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Two recent cases serve as a reminder of the key role an online service provider’s (OSP) terms of service play in social media marketing. The courts in Darnaa, LLC v. Google, Inc., 2015 WL 7753406 (N.D. Cal. Dec. 2, 2015) and Lewis v. YouTube, LLC, 2015 BL 428281 (Cal. App. 6th Dist. Dec. 28, 2015), came to differing interpretations of YouTube’s Terms of Service, leading to disparate results for similar plaintiffs.

In Darnaa, YouTube moved plaintiff Darnaa’s music video “Cowgirl” to a new location and reset its view count on the grounds that Darnaa used automated tools in violation of YouTube’s Terms of Service to increase its view count. Darnaa sued, alleging YouTube’s actions were a breach of the covenant of good faith and fair dealing. The United States District Court for the Northern District of California found that it was unclear whether YouTube’s Terms of Service allowed it to unilaterally remove videos and their “view counts” whenever YouTube determined those Terms had been violated. Accordingly, the court ruled that the allegations in Darnaa’s complaint were sufficient to support a claim for a breach of the covenant of good faith and fair dealing. Though the court dismissed Darnaa’s claims on the procedural grounds that it was filed late, it permitted Darnaa to refile if she could plead a compelling justification for her late filing.
Continue Reading YouTube Rulings Emphasize the Importance of an OSP’s Terms of Service in Social Media Marketing

Open book

On October 16, the Second Circuit ruled that Google’s scanning of millions of books without the copyright holders’ permission, for use in its “Google Books” database, is permissible under the fair use doctrine. Google Books enables members of the public to search for terms within these books and view snippets of machine-readable text containing their search terms.

In 2004, Google entered into agreements with a number of the world’s major research libraries, pursuant to which Google was permitted to scan more than 20 million books submitted by those libraries in order to create an online index. Google’s aim was to enable members of the public to search for terms within the machine-readable text of each scanned book, in order to see if that book contained relevant material.  The Google Books search tool does not display advertising or otherwise cost members of the public money, and searches reveal only snippets of text surrounding the words or phrases searched. Publishers and authors sued Google for injunctive relief, claiming that the search and snippet view features of Google Books undermined the value of their copyrighted works.
Continue Reading Second Circuit Holds That the Google Digital Books Project Is Protected Under the Fair Use Doctrine

Cute one-year old boy in a headset against white-178389538In the so-called “dancing baby” case, the Ninth Circuit ruled recently that copyright owners must consider the fair use doctrine before sending Digital Millennium Copyright Act (“DMCA”) takedown notifications to online service providers, such as YouTube.  If copyright owners fail to do so, they risk incurring penalties under DMCA section 512(f).

In 2007, Universal Music Group sent a takedown notification to YouTube requesting removal of plaintiff Stephanie Lenz’s 30-second clip of her son dancing to Prince’s “Let’s Go Crazy.”  After YouTube removed the video from its site, Lenz filed a counter-notice, and YouTube reinstated the video.  Though Universal did not pursue the matter further, Lenz, working with the Electronic Frontier Foundation (“EFF”), then sued Universal, alleging Universal’s takedown notification violated section 512(f) of the DMCA because her video was subject to the fair use protections of the Copyright Act (17 U.S.C. § 107).  In 2013, U.S. District Judge Jeremy Fogel denied both parties’ motions for summary judgment, ordered a trial, and both sides appealed.
Continue Reading Ninth Circuit Holds Fair Use Must Be Considered Prior to Issuing Takedown

Cute one-year old boy in a headset against white-178389538On July 7, a Ninth Circuit panel heard oral argument regarding whether copyright owners abuse the Digital Millennium Copyright Act (“DMCA”) when they utilize the statute’s Notice and Takedown procedures to request the Takedown of material that constitutes a “fair use” of copyrighted material.

In 2007, Universal Music Group sent a Takedown Notice to YouTube…

A Pennsylvania judge in the Northampton County Court of Common Pleas ruled that the defendant blogger was not liable for anonymous posts in the “comments” section of his website, despite his active moderation of these posts.

In Mezzacappa v. O’Hare (Docket No. C-48-CV-2014-4521), the plaintiff, a candidate for local office, argued that the defendant should be held liable for defamation, false light, and invasion of privacy for permitting allegedly defamatory third-party posts in the “comments” section of his blog. The plaintiff reasoned that because the defendant had the ability to, and often did, delete and disapprove of third-party comments, the comments that were allowed to stand were essentially “approved” by defendant.

The defendant argued he was protected by section 230 of the Communications Decency Act (47 U.S.C.A. § 230(c)), which holds that no provider of an interactive computer service shall be treated as the publisher or speaker of information provided by another “information content provider.” In this case, the defendant argued that an anonymous poster on his blog was an “information content provider” for purposes of the statute.Continue Reading Blogger Immune From Suit for Anonymous Comments