Scott Hervey, an entertainment attorney and shareholder with Weintraub Tobin, and Rian Bosak, VP of Network Operations with Fullscreen presented “Fair Use and YouTube – a Creator’s Take” to a packed house during VidCon 2015.
Pending before the 9th Circuit is a case which may change the landscape for online copyright protection. The case, Lenz v. Universal, may make it more difficult for copyright owners to protect against infringement in today’s environment of hyper infringement. Defenders of Lenz argue that this case represents the quest for a legitimate balance between overzealous copyright enforcement and legitimate, non-infringing use.
The facts of Lenz are fairly simple. Lenz posted to YouTube a very short video of her young child dancing to a Prince song playing in the background. At the time, Universal Music Publishing was managing Prince’s music publishing. An attorney at Universal manually reviewed the posting but acknowledged that he did not consider whether the Lenz video was fair use. Universal sent a DMCA takedown notice to YouTube and YouTube removed access to the video. Most normal takedown situations end there; however, Lenz was upset and, after trying and failing to remedy the situation herself, sought the aid of attorneys at the Electronic Frontier Foundation.
The DMCA was enacted in 1999 as an attempt by Congress to stem the tide of rampant online copyright infringement. The DMCA offered copyright owners a streamlined process for taking down from the Internet allegedly infringing material and online service providers had great incentive to follow the process laid out in the DMCA; to not do so opened one up to potential secondary liability for their users’ activities. Congress included a requirement that the allegation of infringement in a takedown notice include a statement that the sender had a good faith belief that the posting of the allegedly infringing content was not authorized by law. Specifically, Section 512(c)(3)(A)(v) requires a takedown notice to include “[a] statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”…
Cindy Lee Garcia thought she was playing a bit part in “Desert Warrior,” an adventure film being made by an amateur film maker. The film was never completed. Instead, Ms. Garcia’s performance was re-purposed, and her physical on screen appearance was used in a film titled “Innocence of Muslims,” with her voice redubbed, changing her speaking part so that she appeared to being asking, “Is your Mohammed a child molester?” The film was uploaded to YouTube. An outraged Muslim cleric saw the video and thereafter issued a fatwa directing his followers to kill everyone involved with the film. Ms. Garcia was nonplussed.
Garcia filed suit seeking, among other things, a restraining order directing Google to remove the film from YouTube. Primarily, Garcia claimed that the video infringed a copyright which gave her the exclusive right to control the use of her performance. Granting the injunction, the district court ruled that Garcia was likely to succeed on her copyright claim because it believed she held a valid copyright interest in her performance, and that the film maker had exceeded the terms of a license granted by plaintiff when she was misled into acting in “Innocent Muslim,” under the false pretense that she was playing in “Desert Warrior.” The court also determined that Garcia faced irreparable harm because Garcia had been receiving death threats. Google appealed to the Ninth Circuit. Initially the Ninth Circuit agreed with Garcia, however on May 18th, sitting en banc, the Ninth Circuit reversed.…
By: Scott Hervey
Periscope (owned by Twitter) and Meerkat are two new “live streaming” apps which allow users to live stream videos from their phones. These applications could potentially change the way live sporting or music events are broadcast or change the way news footage is gathered. They can also be used by a viewer to re-broadcast copyrighted content. HBO was recently on the receiving end of that lesson when it found out that dozens of viewers were live streaming the season premiere of Game of Thrones.
HBO said that Periscope was responsive to its take down notices, but also added “We feel developers should have tools which proactively prevent mass copyright infringement from occurring on their apps and not be solely reliant upon notification.” This sounds very similar to the argument Viacom initially made in its protracted copyright infringement litigation against YouTube. However, in 2010 U.S. District Court Judge Louis Stanton rejected this argument when he found that the Digital Millennium Copyright Act (the “DMCA”) insulated YouTube/Google from Viacom’s infringement claims and granted YouTube’s motion for summary judgment.
Under the DMCA, a “Service Provider” may be entitled to immunity from claims of copyright infringement in four areas: 1) transitory communications; 2) system caching; 3) storage of information on systems or networks at direction of users; and 4) information location tools. While each area would appear to have some application to Periscope and Meerkat’s business, the information storage category is of primary focus.…