§ 512 Digital Millenium Copyright Act

Ancora sulla responsabilità delle piattaforme per violazione di copyright e sul safe harbour ex § 512 DMCA

Il 9 circuito 13.01.2025, 21-2949(L) Capitol Records v. Vimeo nega la resp. di Vimeo specificando la red flag data dalla competenza di un dipendente.

Ribadisce inoltre che serve la conoscenza della illiceità dei file contestati, non di una generica possibile/probabile illiceità all’interno di tutti i materiali ospitati.

<<However, we also acknowledged in Vimeo I that it is “entirely possible that an employee of the service provider who viewed a video did have expertise or knowledge with respect to the market for music and the laws of copyright.” Id. at 97 (emphasis added). Thus, as an alternative way to establish red flag knowledge, a plaintiff could produce evidence to demonstrate that an employee (1) was not an “ordinary person” unfamiliar with these fields, and (2) was aware of facts that would make infringement objectively obvious to a person possessing such specialized knowledge. See id.
We noted, though, that “[e]ven an employee who was a copyright expert cannot be expected to know when use of a copyrighted song has been licensed,” id., and, as discussed below, even a copyright expert may similarly struggle to identify instances of fair use.
Thus, in order to carry their burden of demonstrating that Vimeo had actual or red flag knowledge of the specific instances of infringement, Plaintiffs needed to show that Vimeo employees were aware of facts making it obvious to (a) a person who has no specialized knowledge or (b) a person that Plaintiffs have demonstrated does possess specialized knowledge that: (1) the videos contained copyrighted music; (2) the use of the music was not licensed; and (3) the use did not constitute fair use>>.

Poi

<<The fact that licensing music, as a general matter, can be challenging or confusing does not make it obvious that music accompanying a particular user-uploaded video was not licensed. Even if a person without specialized knowledge would have intuited a likelihood that many of the posted videos were not authorized, that would not make it obvious that a particular video lacked authorization to use the music.

This is all the more true in view of the uncontested fact that, since 2011, Vimeo had run a store from which users could purchase licenses to use music in videos. Accordingly, Vimeo employees were aware of the existence of simplified opportunities available to purchase licenses. Furthermore, because Plaintiffs have not proved that Vimeo employees had specialized knowledge of the music industry, those employees’ awareness that music found on their videos was under copyright did not show that they knew whether the music they heard on user videos came from EMI or another label. Plaintiffs’ evidence does not support it being apparent to Vimeo employees that the music they heard on any particular video came from a label that did not offer licenses through Vimeo’s store or otherwise.

Plaintiffs also rely on the contention that EMI’s cease-and-desist letter, sent to Vimeo in 2008, put Vimeo employees on notice that any EMI music used on the website was unauthorized. Plaintiffs cite EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 93 (2d Cir. 2016), where we explained that the defendant’s subjective awareness that there had been no legal online distribution of Beatles songs could support red flag knowledge that any online electronic copies of Beatles songs on defendant’s servers were unlicensed. But the same logic does not necessarily apply here. As the district court pointed out, an awareness that EMI sent a letter in the past demanding removal of its music gave no assurance that EMI did not thereafter make contracts licensing the use of its music, especially in view of evidence that some users who posted the videos containing EMI music asserted that EMI had provided them with authorization to use the music. The DMCA does not require service providers to perform research on mere suspicion of a user’s infringement to determine the identity of the music in the user’s video, identify its source, and determine whether the user acquired a license. See Vimeo I, 826 F.3d at 98-99 (explaining, in the context of a contention of willful blindness, that requiring service providers “constantly to take stock of all information their employees may have acquired that might suggest the presence of infringements in user postings, and to undertake monitoring investigations whenever some level of suspicion was surpassed, . . . would largely undo the value of § 512(m)”).
Even if we concluded that Vimeo had red flag knowledge that EMI’s music in user videos was not authorized or licensed, that would be insufficient to satisfy Plaintiffs’ burden. Plaintiffs needed in addition to show that it would be apparent to a person without specialized knowledge of copyright law, or, alternatively, persons who have been demonstrated to possess specialized knowledge of copyright law, that the particular use of the music in the Videos-in-Suit was not fair use>>.

(segnalazione e link offerti dal blog di Eric Goldman)

Corresponsabilità (contributory infringement) nella violazione del copyright a carico dell’internet provider

L’appello del 5 Distretto 09.10.2024, No. 23-50162, UMG Recordings, Capitol Records ed altre majorts della musica c. Grande Communications Network, decide un caso di corrsponsabilità di tipo P2P, confermando la condanna di prim grado (nell’an, non nel quantum),

Nel caso specifico la correpopnsabilità non era contestabile, dato che l’ISP era stato notiziato della violazione e nulla ha fatto.

Ma cìè staa battaglia comunque su due dei quattro requisiti di legge (<< Plaintiffs had to show (1) that Plaintiffs own or have exclusive control over valid copyrights and (2) that those copyrights were directly infringed by Grande’s subscribers. See BWP Media USA, 852 F.3d at 439. To further prove that Grande was secondarily liable for its subscribers’ conduct, Plaintiffs had to demonstrate (3) that Grande had knowledge of its subscribers’ infringing activity and (4) that Grande induced, caused, or materially contributed to that activity>>): precisamente sul 2 e sul 4. Nessuna invece sul n. 3, implicitamente ammmettendosi la willful blindness.

Qui contano spt. le tattiche di forensics: (1) ad es col software Audible Magic: Plaintiffs’ trade association, the Recording Industry Association of America, Inc.
(“RIAA”), used an industry-standard software program called Audible
Magic—which forensically analyzes the contents of digital audio files to
determine if those files match the contents of files in a database that contains
authorized authentic copies of Plaintiffs’ sound recordings—to verify that
Rightscorp in fact downloaded each work at issue,.

(2) Oppure col soggetto terzo incaricato da esse di indagini, Rightscorp: .

“To crack down on copyright infringement, third-party companies
have developed technologies to infiltrate BitTorrent and identify infringing
users by their IP addresses. One such company is Rightscorp, Inc.
(“Rightscorp”). Rightscorp’s proprietary technology:
• Interacts with BitTorrent users and obtains their agree-
ment to distribute unauthorized copies of copyrighted
works
• Records the relevant available details of that agreement,
such as the user’s IP address and what the infringed
content is
• Cross-references the user’s IP address against publicly
available databases to identify which ISP is affiliated
with that IP address
• Generates and sends infringement notices to the rele-
vant ISPs so that they can identify their infringing sub-
scribers and take appropriate action; and
• Frequently reconnects with the identified infringing IP
addresses and downloads copies of the copyrighted
works at issue directly from those users
In other words, Rightscorp identifies infringing conduct on
BitTorrent by engaging with BitTorrent users, documents that conduct, and
uses the information available to it to notify ISPs of its findings so that the
ISP can take appropriate action”.

Sintesi finale:

<< The evidence at trial demonstrated that Grande provided its
subscribers with the tools necessary to infringe (i.e., high-speed internet
access) and that Grande’s subscribers used those tools to infringe Plaintiffs’
copyrights.14 See BMG, 881 F.3d at 306-08. Based on the consistency of the
trial evidence, the district court determined that there was “no question that
[Grande] intentionally continued to provide Internet service” to its
infringing subscribers.
Grande’s affirmative choice to continue providing its services to
known infringing subscribers—rather than taking simple measures to
prevent infringement—distinguishes this case from Cobbler Nevada, LLC v.
Gonzales, 901 F.3d 1142 (9th Cir. 2018), on which Grande relies. There, the
Ninth Circuit considered a claim alleging that a subscriber of internet
services who received infringement notices failed to “secure, police and protect” his account from third parties who used his internet access to
infringe. Cobbler, 901 F.3d at 1145-46. The direct infringers were never
identified. See id. at 1145 n.1. Because the pleading premised liability
exclusively on the subscriber’s failure to take action against unknown third-
party infringers, it was insufficient to state a claim. See id. at 1147-49. Here,
Plaintiffs proved at trial that Grande knew (or was willfully blind to) the
identities of its infringing subscribers based on Rightscorp’s notices, which
informed Grande of specific IP addresses of subscribers engaging in
infringing conduct. But Grande made the choice to continue providing
services to them anyway, rather than taking simple measures to prevent
infringement. Additionally, Cobbler addressed only inducement liability
under Grokster; it did not opine on the evidence required for establishing
material contribution. See id. The court in Cobbler rejected the plaintiff’s
invitation to create “an affirmative duty for private internet subscribers to
actively monitor their internet service for infringement,” id. at 1149; it did
not absolve ISPs like Grande that continue providing services to known
infringing subscribers.
The evidence at trial demonstrated that Grande had a simple measure
available to it to prevent further damages to copyrighted works (i.e.,
terminating repeat infringing subscribers), but that Grande never took it. On
appeal, Grande and its amici make a policy argument—that terminating
internet services is not a simple measure, but instead a “draconian
overreaction” that is a “drastic and overbroad remedy”—but a reasonable
jury could, and did, find that Grande had basic measures, including
termination, available to it. See Amazon.com, 508 F.3d at 1172. And because
Grande does not dispute any of the evidence on which Plaintiffs relied to
prove material contribution, there is no basis to conclude a reasonable jury
lacked sufficient evidence to reach that conclusion.

In sum, because (1) intentionally providing material contribution to
infringement is a valid basis for contributory liability; (2) an ISP’s continued
provision of internet services to known infringing subscribers, without taking
simple measures to prevent infringement, constitutes material contribution;
and (3) the evidence at trial was sufficient to show that Grande engaged in
precisely that conduct, there is no basis to reverse the jury’s verdict that
Grande is liable for contributory infringement >>.

Interessante infine è la riduzine del quantum, dovendosi determinare il danno statutory non per singolo brano ma per albums., Ma ciò dipende da specifica norma del 17 US Code § 504 (“for the purposes of this subsection, all the parts of a compilation or derivative work constitute one work”).

(Notizia e link dal blog di Eric Goldman)

Ancora sulla responsabilità degli internet provider per le violazioni copyright dei loro utenti (con un cenno a Twitter v. Taamneh della Corte Suprema USA, 2023)

Approfondita sentenza (segnalata e linkata da Eric Goldman, che va sempre ringraziato) US BANKRUPTCY COURT-SOUTHERN DISTRICT OF NEW YORK, In re: FRONTIER COMMUNICATIONS CORPORATION, et al., Reorganized Debtors, Case No. 20-22476 (MG), del 27 marzo 2024.

Si v. spt. :

-sub III.A, p. 13 ss, “Secondary Liability for Copyright Infringement Is a Well-Established Doctrine”;

– sub III.B “Purpose and Effect of DMCA § 512”, 24 ss.

– sub III.D “Twitter Did Not Silently Rewrite Well-Established Jurisprudence on Secondary Liability for Copyright Infringement” p. 31 ss sul rapporto tra la disciplina delle violazioni copyright e la importante sentenza della Corte Suprema Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023).

Di quest’ultima riporto due passaggi dal Syllabus iniziale:

– la causa petendi degli attori contro Twitter (e Facebook e Google):

<< Plaintiffs allege that defendants aided and abetted ISIS in the
following ways: First, they provided social-media platforms, which are
generally available to the internet-using public; ISIS was able to up-
load content to those platforms and connect with third parties on them.
Second, defendants’ recommendation algorithms matched ISIS-re-
lated content to users most likely to be interested in that content. And,
third, defendants knew that ISIS was uploading this content but took
insufficient steps to ensure that its content was removed. Plaintiffs do
not allege that ISIS or Masharipov used defendants’ platforms to plan
or coordinate the Reina attack. Nor do plaintiffs allege that defend-
ants gave ISIS any special treatment or words of encouragement. Nor
is there reason to think that defendants carefully screened any content
before allowing users to upload it onto their platforms>>

– La risposta della SCOTUS:

<<None of plaintiffs’ allegations suggest that defendants culpably “associate[d themselves] with” the Reina attack, “participate[d] in it as
something that [they] wishe[d] to bring about,” or sought “by [their]
action to make it succeed.” Nye & Nissen, 336 U. S., at 619 (internal
quotation marks omitted). Defendants’ mere creation of their media
platforms is no more culpable than the creation of email, cell phones,
or the internet generally. And defendants’ recommendation algorithms are merely part of the infrastructure through which all the content on their platforms is filtered. Moreover, the algorithms have been presented as agnostic as to the nature of the content. At bottom, the allegations here rest less on affirmative misconduct and more on passive nonfeasance. To impose aiding-and-abetting liability for passive nonfeasance, plaintiffs must make a strong showing of assistance and scienter. Plaintiffs fail to do so.
First, the relationship between defendants and the Reina attack is
highly attenuated. Plaintiffs make no allegations that defendants’ relationship with ISIS was significantly different from their arm’s
length, passive, and largely indifferent relationship with most users.
And their relationship with the Reina attack is even further removed,
given the lack of allegations connecting the Reina attack with ISIS’ use
of these platforms. Second, plaintiffs provide no reason to think that
defendants were consciously trying to help or otherwise participate in
the Reina attack, and they point to no actions that would normally
support an aiding-and-abetting claim.
Plaintiffs’ complaint rests heavily on defendants’ failure to act; yet
plaintiffs identify no duty that would require defendants or other communication-providing services to terminate customers after discovering that the customers were using the service for illicit ends. Even if
such a duty existed in this case, it would not transform defendants’
distant inaction into knowing and substantial assistance that could
establish aiding and abetting the Reina attack. And the expansive
scope of plaintiffs’ claims would necessarily hold defendants liable as
having aided and abetted each and every ISIS terrorist act committed
anywhere in the world. The allegations plaintiffs make here are not
the type of pervasive, systemic, and culpable assistance to a series of
terrorist activities that could be described as aiding and abetting each
terrorist act by ISIS.
In this case, the failure to allege that the platforms here do more
than transmit information by billions of people—most of whom use the
platforms for interactions that once took place via mail, on the phone,
or in public areas—is insufficient to state a claim that defendants
knowingly gave substantial assistance and thereby aided and abetted
ISIS’ acts. A contrary conclusion would effectively hold any sort of
communications provider liable for any sort of wrongdoing merely for
knowing that the wrongdoers were using its services and failing to stop
them. That would run roughshod over the typical limits on tort liability and unmoor aiding and abetting from culpability>>.

La norma asseritamente violata dalle piattaforme era il 18 U.S. Code § 2333 (d) (2), secondo cui : <<2) Liability.— In an action under subsection (a) for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189), as of the date on which such act of international terrorism was committed, planned, or authorized, liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism>>.

Differenza tra non applicabilità dello safe harbour e affermazione di responsabilità

La corte distrettuale del Wisconsin -western dist.- 31.03.2023, caso No. 21-cv-320-wmc, Hopson + Bluetype c. Google + Does 1 e 2, ha ben chiara la differenza tra i due concetti: che non sia invocabile il safe harbour non significa che ricorra in positivo responsabilità (anche se di fatto sarà probabile).

Non altrettanto chiara ce l’hanno alcuni nostri opininisti (dottrina e giurisprudenza).

Nel caso si trattava del safe harbour per il copyright in caso di procedura da notice and take down e in particolare da asserita vioalzione della procedura che avrebbe dovuto condurre google a “rimettere su” i materiali in precedenza “tirati giu” (§ 512.g) del DMCA).

<<Here, plaintiffs allege that defendant Google failed to comply with § 512(g)’s
strictures by: (1) redacting contact information from the original takedown notices; (2) failing to restore the disputed content within 10 to 14 business days of receiving plaintiffs’ counter notices; and (3) failing to forward plaintiffs’ counter notices to the senders of the takedown notices. As Google points out, however, its alleged failure to comply with § 512(g) does not create direct liability for any violation of plaintiffs’ rights. It merely denies Google a safe harbor defense should plaintiffs bring some other claim against the ISP for removing allegedly infringing material, such as a state contract or tort law claim. Martin, 2017 WL 11665339, at *3-4 (§ 512(g) does not create any affirmative cause of action; it
creates a defense to liability); see also Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (holding plaintiffs may sue under a federal statue only where there is an express or implied private right of action). So, even if Google did not follow the procedure entitling it to a safe harbor defense in this case, the effect is disqualifying it from that defense, not creating liability under § 512(g) of the DMCA for violating plaintiffs’ rights.>>

Ancora nulla circa tale procedura in UE: gli artt. 16-17 del DSA reg. UE 2022/2065 non ne parlano (pare lasciarla all’autonomia contrattuale) e nemmeno lo fa la dir. specifica sul copyright, art. 17 dir. UE 790/2019.

(notizia e link dal sito del prof. Eric Goldman)

Youtube non è corresponsabile delle violazioni di copyright consistite in ripetuti upload sulla sua piattaforma

Youtube non è corresponsabile delle violazioni di copyright date da ripetuti upload sulla sua piattaforma. Così US distr. court southern district of Florida 16 maggio 2023, Case No. 21-21698-Civ-GAYLES/TORRES, Athos overseas ltc c. Youtube-Google.

domanda attorea:

According to Plaintiff, Defendants are liable under direct and secondary infringement theories for YouTube’s failure to prevent the systematic re-posting of Plaintiff’s copyrighted movies to its platform. Plaintiff contends that YouTube has turned a blind eye to rampant infringement of Athos’ copyrights by refusing to employ proprietary video-detection software to block or remove from its website potentially infringing clips, and not just clips specifically identified by URL in Plaintiff’s DMCA takedown notices. In essence, Plaintiff argues that evidence of YouTube’s advanced video detection software, in conjunction with the thousands of takedown notices Athos has tendered upon YouTube, give rise to genuine issues of fact as to whether Defendants have forfeited the DMCA’s safe harbor protections.

Domanda rigettata: il provider non pèerde il suo safe harbour ex 17 US code § 512 per assenbza dell’element soggettivo:

<<Indeed, in Viacom the Second Circuit rejected identical arguments to the ones asserted here by Athos, which were presented in a lawsuit brought by various television networks against YouTube for the unauthorized display of approximately 79,000 video clips that appeared on the website between 2005 and 2008. Viacom, 676 F.3d at 26. Among other things, the Viacom plaintiffs argued that the manner in which YouTube employed its automated video identification tools—including liming its access certain users—removed the ISP from the safe harbor. Id. at 40–41. Yet, the court unequivocally rejected plaintiffs’ arguments, holding that the invocation of YouTube’s technology as a source of disqualifying knowledge must be assessed in conjunction with the express mandate of § 512(m) that “provides that safe harbor protection cannot be conditioned on ‘a service provider monitoring its service or affirmatively seeking facts indicating infringing activity[.]’”9 Viacom, 676 F.3d at 41 (quoting 17 U.S.C. § 512(m)(1))>>

poi:

<<Plaintiff conflates two concepts that are separate and distinct in the context of YouTube’s copyright protection software: automated video matches and actual infringements. As explained by YouTube’s copyright management tools representative, software-identified video matches are not necessarily tantamount to copyright infringements. [D.E. 137-7, 74:21–25]. Rather, the software detects code, audio, or visual cues that may match those of a copyrighted work, and presents those matches to the owner for inspection. Thus, while YouTube systems may be well equipped to detect video matches, the software does not necessarily have the capacity to detect copyright infringements. See id. Further, the accuracy of these automatically identified matches depends on a wide range of factors and variable. [Id. at 75:1–10, 108:2–110:17, 113:3–114:25]. That is why users, not YouTube, are required to make all determinations as to the infringing nature of software selected matches. [Id.].
Second, Plaintiff does not point to any evidence showing that YouTube, through its employees, ever came into contact, reviewed, or interacted in any way with any of the purportedly identified video matches for which Athos was allegedly required to send subsequent DMCA takedown notices (i.e., the clips-in-suit). As explained by YouTube’s product manager, the processes of uploading, fingerprinting, scanning, and identifying video matches is fully automated, involving minimal to no human interaction in the part of YouTube. [Id. at 68:22–69:18, 118:17–119]. The record shows that upon upload of a video to YouTube, a chain of algorithmic processes is triggered, including the automated scanning and matching of potentially overlapping content. If the software detects potential matches, that list of matches is automatically directed towards the copyright owner, by being displayed inside the user’s YouTube interface. [Id. at 68:22–70:25]. Therefore, the record only reflects that YouTube does not rely on human involvement during this specific phase of the scanning and matching detection process, and Plaintiff does not proffer any evidence showing otherwise>>.

sintesi:

<<As the relevant case law makes clear, evidence of the technologies that ISPs independently employ to enhance copyright enforcement within their system cannot form the basis for ascribing disqualifying knowledge of unreported infringing items to the ISP. Such a conception of knowledge would contradict the plain mandate of § 512(m), “would eviscerate the required specificity of notice[,] . . . and would put the provider to the factual search forbidden by § 512(m).” Viacom, 718 F. Supp. 2d at 528. Thus, we find that Athos’ theory that specific knowledge of non-noticed infringing clips can be ascribed to Defendants by virtue of YouTube’s copyright management tools fails as a matter of law>>.

Notizia e link alla sentenza dal blog del prof Eric Goldman

L’embedding non costituisce comunicazione al pubblico però non permette la difesa del safe harbour ex § 512DMCA

Il giudice Barlow della Utah District Court, 2 maggio 2023, caso 2:21-cv-00567-DBB-JCB, decide un’interessante lite sull’embedding.

Attore è il gestore dei diritti su alcune foto eseguite da Annie Leibovitz. Convenuti sono i gestori di un sito che le aveva “riprodotte” con la tecnica dell’embedding (cioè non con riproduzine stabile sul proprio server).

Il giudice applica il c.d server test del noto caso Perfect 10 Inc. v. Google del 2006 così sintetizzato: <<Perfect 10, the Ninth Circuit addressed whether Google’s unauthorized display of thumbnail and full-sized images violated the copyright holder’s rights. The court first defined an image as a work “that is fixed in a tangible medium of expression . . . when embodied (i.e., stored) in a computer’s server (or hard disk, or other storage device).” The court defined “display” as an individual’s action “to show a copy . . ., either directly or by means of a film, slide, television image, or any other device or process ….”>>.

Quindi rigetta la domanda nel caso dell’embedding sottopostogli :

<<The court finds Trunk Archive’s policy arguments insufficient to put aside the “server” test. Contrary to Trunk Archive’s claims, “practically every court outside the Ninth Circuit” has not “expressed doubt that the use of embedding is a defense to infringement.” Perfect 10 supplies a broad test. The court did not limit its holding to search engines or the specific way that Google utilized inline links. Indeed, Trunk Archive does not elucidate an appreciable difference between embedding technology and inline linking. “While appearances can slightly vary, the technology is still an HTML code directing content outside of a webpage to appear seamlessly on the webpage itself.” The court in Perfect 10 did not find infringement even though Google had integrated full-size images on its search results. Here, CBM Defendants also integrated (embedded) the images onto their website.(…) Besides, embedding redirects a user to the source of the content-in this case, an image hosted by a third-party server. The copyright holder could still seek relief from that server. In no way has the holder “surrender[ed] control over how, when, and by whom their work is subsequently shown.” To guard against infringement, the holder could take down the image or employ restrictions such as paywalls. Similarly, the holder could utilize “metadata tagging or visible digital watermarks to provide better protection.” (…)( In sum, Trunk Archive has not persuaded the court to ignore the “server” test. Without more, the court cannot find that CBM Defendants are barred from asserting the “embedding” defense. The court denies in part Trunk Archive’s motion for partial judgment on the pleadings.>>

Inoltre, viene negato il safe harbour in oggetto, perchè non ricorre il caso del mero storage su server proprio di materiali altrui, previsto ex lege. Infatti l’embedding era stato creato dai convenuti , prendendo i materiali da server altrui: quindi non ricorreva la passività ma l’attività , detto in breve

(notizia e link alla sentenza dal blog del prof Eric Goldman)

L’azione di danno ex § 512.f Copyright Act concerne solo l’abuso di copyright, non di marchio

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, CV 22-4355-JFW(JEMx), del 21 aprile 2023, Yuga Labs, Inc. -v- Ripps, et al., decide una lite su marchio in causa promossa dal titolare del NFT “Bored Ape” contro un visual artist (Ripps) che lo critica: Ripps is a visual artist and creative designer who purports to create artwork that comments in the boundaries between art, the internet, and commerce. According to Defendants, Yuga has deliberately embedded racist, neo-Nazi, and alt-right dog whistles in the BAYC NFTs and associated projects.3 Beginning in approximately November 2021, Ripps began criticizing Yuga’s use of these purported racist, neo-Nazi, and alt-right dog whistles through his Twitter and Instagram profiles, podcasts, cooperation with investigative journalists, and by creating the website gordongoner.com.

Y. manda allora richieste di notice and take down (NATD) per marchio spt. ma anche per dir. di autrore.

R. reagisce azionando la disposizione nel titolo.
Ma la corte -delle 25 richieste NATD- esamina solo quelle (quattro) che hanno portato al take down e solo quelli di copyrigjht (una), non quelle su marchio (tre). Del resto il tenore della norma è inequivoco.

E rigetta l’eccezione (o dom. riconvenzionale?): With respect to the only DMCA notice that resulted in the takedown of Defendants’ content,
Defendants have failed to demonstrate that the notice contains a material misrepresentation that
resulted in the takedown of Defendants’ content or that Yuga acted in bad faith in submitting the
takedown notice. Although Defendants argue that Yuga does not have a copyright registration for
the Ape Skull logo that was the subject of the DMCA takedown notice, a registration is not required
to own a copyright. Instead, a copyright exists at the moment copyrightable material is fixed in any
tangible medium of expression. Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, 139
S.Ct. 881, 887 (2019); see also Feist v. Publ’ns, Inc. v. Rural Tel. Serv. Co., 449 U.S. 340, 345
(1991) (holding that for a work to be copyrightable, it only needs to possess “some minimal degree
of creativity”). Moreover, courts in the Ninth Circuit have held that a logo can receive both
trademark and copyright protection. See, e.g., Vigil v. Walt Disney Co., 1995 WL 621832 (N.D.
Cal. Oct. 16, 1995).

La setnnza è itnerssante però anche -soprattutto.- per il profili di mnarchio e concorrenza sleale circa l’uso dell’NFT.

(notizia e link alla sentenza dal blog del prof. Eric Goldman)

La denuncia di elusione dellle protezioni non èp coperta dal 17 U.S. Code § 512 (DMCA) Misrepresentations

La responsabilità del denunciante per aver dolosamente affermato la contraffazione altrui non riguarda il semplice dire che c’è stata elusione delle misure di protezione.

Così la district court of Connecticut 30 settembre 2022, Case 3:20-cv-01602-SRU , Yout c. The Recording Industry Association of America, Inc. (the “RIAA”), in un azione di accertament negativo proposta da iun fornire di servizi che permettono il downloading di audiovisivi su Youtube , nonostante questi siano offerti solo in streaming non downloadibile (con il YouTube’s Rolling Cypher).

<< Section 512(f) has is limited to misrepresentations of copyright infringement. See Twelve
Inches Around Corp. v. Cisco Sys., 2009 WL 928077, at *3 (S.D.N.Y. Mar. 12, 2009) (“While
Section 512(f) is not explicitly limited to misrepresentation of copyright infringement, it requires
that the misrepresentation be ‘under [Section 512],’ which deals exclusively with copyright
infringement, and sets forth in great detail when and how an internet service provider can be
liable for copyright infringement”); Arista Records, Inc. v. MP3Board, Inc., 2002 WL 1997918,
at *15 (S.D.N.Y. Aug. 29, 2002) (“Section 512 only penalizes copyright holders for knowingly
materially misrepresenting ‘that material or activity is infringing.’ It does not provide a cause of
action for knowingly materially misrepresenting [other claims].”); accord Rossi v. Motion
Picture Ass’n of Am., Inc., 391 F.3d 1000, 1004 (9th Cir. 2004) (setting forth that a section
512(f) cause of action is an “expressly limited cause of action for improper infringement
notifications”).
Here, Yout has failed to plead a plausible claim for relief under section 512(f) because it
has only alleged that the RIAA knowingly misrepresented that Yout’s software circumvents the
YouTube technological measures, not that Yout is infringing certain copyrighted works. See
SAC, Doc. No. 45, at 28 ¶¶ 138-140. Although the circumvention notices sent by the RIAA
superficially resemble take down notices under section 512(c), the notices do not identify any copyrighted works and accordingly are incapable of being misrepresentations under section 512.
See id. at 28 ¶¶ 136-137. Yout attempts to remedy this deficiency by alleging that the RIAA’s
circumvention notices amount to an allegation of secondary copyright infringement and that
Yout’s customers interpreted the notices as alleged copyright infringement. See SAC, Doc. No.
45, at 27 ¶¶ 136-137. But Yout’s arguments are not persuasive, because the notices stated that
YouTube’s technological measure (therein, “rolling cipher”) “protects [the RIAA’s] members’
works on YouTube from unauthorized copying/downloading,” not that Yout itself was infringing
the copyrighted works. Id. at 28 ¶ 137.
Furthermore, even assuming that the RIAA’s notices constituted an allegation of
secondary copyright infringement, Yout has provided no case law that suggests that such an
allegation could result in a violation of section 512(f), nor have I found any caselaw suggesting
so. I decline to credit that claim.
Moreover, I agree with the RIAA that Yout alleges no facts suggesting that the RIAA
“knowingly” misrepresented the nature of Yout’s service. To do so, a defendant must have
actual knowledge that it is making a misrepresentation of fact. Cabell v. Zimmerman, 2010 WL
996007, at *4 (S.D.N.Y. Mar. 12, 2010). But, again, Yout alleges no facts suggesting that the
RIAA “knowingly” misrepresented the nature of Yout’s service. Ningbo Mizhihe I&E Co., Ltd.
v. Does 1-200, 2020 WL 2086216, at *3-4 (S.D.N.Y. Apr. 30, 2020) (dismissing a Section 512(f)
claim where “there [wa]s insufficient material in the pleadings to support the inference that [the
p]laintiff knew their copyrights were not enforceable”); Cabell, 2010 WL 996007, at *4
(dismissing a Section 512(f) claim where the complaint “allege[d] no facts from which a court
could find it facially plausible that Defendant knew it was misrepresenting the facts when it
wrote to YouTube”).
Because section 512(f) only covers knowing misrepresentations of copyright
infringement and not circumvention of a technological measure, I grant the RIAA’s motion to
dismiss Yout’s 17 U.S.C. § 512(f) claim >>

Interpretazione di assai dubbia esattezza.

La sentenza poi offre dettagli tecnici approfonditi sul se Youtube impedisca i download con misure di protezione in senso tecnico ai sensi del copyright e cioè ai sensi del 17 US Code § 1201 (v. § 2 2. The Yout Service, p 2 segg.).

Stante la normativa italiana (tit. II ter l. autore, artt. 102 quater e quinquies), la motivaizone è di sicuro interesse anche per noi

(notizia e link alla sentenza dal blog del prof. Eric Goldman)

Conflitto tra diritto di parola e diritto di autore : una particolare ma interessante fattispecie decisa a favore del primo

Tizio , restando anonimo con l’account @CallMeMoneyBags , critica su Twitter un tale Brian Sheth, a private-equity billionaire, postando messaggi e foto di lui.

Una società di couinicazione , però , quale sedicente titolare dei diritti sulle foto , chiede a Twitter di dargli il nome ex 17 §512.h US CODE.

Il giudice rigetta accogliendo la difesa di Twitter e facendoo prevalere il diritto di parola (di critica, di satira etc.) , anche perchè l’attore non è riuscito a fugare il sospetto di essere veicolo soceitario a disposizione del medesimo sig. Seth.

Così Il distretto nord della California21 giugno 2022, Case 4:20-mc-80214-VC , IN RE DMCA § 512(H) SUBPOENA TO TWITTER, INC.

This is where the mystery surrounding Bayside makes a difference. If the Court were assured that Bayside had no connection to Brian Sheth, a limited disclosure subject to a protective order could perhaps be appropriate. But the circumstances of this subpoena are suspicious. As far as the Court can tell, Bayside was not formed until the month that the tweets about Sheth were posted on Twitter. It appears that Bayside had never registered any copyrights until the registration of these six photographs, which happened after the tweets were posted. And there appears to be no information publicly available about Bayside’s principals, staff, physical location, formation, or purposes.

Given all the unknowns, at oral argument the Court offered Bayside an opportunity to
supplement the record with an evidentiary hearing or additional documentation. Bayside
declined, stating that it preferred the motion to be adjudicated on the current record. There would
perhaps be some benefit in insisting on an evidentiary hearing to explore the circumstances
behind this subpoena—to explore whether Bayside and its counsel are abusing the judicial
process in an effort to discover MoneyBags’s identity for reasons having nothing to do with
copyright law. Perhaps that hearing could even result in an award of attorney’s fees for Twitter.

Il rapporto tra dirito di autore e diritti fondamentali antagonisti è ormai largamentit tratto anche da noi anzi in tutto il copyright europeo.

(notizia e link alla sentenza dal blog del prof. Eric Goldman)

Asserita violazione di copyright da parte di Pinterest rigettata per l’operatività del safe harbour ex 512.c DMCA

Un fotografo lamenta la riproduzione illecita di sue fotografie in Pinterest (P.).

Precisamente lamenta non il fatto che altri utenti le carichino o le appuntino o lo faccia P. (verosimilmente ci sarà licenza concordata con/imposta da P. a proprio favore); bensì il fatto che P. le proponga nei feed altrui in abbinamento ad inserzioni pubblicitarie.

P. eccepisce il safe harbour ex § 512.c DMCA.

Il distretto nord della California decide la lite con provvedimento 3 maggio 2022, Davis c. PinterestCase 4:19-cv-07650-HSG , rigettando la domanda per l’esimente predetta.

la sentenza pare corretta, alla luce del tenore delle disposizoni di legge. L’attore aveva invece eccepito la mancanza tra gli altri del requisito dello storage dei materiali altrui .

La sentenza è ineressante perchè esamina il funzionamento di P.

Dice, poi, che manca la prova per cui P. modifichierebbe il lavoro artistico inserendovi pubblicità: infatti i due newsfeed (pins degli utenti e inserzioni pubblicitarie) sono prodotti da due distinti algoritmi, pp.19-20 e 23/4.

Non c’è violazione di copyright: To the extent that Plaintiff suggests tracking user activity through algorithms or displaying advertising on the platform is somehow copyright infringement, he offers no support for this novel theory.5 See, e.g., Dkt. No. 176 at 7 (“The undisputed evidence is that the users never asked to be tracked using the Variants that Pinterest created from Plaintiff’s Works . . . .”). Copyright infringement requires Plaintiff to establish that Pinterest “violate[d] at least one exclusive right granted to copyright holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007). Neither tracking users’ activity nor displaying advertising near Plaintiff’s works violates Plaintiff’s exclusive rights. But even if this did constitute infringing activity, such conduct would still fall within § 512(c)’s protection., p. 23.

Esamina anhe il grado di dettaglio cui è tenuto l’attore nell’individuare le vioalzioni: tutte le 51 foto azionate o alcune solo, a titolo di esempio (III.A.i, p. 9)? Vecchia questione anche da noi in tema di responsabilità degli internet provider …

Infine manca pure il financial benefit, che deve essere provato relativamene alle vioalzioni specificamente azionate e non -in generale – relativametne al modello di business del convenuto (altra vecchia questione nazionale …). Si badi però che nel diritto usa il requisito è espressamente preevisto.

(notizia e link alla sentenza dal blog del prof. Eric Goldman)