As previously reported, last year the Copyright Office introduced a new electronic process through which online service providers must file their designation of agent pursuant to the Digital Millennium Copyright Act (“DMCA). Under the old, paper-based filing system, designations remained valid indefinitely unless replaced or affirmatively withdrawn. However, as part of the transition into the new electronic … Continue Reading
The Copyright Office recently introduced changes to the process by which online service providers can designate an agent under the Digital Millennium Copyright Act (“DMCA”). To qualify for DMCA safe-harbor protections, service providers are required to maintain with the Copyright Office contact information for an agent designated to receive takedown notices. The changes, which go into effect … Continue Reading
There are many articles circulating the web about new live-streaming video technologies like Meerkat. These tremendous apps make it possible for users to stream real time video from their phone to the internet for all to view, turning every individual into a real-time video-journalist. Brands and entertainment properties have also jumped into the fray … Continue Reading
Last month, music label Ultra Records and its publisher, Ultra International Music Publishing (referred to generally in this post as “Ultra”), sued popular YouTube video blogger Michelle Phan for copyright infringement. Ultra is a popular dance-music label and its roster of artists includes Kaskade, deadmau5, and Late Night Alumni. Ms. Phan is a YouTube sensation … Continue Reading
One of the big questions preceding the Supreme Court’s decision in the Aereo case earlier this week was whether a holding against Aereo would put cloud services into such a legally precarious position that the innovation and investment climate would chill. While the decision clearly makes Aereo’s use of its technology illegal, one should not … Continue Reading
A recent case underscores the importance of paying attention to the conditions set forth in a technology services agreement, and how those may affect the notion of a “work made for hire” under the Copyright Act. Plaintiff web developer delivered a signed proposed contract to defendant customer on July 10, 2010. The proposed agreement contained … Continue Reading
Earlier today the U.S. District Court for the Southern District of New York granted Google’s motion for summary judgment in the 8-year-running Google Book Search case. The court held that Google’s copying and display of in-copyright books is a noninfringing fair use. The decision is a signal that modern copyright law, despite its many flaws … Continue Reading
It is a phenomenon that plagues businesses in every industry — the competitor that copies the company’s website. A federal court recently held that one such company accused of website copying may be liable for copyright and trade dress infringement. Plaintiff runs an online service providing information about liens and other issues relevant to the … Continue Reading
Anyone involved with software licensing is familiar with the “integration clause” – usually a provision titled “Entire Agreement” toward the end of the document. Though such clauses purport to make what the agreement says the “entire agreement,” that does not always happen. An end user license agreement (“EULA”) that was the subject of a recent … Continue Reading
Singer-songwriter and Grammy winner Aimee Mann recently filed a lawsuit against MediaNet Digital, Inc. (“MediaNet”), an online media distribution company. Similar to better-known companies like Spotify and Pandora, MediaNet offers millions of songs and a technology platform to a large roster of online music services, including Yahoo Music, MTV, Songza, and eBay. MediaNet does so … Continue Reading
A recent federal court decision confirms that, without more, merely providing a link to copyrighted content is not direct infringement of the copyright in that content. Plaintiff sued defendants for copyright infringement based on defendants’ alleged unauthorized sale of educational materials online. A paralegal in plaintiffs’ law firm sought to buy some of the infringing … Continue Reading
A recent decision from a federal court in Missouri highlights some of the difficulties presented by mass copyright infringement litigation against BitTorrent users. The court held that the “joinder” of all defendants in a single lawsuit was not proper based on interests of fairness and judicial economy. The Rules of Civil Procedure allow joinder of … Continue Reading
Capital Concepts, Inc. v. Mountain Corp., 2012 WL 6761880 (W.D. Va. December 30, 2012) The parties in a recent case engaged in expensive litigation they could have avoided if language governing transfer of copyright had been more precise. The decision serves to remind how good drafting in development agreements — whether for software, content, or, … Continue Reading
The Ninth Circuit's recent analysis in MDY v Blizzard Entertainment examined contributory/vicarious ("secondary infringement") copyright issues, the "essential step" defense, the important and often highly disputed contractual covenant versus copyright license issue, and last, but certainly not least, the DMCA's role. I recommend you read the full opinion to gain the complete picture, but for this post we'll be focusing on the copyright covenant vs. copyright license issues and touching on the DMCA's role.
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As of late there has been a great deal of news and discussion concerning "web scraping." Web scraping is the practice of using computer software to extract information from a website. In short, a wealth of information exists on the Internet and companies of all stripes are interested in collecting it from websites, compiling and combining it, and using it to further their business.
Scraping raises a multitude of legal issues, including issues related to privacy and security intellectual property, and laws concerning unauthorized access to computers and trespass to chattels (in fact, the overlapping issues raised by scraping represent a very good example of what we call "information law"). Many companies attempt to stop scraping of their websites from occurring in the first instance. This can be achieved by implementing technologies such as CAPTCHA (which are becoming ubiquitous) that are intended to ensure that a human is entering the website rather than a computer software program or bot. If technologies like CAPTCHA are evaded by scrapers, some websites might pursue an action under the anti-circumvention provisions of the Digital Millennium Copyright Act (the "DMCA"). The DMCA provides for potential statutory penalties and even criminal sanctions for violations of its anti-circumvention provisions. This post explores how the DMCA might be used in this context and looks at some cases addressing whether circumvention of CAPTCHA (and similar protocols) might result in violation of, and liability under, the DMCA.
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