NewYorkCountryLawyer writes: In the federal court for the Eastern District of New York, where all Malibu Media cases have been stayed for the past year, the Court has lifted the stay and denied the motion to quash in the lead case, thus permitting all 84 cases to move forward. In his 28-page decision (PDF), Magistrate Judge Steven I. Locke accepted the representations of Malibu's expert, one Michael Patzer from a company called Excipio, that in detecting BitTorrent infringement he relies on "direct detection" rather than "indirect detection", and that it is "not possible" for there to be misidentification.
NewYorkCountryLawyer writes: In the long-simmering appeal in Capitol Records v. Vimeo, the US Court of Appeals for the 2nd Circuit upheld Vimeo's positions on many points regarding the Digital Millenium Copyright Act. In its 55 page decision (PDF) the Court ruled that (a) the Copyright Office was dead wrong in concluding that pre-1972 sound recordings aren't covered by the DMCA, (b) the judge was wrong to think that Vimeo employees' merely viewing infringing videos was sufficient evidence of "red flag knowledge", and (c) a few sporadic instances of employees being cavalier about copyright law did not amount to a "policy of willful blindness" on the part of the company. The Court seemed to take particular pleasure in eviscerating the Copyright Office's rationales. Amicus curiae briefs in support of Vimeo had been submitted by a host of companies and organizations including the Electronic Frontier Foundation, the Computer & Communications Industry Association, Public Knowledge, Google, Yahoo!, Facebook, Microsoft, Pinterest, Tumblr, and Twitter.
NewYorkCountryLawyer writes: A federal Magistrate Judge in Central Islip, New York, has just placed all Malibu Media subpoenas in Brooklyn, Queens, Long Island, and Staten Island on hold indefinitely, due to "serious questions" raised by a motion to quash (PDF) filed in one of them. Judge Steven Locke's 4-page Order and Decision (PDF) cited the defendant's arguments that "(i) the common approach for identifying allegedly infringing BitTorrent users, and thus the Doe Defendant, is inconclusive; (ii) copyright actions, especially those involving the adult film industry, are susceptible to abusive litigation practices; and (iii) Malibu Media in particular has engaged in abusive litigation practices" as being among the reasons for his issuance of the stay.
NewYorkCountryLawyer writes: In what could be the beginning of the end of the Malibu Media litigation wave involving alleged BitTorrent downloads of porn films, Judge Alvin K. Hellerstein in Manhattan federal court has denied Malibu Media's request for a subpoena to get the subscriber's name and address from his or her internet service provider. In his 11-page decision (PDF), Judge Hellerstein discussed "copyright trolls" and noted that (a) it is not clear that Malibu Media's porn products are entitled to copyright protection, (b) discussed some of its questionable litigation practices, (c) Malibu's "investigation" leads at best to an IP address rather than to an individual infringer, (d) there is a major risk of misidentification, (e) Malibu has no evidence that the individual John Doe committed any act of infringement, and (f) Malibu's claim that there is no other practical way for it to target infringement was not supported by adequate evidence.
NewYorkCountryLawyer writes: UMG's case against Grooveshark, which was scheduled to go to trial Monday, has been settled. Under the terms of the settlement (PDF), (a) a $50 million judgment is being entered against Grooveshark, (b) the company is shutting down operations, and (c) no money judgment at all is being entered against the individual defendants.
NewYorkCountryLawyer writes: In Authors Guild v Hathitrust, the US Court of Appeals for the Second Circuit has found that scanning whole books and making them searchable for research use is a fair use. In reaching its conclusion, the 3-judge panel reasoned, in its 34-page opinion (PDF), that the creation of a searchable, full text database is a "quintessentially transformative use", that it was "reasonably necessary" to make use of the entire works, that maintaining maintain 4 copies of the database was reasonably necessary as well, and that the research library did not impair the market for the originals. Needless to say, this ruling augurs well for Google in Authors Guild v. Google, which likewise involves full text scanning of whole books for research.
NewYorkCountryLawyer writes: New York City Council Member Ben Kallos (KallosEsq), who also happens to be a Free and Open Source Software (FOSS) developer, just introduced legislation to mandate a government preference for FOSS and creating a Civic Commons website to facilitate collaborative purchasing of software. He argues that NYC could save millions of dollars with the Free and Open Source Software Preferences Act 2014, pointing out that the city currently has a $67 million Microsoft ELA. Kallos said: "It is time for government to modernize and start appreciating the same cost savings as everyone else."
NewYorkCountryLawyer writes: In a case of major importance, the long simmering battle between the Authors Guild and Google has reached its climax, with the court granting Google's motion for summary judgment, dismissing the case, on fair use grounds. In his 30-page decision (PDF), Judge Denny Chin — who has been a District Court Judge throughout most of the life of the case but is now a Circuit Court Judge — reasoned that, although Google's own motive for its "Library Project" (which scans books from libraries without the copyright owners' permission and makes the material publicly available for search), is commercial profit, the project itself serves significant educational purposes, and actually enhances, rather than detracts from, the value of the works, since it helps promote sales of the works. Judge Chin also felt that it was impossible to use Google's scanned material, either for making full copies, or for reading the books, so that it did not compete with the books themselves.
NewYorkCountryLawyer writes: In ABC v Aereo, a copyright infringement action against Aereo, the Magistrate Judge has overruled Aereo's attorney/client privilege objection to being forced to divulge non-public details about its patented technology. In his 15 page decision (PDF) he ordered the continued deposition of the company's CTO and CEO about their patent applications. My gut reaction is that this sets a very dangerous precedent, giving the big copyright plaintiffs yet another 'in terrorem' device to use against technology startups — the power to use the lawsuit as a chance to delve into a defendant's non-public tech secrets.
NewYorkCountryLawyer writes: "In a recent 56-page decision (PDF) in Capitol Records v. Vimeo, LLC, a federal court in Manhattan found Vimeo to be covered by the Digital Millenium Copyright Act, rejecting Capitol Records' arguments that it was not entitled to the statute's "safe harbor". However, Vimeo is not yet out of the woods in this particular case, as the Court found factual issues — requiring a trial — as to 10 of the videos on the question of whether they were uploaded at the direction of Vimeo users, and as to 55 of the videos whether Vimeo had actual knowledge, or red flag knowledge, as the existence of an infringement."
NewYorkCountryLawyer writes: I can't actually believe what I'm reading but I'm reading a post by PJ — the brilliant lady behind Groklaw — which says that she's folding her tents and shutting Groklaw down, due to the government's surveillance of email, and lack of privacy online.
NewYorkCountryLawyer writes: Can it be true? The US government claims it really wants to hear from us on the subject of how copyright law needs to be modified to accommodate the developing technology of the digital age? I don't know, but the US Patent & Trademark Office (which btw has nothing to do with administering copyright) says "we really want to hear from you" and the Department of Commerce Internet Policy Task Force wrote a 122-page paper (PDF) on the subject, so they must really mean it, right? But I couldn't find the address to which to send my comments, so maybe that was an oversight on their part.
NewYorkCountryLawyer writes: Once again YouTube has defeated Viacom and other members of the content cartel; once again the Court has held that the Digital Millennium Copyright Act actually does mean what it says. YouTube had won the case earlier, at the district court level, but the US Court of Appeals for the Second Circuit, although ruling in YouTube's favor on all of the general principles at stake, felt that there were several factual issues involving some of the videos and remanded to the lower court for a cleanup of those loose ends. Now, the lower court — Judge Louis L. Stanton to be exact — has resolved all of the remaining issues in YouTube's favor, in a 24-page opinion. Among other things Judge Stanton concluded that YouTube had not had knowledge or awareness of any specific infringement, been 'willfully blind' to any specific infringement, induced its users to commit copyright infringement, interacted with its users to a point where it might be said to have participated in their infringements, or manually selected or delivered videos to its syndication partners. Nevertheless, 5 will get you 10 that the content maximalists will appeal once again.
NewYorkCountryLawyer writes: "Veoh has once again beaten the record companies; in fact it has beaten them in every round, only to have been forced out of business by the attorneys fees it expended to do so. I guess that's the record companies' strategy to do an 'end around' the clear wording of the DMCA "safe harbor": outspend them until they fold. Back in 2009 the lower court dismissed UMG's case on the ground that Veoh was covered by the DMCA "safe harbor" and had complied with takedown notices. The record companies of course appealed. And they of course lost. Then, after the Viacom v. YouTube decision by the 2nd Circuit, which ruled that there were factual issues as to some of the videos, they moved for rehearing in UMG v. Veoh. Now, in a 61-page decision (PDF), the 9th Circuit has once again ruled that the statute means it says, and rejected each and every argument the record companies made. Sadly, though, it did not award attorneys fees."
NewYorkCountryLawyer writes: "The Electronic Frontier Foundation has entered the fray to defend the bloggers sued by Prenda Law Firm. Prenda, oblivious to such well known legal niceties as the Federal Rules of Civil Procedure, the affirmative defense of truth, the difference between a defamatory statement of fact and the expression of a negative opinion, and the First Amendment, has immediately — and illegally — sought to subpoena information leading to the identities of the bloggers. I would not be surprised to see these "lawyers" get into even more hot water than they're already in. And I take my hat off to the EFF for stepping in here."