTube.

Traverse Legal Radio

ANNOUNCER: Welcome to the VTalk Radio Tech Spotlight with your host, John Bentley.

Continue reading Digital Millennium Lawsuit Against Universal Music Publishing >>
August 08, 2007

FAIR USE Act 07 Alters DMCA's Stance

It is widely held that the DMCA needs revisions; from abusing takedown notices to false assertions of copyright ownership the DMCA has more than its fair share of balancing issues. The new changes brought on by the passing of the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act), in February of 07 has made some progress in addressing these problems with the DMCA.

Continue reading FAIR USE Act 07 Alters DMCA's Stance >>
July 30, 2007

DMCA has Compliance Issues

Over at Life On the Wicked Stage they've noted that the Media Rights Technologies, MRT, has filed cease and desist orders under the DMCA against four companies; Apple, Microsoft, Real, and Adobe. MRT filed the order because these companies have avoided using MRT technologies in their products, somewhat effectively circumventing the DMCA.

Continue reading DMCA has Compliance Issues >>
July 27, 2007

Companies Use DMCA to Shut Down Websites

One of the major powers that the DMCA provides to companies, as noted by Greg over at Consumer Law & Policy Blog, is an "easy way for companies to get information taken off the Internet." The way that companies accomplish this is by filing a notice of claimed infringement with the DMCA. The DMCA in turn notifies the ISP with a takedown notice and the ISP usually removes the content or shuts down whole sites which were claimed to be copyright infringing.

Continue reading Companies Use DMCA to Shut Down Websites >>
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