Free for a Fee

By Eric Goldman

Project DOD, Inc. v. Federici, 2009 WL 4910320 (D. Me. Dec. 13, 2009)

17 USC 512(f) creates a cause of action for sending bogus copyright takedown notices. In a regulatory environment where service providers have itchy trigger fingers, it is crucial to suppress bogus takedown notices or the entire notice-and-takedown scheme becomes easily corrupted. Unfortunately, 512(f) cases have not fared well in the courts, and this one fails (at least temporarily) on procedural grounds. Nevertheless, the case illustrates the challenges faced by service providers dealing with copyright owners who freak out.

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The Obama administration has offered up a strange mix of copyright policies in its first year (both ACTA and Creative Commons, for instance), but it has at least made clear that “better copyright law” does not always mean “more copyright protection.” In the middle of December, for instance, the administration took a stand in support of a World Intellectual Property Organization treaty on copyright exceptions for the blind. The final bit of the US statement of support is worth quoting in full (emphasis added):

We recognize that some in the international copyright community believe that any international consensus on substantive limitations and exceptions to copyright law would weaken international copyright law. The United States does not share that point of view. The United States is committed to both better exceptions in copyright law and better enforcement of copyright law. Indeed, as we work with countries to establish consensus on proper, basic exceptions within copyright law, we will ask countries to work with us to improve the enforcement of copyright. This is part and parcel of a balanced international system of intellectual property.

It’s a call for “balanced” copyright taken directly to the WIPO—and it’s one opposed by the deepest-pocketed copyright holders. Here’s why.

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Google has filed 64 domain name disputes with the National Arbitration Forum since 2001. It has won 62 times, arguing that the names in question were confusingly similar to its own. But on Christmas Eve, Google suffered its second loss in eight years as the arbiters decided that groovle.com was not similar enough to Google’s name and that it had not been registered in bad faith.

This, despite the fact that groovle.com offers a “groovy custom search homepage.”

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By Eric Goldman

Columbia Pictures Industries, Inc., v. Fung, 2:06-cv-05578-SVW-JC (C.D. Cal. Dec. 21, 2009)

In a potentially significant ruling that got a little lost in the Christmas rush, a federal district court ruled on summary judgment that the “torrent site” Isohunt and related websites induced copyright infringement and were not eligible for the online safe harbors in 17 USC 512. This is one of only a few cases finding copyright inducement post-Grokster, and I believe it is the first to say that an inducement finding categorically eliminates any possible 512 safe harbor. While the loss of Isohunt from the marketplace may not be a big deal, it remains unclear if other, more “legitimate” websites will believe the court’s analysis also applies to them. If they do, this case could potentially affect the entire UGC industry.

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The content in this post was found at http://blog.ericgoldman.org/archives/2009/12/torrent_sites_i.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

Since the Seventh Circuit opinion in ProCD v. Zeidenberg (7th Cir. 1996), judicial analysis of standard form contracts has proceeded along lines that have, in general, been more favorable to the efforts of sellers and licensors seeking to enforce the provisions of “agreement now, terms later” contracts. . . .

Over time, the ProCD v. Zeidenberg approach to later-presented terms has become the majority view. But just because a court adopts the ProCD v. Zeidenberg analysis, it will not necessarily find that a “terms later” contract is enforceable. That was the case in Defontes v. Dell, decided on December 10 by the Rhode Island Supreme Court.

The case involves a dispute between Dell and consumers who claim they were wrongfully assessed a state tax on their purchase of service contracts in conjunction with a computer purchase. . . .

In endorsing the ProCD v. Zeidenberg analysis of later-presented terms, the Rhode Island Supreme Court commented:

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The content in this post was found at http://newmedialaw.proskauer.com/2009/12/articles/contracts/arbitration-clause-in-computer-purchase-contract-unenforceable-where-consumers-right-to-reject-additional-contract-terms-was-not-clearly-explained/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NewMediaAndTechnologyLaw+%28New+Media+and+Technology+Law%29 and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.