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Spanish Court Dismisses Copyright Action Against YouTube

In June, Legal Bytes reported [Federal Court Awards YouTube Summary Judgment in Viacom Copyright Infringement Case]that a United States federal court ruled in favor of YouTube and Google in the billion-dollar case brought by Viacom on a summary judgment motion. Just last month, we again reported that Viacom had filed notice of its intention to appeal that ruling [Viacom Appeals Google/YouTube Ruling], and a companion article written by Joseph I. (“Joe”) Rosenbaum [Viacom Appeals YouTube Copyright Ruling] has been posted on the Media & Entertainment Newsletter of the International Law Office.

Now in Spain, the Spanish Federal Court sitting in Madrid has dismissed charges brought by the Spanish broadcasting company Telecinco (Gestevision Telecinco SA), alleging that YouTube was liable for copyright infringement resulting from users uploading content and material that infringed the copyright of others. Mediaset, the Italian company that is the majority shareholder of Telecinco, is also involved in a copyright infringement action involving such video uploads, although no ruling has yet issued in that case. The ruling from the Spanish Federal Court comes on the heels of a ruling at the end of last year in France that found Google guilty of copyright infringement, but in that case, books were being scanned and excerpts put online without first obtaining permission or consent from the copyright owner. That said, earlier this month, a court in Germany ruled against Google, holding it liable for videos that were subject to the copyright of others and uploaded on YouTube.

The Spanish court essentially agreed with YouTube’s argument that it is a content-hosting platform, not directly responsible for content uploaded or posted by others. Without appearing flippant, Legal Bytes notes that, similar to Viacom’s decision to appeal the ruling in the United States, everyone who is on the losing side of these battles is (or has indicated an intention of) appealing the ruling against them.

Need to understand user-generated content, uploading videos or other content, rights of authors, and creators of content, and understand them in multiple jurisdictions around the world?  Contact Joseph I. (“Joe”) Rosenbaum, or the Rimon attorney with whom you regularly work. We can help.

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Veoh Vindicated; Vivendi Vanquished. DMCA Rules.

Veoh Networks, which makes both professionally created programming content and entertainment, as well as user-generated content, available through its website, has often lived in the shadow of Google, YouTube, and Apple’s iTunes. Earlier this week, Veoh got a bit of sunshine.

Two years ago, Universal Music Group (a company owned by Vivendi SA), sued Veoh for copyright infringement. The suit alleged that Veoh’s business was essentially based on the infringing use of copyrighted works of others, notably from Universal’s viewpoint, musical groups and artists.

Veoh countered with the fact that it used filtering technology to detect and remove protected content and, in the words of Judge Matz, writing for the U.S. District Court for the Central District of California, when Veoh “did acquire knowledge of allegedly infringing material . . . . it expeditiously removed such material . . .,” vindicating Veoh supporters who have consistently maintained Veoh is protected by the provisions of the Digital Millennium Copyright Act (DMCA). This is the second time the legal sun has shone on Veoh. A similar lawsuit brought by Io Group, an adult entertainment company, was also decided in favor of Veoh last year.

Legal Bytes has previously reported the criteria necessary to comply with the DMCA (you did read that, right?), thus you know that a key requirement for insulation from liability for copyright infringement under the DMCA is the question of whether, when a company becomes aware of infringing content, it promptly removes it from use and display. The California Court rules that Veoh had done just that, and consequently the safe harbor provisions of the DMCA served to protect Veoh from liability in this case. Judge Matz’ order notes: "The DMCA does not place the burden of ferreting out infringement on the service provider". You can read the full text of the Summary Judgment Order of the California Court.

Universal is expected to appeal, claiming the Judge’s order fails to adequately take into account Universal’s claim that everyone connected with Veoh must have known about rampant infringement and that alone should sustain the ‘knowledge’ which would remove the shield from their entire business model – a shield otherwise available to web hosting companies. However, it may well be an uphill battle since the Court specifically addressed this issue, noting “If such general awareness were enough to raise a ‘red flag,’ the DMCA safe harbor would not serve its purpose".

If you are concerned you don’t know enough about digital rights management; compliance with the provisions of the DMCA; about liability applicable to website owners and operators or the rights available to content owners, the Advertising Technology & Media group at Rimon is for you. Try us. You might like us. Feel free to call me or, if you are already a client, call the Rimon attorney with whom you regularly work. 

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A Pirate’s Life (Not) For Me: France Strikes Out Internet Piracy

This post was also written by Andrew Boortz.

Over the last several months, France’s Parliament has been focusing on the issue of Internet piracy. In May, both houses of the French parliament passed the so-called “three strikes” law which would have given an independent body the ability to disconnect file-sharers from their ISPs. In June, the law was declared unconstitutional by the Constitutional Council because, under French law, the power to force such disconnection could only come through issuance of a court order. In response, French President Nicolas Sarkozy gave the first Presidential speech to the French Parliament in 150 years and passionately defended regulation of Internet piracy.

After President Sarkozy’s speech, the French Senate drafted and passed a modified version of the “three strikes” law which would allow alleged infringers to present their case to a French court, prior to losing their Internet connection. Judges in these hearings would have the power to: (1) order disconnection of the alleged infringer’s Internet access; (2) fine the alleged infringer up to €300,000; and/or (3) sentence the alleged infringer to a two-year prison term. Just yesterday (September 15th), the French National Assembly gave preliminary approval to the measure by a vote of 285-225 and now, a joint committee will unify the Senate and Assembly versions and present a final bill to both houses for a vote on September 22nd.

In looking back over the piracy-related events of this year, it may well turn out that 2009 will be remembered as a watershed year in the struggle between Internet pirates and rights holders.  With the Jammie Thomas and Joel Tenenbaum verdicts in the States, the pseudo-shuttering of the Pirate Bay in Sweden, the implementation of a self-imposed, self-regulatory “three strikes” policy by Ireland’s largest ISP (created under threat of massive litigation) and now France’s revised and revitalized new “three strikes” law, the global community is indeed tilting towards greater sanctions and regulation of Internet piracy.

This raises questions for technology innovators. For example, Facebook, which according to a CNN report out today has a social network population nearly as large as the population of the United States, will soon launch a voice chat feature.  Most likely, the feature could be used to stream media across the globe as well as the nation? Would Facebook be liable for creation and distribution of such a feature, which is similar to that which created liability for the Pirate Bay creators for their torrent-tracking website?

Need help? Confused by the torrent of information, technology and legal rights?  Need to know more? Contact Andrew (“Drew”) Boortz, in our Washington, D.C. office, call me or contact the Rimon attorney with whom you regularly work.

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Can You Grok This? Fans of Robert Heinlein Smile

In what may be a momentous ruling and certainly a setback to the music, film and entertainment industry’s effort to fight illegal on-line downloading and file swapping, on August 19, the three judges of the Ninth Circuit Court of Appeals upheld a lower court ruling that found that Grokster and Streamcast Networks were not violating the copyright laws merely because they made software available that allows people to trade digital content (e.g., movies, music). To be clear, the decision in no way condones copyright infringement, nor changes the law relating to the illegal use or theft of copyrighted materials, nor authorizes anyone to ignore the intellectual property rights of others. But harkening back to cases which look and feel (pun intended) much like the Sony Betamax cases years ago, the court ruled that this particular type of software—referred to as “file sharing” software—was designed in such a way that it could not be held illegal.

It is noteworthy that this is the same court that essentially brought Napster to its knees a few years ago with an exactly opposite conclusion. While critics will argue that the ruling is a descriptive guide to designing software that can avoid being caught in the web (another pun) of the Copyright Act, many others welcomed the ruling for bringing clarity to a murky area of the law and focusing on the distinctions which make some software and systems infringing, while others are not. For you technical gurus in the audience, the court found it significant that neither Grokster nor Streamcast used centralized databases or computer systems with programming file directories pointing to files on individual users’ computers—in other words, these systems didn’t direct other people (and couldn’t even intercept or prevent people) to actual or potentially pirated music, film or any other content. As with the Betamax cases, the court also found that although there were plenty of arguments (and evidence) provided in entertainment industry briefs noting that the vast majority of content exchanged by these programs was illicitly copied, the software Grokster and Morpheus (the software licensed by Streamcast), had other substantial non-infringing uses and thus could not be held illegal as a matter of law.