Originally posted 2006-03-03 17:46:08. Republished by Blog Post PromoterWe alluded to this story in an earlier post. Evidently Daman Wayans’s attempt to file a trademark application for the word “Nigga” continues to hit a brick wall. Forget “immoral or scandalous,” which, as we have said before, is an increasingly hopeless position for national government to […]
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Originally posted 2017-05-01 06:41:56. Republished by Blog Post PromoterEveryone here understands that in the U.S., trademark rights are determined by use, a term of art that, practically speaking, means hardly anything, but if it means anything at all pretty much means “sale.” And priority in trademark — priority being a term of art that means […]
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Originally posted 2016-05-06 13:38:19. Republished by Blog Post Promoter Interesting. This, from the mysterious Julie Zerbo at her iconoclastic blog, The Fashion Law: The newest group of potential outlaws in the fashion industry is not made up of tax evading Italian design houses. Instead, it is a slew of big-name brands and famous bloggers teaming up […]
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Originally posted 2013-07-08 12:42:12. Republished by Blog Post PromoterI kvetch a lot about the mania for dubious “IP enforcement” by government agencies such as New York’s Metropolitan Transit Authority, which really should both know better and which have superior options for utilization of public resources. But here’s a topper: The FBI has written to Wikipedia demanding that the […]
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Originally posted 2006-11-14 14:00:11. Republished by Blog Post PromoterG. Mathew Lombard demonstrates for trademark defendants the way to triple the cost of their initial retainers.
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Originally posted 2017-08-03 15:28:44. Republished by Blog Post PromoterI’m glad I got my grumbling in before this hit my inbox: The International Trademark Association (INTA) is pleased to announce the launch of its Pro Bono Trademark Clearinghouse. An initial two-year pilot program will take place in Germany and the United States, after which the Clearinghouse […]
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Originally posted 2012-07-13 18:22:28. Republished by Blog Post PromoterI have — win, lose or draw — kept you all abreast of the progress of the various lawsuits against PissedConsumer.com (otherwise known as Opinion Corp.), the gripe site that people hate so much. Why do some people hate PissedConsumer.com? Because they assume whatever someone writes about them […]
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Today, the Supreme Court heard oral arguments in Free Speech Coalition v. Paxton, regarding a Texas law that requires adult-oriented websites to age-authenticate all users–minors and adults alike–before they can enter their “virtual” premises. If this sounds familiar, that’s because Texas’ law is virtually identical to two laws enacted by Congress in the 1990s (the Communications Decency Act and Child Online Protection Act), both of which the Supreme Court struck down over 2 decades ago. Texas’ legislative approach wasn’t clever or subtle. Instead, Texas said, let’s pass a virtually identical law and hope the Supreme Court will reach a different answer now. Texas made that sale (not surprisingly) at the Fifth Circuit, which bypassed more directly-on-point precedent to reach back to a 55-year-old precedent that applied the most relaxed level of constitutional scrutiny and allowed the law to go into effect.
My view is that the Supreme Court isn’t likely to take Texas’ bait and will not agree with the Fifth Circuit’s apathetic level of constitutional review. Oral arguments are always a little tricky to predict, but I heard at least five votes (Barrett, Jackson, Kagan, Kavanaugh, Sotomayor) to reverse the Fifth Circuit’s opinion allowing the law to go into effect. (Roberts is a wild card, and the other three justices usually vote against what’s best for the Internet). The details of the court’s opinions will matter a lot, but this oral argument was not a win for the Fifth Circuit’s decision.
The justices had a mind-bending discussion about what happens after the Supreme Court reverses in this case. You would think that after 2+ centuries of Supreme Court practice, those consequences would be clear, but no. If the Supreme Court reverses the Fifth Circuit, will the district court’s injunction go back into effect, or does the law remain in effect while the Fifth Circuit does more work? Surprisingly, the justices weren’t sure.
There was a lot of discussion about how online age authentication differs from offline age authentication. I filed an amicus brief on this very point because it’s critical to the discussion and there are major and legally significant factual differences, including:
For these and other reasons, I take the position that mandatory online age authentication is (a) terrible policy, and (b) never constitutional. If we can agree on the second point (which the justices weren’t ready to do), we can shift our efforts to more productive conversations about a wider range of solutions that have better odds of keeping children safer online. Those solutions have to be a whole-of-society approach, not just putting all of the safety burden on online publishers.
(I will expand on all of these points in my Segregate-and-Suppress article, coming soon).
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Originally posted 2011-10-24 22:45:05. Republished by Blog Post PromoterJohn Berryhill writes, on the “INTA List”: Now everyone is getting in on the act… Since large scale domain tasting has largely been stopped, the way is clear for internet service providers to intercept queries seeking non-existent, non-registered domain names, which largely consists of users who have […]
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This case is a throwback in every way. We rarely see lengthy (this one clocks in at 46 pages), detailed, and philosophical Section 512(c) opinions any more, and we only get this one because of the case’s extreme age. Capitol Records (the successor to EMI) sent its first cease-and-desist letter to Vimeo in 2008 and sued Vimeo for copyright infringement in 2009. Yes, this is a 15-year-old lawsuit.[FN]
[FN: This lawsuit is almost old enough to drive a car. As discussed in the implications section below, a reminder that lengthy litigation is a feature, not a bug, to copyright owners because it functions as lawfare to drain its opponents of resources. Either the opponent folds because it runs out of money, or investors are dissuaded from investing because they know their investment dollars will go to the defense lawyers instead of engineering or marketing.]
The 281 videos at issue, uploaded in 2006-13, had background music that allegedly infringing the plaintiffs’ copyrights. All of these videos are “videos with which Vimeo employees interacted after those videos were uploaded by users to Vimeo’s website—for example, by selecting the video to be featured in a prominent section of the website or by posting a comment about the video.”
As suggested by this case’s age, this case has been through so many proceedings that I won’t try to recap its drama-filled history. The district court’s rulings became final in 2021. On appeal, the Second Circuit agrees, in an opinion written by Judge Leval.
Burdens of Proof
512(c) is an affirmative defense, so nominally the defense has the burden to establish each of its ~12 elements. Here, the court shifts the burden to the plaintiff on the contested points after Vimeo satisfied its burden to show its eligibility for 512(c):
Although it is the defendant’s burden to show that it meets the qualifications for entitlement to the safe harbor—such as by showing that it is a service provider within the meaning of the statute—we have held, citing the Nimmer copyright treatise, that it is the plaintiff’s burden to demonstrate that a service provider has lost entitlement to the safe harbor because it had actual or red flag knowledge of the infringement. In our view, for the same reasons, a plaintiff must also bear the burden of persuasion in showing that the defendant was disqualified from the safe harbor because it received a financial benefit directly attributable to the infringing activity while having the right and ability to control such activity.
Red Flags of Infringement
The “red flags of infringement” 512(c) exclusion has been the source of endless confusion, and this opinion doesn’t clear up the confusion and maybe adds to it.
The court lays out its standard:
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.
The court says that the copyright owners didn’t meet this burden:
With respect to that last point, copyright owners would love a legal standard that assumed away the existence of fair use!
As evidence that a content reviewer can’t predict fair use, the court points to the Goldsmith Supreme Court arguments, where dozens of copyright law professors joined amicus briefs on each side of the fair use question. If law professors can’t agree about fair use, I guess the court thinks no one can? (A reminder that a law professor rarely agrees with themselves, let alone anyone else LOL).
This tendentious fact-parsing about scienter makes my head hurt. I have little confidence in my ability to predict what facts will and won’t matter to the next inquiry on red flags of infringement.
Right and Ability to Control
The court says that Congress’ drafting of the 512(c) conditions left much to be desired (I agree!), including its exclusion for services with the “right and ability to control” infringement:
Exercise of control could mean many different things. What sort of control did Congress have in mind? How much control is required? If it meant simply the legal right and the technical capability to remove videos from the site, or prevent their installation, it would be rare for a service provider not to fall within that description. In virtually all cases, private operators of websites that host material posted by users have the legal right to select the categories of videos they will allow, and to exclude those that do not conform, as well as the technical ability to effectuate these choices….
Construing Section 512(c)(1) to mean that profiting from possession of a capability that virtually all private service providers are expected to possess would effectively foreclose access to the Act’s safe harbor and would substantially undermine what has generally been understood to be one of Congress’s major objectives in passing the DMCA: encouraging entrepreneurs to establish websites that can offer the public rapid, efficient, and inexpensive means of communication by shielding service providers from liability for infringements placed on the sites by users. It seems highly unlikely that Congress intended that this ambiguous provision should be interpreted to have a meaning that would effectively undo a major benefit that the Act appears intended to confer.
Amen, but thwarting the establishment of websites that “offer the public rapid, efficient, and inexpensive means of communication” is exactly what copyright owners have been doing–using the DMCA safe harbors as a cudgel–for decades.
In the Viacom case, the Second Circuit said that the “right and ability to control” 512(c) exclusion required “something more” than the technical capacity to control, and that “something more” was the defendant’s “substantial influence” over users. The term “substantial influence” was never defined by the Second Circuit, and it provides no useful semantic guidance to any question that matters. The phrase just shifts the rhetorical analysis from “control” to “substantial influence.”
The copyright owners were fine with the “substantial influence” test because they argued that a service engages in “substantial influence” whenever it does content moderation. In other words, per their argument, every service would always substantially influence all of its users’ content if it does any content moderation, which every service does. Nice.
The Second Circuit doesn’t agree:
Vimeo’s intrusions into user autonomy over their posts were far less extensive [than the cited precedent] as to both coercive effect and frequency. Calling attention to selected videos by giving them a sign of approval or displaying them on a Staff Picks channel (or the contrary, by demoting them) did not restrict the freedom of users to post whatever videos they wished.
As for Vimeo’s insistence that user videos be limited to those created at least in part by the user, and its ban of pornography as well as gameplay videos and other unoriginal content, this was somewhat more intrusive. But these requirements were in the nature of (i) avoiding illegality and the risk of offending viewers and (ii) designing a website that would be appealing to users with particular interests. It seems unlikely that, in Congress’s use of an ambiguous term in formulating the standards for eligibility for the safe harbor to encourage entrepreneurs to create websites, it intended to deny eligibility for the safe harbor to entrepreneurs merely because they sought to exclude content that violates other laws or because they sought to design sites to make them appealing to selected categories of consumer preferences— whether for child-friendly videos, videos devoted to dance, kittens and puppies, hunting and fishing, cars, baseball, wildlife, antiques, carpentry, or whatever else. The creation of websites designed to satisfy consumer demands appears to be precisely the sort of entrepreneurial activity that the safe harbor was intended to encourage
(I hope any copyright owner that tries to deny us cat videos experiences some instant karma).
The court seemingly hints that “substantial influence” means “restrict[ing] the freedom of users to post whatever videos they wished,” but then goes on to say that ordinary TOS house rules don’t disqualify a service from 512(c). Again, the court is obviously dodging all of the hard questions. Is influence insubstantial if users are free to post what they want? OK, then what does a restriction of user posting look like? For example, Vimeo said it doesn’t permit real estate walkthrough videos. The court seems to be saying that’s not a restriction on user “freedom” (an unfortunate word choice in an era where the definitions of censorship are partisanized), but then, what is? It would be so much better if the Second Circuit actually offered a definition of “substantial influence,” rather than dancing around the issue with ambiguous innuendo, but no.
The court also said that Vimeo doesn’t engage in too much manual content promotion because it gets 15M video uploads/year and only has 74 employees, so “the number of videos that 74 staff members could have evaluated and emphasized amounted to no more than an insignificant percentage of those posted.” Seriously? Are we now going to count the percentages of content moderation interventions and set an arbitrary threshold for too much moderation that becomes 512(c)-disqualifying? Copyright owners would LOVE to explore that standard–it’s doctrinally murky and an easy way to increase the costs of discovery.
The court then says conclusorily:
Plaintiffs did not show that staff awards, consisting of likes, thumbs-ups, and promotions to a Staff Picks channel (or demotions), came anywhere near amounting to exercising “substantial influence” over the contents of user-posted videos.
OK, but what exactly is the definition of “substantial influence” again?
The opinion then offers 500+ words of philosophical musing on the policy balancing act of 512(c), a single paragraph I’m going to quote in full (minus the cites and a paragraph-long footnote discussed below, with more philosophical musings) so you can understand my befuddlement:
In our view, denial of eligibility for the safe harbor based on such noncoercive exercises of control over only a small percentage of postings would undermine, rather than carry out, Congress’s purposes in establishing the safe harbor. In establishing this safe harbor with its limitations, Congress sought to achieve a compromise with the following complex objectives. First, Congress recognized that the creation of websites on which the public could post videos would render a hugely valuable public service. However, the expense of either policing all postings to weed out infringements or of paying damages for infringements by users would be prohibitive. Entrepreneurs could not be expected to establish such ventures if doing so would expose them to an open-ended risk of liability for the posting by users of infringing videos or if they would need to incur unsustainable costs in policing posted videos to ensure that they were free of infringements. Congress therefore enacted inducements to establish such websites by granting safe harbors protecting service providers from liability for infringements posted by users and by expressly exempting the service providers from any obligation to conduct burdensome research to detect infringements At the same time, Congress recognized that the posting of infringements by users of websites could cause significant economic harm to copyright holders. Accordingly, Congress placed some limitations on eligibility for the safe harbor. While Congress deemed it important not to impose on website operators the huge burden of checking user posts for infringement, it recognized that this burden would be considerably lessened if the operator was already voluntarily incurring a large expense in monitoring and controlling user posts to serve the operator’s own business purposes. In such cases, where an operator is not merely passively accepting content but is arguably playing a large role in shaping the content of user posts, checking also for infringements would add only a relatively modest incremental expense and would not substantially disincentivize the provision of socially valuable sites. Congress therefore gave rightsholders some limited recourse against service providers that have the “right and ability to control” infringements by users, which our court has interpreted to apply in circumstances when the service provider has exercised “substantial influence” over user activities. To interpret this provision as Plaintiffs argue—to deny Vimeo access to the safe harbor merely because of the tiny influences it exercised—would subject Vimeo to a huge expense in monitoring millions of posts to protect itself against the possibility of liability for infringements. It would undermine the compromise that we understand Congress to have sought. It would prevent service providers from seeking to make their websites responsive to user desires, substantially diminishing their utility to the public.
I could spend a lifetime trying to parse this paragraph, the assumptions it makes, and how the empirical evidence supports and conflicts with it. For now, one small point: a safe harbor that takes 15 years to adjudicate raises all of the same policy concerns as the absence of a safe harbor.
Also, the court makes this oblique reference: “where an operator is not merely passively accepting content but is arguably playing a large role in shaping the content of user posts”…what does that mean? Perhaps IAPs and storage lockers “passively accept content,” but does that describe content publication services that deploy automated filters and subjective TOS rules? The concept of “passively accepting content” is fundamentally incoherent, and I think that end of the court’s spectrum is a strawman. And the other end is “a larger role in shaping” UGC–larger than what? What does it mean to “shape” content? You may also recall I strenuously objected to the “shaping content” phrase in the Liapes case. Is “shaping content” the same as exercising editorial discretion or something else? The court leaves open the ability of copyright owners to argue that future defendants “shaped” UGC, with more irresolute doctrinal fights and expensive discovery requests.
The court’s mondo paragraph included this footnote that also made my head spin:
it is arguable that exercise of control as to content, or other elements of a site that are unrelated to infringement, does not show “control” within the meaning of the statute. Under this view, exercises of control by site operators that were not addressed to incidence of infringement would contribute nothing to a showing of “right and ability to control” and would therefore be inadmissible as evidence supporting that showing. We do not need to decide whether such exercise of control is relevant to establishing “right and ability to control” infringement because, on either view, Vimeo did not exercise “substantial influence” such that it lost the protection of the safe harbor.
Count the number of double- and triple-negatives in that passage and see if you can figure out what it means. I think the court is talking about how to account for content moderation decisions unrelated to copyright infringement, but it dodges the issue by invoking a trump card: Vimeo doesn’t have “substantial influence.” This is a deus ex machina resolution because that term is undefined and can mean whatever the court wants it to mean.
To ensure our head spins a little more, the court says in dicta that “encouraging users to make infringing lip-dubs” could be the “right and ability to control” infringement (i.e., it would “substantially influence” users, I guess?), but the copyright owners waived the argument. Putting aside that “lip-dubs” reached its heyday over a decade ago and isn’t as much of a thing any more, the court seems to be saying that “encourage” some kinds of content could be 512(c) disqualifying. Yet another angle for copyright owners to explore in future cases…
Implications
Yes, 512(c) opinions are routinely this long, tendentious, epistemological, and irresolute. They are painful to blog and make it impossible to reliably anticipate how these holdings would apply to slightly different facts. Could you teach my students what is and isn’t a “red flags of infringement” or “right and ability to control” using this opinion? If so, you are a better teacher than I am.
Fortunately (?), I don’t know how many more opinions we’ll see like this. A lot has changed on both sides since this lawsuit was born in the early Obama years. First, Vimeo remarkably survived the financial hurdle of this case, but copyright owners have dissuaded many other entrepreneurs from entering into the space due to their reputation for lawfare. This opinion’s celebration of the DMCA’s nominal support for innovation won’t magically bring these investors and entrepreneurs back. Second, when copyright owners do bring lawsuits against defendants with potential 512(c) defenses, they pick thinly capitalized targets with egregious practices who will either fold or get stomped in court. See, e.g., Spinrilla.
This court’s ruling nominally is defense-favorable. However, by adding more doctrinal questions that copyright owners can explore in future cases, this opinion actually is part of the problem rather than part of the solution. This case exemplifies the tortured 512(c) jurisprudence in the Second Circuit that relies heavily on caveats, open questions, qualifications, innuendo, and double-negatives. Copyright owners thrive in these kinds of jurisprudential mudpits because it enables their lawfare. This court probably thought it was doing 512(c) defendants some favors, but so long as a 512(c) defense takes 15 years to adjudicate, it’s not really a defense-favorable opinion.
This case surely brings to mind the Veoh case, also from the same era as this case but resolved a decade ago. The denouement in that case: Veoh always qualified for 512(c) but ran out of money. Thus, my tagline for the case: “Veoh is legal, Veoh is dead.” In this case, Vimeo also always qualified for 512(c), but it took 15 years and countless millions in defense costs to prove that. I guess we could call it a win for Vimeo, because Vimeo is still around and didn’t run out of money like Veoh did. But it’s hard to call any survivor of a mudfest war of attrition a “winner.”
This might be a good time to revisit my short piece from a decade ago on how Section 512(c) has failed.
Case Citation: Capitol Records, LLC v. Vimeo, Inc., 2025 WL 77234 (2d Cir. Jan. 13, 2025)
The post 512(c) Helps Vimeo Defeat the Record Labels. It Only Took 15 Years–Capitol v. Vimeo appeared first on Technology & Marketing Law Blog.
Originally posted 2009-05-26 13:57:46. Republished by Blog Post PromoterWe see again that the ill-defined “scandalous” criterion for rejecting trademark registration applications — and not merely those involving hot-button ethnic slurs — lives, as John Welch reports (not safe for work, and, really, for home either — why not just read my nice version right here?): […]
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by guest blogger Kieran McCarthy
Last year, I wrote about how Elon Musk had inadvertently become web scrapers’ most powerful legal advocate. Not because he wanted to advocate for them. But rather, in seeking to enforce a no-scraping ban in X Corp.’s terms of use in a way that was targeted to stifle speech that was critical of him in X Corp. v. Center for Countering Digital Hate, he gave a face to the strongest policy arguments in favor of scrapers. Now, other scrapers get to apply those arguments in every commercial dispute as legal precedent.
Last year, he also engaged in a rather ham-fisted attack on Bright Data, the world’s largest web scraper. And he lost on a motion to dismiss against them, too.
But Musk, for all his flaws, is persistent. And he has unlimited resources to spend on legal fees, which makes for a dangerous combination. [FN] He hasn’t given up on either case. He’s appealing the CCDH case to the Ninth Circuit. And X Corp. also sought to amend its claims against Bright Data to add a host of new legal claims.
[FN from Eric: per the Isaacson biography, in a poker game, Musk went all-in on every poker hand until he eventually won].
On November 26th, X Corp. mostly prevailed in its motion to bring additional claims against Bright Data. On December 17th, Bright Data answered and added counterclaims against X Corp., including antitrust claims.
It’s rare in the web-scraping world when a party that seeks to stop scraping engages with a company with the resources to fight back and the appetite to do so. But that’s what’s happening here. X Corp. won’t relent. And for Bright Data, scraping is their business, and business has been good.
This makes me think that a lot of important precedent is going to come out of this case, and I think we’re just at the beginning.
November 26th Order on Motion for Leave to Amend Claims
The November 26th order was unusual in a lot of ways. For one, the decision of whether to allow a party to amend claims is a matter of judicial discretion. There isn’t a legal standard to satisfy to amend your claims. If the judge thinks it’s reasonable, the judge can allow it. But here, the judge invited the parties to engage in extensive letter-briefing on the motion to amend the claims. In so doing, the motion to amend claims became a mini-motion-to-dismiss by a different name. Which is why we ended up with a 21-page order on a motion to amend claims.
X corp. sought to amend its claims with revised trespass to chattels, Section 17200 of the California Business and Professions Code, tortious interference with a contract, and breach of contract claims. And it sought to supplement its complaint with DMCA, CFAA, and CDAFA claims.
Here’s how it went:
Trespass to Chattels
Trespass to chattels was the primary legal claim used to stop scrapers in the late 1990s and early 2000s. But after Hamidi in 2004, CFAA and breach of contract claims became the primary means that websites used to stop scraping.
It’s experiencing a revival again. X Corp. alleged that it purchased 10-20% more server capacity to deal with the traffic jumps caused by scrapers. The judge decided that this was an “actionable deprivation of use” of its servers, and allowed the TTC claims to proceed.
Section 17200
Section 17200 prohibits unlawful, unfair, and fraudulent business acts. Here, X Corp. convinced the judge that “deceptive” conduct is necessary to scrape at the scale done by Bright Data. X Corp. limits access by IP address, requires the user to agree to terms, and otherwise seeks to limit access to content to human users. According to the court, “scrapers take active steps that serve no purpose but to trick X into given them not a second, not a third, but a millionth turn to see the sites (citations omitted).”
X Corp’s motion to amend its 17200 claim to include fraudulent acts was granted. But its motion to amend its 17200 claim to add “unfair” acts was denied, as the court found that X Corp. was simply trying to eliminate competition.
Tortious Interference
The court previously dismissed X Corp.’s tortious interference claim because it had not plausibly alleged damages. Now, because the court accepted X Corp.’s arguments with respect to server impairment, it granted X Corp.’s motion to amend its tortious interference claim.
Breach of Contract
Here, again, the court bifurcated its analysis of the breach claim with respect to claims involving the access of data and claims involving scraping of data. Again, the court granted X Corp.’s motion to amend the complaint with respect to access-related claims on the basis that Bright Data’s accessing of X Corp.’s servers was impairing its servers. But the court denied X Corp.’s claims with respect to scraping of data on the basis that they were preempted by copyright.
Supplemental Claims
X Corp. also sought to add three new claims: DMCA, CFAA, and CDAFA claims. Bright Data did not oppose X Corp.’s motion to amend its claims but instead told the court of its intention to file a motion to dismiss on these claims. The court wrote:
If Bright Data believed these claims were dead on arrival, it should have said so at the first chance. Without prejudice to ruling in Bright Data’s favor on a later motion opposing these amended claims, the Court will not consider such a motion at this time. Bright Data should allow discovery to proceed and the case to develop. Then, if Bright Data still believes a motion appropriate as to any of these claims, Bright Data may move for summary judgment.
Dkt. 156 at 21.
I’m not a civil procedure expert, but I’ve never heard of a court saying that waiving the right to challenge leave to amend is also a waiver of the right to file a rule 12 motion. But that’s what happened here. That further underscores the bizarre procedural posture of this order. And that augurs a long and bumpy road ahead for both parties.
Counterclaims
On December 17th, 2024, Bright Data brought some claims of its own. Namely, claims for violation of Section 1 of the Sherman Act, Monopolization under Section 2 of the Sherman Act, Attempted Monopolization under Section 2 of the Sherman Act, violation of the California Cartwright Act, violation of the California Unfair Competition Act, violation of the Nevada Unfair Trade Practice Act, violation of the Texas Free Enterprise & Antitrust Act, and Tortious Interference with Prospective Customer Relationships.
The suit alleges that X perceives Bright Data to be one of its biggest competitors in the “Public Square Data” market and brought suit to restrict it from accessing public data.
Bright Data’s attorneys have done an excellent job litigating on its behalf recently, but this is a particularly bold move. Public square arguments directed at private companies rarely succeed. But it would always take creativity to suggest that Bright Data and Twitter are in the same relevant market. On the one hand, it’s obvious that Twitter’s conduct here is in part motivated by anti-competitive animus. On the other hand, it is not obvious how Twitter’s conduct fits into the historically successful antitrust buckets.
Here, Bright Data has alleged many antitrust theories, under many state and federal laws. Maybe one or two will stick.
Final Thoughts
As is always the case in web-scraping or data-access disputes, the party seeking access typically doesn’t just carry the burden of prevailing on some of the legal claims. To avoid injunctive relief, they usually carry the burden of prevailing on all their legal claims. And so while the legal theories used to block scrapers continue to evolve from trespass to chattels to the CFAA to breach of contract to the DMCA, the stakes remain the same. The party looking to stop scraping just needs one legal theory that lands with the judge, and they can likely obtain injunctive relief.
Though if a party seeking access to data were to ultimately prevail through trial on its antitrust claims, that narrative might change as well. Regardless, this case has all the elements of a heavyweight legal fight, and it will be a case to watch closely in 2025 (and probably beyond).
The post Catching Up on the Heavyweight Scraping Battle Between X and Bright Data (Guest Blog Post) appeared first on Technology & Marketing Law Blog.
Originally posted 2013-06-26 14:54:58. Republished by Blog Post PromoterDamon Wayans is rejected again in his attempt to file a trademark that only black people would be allowed to use. Or am I missing something? UPDATE: More, and related, here.
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“Minnesota Statutes section 609.771 prohibits, under certain circumstances, the
dissemination of ‘deepfakes’ with the intent to injure a political candidate or influence the result of an election.” The plaintiffs brought a pre-enforcement challenge to the law, but the court denies a preliminary injunction.
What is a “Deepfake”?
The court explains:
Deepfakes are image, audio, or video files that mimic real or nonexistent people saying and doing things that never happened. Deepfakes leverage artificial intelligence (“AI”) algorithms to manipulate digital content—ordinarily images, sounds, and videos—in which a person’s likeness, voice, or actions are convincingly altered or fabricated. The AI technology behind deepfakes is advanced and complex, making it difficult for the average person to detect the falsity of a deepfake.
According to Wikipedia, deepfakes is a portmanteau of “deep learning” and “fake,” but I find the term nonsensical. When does a fake become a deepfake? I prefer the term “inauthentic” content or just “fake” content (leave the “deep” out of it).
Standing
The plaintiffs are Christopher Kohls a/k/a Mr. Reagan, who uses AI tools to create right-wing propaganda content, and Rep. Mary Franson, who enthusiastically and unapologetically shares such propaganda.
The court says the statute “does not penalize pure parody or satire….the statute at issue here only proscribes a deepfake insofar as it ‘is so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct.'”
Hmm. The court does realize the overlap here, right? That sometimes the joke is the absurdity of the putative speaker saying it?
The court says Kohls’ content at issue qualifies as constitutionally-protected parody:
the July 26 and August 9 Videos that Kohls posted were labeled as “PARODY” and included a disclaimer that “Sound or visuals were significantly edited or digitally generated.” It also appears that Kohls regularly includes the term “PARODY” in the titles of other videos that he has published, along with a disclaimer that “Sound or visuals were significantly edited or digitally generated.” Given Kohls’s repeated disclaimers that his deepfake videos are “PARODY” and that “[s]ound or visuals [are] significantly edited or digitally generated,” the Court concludes that no reasonable person would believe his dissemination of the July 26 and August 9 Videos depict “speech or conduct of an individual who did not in fact engage in such speech or conduct.” Indeed, by labeling his videos as “PARODY,” Kohls is announcing to his viewers that the videos “cannot reasonably be interpreted as stating actual facts about an individual.”
This is nominally good news for Kohls. He doesn’t get an injunction against future enforcement, but he now has a judicial declaration that he’s in the clear.
But who else benefits from this ruling? It’s unclear if both of Kohls’ disclosures were necessary to reach this conclusion, or if the “parody” disclosure alone would have been sufficient. Either way, the deepfakes law is effectively a mandatory disclosure law, where any content is permitted so long as it displays the “parody” label, regardless of whether it would legally qualify as a parody or not.
Indeed, the law makes it dangerous to produce inauthetic political content without the parody label, given that the legal determination of what constitutes a “parody” isn’t always predictable in advance. As an example, the court says this image shared by Rep. Franson is parody:
Is that a parody? Or is it just stupid? I don’t really know what I’m looking at or what message (parodic or otherwise) this communicates. So the court treats this as an easy case of “parody,” but is that obvious to you?
As more evidence that the parody defense is hard to anticipate, the court says that one of Kohls’ videos, which was retweeted by Musk without the parody disclosure and then further amplified by Rep. Franson, isn’t a parody because it wasn’t labeled or sufficiently obviously parodic otherwise. This video gives Rep. Franson standing to proceed with the constitutional challenge. However, the state took the advocacy position that the video was obviously parodic, and if they were willing to back that with enforcement resources, the video poses substantial legal risk to all who touch it.
(Note: Kohls’ video is third-party content that Rep. Franson retweeted, which means that Section 230 seems obviously in play here. However, the court doesn’t mention it because 230 isn’t relevant to the First Amendment challenge).
No Injunction
Minnesota enacted its anti-deepfakes law in 2023 and amended it in 2024. The court says that Rep. Franson’s retweet implicated the pre-amended version and thus her 16 month delay in challenging the pre-amendment law undermined the need for a preliminary injunction.
Implications
By using procedural tricks like standing and laches, the court sidestepped several key constitutional questions and many questions open. The court says that labeled parodies are unregulated by the law, but what about the First Amendment eligibility of unlabeled parodies or content that never qualifies as a parody? Also, does the mandatory labeling consequence of the law raise its own Constitutional problems? And, though not a part of the Constitutional challenge, what about Section 230’s role in all of this?
Given these unresolved issues, this statute has not yet received a clean bill of health. Indeed, the fact that a similar California law was enjoined is a major warning about the Constitutional lack-of-merits of the Minnesota law. (This court acknowledges Kohls’ role in enjoining the CA law (see FN 3), but never once engages with that opinion substantively).
Prof. Hancock’s Expert Report
Stanford Communications Prof. Jeff Hancock filed an expert report supporting Minnesota’s law, but that report did not go well.
Prof. Hancock used Generative AI to help draft the report. The Generative AI hallucinated citations (as it is known to do), and he didn’t catch the fake citations. As a result, he submitted an erroneous expert report.
The irony is palpable. On the one hand, the report demonstrates first-hand the risks that inauthentic content can pose to important social processes like court proceedings. On the other hand, if even Minnesota’s expert finds Generative AI useful to preparing important material in support of the state’s policies, perhaps the court ought to question the state’s anti-AI motives with extra scrutiny.
In a separate opinion from the preliminary injunction decision, the court rejects Prof. Hancock’s request to resubmit his corrected expert report. This proves inconsequential to the case outcomes, at least for now, because the court still denies the preliminary injunction request. Still, I see the court’s discussion as a good reminder that expert witnesses must use Generative AI with special care (or not use it at all) because any uncaught errors will be devastating to the expert’s credibility.
The court repeatedly expresses critical views of Prof. Hancock’s report:
The court stresses that expert reports are subject to perjury standards (e.g., “signing a declaration under penalty of perjury is not a mere formality”) but, like I’ve raised before regarding the penalty of perjury language in 17 USC 512(c)(3), do expert witnesses ever actually get prosecuted for perjury? Or is that more of a theoretical risk? I don’t want to see more expert witnesses prosecuted for perjury, but I wonder if there’s a disconnect between the court’s emphasis and what’s happening in practice.
Incredibly, this isn’t my first blog post on expert reports gone awry due to Generative AI. In October, I wrote about an expert report who used Generative AI to calculate asset values in a non-reproducible way, which caused the court to question the report’s reliability and accuracy. It may seem odd to see multiple Generative AI issues with expert reports in such a short timeframe, but recall that typically an expert report faces a an opposing legal team and counter-experts with significant motivations to point out holes in the report.
Case Citations: Kohls v. Ellison, 2025 U.S. Dist. LEXIS 4953 (D. Minn. Jan. 10, 2025) (preliminary injunction denial) and Kohls v. Ellison, 2025 WL 66514 (D. Minn. Jan. 10, 2025) (Prof. Hancock’s report rejected).
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Originally posted 2011-12-05 10:40:49. Republished by Blog Post PromoterSomehow—despite that I always have one eye open for decisions involving copyright in fictional characters, because almost always I disagree with the ruling and I enjoy then getting to rail about it—I didn’t learn about a new case extending the abstract protection extended to fictional characters, the July […]
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As the maxim goes, all politics are local. A corollary is that few political disputes are as nasty or vitrolic as local politics. When local disputes devolve into total warfare, the parties grasp for any legal leverage against their sworn enemy. In those circusmtances, copyright law is an especially attractive tool to the pugilists, with its strict liability standards, amorphous fair use boundaries, high defense costs, and effectiveness of takedown notices. I did a fairly lengthy blog post on the intersection of copyright law and city council videos a decade ago; and see this piece by Frank LoMonte about the intersection between copyright law and FOIA laws for government records.
In the last month, two more copyright lawsuits over city council videos have triggered my alerts. Both cases included a 512(f) claim, and both 512(f) claims survive the preliminary dismissal efforts.
Levy v. Kilgore, 2024 WL 5295080 (W.D. Tex. Dec. 14, 2024)
A magistrate judge recommends sending a 512(f) case to trial. The court summarizes the facts:
The two videos at issue comprise excerpts from Lakeway City Council meetings and a presentation Kilgore gave as mayor to Lakeway residents, sitting at a desk in front of United States and Texas flags. In the full version of the latter video, Kilgore begins: “Hey, good afternoon, Lakeway. It’s Mayor Tom with another Mayor Facebook Live presentation to you, the residents of the City of Lakeway, best little city in West Travis County.”
In his DMCA takedown notices, Kilgore states that, as the creator of the source video, he “owns all rights to it,” and refers to the disputed videos as “the infringing material.”…
Kilgore contends that he has a subjective, good-faith belief that he owns the copyrights.
If copyright law gives the mayor the ability to decide how constituents talk about his work, then Lakeway isn’t the best little city in West Travis County or, for that matter, anywhere. (Travis County is part of the Austin metro area).
On the core scienter point, the court says: “Inquiry into the credibility of Kilgore’s asserted subjective belief is appropriate for trial.” Levy has an uphill battle establishing Kilgore’s subjective belief for Section 512(f) purposes. However, based on the court’s recounting, this case looks like it could be an example of using copyright as a memory hole tool.
Levy argued that Kilgore didn’t consider fair use before sending the takedown notices. Kilgore responded:
Kilgore avers that he did consider fair use. “I relied on the advice of counsel that [the] video in question infringed on my copyright and was not fair use.”
Kilgore might need better legal advice on copyright law…but also, see my post on the Lenz case predicting that all 512(f) defendants had to do is say “yeah, I thought about fair use” and they would get a free pass.
The court accepts Levy’s alleged damages (“paying to set up a website to host the videos after their takedown, paying a consultant to prepare counter-takedown notices, and incurring attorneys’ fees”) as sufficient to send to trial.
On January 6, 2025, the supervising judge summarily approved the magistrate judge’s recommendations.
Channel 781 News v. Waltham Community Access Corp., 2025 WL 35245 (D. Mass. Jan. 6, 2025)
The court summarizes the facts:
Plaintiff Channel 781 News (“Channel 781”) operates a YouTube channel with videos of news about the City of Waltham, Massachusetts. Some of these videos are clips of meetings of the Waltham City Council that Channel 781 excerpts from recordings of the full meetings posted online by Defendant Waltham Community Access Corporation (“WCAC”). In September 2023, WCAC sent multiple takedown notices to YouTube claiming that Channel 781’s videos amounted to copyright infringement. YouTube temporarily removed the videos and disabled Channel 781’s channel.
WCAC describes itself as an “independent nonprofit corporation,” not a government agency, which potentially changes the strength of its copyright claim. My position is that local governments can’t claim copyright for records of official proceedings, like videos of city council meetings. However, when the government outsources the work to a third party, the analysis gets more complicated. On the surface, those third parties can generate copyrights just like any others. The policy outcomes, however, should be the same: copyright law should not inhibit people’s access to government or ability to criticize the government.
Channel 781’s 512(f) claim survives WCAC’s motion to dismiss. On the scienter question, the court says:
Channel 781 alleges that before sending the takedown notices, WCAC stated that it would take action against those using its “content to score political points” or “encourage residents to hate.” In later discussions between the parties, Channel 781 explained why it believed its videos constituted fair use. WCAC responded that “any use of the clips by Channel 781 required permission” and that Channel 781’s videos “would be more acceptable to WCAC if Channel 781 used them only to report facts, but not to express opinions or further an agenda.” These allegations support a reasonable inference that WCAC sent the takedown notices based on factors other than a good faith belief that Channel 781’s videos were not fair use and that
WCAC knew it was doing so.
WCAC’s reuse policies sound dubious to me. At minimum, the policies are guaranteed to lead to arbitrary distinctions when WCAC decides to enforce its rights against reusers. The better policy outcome would be to blow up WCAC’s copyright status so that they can’t get into the business of using their purported copyright interests to pick winners-and-losers in citizens’ or journalists’ efforts to hold government accountable.
Prior Posts on Section 512(f)
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment
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Originally posted 2011-01-10 16:45:18. Republished by Blog Post PromoterWalter Olson: Ouch. Ben is an odd guy. UPDATED: But evidently he — or, more likely, his “people” — is not such the slouch in the “fair use” department — WSJ Law Blog snark notwithstanding.
The post Ben Stein trips over IP appeared first on LIKELIHOOD OF CONFUSION™.
Originally posted 2012-07-27 18:46:13. Republished by Blog Post PromoterJewish tradition teaches that on Tisha B’Av (the Ninth day of the month of Av) — which begins tonight but, due to the Sabbath, is observed beginning tomorrow (Saturday) night — five national calamities occurred: During the time of Moses, Jews in the desert accepted the slanderous […]
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Originally posted 2012-01-20 09:32:49. Republished by Blog Post PromoterJudge Jed Rakoff, famous in the Southern District of New York for not wasting any (judicial) time, doesn’t waste any in the J&J / Red Cross case: The judge granted a request by the American Red Cross to dismiss a claim in J&J’s lawsuit contending that the […]
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Originally posted 2014-04-09 07:50:34. Republished by Blog Post PromoterJohn Welch at the TTABlog® has up what even he acknowledges is an “excit[ing]” post, in which he both imagines himself a woman and quotes this lively Trademark Trial and Appeals Board opinion excerpt concerning the resolution of the Chippendale’s dancer-boy trademark appeal I discussed a while […]
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