Justin Roiland created four episodes of a video series called "House of Cosbys." The series tells the story of a Bill Cosby fan who clones multiple Cosbys, each of whom has a special power. The series aired on the online TV website, Channel101.

Sometime in June 2005, Cosby's lawyers sent a cease-and-desist letter to Channel101. (The details are not entirely clear, but it appears that the letter was addressed to Justin Roiland and Dan Harmon). The letter asserted that the House of Cosbys series violated Cosby's right of publicity in his voice, name, and likeness. It demanded that Channel101 stop the development and distribution of the House of Cosbys series.

Upon receipt of the letter, Dan Harmon initially pulled down the videos, but later he reconsidered and re-posted them. According to a statement by Harmon, Cosby's lawyers then contacted Channel101's hosting service, which told Channel101 to take down the videos "under threat of pulling the plug." Channel 101 complied with the request.

A fifth episode surfaced on the Internet. This episode, apparently not created by Roiland, contained a still image of the cease-and-desist letter, and a voice reads from the letter during the video.

In March 2006, blogger Andrew Baio received a cease-and-desist letter for mirroring copies of the House of Cosbys series. He did not remove the files. (For more information, please see the CMLP Database entry for the Cosby v. Baio Letter.)

In the fall of 2004, two students at Hudson High School ("HHS") in Hudson, Massachusetts formed a Conservative Club in an effort to provide a forum for pro-conservative views on campus. The HHS Conservative Club was affiliated with a national organization, the High School Conservative Clubs of America, whose slogan is "Protecting American Freedom, Faith, and Morality." Among other things, the group endorses Second Amendment rights, the "restoration" of Christian values to schools and government, and the closing of the nation's borders to all immigrants; the group is opposed to gay marriage, affirmative action, and abortion.

When the HHS Conservative Club put up posters advertising its first organizational meeting, included on these posters was a link to the club's national organization's website. At the time this case arose, this website contained a banner entitled "Islam: A Religion of Peace?" Underneath the banner was a still shot from a video depicting a beheading (the still depicted the scene immediately before the actual beheading) as well as a link to five beheading videos. The links to these videos were accompanied by a warning that the videos were extremely graphic but that the group feels "it is necessary to provide them so you can see the true doctrines of Islam put into action."

Alerted to the HSCCA website by a faculty member, the HHS Technology Director reviewed it and decided to block access to it from all the school computers. When she told the assistant principal about the website, he ordered all of the group's posters removed. The school principal later permitted the group to put up posters as long as the HSCCA website was blacked out. The school officials contend that the graphic content available on the HSCCA website would disturb some of the students at the school, some of whom were under 12, and that the posters threatened to disrupt the operation of the school by requiring teachers to take time away from their lessons to discuss the videos with psychologically scarred students. The leaders of the HHS Conservative Group sued the school district as well as school administrators for violating their First Amendment rights; the defendants later moved for summary judgment to dismiss the plaintiffs' claims.

On October 4, 2007, the Massachusetts district court largely rejected the defendants' motion for summary judgment. In the first part of the court's opinion, U.S. District Court Judge Saris noted how far removed the posters were from actually presenting violent images:

To access the videos, a student would need (1) to view the posters and then, later, (2) access the website (and he could not do so at school because the website was blocked by the time the posters were removed), (3) discover the beheading videos among the other content, (4) navigate past an express warning, and (5) affirmatively click a link to the videos. There is no allegation that plaintiffs were publicizing the graphic content of the website. Thus, students at HHS were not a "captive audience" for the videos; rather, the videos were only available to the students, outside of school, as a matter of conscious choice.

The court also noted that the Technology Director's decision to block the website was akin to censoring a book in the school's library and might also be a separate constitutional violation; however, the plaintiffs in this case had not made that argument.

The district court then went on to grant the individual school officials qualified immunity, explaining that "[t]he First Amendment jurisprudence governing a school's regulation of student access to violent speech on the internet with the benign intent to protect students from images which may be upsetting and psychologically damaging is not settled . . . ." The court confused the issue of whether blocking access to the HSCCA website on its computers would be constitutional-certainly an open issue-with the issue of whether it was constitutional to force the group to eliminate any reference to the website on its posters.

Update:

April 2008 - The parties settled the case and filed a stipulation of dismissal. 

On March 13, 2007, Viacom International, which owns, among other properties, Comedy Central, MTV, BET, and Paramount Pictures, sued YouTube and its parent Google for copyright infringement seeking $1 billion in damages. Viacom asserts a number of copyright related claims, including direct copyright infringment for public performance, public display, and reproduction, as well as several indirect claims for inducement of copyright infringment, contributory copyright infringment, and vicarious copyright infringement.

Update:

04/28/08 - Viacom filed a first amended complaint.

05/23/08 - YouTube filed an answer to the first amended complaint.

07/02/08 - Court ordered Google to produce to Viacom "all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website."

Update 2:

06/23/2010 - The District Court granted YouTube's motion for summary judgment. The court ruled that YouTube was eligible for the safe-harbor provisions of Section 512(c) of the DMCA, meaning that YouTube was immune from copyright liability stemming from user-posted content. According to the court, even if YouTube "not only [was] generally aware of, but welcomed, copyright-infringing material being placed on their website," YouTube lacked specific knowledge of particular infringing clips. Viacom had argued that YouTube's "general awareness" of "widespread and common" infringement was enough to disqualify YouTube from the safe harbor, but the court disagreed with that interpretation of § 512(c)(1)(A).

The District Court also ruled in YouTube's favor with respect to § 512(c)(1)(B), which disqualifies a service provider from safe-harbor protections if it receives "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." The court ruled that a service provider "must know of the particular case [of infringement] before he can control it," and that YouTube lacked the necessary knowledge to have the “right and ability to control” the infringement.

The court also ruled for YouTube on a number of related issues, including whether certain technical processes (like encoding) that take place automatically on YouTube are not eligible for protection as they are not done at the direction of a user.

04/05/2012 - On appeal, the Second Circuit Court of Appeals reversed the grant of summary judgment and remanded. First, the Second Circuit ruled that the district court was correct in deciding that § 512(c)(1)(A) "requires knowledge or awareness of specific infringing activity"; the Second Circuit ruled, however, that there was evidence (mainly, some internal email exchanges between YouTube employees) to suggest that YouTube may have had such specific knowledge of some infringing clips. The Court of Appeals remanded on this issue, to determine if YouTube in fact had specific knowledge of any of the clips at issue in this lawsuit.

In addressing Viacom’s argument that YouTube’s actions constituted willful blindness, the court ruled that the common-law "willful blindness" doctrine could still apply in some circumstances, even though the DMCA, at § 512(m), states that a service provider does not need to affirmatively monitor its service for infringing content.

The Second Circuit disagreed with the District Court’s interpretation of the "control and benefit" provisions of § 512(c)(1)(B). The Court of Appeals agreed with the District Court’s holding that a service provider does not have the “right and ability to control” the infringement based on the bare ability to remove or block user-posted materials. Unlike the District Court, though, the Second Circuit did not rule that (c)(1)(B) required particular knowledge of specific cases of infringement. If a service provider was "exerting substantial influence on the activities of users, without necessarily—or even frequently—acquiring knowledge of specific infringing activity," a service provider would have a “right and ability to control” under § 512(c)(1)(B). (The second element of this safe harbor exception, financial benefit directly attributable to the infringing activity, was not before the court.) The Court of Appeals thus remanded this issue as well.

Finally, the Second Circuit agreed with the District Court that three of YouTube's automated processes were protected by the safe harbor: transcoding user-uploaded clips into different video formats, playing the clips at the request of users, and finding "related videos." A fourth function—syndication of a limited number of clips to third-party companies—drew more suspicion from the Court of Appeals, but it was unclear whether any of clips at issue in this lawsuit were actually syndicated. The Second Circuit thus remanded for more fact-finding.

In late 2006, restaurant franchisor Quiznos and video-sharing site iFilm co-sponsored a nationwide contest, “Quiznos v. Subway TV Ad Challenge,” inviting members of the public to submit videos comparing a Quiznos sandwich to a Subway sandwich using the theme "meat, no meat." Contestants submitted their videos to www.meatnomeat.com, and iFilm published entries on its website, where they remained following the end of the contest and selection of the winner.

Quiznos moved to dismiss this count of the complaint based on the immunity for publication of user-generated content found in the Communications Decency Act (47 U.S.C. § 230(c), "CDA 230"). The court denied the motion, holding that CDA 230 provides defendants an affirmative defense, which can be raised on a motion for summary judgment, but not on a motion to dismiss. Doctor's Assocs. Inc. v. QIP Holders, LLP, No. 06-cv-1710, slip op. at 4-5 (D. Conn. Apr. 19, 2007).

This case is significant in that it departs from the majority of cases holding that CDA 230 provides a valid ground for granting a motion to dismiss. Another interesting issue that is sure to arise is whether a claim of false advertising under the Lanham Act fits within CDA 230 immunity. By its terms, CDA 230 does not apply to "any law pertaining to intellectual property." 47 U.S.C. § 230(e)(2). False advertsing law is not usually thought of as an aspect of intellectual property law, but the federal false advertising provision is found in the Lanham Act, side-by-side with federal trademark laws.

Update:

2/4/2008 - Subway filed a seventh amended complaint.   

2/19/2010 - The court denied Quiznos' motion for summary judgment.  The case subsequently settled.