Among the things that are no longer violations of the DMCA:

• Circumventing CSS for fair-use, critical, and educational purposes


• Jailbreaking phones to obtain software interoperability for legally obtained software


• Unlocking your phone to work on another network


• Breaking game security for educational or security research purposes


• Getting around obsolete computer dongles


• Reading aloud eBooks for visually impaired people, even if the eBook says that feature is disabled

Related posts:

1. Is the DMCA Takedown Unconstitutional? Wendy Selzter of the Berkman Center for Internet and Society...
2. Episode 47: DMCA TakeDownfall Gizmodo and iPod Scandal, Downfall DMCA Takedowns, Sarah Palin E-Mail...

First, the judge distilled the issue down to one clear question of law: does knowledge of infringing content on the site mean specific, actual, knowledge of each item, or generalized knowledge that there is a lot of infringing activity going on? The judge spent about half the opinion reciting legislative history to inform his answer to the question.

In the end, he came to the same conclusion that many other judges have: that it would ruin DMCA safe harbor, and be contrary to Congress’ intent, if generalized knowledge, or even a duty to investigate files uploaded, could constitute knowledge of infringing works under the DMCA.

All that being said, Viacom has promised to appeal, and this opinion carries no weight on appeal. This opinion is only as useful as it is persuasive to the panel that hears the appeal.

We’ll follow the appeal closely, but these do not move quickly.

Related posts:

1. YouTube, Google, and Viacom–a brief overview of secondary liability Yesterday, we recorded a special edition of our podcast and...
2. Technically Legal Podcast: Episode 17 Safe-harbors under the DMCA, limits on the Computer Fraud and...
3. Episode 41: Google Sandwich Summary Judgment Motions in Viacom v. YouTube, Amazon 1-Click Patent,...

In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.

The law Gizmodo is talking about is the Massachusetts wiretapping act, M. G. L. c. 272, § 99. The act was passed in it’s current form in 1968, and largely mirrors the Federal wiretapping act. The act makes it illegal to secretly intercept an oral communication. The cases were people have been successfully prosecuted for violating the act have been where the defendant concealed or hid their recording device. Massachusetts courts have repeatedly held that any type of obvious recording is not illegal, nor would it be illegal to just record video without sound. And there is certainly no law that prohibits recording police officers specifically.

Related posts:

1. Illegal Wiretapping on Boston’s Streets Boing Boing reported about an epidemic of wiretapping on the...
2. De-FUD: MA GPS Tracking Case Not to bite the hand that feeds us, but a...
3. Can the Police Find Your Phone? Recently Mac developer and Somerville native Daniel Jalkut had his...

The defendant’s brother sent a potential witness four messages urging her not to testify against the defendant. The Court said the messages should have been excluded because they were not authenticated, in other words, the jury had no way of knowing who wrote them.

The Court analogized it to authenticating a phone call. It is not enough to merely state that the witness recieved a phone call from a person. The witness must testify that they were familiar with the person’s voice, and that the voice on the other end of the line was consistent with the person’s voice.

Here, neither the witness, nor anyone else, testified to how secure MySpace is, and whether someone else could have sent the messages.

Ultimately, the Court held that the error of allowing the messages into evidence did not require a reversal of convictions.

Related posts:

1. Supreme Court Holds Argument in Quon The Supreme Court yesterday held argument in Quon a case...
2. Supreme Court to Rule on Violent Video Game Bans The Supreme Court of the United States has agreed to...
3. Bilski at the Supreme Court Today Today, the Supreme Court hears arguments on the Bilski case....

On their most recent podcast, they talked about applying for the “Money Honey” trademark for use on visors and hats. You can search for “Money Honey” or “85009258″ on the TESS site here.

The problem is that it doesn’t look like they filed an “Intent to Use” application. Rather, they filed an application where they must have represented that they already sold a hat or visor in commerce marked with the Money Honey brand. Since they admitted in the podcast that they haven’t made or sold any yet, they must have lied to the Patent and Trademark Office when they said that they had sold it in commerce.

This is still an application, and the mark hasn’t been registered, but god-forbid Planet Money ever tries to prosecute someone for infringing this mark, the defendant would have a strong case that the registration is invalid for fraud on the PTO.

Please Note: This was done as an intellectual exercise. I harbor no ill will toward Planet Money, and do like their program a great deal.

Related posts:

1. Planet Money and Hotel California This afternoon Planet Money, a killer NPR podcast, posted this...
2. Google Nexus One Trademark Rejected Google had applied for a trademark on Nexus One, which...
3. Another Google Adwords Suit Dismissed On yesterday’s Podcast, we discussed how Rescuecom voluntarily withdrew their...

We discussed this briefly on Podcast 46.

There’s a more in depth discussion in the podcast, but the short of it is that a court would be doing a tying analysis. The inquiry there is whether the company is leveraging their market power in one sector to promote sales in another. There are many ways you could frame the quesion, but in the end it’s unlikely that Apple would be found to be violating antitrust laws. Yes, Apple is has control over the market for installable iPhone apps, but the competition to installable applications on the iPhone includes HTML5 web apps and installable applications on other platforms, like Window Mobile, Android, Symbian, WebOS or BlackBerry.

In short, a court would be unlikely to find that Apple had enough power over the market to drive sales of Macs, which run XCode, when you can develop for the iPhone (by making a web app) or other platforms with a PC.

Related posts:

1. FTC OKs Google’s AdMob Acquisition The FTC announced today that it had approved Google’s acquisition...
2. Apple to Defend Nokia Lawsuit “Vigorously” Recently, Nokia filed a patent infringement suit against Apple, alleging...
3. Apple Sues HTC Over iPhone Patents This is still breaking, so we’ll have more coverage as...

Secondary liability, or “indirect liability,” attaches liability to certain intermediary entities and other persons who are not participating in an infringing act, but are somehow contributing, profiting, or inducing another person’s act of infringement. For example, this might apply to a person who owns and operates a website for the sole purpose of facilitating copyright infringement of song recordings–that operator is not downloading or uploading the sound recordings herself, and therefore is not directly infringing any copyrights, but is providing a medium for others to participate in infringing activities.  For you legal history afficionados, secondary liability dates has been recognized in various forms by courts at least as far back as the late 19th century (see e.g., Fishel v. Lueckel, 53 F. 499 (S.D.N.Y. 1892) (recognizing liability for profiting from infringement as a joint tortfeasor)).  Despite this, secondary liability has still not been codified in the Copyright Act.  Consequently, across federal jurisdictions the standards of secondary liability vary a little from court-to-court.  Nonetheless, secondary liability can be parsed into two categories: (1) contributory liability and (2) vicarious liability.

Scholars and practitioners devote hundreds of pages to discussing contributory and vicarious infringement.  I’m not here to make your eyes bleed.  So, please consider the following points a very broad overview:

Contributory Infringement: When a person, who has knowledge of a direct instance of infringement (e.g., another person uploading a unauthorized video), materially contributes to, *or*, actively induces the infringing conduct.

By a Materially Contribution: The contribution generally needs to add something to the original act of infringement.  For example, some courts have ruled that adding either software, hardware, and webspace, to provide a conduit to unlawfully exchange copyrighted works is enough.  In another case, the Ninth Circuit held the operators of a swap meet where independent vendors sold unauthorized copies of copyrighted works was sufficient to survive a motion to dismiss. Note, however, that under a contributory liability theory, a defendant must have knowledge that an act of infringement is occurring to be liable.

Or, by Inducement:  In 2005, the Supreme Court held in MGM v. Grokster that a person is liable for contributory infringement when she “distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.”

Vicarious Infringement: When a person has the right and ability to supervise an infringing activity and derives a direct financial interest from the infringing activity.  Some courts have interpreted that this does not necessarily mean earned revenue, merely deriving some form of financial interest or financial incentives for tolerating unlawful from the infringing activity may suffice.   For example, check out the Napster litigation from 2001: A&M v. Napster, 239 F.3d 1004 (9th Cir. 2001).

As a final note, it’s important to remember that both the contributory and vicarious liability theories require there to be an original act of direct infringement.  In other words, there has to be another individual who violates the Copyright Act by directly misappropriating the exclusive rights of a copyright owner.

Enter Google, YouTube, and Viacom. Among the most interesting factoids which have surfaced from the summary judgment motions in the Viacom v. YouTube case, is that prior to Google’s acquisition, the founders and executives at YouTube were aware that the website was being used to upload unauthorized copyrighted content. Viacom’s motion quotes email excerpts from the executives who discuss the importance of allowing users to upload arguably infringing content because it was driving up website traffic, making the site an attractive acquisition target based on traffic metrics. Along one line of reasoning, the executives were inducing users to upload infringing content and may have actually participated in some of this. This would be the “smoking gun” argument. See, once YouTube was acquired by Google, Google has arguably assumed liability from actions which took place before the closing date–this is a very common occurrence in any corporate acquisition, but is often subject to the language in the agreement (buyer and seller can negotiate for certain terms and indemnity of liabilities).

What remains unclear, to some extent, is the amount of knowledge needed by the operators to impute secondary liability beyond the DMCA safeharbor. For instance, just because the YouTube executives knew that some videos were likely to have been uploaded without authorization that doesn’t mean they *actually* knew they were unauthorized. Consider this theory plausible deniability. Unless the executives took the time to check with the actual copyright owners, or unless they received a takedown notice or cease and desist notice, they arguably didn’t know with certainty that a particular upload was expressly unauthorized.

Here’s where the DMCA section 512 safeharbor comes into play.  In the past on our podcast and blog (here’s a more thorough overview I wrote), we’ve beaten to death the 17 U.S.C. 512(c) language, but it’s helpful to take a fresh look to see how the precise wording of the statute comes into play:

(c) Information Residing on Systems or Networks At Direction of Users.—

(1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

(A)

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Note 512(c)(1)(A)(i)-(iii), in bold above.  That’s the statutory language concerning the level of knowledge that potentially implicates a service provider with infringement by a user.   Of particular interest to me is (ii), which states that if a service provider is aware of “facts or circumstances from which infringing activity is apparent,” the service provider cannot take advantage of the safehabor.   Depending on how the court applies this language, Google might find themselves in hot water based on the email exchanges of the previous YouTube executives.   However, it’s not black and white.  Just last year, we saw the UMG v. Veoh case, in which a California Federal Court ruled that a “blanket notice” for the purposes of DMCA takedowns was insufficient to shift the burden of copyright policing to Veoh.  This is important, because if the Viacom and YouTube court decides to follow this reasoning,  it gives YouTube some of the aforementioned plausible deniability– if there were no notices specifically indicating the exact uploads which were infringing, it might be insufficient to impute actual knowledge on YouTube.

Google has separately argued in their motion that Viacom participated in stealth marketing tactics which would have made it very difficult to determine whether an upload was in fact authorized by Viacom but uploaded by another person.  Additionally, Google points to evidence that Viacom had disparate internal policies under which they allowed certain unauthorized videos to remain on YouTube, without flagging or sending any notices to YouTube.  This obviously would make it much more difficult for the YouTube executives to independently determine an upload to be infringing without notice.  You simply can’t act as a filter if you don’t actually know who is responsible for a particular file.

I do think this is a factually fascinating case and it’s too close to speculate what the court is likely to do.  There’s also more detail worthy of  discussion on this case that would make this post pages and pages long.  Check out the plethora of commentary from the legal blogosphere  for additional takes on this case.  It’s also worth listening to our show (which will post tonight, around 12AM EST) and hearing myself, Ben, and Dominik debate the merits from different points of view.  We dove into much deeper detail on the specifics.

Other Bloggers’ takes:

Ben Sheffner (Copyrights & Campaigns)

Eric Goldman (Technology Law and Marketing)

EFF (Deeplinks)

Mike Masnick (TechDirt)

Nate Anderson (Ars Technica)

Related posts:

1. First Thoughts on Viacom v. Google I’ve finally had an opportunity to sit down a read...
2. Summary Judgment Filings in Viacom v. YouTube/Google Case Unsealed As of today, summary judgment filings in the Viacom v....
3. Google wins case against Viacom Google has won the $1 billion lawsuit brought by Viacom...

The district court stopped the DA from prosecuting the students, saying that it probably wasn’t illegal for girls to take and distribute provocative, or even nude pictures of themselves. Child pornography laws are based on the fact that minors are victimized, and it is difficult to victimize yourself.

The Third Circuit Court of Appeals upheld the injunction, but on different grounds. The Court of Appeals thought that the ultimatum the DA gave, which was that the students had to participate in an “education program,” or face prosecution, was unconstitutional.

There were two problems. First, the program interfered with parents rights to raise their kids, as the DA was dictating to the children what he thought was appropriate, not what was legal or illegal. Second, the program required the students to write essays about what they did, and why it was wrong. That violates the First Amendment’s prohibition against compelled speech.

This doesn’t resolve many key issues about sexting, but it did stop the DA from ruining several young girls lives with frivolous felony prosecutions.

Related posts:

1. Out of School Speech: Redux The 3rd Circuit Court of Appeals reheard two cases en...
2. De-FUD: Once More With Wiretapping Gizmodo posted a story about people being prosecuted for recording...

Unlike Rescuecom, Stratton Faxon didn’t claim trademark infringement in this suit. Instead, their claims alleged interference of business relations and unfair competition. The details are somewhat unclear, and I don’t have access to the actual filings, but it appears that Google filed a “Motion for Judgment” which was granted last week. No order or opinion stating the reasoning for the dismissed seems to be publicly available. However, because Stratton Faxon did not sue on a theory of trademark infringement, they are not precluded from refiling another suit in Federal Court on a trademark theory.

The theory behind the bulk of these suits is fairly novel. To summarize, trademark owners are suing Google for selling their registered trademarks to competitors as search terms. After competitor successfully “buys” (or “bids” might be more appropriate) for a search term that consists of a registered trademark of another person, the competitor’s advertisement appears in the sponsored links section on the search Google search result page. This does not affect the organic results where you would presumably see any links related to the trademark owner. Rather, it only affects what appears as an advertisement which is clearly labeled “sponsored link.” The beef these trademark owners seem to have is that they don’t want any links to competitors, sponsored or not, appearing next to their organic search engine results. Unfortunately, not all uses of a trademarked phrase are protected by the law. See e.g., Nominative fair use.

As you might imagine, these suits have been challenged by Google and other defendants on a number of grounds. In an ordinary trademark infringement case, a plaintiff needs to establish that the defendant, (1) used his identical mark, or one that is confusingly similar, (2) in commerce, (3) in connection with the sale of goods or services, (4) and, that the use was causes a likelihood of confusion to the consumer. The two biggest points of contention that defendants have argued is that selling a trademarked phrase is not “in commerce” and that there is no “likelihood of confusion” that results from the sale of the mark. Before Rescuecom withdrew from litigation, the Second Circuit opined that the sale of trademarks in the Adwords program was enough to satisfy the “in commerce” requirement. As far as I know, no court has resolved the the “likelihood of confusion” issue on the merits. Nevertheless, it smells like an awfully tenuous argument given the layout and separation of sponsored links and organic search results.

Hat tip goes to Eric Goldman for his outstanding coverage on Google Adwords litigation.

Related posts:

1. Google Nexus One Trademark Rejected Google had applied for a trademark on Nexus One, which...
2. Episode 41: Google Sandwich Summary Judgment Motions in Viacom v. YouTube, Amazon 1-Click Patent,...
3. Google Search Broken in China After just discussing the Google/China spat on our last podcast,...

I just wanted to claify that it’s not really clear what this means yet. This wasn’t a criminal case, it was someone suing a state official for violating his constitutional rights. The Feds are still bound by the Stored Communications Act (which we’ve discussed here before), so this opinion will have little or no effect on Federal investigations. And this decision, which Orin Kerr argues persuasively is wrong, is only binding in the 11th Circuit, not other courts. The plaintiff here can still petition for a rehearing, a rehearing en banc (where the entire court hears the case), or even petition the Supreme Court for certiorari (which they wouldn’t be likely to grant, at least until another court disagrees with the 11th Circuit).

Related posts:

1. Another E-mail Privacy Case The EFF has a great post up comparing the Oregon...
2. Episode 45: A Very Federal Day FCC v. Comcast, e-mail privacy, and DMCA constitutionality. Please download...
3. Federal Circuit Moves Patent Case Out of Texas Following up on our discussion about bringing patent suits in...