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Conquering Rome: Is ‘Rome Sweet Rome’ owned by the Internet?

November 14, 2011 5 comments

By Nickolas Solish

[Originally published in the Los Angeles Daily Journal on November 11, 2011.  Reposted here with permission.  All rights reserved.]

 

When a story is written by a crowd, who owns the rights to it?  That is the question with “Rome Sweet Rome,” a new screenplay penned by James Erwin on social media site Reddit.com.  The story was inspired by an idea from one user, written into a short story by Erwin, and had music, mock movie posters and other graphics contributed by others.  Last month, Warner Bros. purchased the rights to the screenplay from Erwin, but the question remains: who, if anybody, owns the rights to “Rome Sweet Rome”?

 

The idea for the movie came from a question posted by user “The_Quiet_Earth” on Reddit’s message boards: “Could I destroy the entire Roman Empire during the reign of Augustus if I traveled back in time with a modern U.S. Marine infantry battalion or MEU [Marine Expeditionary Unit]?”

 

Prufrock_451 (James Erwin) responded to the question in story form, describing the MEU’s first day in ancient Rome.  Erwin’s subsequent entries followed the time-traveling marines through eight days of adventures and inspired a dedicated Reddit community called “Rome Sweet Rome.”  Other users contributed fan made art, mock movie posters, and even contributions for a “Rome Sweet Rome” soundtrack.

 

After a short time, Adam Kolbrenner of Madhouse Entertainment approached Erwin about writing a screenplay.  A contact of Kolbrenner’s at Warner Bros. liked the idea and the studio purchased rights to a movie version of Erwin’s story.

 

This simple scenario was complicated by Reddit’s user agreement, which states in part:

 

“you agree that by posting messages, uploading files, inputting data, or engaging in any other form of communication with or through the Website, you grant us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, adapt, translate, enhance, transmit, distribute, publicly perform, display, or sublicense any such communication in any medium (now in existence or hereinafter developed) and for any purpose, including commercial purposes, and to authorize others to do so.”

 

Effectively, this appears to give Reddit and its parent Condé Nast the ability to transform or adapt Erwin’s story for any purpose, including commercial purposes.  The Hollywood Reporter rightly mused that Erwin could probably write a full script and copyright that.

 

Though Reddit might have the right to take Erwin’s underlying idea and develop it into a separate script and sell it to a rival studio, this is unlikely.  For one, sites like Reddit are largely dependent on user submitted content to attract visitors.  Reddit is unlikely to risk endangering the 1.8 billion monthly page views it received in October by commercializing user content without that user’s permission.  The vibrant Reddit community is largely supported by the goodwill its users.

 

On the other hand, Condé Nast has had trouble monetizing Reddit and may see “Rome Sweet Rome” as a business opportunity.  A major movie concept from comments wholly owned by Reddit may be worth the fight for Condé Nast, though they have yet to make any legal moves towards challenging the sale to Warner Bros.  Yet if Reddit moderator hueypriest’s recent comment that it would be “completely against our interests to sabotage something awesome created by a Redditor” is any indication, Reddit is unlikely to act in the near future.

 

Besides the issue of Reddit’s licensing rights are questions of the multi-author, crowdsourced nature of “Rome Sweet Rome.”  The_Quiet_One was not compensated for coming up with the idea for the movie, though the original concept was his idea.  Also uncompensated were the users who contributed mock-ups for movie posters, movie music and logos.  Are these users also entitled to compensation by Warner Bros?

 

Under the copyright code, a “collective work” is “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.”  17 U.S.C. Section 101.  “Rome Sweet Rome” does not appear to fit into this category, as it is a single story, not a collection of separate and distinct short stories or articles.

 

Interestingly, a work is created under the copyright code when it is “fixed in a copy or phonorecord for the first time.”  17 17 U.S.C. Section 101.  Subsequently, a “derivate work” is defined as one that is “based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”

 

From these definitions, one could speculate that The_Quiet_One “created” the concept for “Rome Sweet Rome” when he posted the question about an MEU in ancient Rome to Reddit.  Because Erwin’s story was based upon this preexisting idea, “Rome Sweet Rome” is arguably a derivative work.

 

The question of who owns the movie is intriguing because it’s largely new territory under the copyright code and intellectual property laws.  Never before has an Internet comment turned into a screenplay, let alone be purchased by a large studio.  The answer to who owns the story will shape the future of copyright protection for crowdsourced works and may make sites like Reddit weigh user opinion against future mon

Hotfile getting hotter: The cyberlocker site fires back at Warner Bros.

September 16, 2011 Leave a comment

By Nickolas B. Solish

This is a follow-up to “Cyberlocker sites come under the radar of copyright holders,” which ran in the Daily Journal on Aug. 19.

Striking back against its accusers, the file-hosting website Hotfile.com has brought a countersuit against Warner Bros. Entertainment alleging copyright fraud and abuse.  The complaint accuses Warner Bros. of abusing Hotfile’s anti-piracy tool by filing false copyright take-downs notices.  These notices are only to be used for copyrighted files owned by Warner Bros..  Now the Florida-based company is seeking damages from the movie giant.

The complaint comes after an earlier suit this year against Hotfile by the Motion Picture Association of America, an association of five major Hollywood studios.  The suit is based on a larger campaign by the MPAA to attack copyright abuse on cyber-locker sites.  A cyberlocker is an online storage provider that allows users to upload and share files.  Visitors to the site then can download those files for free by clicking a link.

Cyberlocker sites came under the attention of the MPAA due to a spike in traffic since the beginning of 2011.  These sites now receive more traffic than BitTorrent sites, bringing them under scrutiny by the major studios.  Hotfile recently became one of the top 100 visited websites in the world.

Hotfile’s recent suit against Warner Bros. is a counter-claim to the original MPAA action.  The counterclaim accuses Warner Bros. of “repeated, reckless and irresponsible misrepresentations to Hotfile falsely claiming to own copyrights in material from Hotfile.com.”  The complaint goes on to say that Hotfile even told Warner Bros. about these misrepresentations, but even this did not stop the false claims.

To fight copyright abuse, Hotfile provides “special rightsholder accounts” to certain copyright owners.  Warner Bros. had such an account assigned to their manager of anti-piracy Internet operations, Michael Bentkover.  The tool allowed an unlimited amount of file-takedowns by copyright holders, so long as the complainant held the copyright to the file.

Many of the files taken down by Warner Bros. were not files for which they owned copyrights.  Hotfile alleges this was a breach of the special rightsholder account agreement, which provided that when Warner Bros. reported a file, it was asserting “under penalty of perjury that [it is] the owner or an owner or an authorized legal representative of the owner of copyrights.”  Warner Bros. also represented that it had a “good faith belief” that the owner did not authorize use of the file on Hotfile.com.

Warner Bros. is accused of “willful blindness” in its use of the special rightsholder account.  The complaint points out that Warner Bros. searched for a file entitled “The Rite,” which had been uploaded to filesonic.net, not Hotfile.com.  “[B]ecause Warner apparently went to a third party search site looking for links to The Rite, it returned a page containing not only the filesonic link to The Rite but also dozens of seemingly unrelated links to other files at filsonic.com, Hotfile.com and other sites.”  Warner then “used the [special rightsholder account] to delete each of the twenty or so Hotfile links listed on that page even though . . . none appear to have any relationship to The Rite or to Warner.”  Warner Bros. is accused of deleting “hundreds if not thousands” of similar files in this manner.

Interestingly, there is speculation that Warner Bros. had a financial incentive other than preventing infringement for taking these files down.  A deal was proposed by Warner Bros. to replace files removed for infringement with links to purchase Warner-owned content.  If Warner Bros. takes down more files, they create more links to paid content sites.

The three counts Hotfile alleges are violations of the Digital Millennium Copyright Act, intentional interference with a contractual or business relationship, and negligence.  The complaint demands a jury trial and asks for compensation for lost revenues caused by Warner Bros’s actions.  Finally, the complaint asks for a permanent injunction requiring Warner Bros. to individually review every file they request to be taken down.

This suit and the original MPAA suit have the potential to greatly alter the legal landscape for cyberlocker sites on the Internet.  Hotfile’s countersuit will also clarify how much legal recourse websites have against big copyright holders under the DMCA.  A trial date has not yet been set.

Is Grooveshark Swimming in the Deep End?

By Nick Solish

Originally published in the Daily Journal on July 28th, 2011

Troubles seem to be never ending for music streaming site Grooveshark.com.  A complaint was recently filed by a group of songwriters and copyright holders accusing the Web site of copyright infringement.  Grooveshark allows users to listen to music via streaming, a continuous downloading and playing of a song using an Internet connection.  It is unique from services like Pandora and Last.fm because it allows users to pick the actual tracks that they listen to, whereas Pandora and Last.fm will play similar tracks but do not give users song-by-song control.

Grooveshark has been the target of copyright infringement lawsuits by big music publishers like Universal Music Group, with whom a case is currently pending.  Grooveshark has also faced EMI Music in court, with whom they are settling.  However, despite Grooveshark’s attempts to make licensing deals with copyright holders, a new complaint has been filed against the company for failure to do so.

Several music copyright companies have sued Escape Media Group (Grooveshark’s parent company, “EMG”) in the Middle District of Tennessee.  Amongst the plantiffs are former Grand Funk Railroad frontman Mark Farner and Larry Weiss, writer of “Rhinestone Cowboy.”  The plaintiffs accuse EMG of copyright infringement, including contributory copyright infringement and vicarious copyright infringement.

The plaintiffs allege that Grooveshark provided its customers access to copyrighted music without having to pay for it.  Specifically, it claims that users can listen to entire copyrighted works using “on-demand streams,” which they define as “on-demand real time digital transmissions of sound recordings using so-called streaming technology.”  The complaint also alleges that Grooveshark actively encourages users to share music through services like Facebook and Twitter, and further accuses Grooveshark of encouraging users to upload copyrighted content to the site.  This uploaded content then becomes part of the searchable database accessible by Grooveshark users.

Plaintiffs are upset because Grooveshark failed to obtain plaintiffs’ “authorization, license or permission” to use the sound recordings on its site.  They also cite EMG’s failure to obtain a compulsory license before copying plaintiffs’ music onto EMG’s computers.

EMG has faced scrutiny in the past for its approach to music.  The Grooveshark app has been removed both from the Apple Store and the Android App Store in the past few years due to mounting pressure from music copyright holders.

Defending against a recent lawsuit filed by Universal Music Group, Grooveshark’s Senior Vice President of Information Products, Paul Geller, wrote an open letter defending Grooveshark as entirely legal.  Geller cited Grooveshark’s policy of honoring “take down claims,” which allegedly put them in full compliance with the Digital Millennium Copyright Act (DMCA).  Compliance with DMCA “take down claims,” argues Grooveshark, brings them under the same protection as Youtube.com, who is only required to take down offending videos if a proper take down claim is filed and deemed legitimate.

Geller also notes that Grooveshark has already secured thousands of licenses from copyright holders and is attempting to secure licenses for all of its music.  Finally, Geller cited over two million songs that Grooveshark has taken down in response to take down complaints, as evidence that they are trying to maintain strict compliance with copyright law.  An earlier suit between Grooveshark and EMI ended in a licensing deal, which Geller no doubt hopes will be repeated in future suits.

However, it is unclear whether removing infringing content is enough to put Grooveshark in compliance with the Copyright Act.  Grooveshark’s legal status is likely to hinge on whether it is considered an interactive service as defined in 17 U.S.C. Section 114(j)(7).  In Arista Records LLC v. LAUNCH Media Inc., 578 F.3d 148 (2d Cir. N.Y. 2009), several large copyright holding groups led by BMG sued Yahoo’s interactive radio service, LaunchCast, under the DMCA.  Interactive services under the DMCA are required to pay licensing fees to content owners, whereas non-interactive services merely have to pay a smaller statutory licensing fee.

The Copyright Act defines a service as interactive if it is either specially created for the user or if a user can use the service to find and play a specific song.  Grooveshark’s ability to allow users to pick specific songs and create playlists seems to make the service “interactive” under the statute, which may make it vulnerable in the current suit.

The current suit appears to follow in the footsteps of the recent Universal Music Group suit. In January 2010, UMG brought suit against Grooveshark in New York state court, which is unusual because the case was not filed in federal court and only pursued violations against pre-1972 recordings.  Filing specifically for these violations allows UMG to recover under both federal and state law, whereas post-1972 recordings would only be recoverable under federal law.  A New York case, Capitol Records Inc. v. Naxos of America Inc., 262 F.Supp.2d 204 (2003), held that pre-1972 recordings are protected under state copyright law because 17 U.S.C. Section 301(c) allows recovery for these recordings under state common law or state statutes until Feb. 15, 2067.

It remains to be seen whether the current suit will end in a settlement and possible licensing deal.  However, attitudes in the industry toward alleged music pirates may be changing.  This week, former Google.com chief information officer Douglas C. Merrill, once an EMI executive, said publicly that LimeWire pirates were some of the best customers on iTunes.  He was speaking at an Expo in Sydney about data he had obtained as chief operating officer of New Music and president of Digital Business at EMI.  During his time there, he profiled users of LimeWire, a music downloading service, and found that its users actually were more likely to purchase music than the average person.

The future of Grooveshark is indicative of the future of music on the Internet.  If innovative services like Grooveshark.com are shut down by music industry hold-outs, the future of digital music on the Internet is like to stagnate.  However, Grooveshark users are given free access to copyrighted music that otherwise would have to be purchased, compensating artists and copyright holders.  One thing is clear: Whatever happens to Grooveshark will be a bell-weather for other music streaming sites, and the decision will be watched closely by those within the music industry.

Nick Solish is a lawyer at Bryan Cave and recent graduate of the University of Texas. He can be contacted at nickolas.solish at bryancave.com.

Sink or Swim: Can Grooveshark Maneuver the Ocean of Copyright Laws?

By Nick Solish

Imagine using the Internet to listen to any song you wanted to for free.  Now imagine putting those songs into playlists, sharing them with friends, and listening to them from your mobile phone.  This is the concept behind Grooveshark.com, listed in Time Magazine’s “Best Websites of 2010,” a Web site where users can upload music and listen to other users’ musical uploads.

Recently, Google.com removed Grooveshark’s application from the Android mobile store for violating Google’s terms of service.  Google did not mention any specific violation, but has recently courted record labels and copyright holders in anticipation of Google’s new music downloading service.  There was also speculation that record companies pressured Google to remove the application or face legal action.  Apple Inc. similarly removed its iPhone Grooveshark application in August, 2010 after receiving a complaint from Universal Music Group, who is currently in litigation against Grooveshark.

In response to Google’s recent action, Grooveshark’s Senior Vice President of Information Products, Paul Geller, wrote an open letter claiming their operation is entirely legal.  Geller cites Grooveshark’s FAQ page, which states they will honor “take down claims” that fully comply with the Digital Millennium Copyright Act (DMCA) terms and will remove infringing content.  Compliance with DMCA “take down claims,” argues Grooveshark, brings them under the same protection as Youtube.com, who is only required to take down offending videos if a proper “take down claim” is filed and deemed legitimate.

Geller also noted that Grooveshark has secured licenses with thousands of artists and is working to secure licenses with others.  Grooveshark claims to pay copyright holders for sound recordings played through its service.  Furthermore, it has taken down almost two million infringing files and suspended over 20,000 user accounts for copyright infringement.  A 2009 suit with EMI Music, one of the big four record companies, was dropped in favor of a licensing deal; Grooveshark hopes more record companies will follow.

However, it is unclear that compliance with the DMCA is sufficient to make Grooveshark’s operations entirely legal.  Whether its operation is protected by the copyright code may hinge on whether Grooveshark is deemed an interactive service as defined in 17 U.S.C. Section 114(j)(7).  In Arista Records LLC v. LAUNCH Media Inc., 578 F.3d 148 (2d Cir. N.Y. 2009), a consortium of groups led by BMG, the third largest group of record labels, sued Yahoo’s interactive radio service, LaunchCast, under the DMCA.  The DMCA requires an interactive service to pay licensing fees to content owners, whereas a non-interactive service merely has to pay a smaller statutory licensing fee.

The appellate court in Arista Records discussed the definition of an interactive service under the DMCA as a service “enabl[ing] a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient.”  The phrase “specially created” is ambiguous and the court examined Congress’ intent in enacting the 1972 Copyright Act to determine what “specifically created” meant, finding the intent behind the protection of sound recordings was to prevent piracy.  Radio stations were exempted as radio broadcasting was considered free advertising for record companies.

In response to the growth of Internet radio, Congress enacted the Digital Performance Right in Sound Recordings Act (DPSR) in 1995. This gave copyright holders of sound recordings an exclusive, but narrow, right to perform or play sound recordings via digital audio transmission.  This right only extended to performances through paid subscription services and “interactive services.”  These service providers were required to obtain licenses for each sound recording performed, while non-interactive services qualified for the much lower statutory licensing fees set by the Copyright Royalty Board.  The law was partly enacted because it was believed that interactive services would be a greater detriment to record sales than non-interactive services, which more closely mirrored traditional radio.

The Copyright Act defines a service as interactive if it is either specially created for the user or if a user can use the service to find and play a specific song.  The 2nd Circuit determined the LAUNCHcast service would be interactive if a user could request and play a particular sound recording or have a program specially created on request.  LAUNCHcast does not do this, rather, it bases song recommendations on genres a user enjoys and on a song rating scale.  Consequently, the 2nd Circuit deemed it as non-interactive and thus, not responsible for individually licensing performed sound recordings.  Applying this criteria, Grooveshark seems to be an interactive service under the DPSR and the 1972 Copyright Act.  It allows users to play specific sound recordings at their request, meeting the 2nd Circuit’s criteria for an interactive service.  Thus, despite Grooveshark’s compliance with take down notices, it is unclear how this will shield them from liability under the DPSR interactive services provision.

In January 2010, UMG brought suit against Grooveshark in New York state court.  UMG’s suit is unusual because it was not filed in federal court and only pursued violations against pre-1972 recordings.  Filing specifically for these violations allows UMG to recover under both federal and state law, whereas post 1972 recordings would only be recoverable under federal law.  A New York case, Capitol Records Inc. v. Naxos of America Inc., 262 F.Supp.2d 204 (2003), held that pre-1972 recordings are protected under state copyright law because 17 U.S.C. Section 301(c) allows recovery for these recordings under state common law or state statutes until Feb. 15, 2067.   Grooveshark faces an uphill battle both because it is dealing with unfamiliar state common law remedies, and because it is located in Florida.

UMG does not specifically allege that Grooveshark is an interactive service and therefore owes compulsory licensing fees under the DPSR.  However, UMG does allege that users access protected content on Grooveshark through a search, and when a file is played, Grooveshark’s Web site creates a copy of that sound recording on the user’s computer, which then plays for the user via streaming.  Furthermore, UMG discusses Grooveshark’s VIP service where users are charged a monthly fee but can store music on their phones, like an mp3 player.  These allegations form the basis for its copyright infringement claim, based on illegal distribution and copying of protected content.

UMG is using the Naxos decision to seek additional remedies that may be prohibited under the 1972 Copyright Act.  The Naxos court noted that “‘where a product is placed upon the market, under…statement that the substitute or imitating product is a duplicate of the original, and where the commercial value of the imitation lies in the fact that it takes advantage of and appropriates to itself the commercial qualities, reputation, and salable properties of the original, equity should grant relief.’”  Escape Media Group (EMG), Grooveshark’s parent company and defendant in UMG’s suit, mostly denied the allegations of the complaint in their answer without further explanation.  However, EMG specifically denied that any of the features of Grooveshark’s VIP service were designed to enhance infringement and distribute any sound recordings to users.

It remains to be seen whether Naxos will be interpreted to allow common law or state statutory remedies against Grooveshark.  Its files do seem to imitate real mp3s by acting as duplicates of songs users must otherwise purchase, which makes the service commercially valuable.  Grooveshark may argue they are equivalent to an Internet radio service, but giving users control over songs played distinguishes it from traditional radio, or even Internet radio companies.

While it is unclear whether UMG will succeed in its suit, it does seem like Grooveshark will be swimming upstream.

*Originally published in the Los Angeles Daily Journal on May 2, 2011.  Reprinted with permission.  

Is Amazon’s Head in the Clouds?

By Nick Solish

What’s a billion dollars between friends?  Quite a bit, when it comes to the potential revenues from Amazon’s new Cloud Drive and Cloud Player services.  These services allow customers to upload music files to private, user-specific online drives (the Cloud Drive) and then listen to these files remotely using the Cloud Player.  Amazon has encountered harsh criticism from major record labels for releasing both services without first obtaining music licenses.  Amazon maintains that it does not need to obtain new licenses from record companies because users are simply streaming content they already own.  If Amazon is required to obtain additional licenses, it would mean big business for record labels.  In the next 10 years, revenue from digital file streaming is predicted to be in the billions.

Several unanswered legal questions will greatly affect whether Amazon will have need to obtain additional licenses for its Cloud Player.  For one, can Amazon allow users to stream files they already own without obtaining a separate license?  Second, does streaming create a copy for purposes of infringement?  Finally, can Amazon allow users to stream already-licensed content under a fair use theory?  So far, it is unclear if Amazon’s failure to obtain new music licenses is risky or bold.  If successful, Amazon will have bypassed a major expense.  If not, Amazon could face lawsuits potentially ending the service.  Other players in the streaming market, Apple and Google, are watching closely to see what happens.

 “Streaming media” is video and audio content distinguished by its delivery method of being continuously received or “streamed” from a remote server.  Streaming met legal challenges as early as 2000.  In UMG Recordings Inc. v. MP3.com Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000) Universal Music Group (UMG) accused MP3.com of infringing copyright by allowing users to stream unlicensed music for free.  MP3.com copied music CDs onto its servers and then streamed the files to subscribers of the site without charge.

In MP3.com, defendants argued that their actions were protected by the Fair Use Doctrine.  Specifically, MP3.com argued that it had transformed the songs to a new medium by “space shifting” them, trying to draw parallels to the idea of “time-shifting” in Sony Corp. of America v. Universal City Studios Inc.,464 U.S. 417 (1984) (“Sony”).  “Time-shifting” is making copies of protected content to watch it later while “space-shifting” is transforming a file from one type to another, e.g. a CD track to an mp3.  The Sony decision protected time-shifting of entire television shows and also provided the first protection for makers of video recording devices.

The 9th U.S. Circuit Court of Appeals protected space shifting in RIAA v. Diamond Multimedia, 180 F.3d 1072 (9th Cir. 1999).  In this case, plaintiff claimed music files copied from a computer to the Rio MP3 player were infringing copies.  The court held that the Rio merely space-shifted files that were already on the user’s hard drive.  This use was non-commercial, personal use that did not create infringing copies under the Copyright Act.

In MP3.com, defendant argued that it was merely space-shifting files. However, the court found that MP3.com’s use was insufficient to establish transformed character of the protected work.  MP3.com added no “‘new aesthetics, new insights and understandings’ to the original music recordings it copie[d]…but simply repackage[d] those recordings to facilitate their transmission through another medium.”  This came close to the core of intended copyright protection because MP3.com was essentially giving away protected content and earning ad revenues from users.  The company was forced to settle the case for $54 million.

Amazon’s argument is essentially that it is merely allowing users to space shift files already in their possession to a remote storage drive.  While this argument was unsuccessful for MP3.com, there are a number of differences between Amazon’s Cloud Player and MP3.com.  A clear distinction is that Amazon is only allowing users to upload and stream files which their users already possess.  Amazon is not making copyrighted content available to the general public for free, but rather is allowing users to remotely store and later access content they already possess.  Amazon itself already has licenses for a great deal of musical content, where MP3.com had none.  Finally, Amazon is only allowing users to access their own uploaded content, where MP3.com allowed all users to access all uploaded content for free.

Another legal challenge faced by Amazon is whether copies of files made to facilitate streaming are sufficient to infringe copyright.  An allegedly infringing copy must be “fixed” which is defined under Section 101 of the Copyright Act as being embodied in a phonorecord or other medium allowing it to be perceived for more than transitory duration.  (During streaming, data is contained in a buffer, allowing the stream to briefly continue uninterrupted in case of connection loss.)  There is a split of authority between the 2nd U.S. Circuit Court of Appeals and 9th Circuit as to whether this type of buffer data exists for transitory duration or not.

In MAI Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir. 1993), the 9th Circuit  held that a temporary copy of a program created in a computer’s RAM was an infringing copy –  17 U.S.C. Section 117 specifically allows the creation of copies essential to loading software without obtaining permission from the rights holder; RAM copies are both temporary and essential for the program to load.  However, since some RAM copies of MAI’s software existed for a few minutes, the 9th Circuit held that RAM copies were sufficiently fixed under the statute, thus making them infringing copies.

The 2nd Circuit took a differing view on whether buffer data created fixed copies.  The Cartoon Network LP v. CSC Holdings Inc., 536 F.3d 121 (2d Cir. 2008) case involved defendant Cablevision’s remote storage DVR (RS-DVR) system, which allowed users to stream content from a remote DVR.  Plaintiffs alleged that buffered copies were analogous to RAM copies and, based on the holding in MAI, were sufficiently fixed to infringe copyright.

Cablevision argued that buffer data was de minimis due to its short lifespan of 1.2 seconds.  The 2nd Circuit rejected the 9th Circuit view that the buffered copies used for streaming were fixed for more than transitory duration, and held that Cablevision’s buffering did not create an unlicensed copy for purposes of copyright infringement.  The U.S. Supreme Court declined review in 2009, effectively protecting Cablevision’s RS-DVR and streaming system.  However, without a Supreme Court ruling or new statute, this same issue may continue to receive inconsistent treatment in other circuits.

This legal uncertainty leaves Amazon potentially exposed to litigation and underlines why Amazon’s release of the Cloud Player and Cloud Drive was risky. If Amazon is seeking protection from Cablevision, it will have to be careful.  Amazon’s new service differs somewhat from Cablevision’s RS-DVR system.  Cablevision’s RS-DVR copied files to a central server which users could then access remotely.  Here, Amazon’s service will allow playback on multiple remote devices, including phones, tablets and PCs, among others, and there is no indication that the original files must be maintained on the user’s local machine.  Thus, Amazon’s decision to go ahead with its service without first seeking music licenses seems risky and potentially difficult to defend in court.  It would be a shame if this new technology was thwarted by Amazon’s arguably reckless failure to seek music licenses before the Cloud Player’s release.

*Originally published in the Los Angeles Daily Journal on April 11, 2011.  Reprinted with permission. 

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