Amici Curiae Brief Filed in Viacom v. YouTube Appeal

In August we reported that Viacom intended to appeal the U.S. District Court ruling in favor of YouTube and Google in the billion-dollar copyright infringement case brought by Viacom (Viacom Appeals Google/YouTube Ruling). As you may recall, the federal court decided YouTube is protected against claims of copyright infringement by the safe harbor provisions of the Digital Millennium Copyright Act. If you have not yet read the original text of the District Court decision, you can read and/or download it from Legal Bytes (Federal Court Awards YouTube Summary Judgment in Viacom Copyright Infringement Case).

Regardless of your perspective, this continues to be a closely watched legal battle, with significant implications in the determinations made by the court – not only because of the stature of the parties, but also because the issues implicate so much of the content-related activity on the Internet and the interpretation of the seminal U.S. statute that applies – the Digital Millennium Copyright Act.

Earlier this week, three academic legal scholars filed a brief in support of the Viacom entities, stating that "the central issue in this case are the legal tests for contributory and vicarious liability for copyright infringement from the use of Internet sites – in this instance, the YouTube site – to reproduce and disseminate large amounts of copyrighted material without authorization from copyright owners." The brief presents interesting and thoughtful insights into the law of copyright and protection of intellectual property rights in this age of digital information and content. If you would like to read the brief, you can download your own copy right here: Brief of Amici Curiae Stuart N. Brotman, Ronald A. Cass, and Raymond T. Nimmer In Support of Plaintiffs-Appellants.

Legal Bytes will continue to monitor developments and post significant materials that we hope will stimulate your thinking, and increase your appreciation of the complexity of the issue and the stakes in this intellectual property battle. If you would like further information, feel free to contact me, Joe Rosenbaum, or the Rimon attorney with whom you regularly work.

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.

Viacom Appeals YouTube Copyright Ruling

The U.S. Media & Entertainment Newsletter of the International Law Office (ILO) has published an adaptation of the original Legal Bytes posting by Joseph I. (“Joe”) Rosenbaum discussing the appeal by Viacom of the ruling in favor of YouTube and Google in the billion-dollar case brought by Viacom. You can download or view a copy of the ILO publication, "Viacom appeals Google/YouTube ruling", and you can view the original Legal Bytes posting, Viacom Appeals Google/YouTube Ruling.

Viacom Appeals Google/YouTube Ruling

Just over a month ago, Legal Bytes reported [Federal Court Awards YouTube Summary Judgment in Viacom Copyright Infringement Case] that a federal court ruled in favor of YouTube and Google in the billion-dollar case brought by Viacom on a summary judgment motion. The court decided YouTube is protected against claims of copyright infringement by the safe harbor provisions of the Digital Millennium Copyright Act (the “DMCA”).

We also told you that we haven’t heard the last of this case, since immediately after the ruling was announced, Michael Fricklas, Viacom Executive Vice President, General Counsel & Secretary, noted, “This case has always been about whether intentional theft of copyrighted works is permitted under existing law and we always knew that the critical underlying issue would need to be addressed by courts at the appellate levels. Today’s decision accelerates our opportunity to do so.”

Consistent with that announcement, Viacom has now filed its notice to appeal in the U.S. Court of Appeals for the Southern District of New York. Many legal scholars feel that in this case, the District Court opinion will be very persuasive; one never knows until the appellate court has rendered its decision. Stay tuned. If you did not read the original District Court decision, you can read and download it through the original posting on Legal Bytes: [Federal Court Awards YouTube Summary Judgment in Viacom Copyright Infringement Case].

Federal Court Awards YouTube Summary Judgment in Viacom Copyright Infringement Case

Yesterday, the federal court hearing the billion-dollar case brought by Viacom against YouTube and Google ruled in favor of Google and YouTube on a summary judgment motion, deciding that YouTube is protected against claims of copyright infringement by the safe harbor provisions of the Digital Millennium Copyright Act (the “DMCA”), since it promptly sought to comply with the DMCA by removing protected content when notified of it.

The federal court held that under the law, if service providers were required to try to determine what content is infringing, or if service providers were held liable because they know infringement is rampant in the industry, or that users routinely post infringing materials, it “would contravene the structure and operation of the DMCA.” Only Congress has the power to decide to alter or reallocate the burden of copyright protection from the rights holder (i.e., the copyright owner) to the service provider. In examining that question, the court stated that where such a huge volume of works are posted by others, the service provider “cannot by inspection determine whether the use has been licensed by the owner, or whether its posting” is a “fair use” of the material, or even whether its copyright owner or licensee objects to its posting. The DMCA is explicit: it shall not be construed to condition “safe harbor” protection on “a service provider monitoring its service or affirmatively seeking facts indicating infringing activity . . . .” Under the DMCA, if one has no notice of infringement and innocently publishes infringing content, until knowledge is shown – by “take down” notice or otherwise – a passive service provider platform would generally not be liable for intellectual property infringement.

It’s unlikely you have heard the end of this lawsuit. In a statement posted yesterday by Michael Fricklas, Viacom Executive Vice President, General Counsel & Secretary, Viacom noted that, “This case has always been about whether intentional theft of copyrighted works is permitted under existing law and we always knew that the critical underlying issue would need to be addressed by courts at the appellate levels. Today’s decision accelerates our opportunity to do so.”

You can read and download the court’s entire decision right here.

French Connection: Google’s AdWords Clipped by Louis Vuitton

Over five years ago, in early 2004, luxury fashion designer Louis Vuitton sued Google in connection with the sale of search-related advertising.  You will recall the company behind the Louis Vuitton brands and many others (LVMH Moët Hennessy • Louis Vuitton S.A., usually shortened to LVMH) has been very aggressive in policing and protecting its marks on eBay and other Internet sites.  The Paris District Court held that Google was engaged in trademark infringement, unfair competition and misleading advertising.  The Paris Court of Appeals subsequently ordered Google (and its French subsidiary) to pay €300,000 in damages. When those rulings were announced, a spokesperson for Louis Vuitton, praising the Court’s decision, said, “It was absolutely unthinkable that a company like Google be authorized, in the scope of its advertising business, to sell the Louis Vuitton trademark to third parties, specifically to Web sites selling counterfeits.”  The remarks went on to state, “This milestone ruling grants protection for the first time to both consumers and brand owners” adding that Louis Vuitton believed the Court’s finding meant that Google’s services were “misleading advertising services.”

Google appealed, and today the European Court of Justice (ECJ) released its ruling on appeal of that decision.  For you purists in the audience, procedurally within the ECJ, the decision is one in respect of the Joined Cases C-236/08 to C-238/08, in the proceedings captioned Google France SARL, Google Inc. v. Louis Vuitton Malletier SA (C-236/08), Google France SARL v. Viaticum SA, Luteciel SARL (C-237/08), and Google France SARL v. Centre national de recherche en relations humaines (CNRRH) SARL, Pierre-Alexis Thonet, Bruno Raboin, Tiger SARL (C-238/08).

The case essentially asks whether Internet search providers can be liable for trademark infringement when selling ‘keywords’ that are based upon the trademarks of another.  The ECJ ruling doesn’t completely immunize or exonerate Google, nor does it leave advertisers defenseless either, but it does in effect give the green light to Google and other search providers to continue to offer keywords to bidders; there had been concern in Europe that a negative judgment from the ECJ would have brought all such services to a halt.  The decision takes a now familiar, “let’s examine if you do more than just sell the trademark as a keyword at the request of the advertiser” approach.

So, if all an Internet search company such as Google is doing is selling keywords, the decision appears to allow Google to do so, despite a showing of confusion by consumers.  But – as those of you advertisers and marketing professionals who are tuned in to AdWords’ algorithmically driven ‘suggestions’ will know – Google’s program actually suggests keywords derived from previous selections. So Google’s AdWords code might suggest “British Airways” as related to “Virgin Atlantic” or “Ryanair” or, as in this case, “imitation” or “fake” coupled with “handbags” as a keyword related to “Louis Vuitton.” Not merely passively selling an existing word or mark and more actively engaging in the ‘suggestion’ process, in the Court’s view, consequently attaches liability.

By analogy, one can rationalize such a decision with similar rulings in the United States under the Digital Millennium Copyright Act (DMCA) or more directly under Section 230 of the Communications Decency Act (CDA).  In the case of the DMCA, if one has no notice of infringement and innocently publishes infringing content, until knowledge is shown – by ‘take down’ notice or otherwise – a passive distributor would generally not be held liable for intellectual property infringement.  Similarly, the CDA distinguishes between those who participate in the content creation process and those who merely distribute (the traditional news media distinction between editor/publishers and newsstand/distributors).

Under the instant ruling by the ECJ, although simply purchasing a keyword would not seem to constitute a per se legal violation in the EU, some rather arcane wording by the ECJ seems to suggest that advertisers (not necessarily the search provider) could now be held liable for trademark infringement resulting from their keyword purchase if their advertising can be shown to be confusing to consumers.  Thus, courts in the EU will now be examining both the appearance of the advertising and its demonstrable or likely effect on consumers.  One of our Associates, Drew Boortz, who follows these developments, notes that we are not aware of any U.S. case that has delved this deeply into keyword sales.  While there are trademark and advertising cases that deal with “use in commerce,” the eight or nine recent cases against Google directly involving keywords are yet to come up for trial (e.g., Rosetta Stone Ltd. v. Google, Inc., U.S. federal complaint filed on July 10, 2009 in the Eastern District of Virginia; scheduled for trial in May).

Chris Hackford in our London office notes that trademark owners will no doubt be a little disgruntled after this ECJ judgment, as they will have to continue to bid on their own registered trademarks in order to ensure that they remain at the top of the listings.

If you want to form your own view of the ECJ decision, you can read it right here: Louis Vuitton v. Google; or you can call Rimon for help.  Our offices in Paris, as well as London, Munich and Piraeus in the EU, stand ready to assist; and, of course, you can contact me, Joe Rosenbaum, in New York; Chris Hackford in London; Drew Boortz in our Washington, D.C. office; or the Rimon attorney with whom you regularly work.

Are There Clouds in Your Future?

Check out MediaPost’s SearchBlog yesterday (A Dream Cloud Computes The Future), which recounts the conversation Joe Rosenbaum had with reporter and blogger Laurie Sullivan about the future of cloud computing. Need to know more about the legal implications and issues? Call Joseph I. (“Joe”) Rosenbaum or the Rimon attorney with whom you regularly work.

When the Fog Lifts, Don’t Be Surprised if You Still See Clouds

“If computers of the kind I have advocated become the computers of the future, then computing may someday be organized as a public utility just as the telephone system is a public utility . . . The computer utility could become the basis of a new and important industry.”

                                      John McCarthy, MIT Centennial, 1961

“Cloud computing” is a term used to describe the use of computer resources not solely as a communications protocol (e.g., the Internet), nor solely as a content or transaction host (World Wide Web), but as an application development and information processing service. To help explain further, to send an email, much like using the telephone, it makes no difference who your provider or host is or which carrier you use. There is a protocol that allows interoperability across networks and processors, and as long as the sender and recipient have an email address and access to an Internet connection, the email gets through. On the web, with access to the Internet and a browser (technology that displays content and functionality hosted at a particular Internet address), you can interact with the website – you can see the material displayed and you can "select" (click) to enable certain features.

Today, as a general rule, if you wanted to create, edit, spell check, save, send or share most content or information with someone, unless you plan on typing and formatting a very long email, you still need word processing, spreadsheet or presentation software programs to create and upload (communicate or store for display), or to see and use content that you might download. In a cloud-computing environment, all of these functions are resident in the "cloud." Imagine that you no longer needed a desktop or laptop computer processor, and all you had were input and display devices (e.g., keyboard, mouse, monitor), which you could either carry or borrow wherever you went. Plug into a universal "outlet," enter your unique pass codes and authentication information, and you have everything you need – where and when you need it. Like telephone, electric or gas service, computing becomes a commodity accessible virtually anywhere and anytime, generally priced by usage, the applications, and the amount and type of storage for which you want and need access.

Cloud-computer services can be sold and paid for using plans not dissimilar to phone service – per call, per minute, unlimited, features, functions – and they disaggregate the user, whether individual or business enterprise, from the procurement, maintenance and operations of the underlying processors and software programs. Clouds can be public – made available to anyone on demand (think Wi-Fi registration based hot spots) or private (large companies can operate or arrange to have someone operate a closed-cloud environment). I summarize the basic characteristics of cloud computing as follows:

  • Flexibility – the user can easily modify use, resources, demand, access and virtually every other resource, without the need to purchase or dispose of any equipment or software, other than input and output devices. Increases or decreases in processing, development, storage or other requirements can be managed easily in real time and on an infinitely scalable basis.
  • Cost – commodity or utility pricing lowers user costs. Capital expenditures can be eliminated, license fees reduced and access fees managed more efficiently.
  • Resources – shared resources enable lower per-user, per-unit pricing, and optimization of peak and non-peak loads across user communities. Resource upgrades and enhancements can be amortized across a broad user base, seamlessly and transparently to the user community. Inter-exchange agreements between cloud providers will enable continuity and recovery, load management, and resource backup capability at optimal prices.
  • Independence – time, space and resource constraints become largely irrelevant to the extent Internet or web access is available.
  • Interoperability – absent unique or customized requirements that can be managed separately by the user, standardized applications, development tools and protocols are simpler to maintain and operate, debug, update and support. 

While security and privacy is always a concern – more so where data, in addition to processing capability and storage, becomes more concentrated and accessible rather than distributed – more users and businesses will have the potential benefit of stronger security measures than are currently affordable or in use, to the extent cloud providers can develop and implement strong security standards and protocols within their service offerings. 

So who are the actual or prospective players? Well lots of prognosticators and labelers are out there, but here is my list in basic categories:

  • Providers are those who procure, create, host and manage cloud resources and then sell access, services, features and functions in a cloud environment – wholesale or retail
  • Users are those who need to use and take advantage of cloud services, features and functions, whether individually or as part of a business
  • Intermediators are those who create intermediation and aggregation opportunities between and among providers. On the one hand, intermediators can bridge gaps between providers and create interface and sharing environments between or among providers. On the other hand, intermediators may begin finding niches in customizing or aggregating services, features or functions for particular industries or in particular regions.
  • Developers and supporters are those who develop utilities, applications, tools, features and functions to enhance the cloud experience, make additional services and applications available, and who maintain and support the efficient functioning of the cloud environment.

There may be others – my list is not intended to be comprehensive or even definitive. I don’t have a crystal ball, so time and experience will determine what we cannot now predict. Four computers, interconnected to respond to the perceived vulnerability of centralized computing, were the origins of the Internet. Distributed computing represented commercial attempts to amortize costs, decentralize institutionalized information, and enable greater redundancy and recovery capability. Networking and web-based computing gave us the ability to communicate, share and store information across multiple processors and devices through share protocols. While it’s still too foggy to tell what the future will bring, cloud computing represents the next big innovative thing in making the power of the computer and the Internet easier to use, more available, more interoperable and more cost-effective.

When the fog starts to lift, we may see clouds on the horizon. Whether they are storm clouds or fluffy wondrous sights of joy, I leave to your imagination. Stay tuned. But no matter what your visions of the future may be, if you see a cloud and you aren’t sure what the legal implications might be, please feel free to contact me, Joseph I. (“Joe”) Rosenbaum, or the Rimon attorney with whom you regularly work.

That’s Cloud Computing, Not Smog, Spreading From L.A.

Although reports of dissipating smog may be premature, if postings from Google are to be believed, Los Angeles is officially in the cloud. Google’s online email and collaboration cloud, that is! City employees will now use cloud computing for email and working on collaborative projects together. Google hails cloud computing for the city of Los Angeles as something that “will improve the security and reliability of city email, transitioning from servers in the City Hall basement to hosted, secure data centers.”

Los Angeles isn’t the only place to fall in love with clouds. VISI, the largest provider of data-center and managed-hosting services last month (December 2009), announced a public beta of ReliaCloud – a cloud computing service available to users anywhere. Set up an account online, set up computer servers in one of the VISI data centers, and employee-users can access the service from anywhere – anywhere there’s an Internet browser and connection. Cost? Reportedly, the pricing starts at 5 cents an hour! Welcome to fungible, commodity computing. According to VISI, its cloud service was designed to be reliable, affordable and scalable. The beta is targeted at small- to medium-sized commercial users, and businesses can apply at www.reliacloud.com. And VISI anticipates storage and other services to become available over time as part of a suite of offerings. Just one example among many of companies offering and embracing cloud computing.

The United States isn’t the only country where cloud computing environments are springing up. Back in September, the city of Dongying in China announced a strategic initiative with IBM, where the city is hoping to transform its industrial, petroleum-based environment into a service-driven economy. The cloud will be designed to allow start-up companies to do testing and software development through the web, but will also include electronic government services (e.g., e-services). IBM has also set up cloud computing in the Chinese city of Wuxi, and was recently picked to build another cloud computing platform – Quang Trung Software City – in Ho Chi Minh City (Saigon, the former capital of South Vietnam). For you trivia buffs, Quang Trung was an Emperor of Vietnam centuries ago. IBM is another emerging player, along with Microsoft’s Azure, Amazon.com’s EC2, and Google’s AppEngine, to name only a few of the more prominent participants in the growing move to cloud computing environments.

So, if your head is in the clouds or if all of this seems foggy to you, you should consider learning more – especially about the legal implications and issues. And you probably should start doing so BEFORE your IT, Finance, HR, Security, Audit, or Operations people (or maybe even the government regulators), come knocking on the door! Want or need help? Contact me, Joseph I. (“Joe”) Rosenbaum, or the Rimon attorney with whom you regularly work. We’ll help get you out of the mist and back on Cloud Nine!

Wandering Lonely as a Cloud? Not One Cloud Computing Inventor in Texas!

In 1804, William Wordsworth published what is certainly among the most well known and oft-read poems in the English language – it begins, “I wandered lonely as a cloud that floats on high o’er vales and hills, when all at once I saw a crowd, a host, of golden daffodils.”  Now even back in 1804, Wordsworth, no XML programming guru, was already talking about clouds, crowds and hosts . . . 

So we read recently that NetMass, a Texas company, reached a settlement and had a judgment issued in a federal patent case involving a lawsuit by an inventor, Mitchell Prust, alleging that NetMass infringed some cloud computing and cloud storage patents. Mr. Prust had apparently invented a mechanism to allow web browsers to access application programming – a fundamental aspect of cloud computing. The settlement and judgment entered by the Federal Court in Texas (Mitchell Prust v. Softlayer Technologies, Inc., et al., No. 2:09-cv-236) notes that NetMass had infringed three of Mr. Prust’s patents and enjoins NetMass from continuing to do so in the future. From current published reports, Mr. Prust also has a lawsuit pending in Federal Court in California against Apple.

This may be just the beginning of a wave of intellectual property lawsuits as cloud computing begins to evolve and become part of a commercial operational toolkit around the globe – not much different from those surrounding ATMs, online banking, networking and other once-emergent technology platforms. Stay tuned. You will be hearing more from us about clouds in the year ahead.

In the meantime, if your head is in the clouds (or perhaps just a fog), and you need help, feel free to contact me, Joseph I. (“Joe”) Rosenbaum or the Rimon attorney with whom you regularly work.