DMCA

Mi Casa Es Su Casa — But I Set the Rules

Paul Klocko got a surprise in the mail in April: a letter on official stationary from Weston, Wisconsin administrator Dean Zuleger, demanding that Klocko stop posting comments on the web criticizing him.  The letter also asked that Klocko "come out from behind the cloak" and meet Zuleger in person.

Subject Area: 

Przydzial v. Alkhateeb

Date: 

08/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Firas Alkhateeb

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Material Removed

Description: 

In August 2009, photo-sharing site Flickr removed an image from Firas Alkhateeb's photostream in response to a DMCA takedown notice.  The image was a photograph of President Barack Obama from the cover of Time Magazine modified to look like Heath Ledger's Joker from The Dark Knight.  The image gained some notoriety when someone else used it to make a poster captioned "socialism." 

At first, it was unclear who sent the DMCA takedown notice because DC Comics and Time publicly stated that they had not done so.  Some investigation by Thomas Hawk, chief executive of Flickr rival Zoomr, revealed that someone named Edward Przydzial sent the DMCA takedown notice and claims to be the originator of the Obama/Joker image.  

It is not clear whether AlKhateeb has filed a DMCA counter-notification. 

After the debate sparked by Flickr's removal of the image, the company revised its policy for handling DMCA takedowns.  According to ZDNet

"Upon receipt of a complete NOI [notice of infringement], the US
Copyright Team will replace the image with a new static image that
bears the following copy: 'This image has been removed due to a claim
of copyright infringement,'" said Heather Champ, Flickr's director of
community, in a comment. 

According to Flickr, under the change in policy the discussion under the photo is preserved and it should be easier to reinstate a photo after a counter-notification is filed.

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

Subject Area: 

Metropolitan Transportation Authority v. Schoenfeld

Date: 

08/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Chris Schoenfeld

Type of Party: 

Government

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

The Metropolitan Transportation Authority, which runs the Metronorth commuter rail services to New York City's northern suburbs, contacted Chris Schoenfeld demanding licensing payments for use of its schedules on his website, www.stationstops.com, and in his StationStops iPhone application, which both feature departure times of Metronorth trains. 

The letter claimed that the MTA has an intellectual property right in its schedules and demanded an immediate $5000 royalties payment on past sales of the iPhone app, followed by 10 percent of future sales as royalties above this amount.

Schoenfeld says he has sold 3,000 copies of the program at$2.99 each.

Schoenfeld responded with an offer to pay 10 percent future royalties, in return for the MTA proving him with scehedule updates for free. The agency then responded with what news reports alternately call a cease-and-desist letter and a DMCA takedown notice.

UPDATE:

9/27/09: According to the New York Times, the MTA dropped its demand for royalties and reached a non-payment agreement with Schoenfeld and with the developer of a similar app for the Long Island Rail Road.

Jurisdiction: 

Content Type: 

Subject Area: 

Rosenberg v. Spicy Bear Media

Date: 

05/15/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Spicy Bear Media LLC; Kyle J. Redinger; John Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Virginia

Case Number: 

3:09-CV-37

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

Rosenberg, a professional photographer, sued the operator of a Charlottesville, VA community blog (now defunct) for copyright infringement, claiming it failed to remove images of his photograph that were posted (twice) to its site by unknown third parties.  The complaint also included a claims for removal or alteration of copyright management information, because the images on cvillain.com were stripped of identifying material attached to the original picture (presumably the copyright symbol, name, and year that appear when mousing over the original photo).

On July 6, 2009, the parties agreed to dismiss the case with prejudice because they had reached a settlement in the amount of $750.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

08/06/2009 - LB editing

Priority: 

1-High

The AP of Oz: Associated Press Prohibits Reporters from Peeking Behind its False DRM Curtain

Last Friday, the Associated Press briefly became the Great and Powerful Wizard of Oz. It announced, in a booming press release, an “initiative to protect news content from unauthorized use online.” To accomplish this feat, the AP will use an informational “wrapper” embedded in its product.

Content Type: 

Subject Area: 

Universal v. Reimerdes

Date: 

01/14/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Shawn Reimerdes; Eric Corley; Roman Kazan; and 2600 Enterprises, Inc.

Type of Party: 

Large Organization
Media Company

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York; United States Court of Appeals for the Second Circuirt

Case Number: 

00-CV-0277 (district court); 00-9185 (appeal)

Legal Counsel: 

Martin Garbus, George E. Singleton, David Y. Atlas, Edward Hernstadt - Davis & Gilbert LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued
Settled (partial)

Description: 

In 2000, several movie studios filed suit against Shawn Reimerdes, Roman Kazan, and Eric Corley after 2600.com published the DVD descrambling program DeCSS, which allowed users to circumvent anti-piracy protections allegedly in violation of the Digital Millennium Copyright Act. Judge Kaplan of the United States District Court for the Southern District of New York granted the plaintiffs' request for a permanent injunction, and the United States Court of Appeals for the Second Circuit affirmed the decision. 

Near the outset of the lawsuit, the district court granted the plaintiffs' request for a preliminary injunction barring the defendants from posting DeCSS. Despite the order, Corley continued to engage in what he termed "electronic civil disobedience" by posting links on 2600.com to other sites that made DeCSS available. In the spring of 2000, Kazan and Reimerdes reached separate settlements with the plaintiffs in which they agreed to permanently refrain from posting DeCSS or linking to other sites that make DeCSS available. On April 10, 2000, 2600 Enterprises, Inc., was added as a defendant.

In district court, the defendants argued that their conduct did not violate the DMCA and that application of the DMCA to their activities violated the First Amendment.  The court rejected these contentions, reasoning that, while computer code is entitled to First Amendment protections, the DMCA restricts the non-expressive aspect of code -- the functional act of descrambling. The court held that the anti-trafficking provision of the DMCA, as applied to DeCSS code, is a content neutral regulation that furthers an important governmental interest and which does not unduly restrict expressive activities. The court also ruled that it could enjoin and impose liability for linking to websites publishing DeCSS so long as "those responsible for the link (a) know . . . that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not be lawfully offered, and (c) create or maintain the link for the purpose of disseminating that technology." The court found that the defendants' conduct satified these criteria.

On May 30, 2001, the Second Circuit Court of Appeals affirmed the lower court's decision. 

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

PACER does not have the case documents.  The important ones probably can be found through searching, since this was a huge case.

Also, any number of new/discussion links are available through a quick search.

 

CaityR editing

7/10/09 - CMF 

Priority: 

1-High

Cafiero v. Custer

Date: 

08/14/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Doug Custer a/k/a Doug Evil

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Pennsylvania.

Case Number: 

3:08-CV-00202

Legal Counsel: 

Pro se

Publication Medium: 

Blog
Forum
Social Network
Website

Relevant Documents: 

Status: 

Pending

Description: 

John Cafiero, a rock musician and manager of punk bands The Ramones and The Misfits, filed suit against Doug Custer (a/k/a Doug Evil) alleging in his complaint that Custer infringed his copyright by posting an animated video featuring The Misfits on YouTube.com and other websites.  Cafiero also brought a claim of misrepresentation under the Digital Millennium Copyright Act, arguing that Custer lied on his DMCA counter-notification by claiming a copyright interest in the video.

Alongside the copyright allegations, Cafiero alleged defamation and false light arising from various Internet postings Custer allegedly made that criticized Cafiero.  Many of these arose from spoof site Osuka Papsmear, which Cafiero asserts is a Custer blog dedicated to defaming Cafiero and his band Osaka Popstar.

Early in the case, Cafiero received a default judgment against Custer after Custer did not appear or answer the complaint.  Appearing pro se, Custer successfully challenged the default judgment and filed his answer and counterclaims.  Custer's lengthy counterclaims, which discuss Cafiero's business dealings in depth, appear to bring claims of copyright infringement and defamation.  Custer's filings maintain that he himself authored most of the material appearing in the video and that Cafiero reneged on his promises regarding publication and use of the video.

On November 11, 2008, Cafiero filed a motion to dismiss Custer's counterclaims for failure to comply with rules of civil procedure, asking in the alternative for Custer to file a more definite statement.  Custer opposed the motion and filed a more definite statement.

On May 22, 2009, the parties agreed to submit the case to mediation proceedings, and the judge referred the case to mediation on June 1. The defendant consented to appointed counsel for the mediation process only.

On May 28, Cafiero moved to file an amended complaint that would add two more plaintiffs --  Jerry Caiafa (a/k/a Jerry Only), who composed music for the video; and Cyclopian Music, Inc., the owner of The Misfits trademarks. The motion also sought to add counts of copyright infringement arising from use of Caiafa's work; trademark infringement under  Section 32 of the Lanham Act; and false designation of origin and unfair competition under Section 43 of the Lanham Act. The defendant opposed the motion to amend the complaint, asserting that adding more plaintiffs would conflict with the purpose of mediation.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

Westlaw Alert

CMLP Notes: 

Source: Dozier Internet Law

CMF - 6/8/2009

Priority: 

1-High

Merrill Lynch to Financial Blogger: Don't Quote Our Bearish Reports

Felix Salmon of Reuters reports that the pseudonymous lead blogger behind the financial blog Zero Hedge received DMCA takedown notices for six posts that cited or excerpted from Merrill Lynch reports authored by Merrill's former chief economist, David Rosenberg.  According to Salmon, Zero Hedge is "an insider financial blog whose writers believe the worst of the mel

Subject Area: 

National Organiztion for Marriage v. YouTube Users

Date: 

04/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Various YouTube Users

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Material Removed

Description: 

In April 2009, the anti-gay-marriage group National Organization for Marriage ("NOM") sent a number of DMCA takedown notices to YouTube, demanding that it take down clips of leaked audition outtakes from NOM's "Gathering Storm" advocacy ad, which had been uncovered by the Human Rights Campaign and circulated widely online.  It looks like NOM also sent DMCA takedown notices based on user parodies of the outtakes and/or the ad (e.g.), although many videos of this type are still available on the siteAccording to Wired's Threat Level blog, some YouTube users responded by "saving the videos with keepvid.com, and then uploading them back to YouTube when they’re pulled."

Jurisdiction: 

Content Type: 

Subject Area: 

National Organization for Marriage v. Maddow

Date: 

04/13/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

MSNBC; Rachel Maddow

Type of Party: 

Organization

Type of Party: 

Individual
Large Organization

Publication Medium: 

Broadcast
Website

Status: 

Pending

Disposition: 

Material Removed
Material Reinstated

Description: 

According to Wired's Threat Level blog, in April 2009 the anti-gay-marriage group National Organization for Marriage ("NOM") sent a DMCA takedown notice to YouTube, demanding that it take down a clip from MSNBC's Rachel Maddow Show.  In the clip, Maddow criticizes NOM's "Gathering Storm" advocacy ad, displays short excerpts from the ad and 40 seconds of leaked audition outtakes from the ad, which had been uncovered by the Human Rights Campaign and posted widely on video-sharing sites like YouTube. 

In response to the DMCA notice, YouTube pulled down the clip.

MSNBC apparently sent a counter notice, and YouTube put the clip back up.  Subsequently, Maddow commented on the DMCA takedown request and chided NOM on the air for using copyright law to silence critical commentary:

A cable news segment critical of an issue ad violates the copyright of the organization that made that ad? So you can pay to put it on TV, but I can't address its merits on TV?  Come now anti-gay-marriage people, I know your campaign is about how scared we should all be of gay marriage, but now you're scared of people talking about your stance on it?

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

embeds for videos (needed each time you edit this entry)

<object width="425" height="344"><param name="movie" value="http://www.youtube.com/v/x7NQ3QUP0Dc&hl=en&fs=1"></param><param name="allowFullScreen" value="true"></param><param name="allowscriptaccess" value="always"></param><embed src="http://www.youtube.com/v/x7NQ3QUP0Dc&hl=en&fs=1" type="application/x-shockwave-flash" allowscriptaccess="always" allowfullscreen="true" width="425" height="344"></embed></object>

<object width="425" height="344"><param name="movie" value="http://www.youtube.com/v/FgC5ANURIYc&hl=en&fs=1"></param><param name="allowFullScreen" value="true"></param><param name="allowscriptaccess" value="always"></param><embed src="http://www.youtube.com/v/FgC5ANURIYc&hl=en&fs=1" type="application/x-shockwave-flash" allowscriptaccess="always" allowfullscreen="true" width="425" height="344"></embed></object>

Lavandeira v. National Organization for Marriage

Date: 

04/30/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

National Organization for Marriage

Type of Party: 

Individual

Type of Party: 

Organization

Legal Counsel: 

Barry A. Bostrom - Bopp, Coleson & Bostrom

Publication Medium: 

Broadcast
Website

Relevant Documents: 

Status: 

Pending

Description: 

Mario Lavandeira, a.k.a. Perez Hilton, sent a DMCA takedown notice to YouTube, claiming that a clip of an advocacy ad entitled "No Offense" from the National Organization for Marriage ("NOM") violated his copyright. In response to Lavandeira's notice, YouTube removed the video.

According to NOM, the ad "highlights the efforts of same-sex marriage activists to silence and discredit pro-marriage advocates, calling them 'liars,' 'bigots,' and worse." The ad, which appears in 30-second and 60-second versions, uses approximately three seconds of footage from Mr. Lavandeira's video blog, in which he calls Miss California Carrie Prejean a “dumb bitch.”   

Mr. Lavandeira also sent a cease-and-desist letter to NOM, demanding that it stop broadcasting the ad on television. NOM's lawyers shot back a response letter refusing his demand on fair use grounds:

No permission was required and no permission was sought from Mr. Lavandeira for use of the approximately three second clip of the video he posted on the Internet of his unjustified and unprofessional diatribe against and personal attack on Carrie Prejean, Miss California, for her response to his question at the Miss USA Competition, April 19, 2009. NOM's use of this three second video clip is protected by 17 U.S.C. § 107 for the purpose of criticism, comment, news reporting, and education as it relates directly to NOM's exempt purpose. NOM's use is not a commercial use, but as an issue advocacy advertisement is protected by the First Amendment to the U.S. Constitution and the fair use doctrine of the Copyright Act.

According to one press account, NOM's lawyers also sent a counter-notification to YouTube, requesting that the video be reinstated. 

Jurisdiction: 

Content Type: 

Subject Area: 

Whatever Happened to Playing Fair?

A few recent intellectual property disputes have highlighted the fact that the decision to pursue legal action is both a legal and a moral choice.  While concepts such as "fair use" help to ensure protection of both intellectual property rights while promoting creative expression, they can't replace a simple concept we all learned in kindergarten:  "treat others the way you’d like them to treat you."

Jurisdiction: 

Content Type: 

Subject Area: 

CW 11 News v. Improv Everywhere

Date: 

04/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Improv Everywhere

Type of Party: 

Organization
Media Company

Type of Party: 

Organization

Publication Medium: 

Website

Status: 

Pending

Description: 

After receiving a copyright complaint from the Tribune Company, YouTube took down a video from comedic performance group Improv Everywhere that allegedly infringed copright in a CW 11 (WPIX-TV) news broadcast. The CW 11 broadcast discussed an Improv Everywhere prank and reproduced excerpts from one of Improv Everywhere's own videos.

The original Improv Everywhere video showed an April Fools Day prank in which the group crashed a staged funeral.  CW 11 broadcast a news story about the video under the assumption that the video was a prank on unsuspecting funeral-goers.  In reality, Improv's prank was on any viewer who believed the video to be real.  Improv Everywhere has a detailed post on the takedown.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Source: BoingBoing

status checked 6/17/09; no new info - CMF

Priority: 

2-Normal

Associated Press v. All Headline News

Date: 

01/14/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

All Headline News Corp.; AHN Media Corp.; W. Jeffrey Brown; Danielle George

Type of Party: 

Media Company

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York

Case Number: 

1:08-cv-00323-PKC

Legal Counsel: 

Brian D. Caplan, Jonathan James Ross (Caplan & Ross, LLP); Eric A. Prager, Atul R. Singh, Steven Edward Lipman (Darby & Darby, P.C. (NYC)); Robert L. Jacobson (Darby & Darby, P.C. (Seattle)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

On January 14, 2008, the Associated Press (AP) sued All Headline News (AHN), W. Jeffrey Brown, the owner of AHN, and Danielle George, a senior editor for AHN.  The AP claims that AHN is illegally copying and rewriting stories by AP reporters and distributing the stories to clients and displaying the stories on the AHN website.  The AP is seeking to restrain AHN from further distribution of AP material and to recover unspecified damages.

The AP is a not-for-profit membership corporation that describes itself as the oldest and largest news agency in the world, employing about 3,000 reporters, and distributing news content to thousands of radio and television stations, newspapers, and internet news portals.  AHN is a Florida-based company that describes itself as "a leading provider of news, weather, and other content for web sites, wireless, digital signage, interactive applications, broadcast and print use."  The AP's complaint alleges that AHN does not employ its own reporters, and instead instructs its writers to copy or rewrite breaking news stories found on the Internet. 

The AP's complaint specifically identifies six articles written by AP reporters, claiming that AHN "copied some or all of the expression contained within" the articles, and then transmitted the articles to AHN customers and displayed the articles on the AHN website.  The AP claims that these and similar practices have infringed their copyright "hundreds if not thousands of times."  The AP claims these practices also violated their quasi-property right in breaking news under the New York common law tort of hot news misappropriation.  The AP also alleges that AHN intentionally removed the AP's name from some news reports, constituting impermissible altering or removing of copyright management information under the DMCA.  AP's amended complaint also includes claims for trademark infringement, unfair competition in violation of the Lanham Act, unfair competition in violation of New York Common law, and breaches of contract. 

On February 17, 2009, Judge P. Kevin Castel, of the United States District Court for the Southern District of New York, granted AHN's motion to dismiss the trademark claim, finding that it lacked factual support.  Judge Castel also dismissed the claim of unfair competition under the Lanham Act, finding that AHN can legally claim that it maintains a "news division" even if they do no original reporting.  Judge Castel declined to dismiss the other claims, most notably finding that hot news misappropriation was a recognized cause of action under New York law. 

Update:

3/19/09 - The parties agreed to pursue private mediation.

6/15/09 - The court dismissed claims after the parties reached a settlement. According to a subsequent press release, AHN paid an unspecified sum to settle the case and "agreed that [it] would not make competitive use of content or expression from AP stories."  AHN also acknowledged that "there were many instances in which AHN improperly used AP's content without AP's consent" and that "the tort of 'hot news misappropriation' has been upheld by other courts and was ruled applicable in this case by U.S. District Court Judge P. Kevin Castel."

Jurisdiction: 

Content Type: 

Subject Area: 

Priority: 

1-High

INA v. Lee

Date: 

01/12/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Kevin B. Lee

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Material Removed
Material Reinstated

Description: 

Film commentator Kevin B. Lee posted some of his critical video essays on YouTube.  Lee's essays contain clips from the films he is reviewing. After receiving a DMCA takedown notice from the rightsholder to the film "And God Created Woman" (designated "INA" in one of Lee's posts about the takedown),  YouTube disabled access to the video and subsequently disabled his entire account (this was the third such takedown notice).  Lee filed a DMCA counter-notice with YouTube, claiming that his video essays are proteced by fair use.  YouTube temporarily reinstated Lee's account pending further action by the rightsholder.

Content Type: 

Subject Area: 

Threat Source: 

Google Blogs

CMLP Notes: 

Note: We should continue to monitor Kevin's blog (alsolikelife.com/shooting) to see what the ultimate resolution is.  At this time, his account has been temporarily reinstated while YouTube reviews the counterclaim.

Priority: 

1-High

Progress Illinois' YouTube Channel Reinstated After Fox Declines to Sue

Late last week, YouTube reinstated Progress Illinois' YouTube channel after Fox Television declined to sue for copyright infringement within the 10 day window prescribed by the Digital Millennium Copyright Act (DMCA)

Jurisdiction: 

Content Type: 

Subject Area: 

Fox Television WFLD-TV v. Progress Illinois

Date: 

11/18/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Progress Illinois LLC

Type of Party: 

Media Company

Type of Party: 

Organization

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Material Reinstated

Description: 

On November 18, 2008, Fox Television sent a letter to YouTube demanding the takedown of a video uploaded by Progress Illinois, an organization that "provides online news and commentary on issues important to Illinois working families and the progressive movement at large."  The video, Beavers On Back-Door Pay Raises, was embedded in a blog post that examined how some Cook County commissioners were using their expense accounts for personal gain and contained a 26-second clip from a FOX Chicago newscast that had aired a week earlier. 

Fox subsequently sent a second letter to YouTube claiming copyright infringement as to two additional videos, Axelrod: Obama Talked to Blagojevich about Senate Seat and Axelrod: "Our Job Is To Come In . . . With Guns Blazing",  that included 1-2 minute clips from an interview conducted with President-Elect Obama's adviser David Axelrod on Fox Chicago Sunday that Progress Illinois embedded in a blog post on its website, Axelrod Comments On Open Senate Seat, D.C. Leadership Vacuum.

On December 10, 2008, YouTube removed the two videos containing clips of the Axelrod interview and, later that day, suspended Progress Illinois YouTube channel "due to repeat copyright offenses."  

On January 5, 2009, Progress Illinois sent a counter-notification to YouTube pursuant to the Digital Millennium Copyright Act, requesting that the three videos be restored and its account reinstated. (Note: lawyer Ben Sheffner at the Copyrights & Campaigns blog comments on some potential deficiencies in Progress Illinois' counter-notification to YouTube.)

Update:

1/12/09 - Progress Illinois, through its counsel Paul Alan Levy at Public Citizen, has stated that it is considering filing a lawsuit against Fox unless it withdraws its copyright objections.

1/29/09 - Progress Illinois' YouTube account has been reinstated.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

User Feedback

CMLP Notes: 

from John Bracken

Pages