The Viacom Int'l Inc. v. YouTube, Inc., 07 Civ. 2103 (LLS) (S.D.N.Y. June 23, 2010) summary judgement in favor of YouTube was hailed as a victory for technology companies and a loss for copyright owners in most major publications. In my opinion, the instant analysis of the case and its effect on future litigation misses a key important point. This point is the amount of time that Internet Service Providers (ISPs)/Online Service Providers (OSPs) have to remove infringing content once they have received a Digital Milenium Copyright Act (DMCA) take down notice.
There is a saying among lawyers that goes something like, "when the law is against you, argue the facts. When the facts are against you, argue the law. If both the law and the facts are against you, attack the other side." In this case, the law was clearly against Viacom. The DMCA's safe harbor is as wide as the Pacific Ocean. 17 U.S.C. Section 512 (c) provides ISPs/OSPs broad protection against claims of copyright infringement by rights holders whose work appears on the ISP's/OSP's websites. In addition, the facts of Viacom's case appeared to favor YouTube. According to the facts of the case, Viacom spent several months accumulating over 100,000 videos that were illegally uploaded to YouTube and then sent one massive take down notice on February 2, 2007 to YouTube. By the next business day, YouTube had removed virtually all of the illegally uploaded videos.
The bottom line is that the take down provisions in the DMCA worked. Several months after the lawsuit was initially filed in 2007, YouTube launched a service called Video Identification Tool which assists copyright holders in protecting their content from being illegally uploaded onto YouTube. It appears that YouTube was extremely responsive in this matter.
If YouTube did not act as quickly as it did to remove the infringing content then I believe Viacom's position would have been greatly strengthened and a different outcome may have occurred. Therefore, I don't think this was the best test case for copyright holders.
In my analysis of the DMCA, ISPs/OSPs have only a small window of time to remove infringing material once they have received a DMCA take down notice. The next time an ISP/OSP is sued for enabling copyright infringement it will need to prove that it took no more than a few business days to remove the alleged infringing material after it has been notified. If it takes more than several days for the alleged infringing material to be removed I believe that the copyright holder will have a stronger case than Viacom that the ISP/OSP should not be protected under the DMCA's safe harbor provisions. Since it took YouTube only one business day after it received a DMCA take down notice to remove the infringing content, the bar is set extremely high for other ISPs/OSPs. The take down notice was also sent more than 3 years ago and since then technology should make it even easier for ISPs/OSPs to remove infringing material once they have been notified. Therefore, I believe the length of time it takes an ISP/OSP to respond to a DMCA take down notice may be a central issue in future litigation.
To learn how to protect and monetize your intellectual property you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, June 30, 2010
Thursday, June 17, 2010
Supreme Court Issues Groundbreaking Social Media Law Case
The U.S. Supreme Court earlier today issued a unanimous ruling in the City of Ontario, California et al v. Quon government workplace privacy sexting case. The Court ruled that a public employer's review of text messages on a publicly owned electronic device was a reasonable search under the Fourth Amendment and that the Ninth Circuit erred by concluding otherwise. The Court focused on the Fourth Amendment search issue and side stepped the broader expectation of privacy issue.
On December 14, 2009, I blogged about this case and I opined that the Supreme Court should reverse the 9th Circuit's ruling and find for the City of Ontario because an employer needs to be able to review all electronic communications that are sent via an employer owned account. My opinion was based on the premise that while using employer owned devices employees either know or should know that their employer may need to review the messages that have been sent via the electronic device for a work-related purpose.
Here, the Petitioner, City of Ontario, had purchased pagers for Respondent, Quon and others who were employed by the City. Only after Quon and other public employees had exceeded the character limits that the City had purchased on their behalf for several months did the City inquire why this was occurring. Upon reviewing the transcripts of the messages that Quon was sending, the City realized that a large percentage of the sent messages were personal and not work related. Quon was disciplined for misusing his City owned electronic device so he filed a suit against the City. The City of Ontario had a policy on computer, Internet, and e-mail use that clearly stated that the city had the right to monitor such communications. The policy allowed “light personal communications” but said “users should have no expectation of privacy or confidentiality.” Sergeant Quon signed a statement agreeing to the City's policy.
The Quon decision should be a wake up call to government employees. In the public sector, electronic communications sent through employer owned electronic accounts may not be subject to the Fourth Amendment’s protection against unreasonable searches, as long as employers have “a legitimate work-related purpose” for inspecting the communications. Both public and private employers need to have policies in place that outline the usage policy of employer owned devices and accounts because the line is blurring between personal and business use of electronic devices and accounts. I predict that the Supreme Court will be hearing more cases in the near future regarding similar issues and that the court will need to understand the specific nuances of social media and the electronic devices utilized to access these new technologies and platforms.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
On December 14, 2009, I blogged about this case and I opined that the Supreme Court should reverse the 9th Circuit's ruling and find for the City of Ontario because an employer needs to be able to review all electronic communications that are sent via an employer owned account. My opinion was based on the premise that while using employer owned devices employees either know or should know that their employer may need to review the messages that have been sent via the electronic device for a work-related purpose.
Here, the Petitioner, City of Ontario, had purchased pagers for Respondent, Quon and others who were employed by the City. Only after Quon and other public employees had exceeded the character limits that the City had purchased on their behalf for several months did the City inquire why this was occurring. Upon reviewing the transcripts of the messages that Quon was sending, the City realized that a large percentage of the sent messages were personal and not work related. Quon was disciplined for misusing his City owned electronic device so he filed a suit against the City. The City of Ontario had a policy on computer, Internet, and e-mail use that clearly stated that the city had the right to monitor such communications. The policy allowed “light personal communications” but said “users should have no expectation of privacy or confidentiality.” Sergeant Quon signed a statement agreeing to the City's policy.
The Quon decision should be a wake up call to government employees. In the public sector, electronic communications sent through employer owned electronic accounts may not be subject to the Fourth Amendment’s protection against unreasonable searches, as long as employers have “a legitimate work-related purpose” for inspecting the communications. Both public and private employers need to have policies in place that outline the usage policy of employer owned devices and accounts because the line is blurring between personal and business use of electronic devices and accounts. I predict that the Supreme Court will be hearing more cases in the near future regarding similar issues and that the court will need to understand the specific nuances of social media and the electronic devices utilized to access these new technologies and platforms.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, June 16, 2010
Intellectual Property Law is Useless in the Social Media Age
The major tools that companies have to protect their intellectual property rights in the Social Media Age were created before and during the Internet Age of the late 1990's. Under current law, copyright and trademark holders have several different remedies available to go after cyber-squatters and those who utilize copyrighted material and trademarks without permission. Some of the tools available include the Lanham Act and the Anti-Cyber Squatting Protection Act, The Digital Millenium Copyright Act, and ICANN's Uniform Domain Dispute Resolution Policy.
Facebook, MySpace and Twitter, (scroll down to the Copyright Policy), and YouTube all have policies in place for companies to report theft of their intellectual property. Even though some of these companies, (Ex: Facebook) appear to have a policy in place that addresses the problem when a company's trademarks are being used by a third party as a screen/user name, there appears to be no legal tools available that specifically applies to screen/user names. Therefore, it is at the sole discretion of an online service provider to determine if a screen/user name infringes on a trademark.
Screen/user name intellectual property infringement is a major problem. For example, on Facebook there is a popular page that at first glance appears to be Nike Shoes. Upon closer examination, even though this page has over 2.2 million "likes" it does not appear to be a valid Nike Shoes Facebook page. In addition, if you type in www.facebook.com/nikeshoes you are directed to an entirely different Facebook page that appears to be another user. Visiting MySpace's "Nike Shoes Page" demonstrates the same problem. If you type in www.myspace.com/nikeshoes you will notice that you are directed to the page of a Nike shoe collector/seller.
Through a quick check of the United States Patent Trademark TESS search system it appears that "Nike Shoes" is not trademarked. However, "Nike" was trademarked in 1972 for "ATHLETIC SHOES WITH SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES" and "ATHLETIC SHOES WITHOUT SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES". Therefore, Nike has a very strong claim that the term "Nike Shoes" infringes on its trademark.
The bottom line is that intellectual property law needs to catch up with the Social Media Age and/or social media companies need to be willing to provide the contact information of those who are charged with determining if a screen/user name infringes on a trademark or if posted material violates a copyright. Providing forms for intellectual property rights holders to complete when an alleged violation occurs is a start but does not adequately address the situation. More accountability is needed.
To learn how to combat the theft of your company's intellectual property via social media you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Facebook, MySpace and Twitter, (scroll down to the Copyright Policy), and YouTube all have policies in place for companies to report theft of their intellectual property. Even though some of these companies, (Ex: Facebook) appear to have a policy in place that addresses the problem when a company's trademarks are being used by a third party as a screen/user name, there appears to be no legal tools available that specifically applies to screen/user names. Therefore, it is at the sole discretion of an online service provider to determine if a screen/user name infringes on a trademark.
Screen/user name intellectual property infringement is a major problem. For example, on Facebook there is a popular page that at first glance appears to be Nike Shoes. Upon closer examination, even though this page has over 2.2 million "likes" it does not appear to be a valid Nike Shoes Facebook page. In addition, if you type in www.facebook.com/nikeshoes you are directed to an entirely different Facebook page that appears to be another user. Visiting MySpace's "Nike Shoes Page" demonstrates the same problem. If you type in www.myspace.com/nikeshoes you will notice that you are directed to the page of a Nike shoe collector/seller.
Through a quick check of the United States Patent Trademark TESS search system it appears that "Nike Shoes" is not trademarked. However, "Nike" was trademarked in 1972 for "ATHLETIC SHOES WITH SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES" and "ATHLETIC SHOES WITHOUT SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES". Therefore, Nike has a very strong claim that the term "Nike Shoes" infringes on its trademark.
The bottom line is that intellectual property law needs to catch up with the Social Media Age and/or social media companies need to be willing to provide the contact information of those who are charged with determining if a screen/user name infringes on a trademark or if posted material violates a copyright. Providing forms for intellectual property rights holders to complete when an alleged violation occurs is a start but does not adequately address the situation. More accountability is needed.
To learn how to combat the theft of your company's intellectual property via social media you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, June 2, 2010
Disney's Facebook Application For Toy Story 3 Is Inherently Dangerous
Disney's new Facebook application made a splash in the New York Times yesterday. The New York Times article states, "[t]he application, called Disney Tickets Together, could transform how Hollywood sells movie tickets by combining purchases with the powerful forces of social networking." The Disney Tickets Together application will alert your Facebook friends and invite them to also buy tickets to the same Disney event.
Oliver Luckett, SVP and GM of DigiSynd, a Disney subsidiary is quoted in the article as saying “[t]he whole idea is that no friend gets left behind.” This mentality is extremely troubling because it demonstrates Disney's utter lack of concern for the personal privacy of its customers who purchase tickets via Facebook. Creating a Facebook application that focuses on Toy Story 3's target audience, children, is especially upsetting. This application will allow child predators to know who will be attending an event and where they will be. It is an application that child molesters can easily utilize to target their prey.
Applications that utilize a Facebook user's information is a lazy method of social media engagement. Instead, Disney should immediately terminate this application and focus its Facebook strategy on engaging and conversing with its more than 3.5 million Facebook "likes." A review of Disney's Facebook page demonstrates that Disney's current strategy involves posting a link and then letting its fans comment on the post. Where is the social media interaction and engagement?
Facebook needs to ban application developers from being able to access your personal information as a prerequisite to utilizing an application. There is no reason why an application that asks, "What old school WWF wrestler are you?" needs to know your personal data and your friends information. For the record, I was labeled Hulk Hogan. All the information the application needs is included in the questions the application asks you to answer.
Facebook and Disney need to share the blame for this new application because Facebook's recent privacy controls do not go far enough in protecting a user's personal information. The new privacy controls should enable a user to have full control over his or her Facebook profile. Unfortunately, the new privacy controls do not fully enable a user to pick and choose what information is shared. Facebook's failure to properly protect its users' personal information demonstrates why the Social Media Privacy Protection Act is needed.
I grew up loving Disney movies, their theme parks, and the entire Disney experience. Walt Disney was a visionary in experiential marketing. However, this Facebook application that Walt Disney's successors have created has crossed the line. Disney's new application is an inherently dangerous one because it provides child molesters with information they may utilize to harm our families. I would highly advise other entertainment companies not to follow in Disney's footsteps because there is no legitimate reason for a movie studio to create an application that utilizes its Facebook's customers' data.
I challenge Facebook CEO Mark Zuckerberg and Disney's CEO Robert A. Iger, and any other Fortune 500 CEO to provide a rational reason why access to my personal Facebook data or my friends' data is required for Disney's Tickets Together application or any other Facebook application. To resolve this issue you may contact me directly at 301-652-3600 or at bshear@shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Oliver Luckett, SVP and GM of DigiSynd, a Disney subsidiary is quoted in the article as saying “[t]he whole idea is that no friend gets left behind.” This mentality is extremely troubling because it demonstrates Disney's utter lack of concern for the personal privacy of its customers who purchase tickets via Facebook. Creating a Facebook application that focuses on Toy Story 3's target audience, children, is especially upsetting. This application will allow child predators to know who will be attending an event and where they will be. It is an application that child molesters can easily utilize to target their prey.
Applications that utilize a Facebook user's information is a lazy method of social media engagement. Instead, Disney should immediately terminate this application and focus its Facebook strategy on engaging and conversing with its more than 3.5 million Facebook "likes." A review of Disney's Facebook page demonstrates that Disney's current strategy involves posting a link and then letting its fans comment on the post. Where is the social media interaction and engagement?
Facebook needs to ban application developers from being able to access your personal information as a prerequisite to utilizing an application. There is no reason why an application that asks, "What old school WWF wrestler are you?" needs to know your personal data and your friends information. For the record, I was labeled Hulk Hogan. All the information the application needs is included in the questions the application asks you to answer.
Facebook and Disney need to share the blame for this new application because Facebook's recent privacy controls do not go far enough in protecting a user's personal information. The new privacy controls should enable a user to have full control over his or her Facebook profile. Unfortunately, the new privacy controls do not fully enable a user to pick and choose what information is shared. Facebook's failure to properly protect its users' personal information demonstrates why the Social Media Privacy Protection Act is needed.
I grew up loving Disney movies, their theme parks, and the entire Disney experience. Walt Disney was a visionary in experiential marketing. However, this Facebook application that Walt Disney's successors have created has crossed the line. Disney's new application is an inherently dangerous one because it provides child molesters with information they may utilize to harm our families. I would highly advise other entertainment companies not to follow in Disney's footsteps because there is no legitimate reason for a movie studio to create an application that utilizes its Facebook's customers' data.
I challenge Facebook CEO Mark Zuckerberg and Disney's CEO Robert A. Iger, and any other Fortune 500 CEO to provide a rational reason why access to my personal Facebook data or my friends' data is required for Disney's Tickets Together application or any other Facebook application. To resolve this issue you may contact me directly at 301-652-3600 or at bshear@shearlaw.com.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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