Get thee to the Copyright Office: take steps now to preserve your DMCA safe harbor protection

The U.S. Copyright Office announced yesterday its new online registration system for designated agents. Online service providers designate agents to receive notifications of claimed copyright infringement. As of December 1, 2016, the Copyright Office no longer accepts paper applications for agent designation. Service providers who previously designated agents in the existing directory have until December 31, 2017 to register in the new online directory.

Online service providers, including websites and online platforms that allow users to store material on their systems, risk liability for direct or contributory copyright infringement from third party materials posted by users without permission.  Since users often do not understand or care about copyright law, an unwary service provider (who often appears to have deeper pockets) may have a rude awakening when it finds itself the sole defendant in a copyright litigation over unauthorized photos or other user generated content posted on its website by a user.

Congress passed the Digital Millennium Copyright Act (“DMCA”) to balance the rights of copyright owners with the needs of online service providers in the face of rapidly developing technology. The DMCA provides a safe harbor from copyright infringement liability in 17 U.S.C. 512 for qualifying service providers who agree to remove copyright infringing content and eject infringing users from their platforms. The DMCA safe harbor protects burgeoning technology such as streaming music platforms.  In order to qualify for DMCA safe harbor protection, a service provider must have an appropriate copyright policy in its terms of use, designate an agent to receive notifications of claimed copyright infringement, register the designated agent with the Copyright Office, and understand and comply with the DMCA notice and take down procedures.

Second Circuit: copyright infringement of Pre-1972 sound recordings covered by DMCA Safe Harbor

Superheros donning black robes save website operators from liability for users’ copyright infringement of sound recordings fixed prior to 1972.

The Second Circuit Court of Appeals ruled today that the safe harbors provided by the Digital Millennium Copyright Act (DMCA) protect qualifying website operators from liability from such pre-1972 recordings, even though they are not covered by federal copyright law. This decision overrules a finding by the District Court for the Southern District of New York that section 501(a) of the Copyright Act “defines” the term “infringement of copyright” used in section 512(c) to define the scope of the DMCA safe harbor provision for qualifying website operators as limiting the safe harbor to materials infringed under federal copyright laws.

The Second Circuit disagrees, saying Section 501(a) does not provide an exclusive definition of “infringement of copyright” and given that the purpose of the DMCA  “was to make economically feasible the provision of valuable Internet services while expanding protections of the interests of copyright owners through the new notice-and-takedown provision. To construe § 512(c) as leaving [website operators] subject to liability under state copyright laws for postings by users of infringements of which the [website operators] were unaware would defeat the very purpose Congress sought to achieve in passing the statute.” Capital Records, LLC, et al., v. Vimeo, LLC, Docket No. 14-1048/1049/1067/1068S, page 29, (CA 2 Argued Nov. 6, 2015, Decided June 16, 2016).

TIP: Like the idea of having the protection of the DMCA Safe Harbor? Review section 17 USC 512 to learn about the requirements needed to qualify for the safe harbor, including a copyright policy that informs users who infringe copyrights that they will be blocked, a designated agent and understanding the notice and takedown procedure for allegedly infringing material.

 

 

To understanding the copyright protections of pre-1972 sound recordings you have to Keep on Truckin’ with Hot Tuna and the sounds of the 60s

Keep on truckin' (creative commons with attribution to frankieleon)

Keep on Truckin’ (creative commons with attribution to frankieleon)

Do music streaming services need to pay royalties to play classic rock? It’s actually an open question. Some services have refused to pay performance royalties for all pre-1972 recordings. For many years, a false rumor persisted that because pre-1972 recordings are not protected by federal copyright law, they are not protected at all, and one need not pay royalties to use such recordings. To understand why that rumor is false, one needs to understand something about the history of legal protection for sound recordings in the U.S.

Prior to 1972, the Copyright Act of 1909 protected songwriters, but did not accord copyright to sound recordings on the federal level, and instead permitted each state to maintain its own common law of copyright. In 1972, Congress amended the 1909 Act to create an exclusive right for sound recordings produced after February 15, 1972. 17 U.S.C. Sec. 5(n) (1909 Copyright Act (Rev’d to 1973)). (more…)

Coincidence or copyright infringement? You be the Judge.

Sam Smith says that it’s a coincidence that his song “Stay with me” is similar to Tom Petty’s “Stand my ground” but won’t hang his hat on independent creation, where one author creates an identical or similar work without access to the previous work. Perhaps Mr. Smith is concerned that he may have subconsciously infringed Mr. Petty’s work since he so quickly offered a writer’s credit and royalties to Mr. Petty. With pop music, access to the original work is presumed because no one can avoid hearing pop music in the doctor’s office and shops. If the two works are strikingly similar to the ears of an ordinary listener, it’s copyright infringement. So you be the judge and let us know what you think.

George Harrison ‘stood his ground’ and ‘wouldn’t back down’ when Bright Tunes sued him for copyright infringement of Ronnie Mack’s “He’s So Fine” (made popular by the Chiffons in 1963) with Harrison’s “My Sweet Lord.” The court found him liable of subconscious copyright infringement.

5 Reasons Not to “Right-Click” a Google Image for Your Blog

Google and other image search engines are a free and easy way to get visual information. Search engines are not the best way to find an image for your blog. Your copy of an online search image may not cause trouble if used in an off-line collage or physical artwork. Use of that same image online, however, carries enormous risk. Unfortunately, search engine results obscure image ownership information.  Images bounce around the internet as they are screen-captured, downloaded from social media, mixed with other material, and shared by users. The owner of the website where you found the image likely does not own the image or provide permission from subjects appearing in the image.

Nevertheless, the photographer and each party or location depicted in the photo has rights in the image. Obtaining each of their permissions to use the image for your particular personal, commercial, or professional use is required to avoid liability. Although most images online are of unknown provenance, people and businesses continue to use online search images without permission. Several clients this year received demand letters relating to the use of online images without permission. Here are a few reasons to avoid risk by not right-clicking an image:

  1. Photo Trolls are Copyright Owners with Registered Claims to Copyright. While true, certain copyright owners are very aggressive about policing their rights. They use electronic infringement detection tools to identify potential infringement of their copyrights then demand several thousand dollars per image to settle. Ignore their demand letters at your peril. (more…)

Fan Fiction Gets Weird

Popular author L.J. Smith of the Vampire Diaries series was terminated by her publisher and replaced with a ghostwriter. Some fans are content to continue reading the now ghostwritten series. Other fans are buycotting. What did L.J. Smith do? She is writing new Vampire Diaries stories as “fan fiction”. Fan fiction is understood as meaning stories written by amatuer writers based on their favorite book, television or movie characters.
While some media companies routinely prosecute copyright infringement lawsuits against fan works, others have embraced fan fiction, such as the publisher of Fifty Shades of Grey series. Originally fan fiction (or slash fiction)based on the Twilight series, Random House successfully published the books after the author removed the Twilight characters.
The Wall Street Journal reports that Amazon has been making deals with publishers and fan fiction writers for the rights to use characters and fan writing to identify new blockbusters like Fifty Shades.