Internet personality Logan Paul, who has millions of subscribers on his YouTube channel, has been sued for copyright infringement. The Complaint, filed in the U.S. District Court for the Central District of California, alleges that his composition “No Handlebars” willfully infringes on an original composition by Flobots titled, “Handlebars.” The original was written and recorded in 2005. Paul released “No Handlebars” in November 2017.
What do you need in place prior to bringing an action for copyright infringement? That specific question was decided by the United States Supreme Court in the case of Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, et al.
Copyright infringement lawsuits must be brought in federal court. These cases are often filed by lawyers who not only think their clients can score a sizable judgment, but also have the opposition cover legal fees and costs. However, a new United States Supreme Court decision places a limit on what a prevailing party can actually collect.
Is it true that no one can own a dance step? That is what video game publisher Epic Games is arguing in a motion to dismiss that it filed on February 11 in a federal case that was brought by Terrence “2 Milly” Ferguson.
Virtual private networks (“VPNs”) and other blocking proxies allow users to hide their IP address in order to make themselves appear to be in another country. People do this in order to access content not otherwise accessible in their country. For instance, Netflix provides different shows and movies depending on the country in which one resides in. The show Arrow is not available in England, but it is available in America. In order to binge watch Arrow, you can simply download a VPN which makes your IP address appear to be located in the United States. Viola, just like that you can access American content without physically moving.
Some have equated the use of VPNs to copyright infringement. In January, Netflix announced that it will stop the usage of its services to customers utilizing VPNs and blocking proxies to access content available outside of their own country. Although Netflix has not outright equated these acts to copyright infringement, people using such proxies have already been blocked from Netflix’s content.
Recently, Paypal followed suit and announced its initiative to discontinue services to those using VPNs. Unlike Netflix, Paypal has outright equated VPN use as a way to “circumvent copyright restrictions and violate intellectual property laws.”
In order to bring content to users, Netflix has to obtain content licenses to stream movies and TV shows. When users use VPNs to access content not available in their country, they technically do not have a license to watch that video, even though they pay a monthly subscription to Netflix. If no license exists, the idea is that users should not be able to watch the content.
So the question is, does a lack of the proper license equate to copyright infringement?
Music publishing companies are extremely valuable to the future of recording artists and groups in the music industry. Most artists are typically concerned about securing their first major recording deal with a top label; as a result, they fail to see the importance behind obtaining or forming a publishing company. There are many record labels that have expanded their services to be a full, one-stop shop for their beneficiaries. Nonetheless, for the most part, publishing companies and record labels fulfill different tasks for the artist.
Record labels are mostly focused on the recording, production, distribution, and marketing of an artist’s songs. Publishing companies, on the other hand, are more duly equipped to collect royalties for when the artist’s songs are performed, recorded, or otherwise played for another person’s or entity’s own commercial gain. By entering into a publishing agreement, the artist effectively grants the publishing company one of the following rights: (1) copyright to the songs; (2) partial copyright to the songs; or (3) a percentage of the revenue earned from the use of the artist’s songs. In exchange for one or more of the aforementioned rights, the music publishing company becomes obligated to seek opportunities on the artist’s behalf for licensing the right to use the songs and collect fees based upon the usage. The music publishing company’s share of royalties is usually 50%. When the contractual agreement comes to an end, all rights automatically revert back to the artist.
Music publishers advertise their artists’ songs to record labels, movie and television producers, and any others who may be in the market for a certain sound. The type of licenses dispensed by music publishers are the following: (1) Reproduction (Mechanical) licenses – for music distributed or recorded in physical and/or digital form by another artist; (2) Public Performance licenses – for music broadcast on radio, live venues and/or other public places; (3) Synchronization licenses – for music used in film, television, commercials, etc.; and (4) Folio licenses – for music published in written form as lyrics or sheet music.
As previously mentioned, publishing companies do not participate in the recording or production of the artist’s songs; artists who seek representation from a publishing company are either self-financed, self-recorded, or have received some form of financial backing from a record label. However, independent artists without funding should not be wary of pursuing assistance from a publishing company. Music publishers have the utmost interest in finding multiple, various avenues for the artist’s songs to be heard due to the fact that means more royalties for the artist and more commissions/fees for the company. Publishing companies are extremely beneficial to the artists’ brand and their ability to fully capitalize on their outreach potential.
The Online Copyright Infringement Liability Limitation Act (OCILLA), also known as DMCA 512 was passed in 1998 as part of the Digital Millennium Copyright Act (DMCA). OCILLA is also known as the “Safe Harbor” provision in the DMCA, which shields internet service providers (ISPs) from being forced to pay any monetary damages as a result of copyright infringement by users of their services.
In order for an ISP to qualify for the safe harbor protection, it must follow through on its policy of terminating the accounts of users who are known to be repeat copyright infringers and comply with standard technical measures. Typically, ISPs shielded from liability if:
- The transmission of the copyrighted material was initiated by or at the direction a person other than the ISP;
- The transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the ISP;
- The ISP does not select the recipient of the material except as an automatic response to the request of another person;
- No copy of the material made by the ISP in the course of such intermediate or transient storage is maintained on the ISP’s system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
- The material is transmitted through the ISP system or network without modification of its content.
A key to avoiding potential liability is to stay as far away from the controversy as possible. The safe harbor provision, in effect, sometimes encourages ISPs to turn a blind eye to copyright infringement, which is not what lawmakers intended.
Recently, there has been a push to give ISPs a more important role in the fight against widespread online copyright infringement. A group of ISPs that includes AT&T, Comcast, and Verizon are said to be in serious talks with with media and entertainment companies regarding the adoption of a “graduated response” to repeat copyright infringers. This new response would begin with the ISPs sending out “Copyright Alerts,” which is a fancy way of stating that the ISPs will be sending out written warnings to those accused of infringing activities. Eventually, the ISPs could decrease the alleged infringers’ bandwidth speed and/or limit access to the web. All based on an accusation made by the copyright holder.
Punishment based on an accusation, and not a conviction, is troubling for consumers. But ISPs also have to worry that with increased information from copyright holders, even if the information is not substantiated by any solid proof, ISPs will have to follow through on its new policies or run the risk of not being protected by the DMCA’s safe harbor.
If ISPs institute the anticipated graduated response to repeat copyright infringers, many innocent internet subscribers will likely see their use of the web wrongfully restricted based on accusations by copyright holders. In that case, the accused infringer should seek the help of an attorney. Please contact us for any more information regarding this topic.
In order for a copyright holder to get personal information of someone whom is considered to be illegally infringing the copyright, the copyright holder likely must subpoena the infringer’s internet service provider (ISP). The person accused of infringing activity has the right to file a motion to quash the subpoena; however, the accused infringer will not prevail on that motion if he bases it on a denial of liability.
Courts have held that a general denial of liability is not grounds for quashing a copyright holder’s subpoena. While the person accused may have valid defenses to a lawsuit filed by the copyright holder, those defenses are not at issue until the person is actually named as a party. Thus, in order for an accused infringer to prevail in the motion to quash the subpoena, he must provide something greater than a general denial of liability.
But what exactly must be shown? It is unclear. In fact, some courts are starting to refuse to even consider arguments offered by the accused infringers who submit motions to quash subpoenas. The court mentioned in the link above took notice that other courts have “uniformly held that the privacy interest in [ISP account] information is minimal and not significant enough to warrant the special dispensation of anonymous filing.”
Based on that ruling, is it even worth it for an accused infringer who is close to 100% sure that he did not infringe any copyright to file a motion to quash the subpoena? That is something the accused infringer should consult an attorney about prior to filing the motion or holding back from filing it. Sometimes filing the motion will just place an unnecessary target on the head of the accused, but if there is absolutely nothing to hide, then it may be worth the filing.
The most active group of movie producers in the realm of litigating apparent copyright infringement in 2011 seems to be producers of pornographic material. I have no hard evidence that this is the case, but from the sheer amount of cases I hear about, including some demand letters that clients have brought to my attention, I believe it to be true. While at first it may be humorous to poke fun at the titles of the movies being sued about, this is serious litigation, and people who are doing the downloading have a lot to be concerned about. However, at least one group of defendants can breathe a sigh of relief.
Just yesterday, a copyright infringement lawsuit against 5,865 people who were claimed to have illegally downloaded the movie Nude Nuns with Big Guns was dismissed without prejudice by the Plaintiff. This dismissal follows another dismissal without prejudice in the same case and controversy by the producer of the movie, which is in dispute as to which outlet legally owns the movie’s rights. There is currently confusion about whether the producer (Camelot Distribution Group) or one of its creditors (Incentive Capital) has legal ownership of Nude Nuns with Big Guns. At least while the two parties sort out that mess, the 5,865 potential defendants in a copyright infringement case can rest at ease.
Interestingly, both Camelot and Incentive Capital seemed to be having problems getting the United States District Court, Central District of California Western Division to permit them to issue subpoenas to internet service providers to get contact information to the 5,865 IP addresses associated with the 5,865 Does named in each lawsuit. This is usually not a problem for a Plaintiff, and it may say something about the strength of the case itself or the venue where the case was filed.
Of note – this is another copyright infringement case that stems from the usage of the popular program BitTorrent. It seems as though the use of this program makes it very easy for copyright holders to capture the user’s IP address. Will infringers start to become more aware of this fact and switch to other downloading software?