Cyberlaw Cases

Cases and Court:

• The Authors Guild v. Google, Inc. (S.D.N.Y.).
• The McGraw-Hill Companies, Inc. v. Google, Inc. (S.D.N.Y.).

Background:

Since 2005, Google has digitally scanned over 10,000,000 books from various libraries, indexed them in its search database, and for those books under copyright and not part of its Partner Program, displaying so-called “snippets” of their content – up to three portions each no more than 8-12 lines in length – without permission from the copyright owners. As a result, a group of authors and publishers filed suit, now as a class action, for copyright infringement. Google has responded with several defenses, including the assertion that everything it is doing is a fair use under Section 107 of the Copyright Act.

Last October, the parties announced a proposed settlement of the case. The settlement agreement is over 300 pages and quite complex. It has many supporters as well as critics. Objections to the settlement can be filed up until September 4, 2009. On October 7, 2009, Judge Denny Chin will hold a hearing on whether the proposed settlement is “fair, reasonable, and adequate” to the class members. Continue Reading »

Case and Court:

Viacom Int’l Inc. v. YouTube, Inc. (S.D.N.Y.)

Background:

On March 13, 2007, Viacom and several other television and film producers filed a copyright infringement lawsuit in the Southern District of New York against Google’s YouTube subsidiary. The complaint apparently came on the heels of protracted license negotiations between the parties and thus early commentators saw the case as merely a negotiating tactic on Viacom’s part.¹ The complaint alleged at least $1 billion in damages and alleged that Plaintiffs had identified more than 150,000 unauthorized clips of their copyrighted programming.² As the case has progressed somewhat slowly, some have speculated that the delays were caused by settlement talks, but these rumors have been rebuffed by Google, whose VP in charge of content partnerships reportedly said, “We’re going all the way to the Supreme Court.”³ If Google’s resolve is unwavering, then the case could be the biggest test of the Digital Millennium Copyright Act’s (”DMCA”) “safe harbors” that limit the copyright liability of internet intermediaries. Continue Reading »

1. Anne Broache, Viacom sues Google over YouTube clips, ZDNet (Mar. 13, 2007). [↩]
2. The Amended Complaint, filed Apr. 24, 2008 contains a 1,812 page Exhibit listing 17,314 allegedly infringing YouTube videos. However, many of the videos involve the same copyrighted works, so the number of works at issue is no doubt large, but substantially less than 150,000. [↩]
3. AP, Google says it will not settle copyright issue with Viacom outside court, The Hindu (May 7, 2008). [↩]

Cases and Courts:

• Capital Records, Inc. v. Thomas-Rasset (D. Minn.).
• Sony BMG Music Ent’mt v. Tenenbaum (D. Mass.).

Background:

Of the roughly 30,000 individuals targeted by the RIAA’s effort to stamp out the trading of their member labels’ recordings over peer to peer networks, the overwhelming majority have quietly settled their disputes for a few thousand dollars. Of that small minority who have fought these cases, only two have seen a jury, both with disastrous results for the defendants. Continue Reading »

Case and Court:

Facebook, Inc. v. Power Ventures, Inc. (N.D. Cal.)

Background:

This lawsuit involves Power.com, a third-party platform allegedly “scraping” content for and from users on different social network sites into a single user interface. Facebook sued Power, claiming violations of copyright, anti-circumvention regulations, CAN-SPAM, and the Computer Fraud and Abuse Act. More on the case can be found here.

Upon a motion to dismiss the case, Judge Fogel upheld the complaint, primarily addressing the copyright and circumvention claims and whether to dismiss any of the claims outright because they were based on invalid legal theories. He refused to do so based on two cases that have troubled many copyright and internet scholars: MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) and Ticketmaster LLC v. RMG Techs., Inc., 507 F. Supp. 2d 1096 (C.D. Cal. 2007).

Fogel’s reasoning, under these cases, is that any scraping of a webpage involves copying that webpage into a computer’s memory in order to extract the underlying information contained therein. Even though this “copying” is ephemeral and momentary, he held that it is enough to constitute a “copy” under Section 106 of the Copyright Act and therefore what we lawyers call a prima facie (or “on its face”) case of infringement. Since Facebook’s Terms of Service prohibit scraping (and thus, Facebook has not given any license to third parties or users to do so), the copying happens without permission. Continue Reading »