The Winter 2019 edition of the quarterly IT & Data Protection Newsletter by Reed Smith Germany has just been released.
We provide updates on Facebook Custom Audiences, social plug-ins, influencer advertising, withdrawal right information, the EU copyright law reform and more. The newsletter also includes multiple recommended reads on the GDPR.
We hope you enjoy
Copyright holders have an exclusive right to display images and other works. For the last 10 years, news organizations and other website operators have relied on the Ninth Circuit’s opinion in Perfect 10, Inc. v. Amazon.com Inc., which established a bright-line server test for determining whether a website displayed a copy of an image, and thus potentially infringed upon the owner’s copyright in that image. Under the server test, a website operator displays an image if it sends a copy of the image from its server to the end user’s browser, but does not display an image if it merely embeds instructions (HTML) in its webpage that enable the end user’s browser to request the image from a third party’s server.
On February 15, 2018, in Goldman v. Breitbart News Network, LLC, District Judge Katherine B. Forrest of the Southern District of New York rejected the server test, throwing the door open to new copyright infringement suits in the Second Circuit and beyond. The moving defendants (which did not include Breitbart) had sought summary judgment on the issue whether embedding a link to an image constituted infringement. The court held that the defendants’ websites had displayed an image by embedding instructions in their webpages that enabled browsers to request an image owned by the plaintiff – a photograph of football player Tom Brady and others – from a third-party Twitter account. Under the court’s ruling, the defendants are liable for infringement unless they prevail on their defenses (such as fair use). Even if the district court’s partial liability ruling does not reach the Second Circuit, additional copyright infringement suits based on embedding are certain to follow, eventually leading to further review and possibly a circuit split that could wind up in the U.S. Supreme Court.
Continue Reading District judge in the SDNY: Embedding links to third-party web content is copyright infringement
Ruling on what it characterized as an issue of first impression, the U.S. Court of Appeals for the Sixth Circuit suggested that a judgment of liability in a copyright infringement case may be a tipping point justifying the unmasking of anonymous internet users. The Sixth Circuit remanded Signature Mgmt. Team v. Doe, No. 16-2188 (6th Cir. Nov. 28, 2017) to the district court with instructions to reconsider unmasking the anonymous defendant, finding it had “failed to recognize the presumption in favor of open judicial records,” which is particularly strong at the judgment phase. However, the 2-1 majority pointed out reasons why unmasking still might not be necessary, triggering a dissent suggesting the majority didn’t go far enough.
In Signature Mgmt. Team, the plaintiff, a multi-level marketing company, sued defendant Doe after he posted on his blog a link to the entirety of a book copyrighted by plaintiff. Among other relief, the plaintiff moved to compel the identity of Doe. The district court required Doe to reveal his identity to the court and plaintiff, but found that unmasking Doe was “unnecessary to ensure that defendant would not engage in future infringement.” Further, the district court found that, because Doe declared that he had destroyed all copies of the infringed work in his possession, no further injunctive relief was necessary. Plaintiff appealed, arguing in part that the district court improperly disregarded the strong presumption in favor of openness of judicial records.Continue Reading Sixth Circuit Suggests Liability for Copyright Infringement May Justify Reduced First Amendment Protection for Anonymous Speech, But Recommends Consideration of Context and ‘Practical Need’ for Unmasking
In Thumbnails III, the German Federal Supreme Court (‘BGH’) held that the depiction of so-called thumbnails of pictures available from the internet does not constitute an act of copyright infringement, unless the search engine operator had knowledge of the fact that the copyrighted material had been illegally uploaded. The BGH further stressed that, with regard
On 2 June, the German Parliament (Deutscher Bundestag) passed a bill (2. Gesetz zur Änderung des Telemediengesetzes – 2nd Amending Law to the Federal Telemedia Act; “New Law”). The New Law limits the scope of potential liability for transmitting information for all professional and non-professional operators of Wi-Fi networks. In particular, operators of Wi-Fi networks shall not be liable for copyright infringements committed by the relevant Wi-Fi networks’ users, providing that:
The above exemptions shall also apply to short-term automatic store of the relevant information. The exemption shall not apply in the event that the Wi-Fi network operator collaborates with the user in order to commit illegal acts. Notably, there is no specific requirement for Wi-Fi network operators to implement and maintain reasonable security measures, such as access controls.Continue Reading German Parliament (Deutscher Bundestag) releases operators of Wi-Fi networks from liability for copyright infringements committed by the Wi-Fi network users (so-called Störerhaftung)
In May 2015 the European Commission (EC) announced its strategy for a European ‘digital single market’ (DSM) that mirrors the possibilities of the physical single market. It can be difficult to keep up with the Commission’s ever-evolving plans, so Reed Smith released a Client Alert to review some of the more controversial aspects, including the
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
In 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
On 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