Ever since the Righthaven debacle, I’ve been wondering about the profitability of copyright enforcement actions against bloggers. Bloggers aren’t the deepest pockets, and numerous copyright doctrines make wins and big judgments expensive and unlikely, plus a single 505 fee shift can erase accumulated profits from many small-scale wins (see, e.g., 1, 2, 3, 4).
Today’s case gives us some additional numbers to crunch. Mishka runs a fashion blog. She included 2 photos to which BWP owned the copyrights. (BWP is a familiar name on this blog). BWP sued in August 2013. As usual in these circumstances, BWP didn’t send any takedown notices, and Mishka deleted the photos upon receiving the complaint. In March 2016, BWP accepted an offer of judgment for $7,500 plus “costs and attorney [sic] fees in the amount to be set by the Court.”
Case citation: BWP Media USA, Inc. v. Mishka NYC LLC, 2016 WL 8309676 (E.D.N.Y. Dec. 28, 2016)
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What the RIAA and 14 other groups are telling the US Copyright Office is simple: The 19-year-old Digital Millennium Copyright Act isn’t working. They say the process of granting legal immunity—or “safe harbor”—to ISPs who “expeditiously” remove copyrighted content upon notice of the rights holder needs to be supplanted with fresh piracy controls. That’s because, they say, the process creates a so-called “endless game of whack-a-mole” in which an ISP will remove pirated content only to see it instantaneously reappear at the push of a button by a copyright scofflaw. This requires the rights holder to send a new takedown notice—often again and again.
Last week, at the ABA’s Midyear Meeting in Miami, Florida, the Section of Intellectual Property Law’s Computer Program & New Technologies Committee hosted a Q&A event with the U.S. Copyright Office to discuss the new online DMCA Designated Agent Directory. [Eric’s most recent blog post on this topic.] Attorney-Advisor Jason Sloan joined via telephone to answer a set of questions collected in advance, as well as field live questions from attendees. Below is a transcription of the Q&A session, moderated by the Committee Vice Chair Franklin Graves, published in an effort to provide answers and insights into common issues and scenarios facing practicing attorneys working with the new system.
This story has been like watching a train wreck in slow motion. In 2011 (yes, over 5 years ago), the Copyright Office announced that it was going to transition the designation of DMCA safe harbor agents from paper to electronic. The current paper-based system has been archaic since the beginning, so creating an electronic database is long overdue.
However, the transition raised the question of what would happen to the legacy registrations. Obviously the Copyright Office could scan them and feed them into the new electronic database, but that would cost some money (the Final Rule complains about the cost but doesn’t provide a number). Plus, the Copyright Office said that its initial interim rules indicated that reregistration would be required. So the Copyright Office proposed requiring all existing registrants to reregister or THEY WILL LOSE THE DMCA SAFE HARBOR.
If that isn’t troubling enough, the Copyright Office also proposed to require all registrants to re-register every 2 years–again at the peril of losing the DMCA Safe Harbor if the sites fail to do so.
The song, “Heathens,” was originally uploaded on June 15 to the file-sharing site Dropfile. That same day, the file landed on Reddit. According to a lawsuit (PDF) in New York State Supreme Court, the file was posted to the Twenty One Pilots subreddit with the title “[Leak] New Song – ‘Heathens’ The Poster submitted the link under the username “twentyoneheathens,” according to Atlantic.
Atlantic and its subsidiary label, Fueled by Ramen, want the IP address of the Reddit leaker. The company said the file fell victim to “widespread distribution” on the Internet, so the company released the single June 16, a week ahead of schedule; the label also said the early release hindered a planned rollout on Spotify, iTunes, and other platforms. Atlantic says the leaker must be an Atlantic employee who was contractually obligated not to leak the track, which is featured in the movie Suicide Squad that debuted earlier this month.