Updates: Copyright Cases to Watch

Filed as Features on December 22, 2008 10:21 am

Last year on this site, I wrote a series of articles about important copyright cases that could seriously impact blogging and the Internet at large. All in all there were five such cases, each with the ability to drastically change how bloggers and other Web publishers operated.

Now that more than a year has passed since the original articles, it seems like a good time to go back and see what has happened with those cases where, they sit right now and where they are likely heading.

X17 v. Perez Hilton

In this case, Perez Hilton, a well-known gossip blogger and columnist, was sued by the paparazzi photograph agency for illegally using their photos on his blog. In the initial article, it was noted that Hilton routinely took photos from their library, drew pictures on them and posted them to his site. This case had the potential to impact any blogger that uses images from others on their site.

Update: Shortly after the original post went up, Hilton and X17 reached a settlement in the case, the terms of which have not been disclosed. With no court ruling, there is no impact nor any clarification on the law in this particular area.

Since the settlement terms have not been disclosed, it is difficult to declare a “winner” or a “loser” though it is worth noting that X17′s images are no longer displayed on Hilton’s site.

Citizen Medial Law Project Page

Universal Music v. Lenz

Lenz is a mother who took a short 30-second video of her toddler dancing to the beat of Prince’s “Let’s Go Crazy”. The clip, originally intended for just friends and family, found national attention when Universal Music filed a DMCA notice against Lenz. Lenz filed a counternotice to have the video put back and filed a lawsuit claiming that the video should not have been taken down at all.

As discussed in the original article on the case, there were many questions raised by the lawsuit, the first of which being fair use of using music in videos and the exact nature of what constitutes, and possibly what reprimands can be claimed against, a false takedown notice.

Update: The Case is ongoing as of this writing. in August, Lenz won a major victory when the judge refused to dismiss her claim saying that copyright holders had to consider fair use before issuing takedown notices. This case is still ongoing and, given the nature of the matter, will likely spell well into the middle part of 2009 at least.

Citizen Medial Law Project Page

Viacom v. YouTube (Google)

Viacom, the owner of several prominent television channels, sued YouTube’s parent company Google for copyright infringement claiming that the site, which allows users to upload clips, had violated their rights and were not in compliance, or at least protected, by the Digital Millennium Copyright Act.

In the original article, it was discussed how the case could answer a large number of questions about the types of sites that are protected by the DMCA, since many of the new technologies were created after the DMCA was passed in 1998 and there are many legal uncertainties for sites such as YouTube.

Update: The case, unfortunately, is far from settled. In July the court ordered YouTube to turn over its user logs to Viacom, a move that raised privacy concerns. Beyond that, little else has happend of importance.

The biggest news comes from an unrelated case in which Veoh, a similar video sharing site, triumphed over a pornography distributor and was ruled to enjoy DMCA protection, even though the site encodes videos into Flash.

Though the case is still very much alive, it appears that the news favors YouTube significantly.

Citizen Medial Law Project Page

Coton v. TVX Films

When Lara Jade Coton was 14, she took a photo of herself wearing a top hat and sitting in a window. Four years later, she was stunned to find her photo on the cover of a pornographic DVD entitled “Body Magic”. Coton, who was from England, sought help in resolving the mater but a Tampa-area attorney, Richard Harrison, stepped up and filed suit on her behalf.

As the original article discussed, the case delved into questions about how effectively photographers and other artists could protect their works from commercial use. It also dealt heavily with jurisdictional issues as the media company involved, TVX Films, is Houston-based, not Tampa.

Update: This case was more difficult than others to get information on. There is no Citizen Medial Law Project page on this case and information since the filing has been scarce. I have been able to look up the ongoing paperwork filed in the case and see that it remains very active. The case seems to be mired in discovery related issues though the jurisdictional ones do not seem to have played as big of a role as I predicted.

This case is still very much a “live” one with little resolved and there were filings as late as the 8th. I will report more when it comes in.

MGM v. Grokster

Many, understandably, felt that the Grokster case was resolved after the Supreme Court decision in 2005. However, the ruling, which found that Grokster could be held liable for the infringements that took place by those that used their software. It did not determine what damages could be awarded, what would constitute reasonable protections by such a service among other questions. So, the case went back to the district court where StreamCast, one of the defendants in the case, is fighting on.

As discussed in the original article, the issues of damages, irreparable harm and what form an injunction should take remain unanswered and are very critical for copyright holders to be aware of moving forward.

Update: Shortly after the original article was written (all five were written in early October, about the same time), the judge in the case granted the injunction against Streamcast saying that the service had to “use the most effective means available to reduce the infringing capabilities of the Morpheus System and Software.”

This has clear impact on sites such as YouTube, which have since added such filtering technologies to their site in a bid to head off a similar negative ruling.

EFF Page

Conclusions

Of the five cases, one is settled, three are ongoing and one saw a court ruling. It was a busy year for copyright law though it appears that 2009 has the potential to be an even more important one.

If there is one thing that is certain about copyright law looking toward the new year, even with the RIAA’s announced plan to stop the bulk lawsuits, it is that there will be no shortage of rulings and new copyright conflicts taking place.

2009 is going to be an interesting year.

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  1. By Paul William Tenny posted on December 22, 2008 at 4:39 pm
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    Since the settlement terms have not been disclosed, it is difficult to declare a “winner” or a “loser” though it is worth noting that X17’s images are no longer displayed on Hilton’s site.

    It’s easy, ask yourself if the plaintiff got what they wanted. X17 either wanted the images taken down or for Hilton to pay for them. If the images aren’t going to be used anymore, then X17 clearly “won”.

    When Lara Jade Coton was 14, she took a photo of herself wearing a top hat and sitting in a window. Four years later, …

    There are two things at play here: as far as copyright law goes, the issues are how the image came to be used by TVX and whether or not fair use comes int play — commercial use doesn’t always exclude fair use, but the stronger case could be a violation of privacy or defamation.

    One could argue that a minor can’t hold a copyright either, and since I’ve never heard that raised as a claim before, it seems pretty novel at the least.

    Moreover, in all likelihood she never filed a copyright registration which the law requires before you can file suit for infringement to recover statutory damages. Her lawyer probably should have known that so either he skipped that class in law school and will lose because of *that*, or she filed post-infringement in which case it’s going to be ugly trying to prove it was hers to begin with.

    Definitely the most interesting case of the group, imho.

    Many, understandably, felt that the Grokster case was resolved after the Supreme Court decision in 2005. However, the ruling, which found that Grokster could be held liable for the infringements that took place by those that used their software. It did not determine what damages could be awarded, what would constitute reasonable protections by such a service among other questions. So, the case went back to the district court where StreamCast, one of the defendants in the case, is fighting on.

    That is not true, the Supreme Court may have said some interesting things in their opinion, but ultimately they only ruled that the initial summary judgment was inappropriate and they remanded the case to the district court for further proceedings.

    Essentially, they ordered it to full trial.

    Contrary to popular opinion, Grokster never lost its case at the Supreme Court because the case was never actually heard, and should it have gone any further, it’s reasonably possible that they could have won their defense and had it affirmed even up through the Supreme Court as the facts of the case itself would have been a different matter than that of the summary judgment.

    Grokster gave in because going through a full trial and appeals process would have cost too much money, as often happens when fighting massive corporations over intellectual property rights, the corporation wins by default simply because they can afford to.

    Reply

  2. By Jonathan Bailey posted on December 22, 2008 at 11:59 pm
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    It’s easy, ask yourself if the plaintiff got what they wanted. X17 either wanted the images taken down or for Hilton to pay for them. If the images aren’t going to be used anymore, then X17 clearly “won”.

    It isn’t quite that simple. One can look at this in the reverse. Perez didn’t pay any money, that we know of, and Hilton built much of his career on the images in question. One could also look at this as a case supporting “seeking forgiveness” rather than “asking permission”.

    One could argue that a minor can’t hold a copyright either, and since I’ve never heard that raised as a claim before, it seems pretty novel at the least.

    Minors can hold copyright, both in the U.S. and the UK, where Coton is from.

    Moreover, in all likelihood she never filed a copyright registration which the law requires before you can file suit for infringement to recover statutory damages. Her lawyer probably should have known that so either he skipped that class in law school and will lose because of *that*, or she filed post-infringement in which case it’s going to be ugly trying to prove it was hers to begin with.

    The good news here for Coton is that, since she is from the UK, she has no obligations to register her work. U.S. law is clear, as per the Berne convention, that those outside the country do not have to register their work.

    I do not recall if non-citizens are required to register before they sue, but the do not have to to claim statutory damages in the U.S. This issue has not come up in the court filings for this reason.

    That is not true, the Supreme Court may have said some interesting things in their opinion, but ultimately they only ruled that the initial summary judgment was inappropriate and they remanded the case to the district court for further proceedings.

    Actually, this one is my mistake. The could should be a should in the sentence about awarding damages. We are trying to say the same thing here, that the case was kicked back to the lower court.

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  3. By Paul William Tenny posted on December 23, 2008 at 12:11 pm
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    It isn’t quite that simple. One can look at this in the reverse. Perez didn’t pay any money, that we know of, and Hilton built much of his career on the images in question.

    I think it is. You can either look at what each side says it wants, or what you know they want based on the suit itself and the actions that proceeded it.

    We know that X-17 wanted Hilton to stop using their images without paying for them, or, save that, to stop using them altogether. We also know that Hilton wanted to continue using them without paying for them — we can be pretty sure there was never going to be a point where he’d pay to use them.

    What was the result of the settlement that we know of? Hilton will no longer be using X-17 IP. Regardless of what the other terms were, the plaintiff got what it wanted and the defendant didn’t. That sounds like a win if you ask me.

    Minors can hold copyright, both in the U.S. and the UK, where Coton is from. [..] The good news here for Coton is that, since she is from the UK, she has no obligations to register her work.

    Thanks for the specifics, it sounds like she has a decent case.

    We are trying to say the same thing here, that the case was kicked back to the lower court.

    I really just wanted to be explicitly clear on this because I’ve seen so many reputable outlets report that Grokster had actually been found liable and guilty of copyright infringement and their hearing before the Supreme Court was actually their last venue of appeal, and that’s obviously about as wrong as could possibly be.

    Glad we’re all clear on that now.

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