by Lee Gesmer | Jun 25, 2010 | Copyright
Despite all the hoopla, this week’s copyright decision in Viacom v. YouTube (link on Scribd) was predicatable – a decision in the opposition direction would have been a shocker. Viacom accused YouTube (owned by Google) of massive copyright infringement. The court dismissed the case on summary judgment in favor of YouTube.
Of course, there is no question that copyright infringement is taking place on YouTube every instant of the day. The court noted that video is being uploaded to YouTube at the rate of 24 hours per minute. My calculator tells me that this is over 12.6 million hours of video per year. It’s no secret that people are uploading copyright material at a fantastic rate – a search of YouTube will find that almost any popular song can be located. it’s a simple matter to download the clip (either video of just audio), and share it with friends or on peer-to-peer networks. YouTube “ground zero” for online copyright infringement.
However, as I’ve noted in the past, the Digital Millenium Copyright Act – the DMCA – is a federal law that protects publishers such as YouTube as long as they follow the DMCA’s “notice and take-down” procedures (aka “whack-a-mole”), which YouTube has faithfully done. Thus, YouTube was able to claim that it followed “the letter of the law” and therefore its conduct fell within this statutory safe harbor.
Southern District of New York Federal District Court Judge Louis L. Stanton rejected Viacom’s argument that YouTube was aware of, and ignored, massive copyright infringement by YouTube users. The DMCA, the judge held, does not permit Viacom to establish liability based on “a general awareness that there are infringements.” The DMCA requires specific knowledge, and when YouTube had that knowledge (usually based on notice from Viacom), it “took down” the copyrighted work.
The atmospherics of the case were also helpful to YouTube. Unlike music sharing sites like Grokster, which were shown to have been aware of infringement but turned a blind eye to it (See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005)), there were very few “smoking gun” emails uncovered by Viacom in discovery, so YouTube was able to credibly argue that it was not encouraging or turning a blind eye to infringement. (more…)
by Lee Gesmer | May 14, 2010 | General
I’ve written before about how generous juries in the federal courts in the Eastern District of Texas (EdTX) are to patent plaintiffs. (link). After I wrote about this a year ago there was a feeling that this trend might be reversing itself. However, Johnson & Johnson’s $1.6 billion judgment against Abbott and i4i’s $200 million verdict against Microsoft last summer put an end to those thoughts.
So, when Apple, Sirius XM and others were recently sued for patent infringement in EdTX they quite naturally looked for a way out. Massachusetts, they told the Texas district court, was a far better choice, particularly when you considered the fact that that the patent owner, a non-practicing entity, had set up a Texas company shortly before filing suit, and located its business in the offices of its Texas lawyers.
But, it’s not that easy.
After the EdTX trial court refused to transfer the case to Massachusetts, Apple and its co-defendants filed a “mandamus” with the Federal Circuit. Mandamus is a rare procedural tool. Its a way to ask a court (typically an appellate court) to take an action that isn’t really an appeal (because the there is no final judgment), and no specific statute authority authorizing interlocutory appeal. I think it fair to say that fewer than one in a hundred lawyers has ever filed a “writ of mandamus,” (more likely fewer than one in five hundred). (more…)
by Lee Gesmer | Mar 10, 2010 | Miscellaneous
Nice post title, eh? Mass MoCA is the Massachusetts Museum of Contemporary Art Foundation a contemporary art museum in North Adams, MA. Christoph Büchell is a Swiss “installation artist.” Think very large, very avant-garde. The New York Times describes his work “dense, fraught creations, which compress masses of material and objects into historically charged labyrinthine environments through which viewers walk, climb and crawl.” Wow. Sounds just right for good old, left-leaning western Mass. Not.
VARA is the Visual Artists Rights Act, a section of the U.S. Copyright Statute that gives grants artists “moral rights.” For example, part of the law provides that the author of a “visual work” has –
the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation
The First Circuit held that the Museum violated this right when, after installation of a work that called for, among other things, according to the Times, “a burnt-out fuselage of a 737 airliner” it displayed the work without the artist’s consent. That is, the artist stormed off after artistic differences with the museum, and museum prepared to present the work, entitled “Training Ground for Democracy,” like or not. Büchel sued under VARA, lost in U.S. District Court, but prevailed in the First Circuit, which is (I suppose) more sympathetic to moral rights than U.S. District Court Judge Ponsor had been. (more…)
by Lee Gesmer | Mar 3, 2010 | Data Security
My partner Joe Laferrera has been incredibly active in connection with the Massachusetts Data Security Regulations, which took effect on March 1, 2010 after multiple delays (initial deadline was January 1, 2009; second deadline May 1, 2009; third deadline January 1, 2010).
Among other things, Joe has co-chaired the Boston Bar Association Privacy Committee last year and this, and organized what seems like countless programs on the regulations. He has also spoken to legal and business groups around the country on the topic (example of presentation materials here, and White Paper here). (more…)
by Lee Gesmer | Feb 2, 2010 | Courts, Miscellaneous
U.S. Federal District Court Judge William Young has issued a lengthy decision, awarding $2.7 million in damages to the estates of three people murdered by James J. Bulger, Stephen J.
Flemmi, and their associates. Judge Young describes the story as “harrowing,” which may be an understatement.
The key defendant in this case is the U.S. Government, which will foot the bill if the decision survives appeal.
Here are some quotes, pulled from the opinion, which is linked in all of its gory detail at the bottom of this post. Judge Young:inst
Despite years of legal wrangling and an extensive factual
record, at its core this is a very simple case. Federal Bureau
of Investigation (“FBI”) agents actively protected a group of
murderers from apprehension and prosecution in order to use them as informants against La Cosa Nostra. The agents did this over a span of nearly twenty years, despite being on notice that their informants were killers and would, and indeed did, continue to murder. . . .
The FBI’s relationship with Flemmi dates back to 1964, when FBI agent H. Paul Rico opened Flemmi as an informant. Bulger was opened as an informant in 1971. Their recruitment as informants was not an accident. The FBI had made the prosecution of organized crime and La Cosa Nostra its top priority. To that end, J. Edgar Hoover himself inaugurated the Top Echelon Criminal Informant Program on June 21, 1961. Top echelon informants were defined as those “that would be able to provide high-level information on a major scale.” Both Flemmi and Bulger were designated as top echelon informants.
[The first victim, Louis Litif, murdered by Bulger, April 1980].
As to the manner of Litif’s murder, the statement to the FBI of the deceased Brian Halloran, establishes that Litif was lured to the Triple O bar where Bulger and an associate ambushed him. The autopsy report as well as expert testimony show that Litif was stabbed dozens of times with an ice-pick-like implement before he was shot in the back of the neck. Certain of the puncture wounds perforated Litif’s liver, a wound thought to cause exquisite agony.
[The second victim, Debra Davis, Flemmi’s girlfriend of 10 years, September 1981]. (more…)
