Articles Posted in Copyright

With live-streaming apps Periscope and Meerkat becoming increasingly popular, the introduction of a “live” element in the social media game is creating unique business and legal concerns. While most of the videos streamed on Periscope or Meerkat merely allow users to create real-time videos to share with their followers or show snippets of everyday life (like a walk through the park or a birthday celebration), legal complications can arise when users give viewers a glimpse into highly anticipated and publicized live events.

Posted October 12, 2015

Code Copying Case Highlights Difficulty in Getting a Preliminary Injunction

by Carolyn S. Toto

Continuing the trend in recent years of injunctions becoming harder and harder to obtain, the Northern District of California denied a motion for a preliminary injunction where the defendant has allegedly copied the plaintiff’s video game source code. Despite finding a strong likelihood of success on the merits, the judge rejected the plaintiff’s bid for a preliminary injunction because there was insufficient evidence of irreparable harm to the plaintiff, and because the balance of equities tilted in the defendant’s favor.

Posted September 28, 2015

The Case of Prince, a Dancing Baby and the DMCA Takedown Notice

by Edward A. Cavazos

Edward A. Cavazos

In 2007, Stephanie Lenz posted a 29-second video to YouTube of her baby dancing in the kitchen with Prince’s “Let’s Go Crazy” playing in the background. Claiming use of their song amounted to copyright infringement, Universal Music Corp. (Universal) sent YouTube a takedown notice under the Digital Millennium Copyright Act (DMCA). Lenz, with representation provided by the Electronic Frontier Foundation (EFF), sued Universal on the premise that Universal had abused the DMCA takedown provisions by violating Section 512(f), which bars misrepresentations of unauthorized use. According to Lenz, before sending its notice, they failed to take into account the possibility that Lenz’s video was shielded by the fair use doctrine. Last week, in Lenz v. Universal, a.k.a. the “dancing baby case,” the Ninth Circuit sided with Lenz in a ruling that will impose new burdens on copyright holders policing hosted content.

Posted September 21, 2015

A Good Rule of Thumbnail? Pay the Licensing Fee.

by Carolyn S. Toto

You hire a web designer to create a website for your business. In the background, the designer uses stock photography to beautify the page. Stock photography comprises copyrighted images—often presented in searchable online databases—that can be licensed for specific uses. This avoids the need to hire an actual photographer. The designer assures you that he has the rights to use the stock images, or more specifically, he has properly obtained a license to use the photos. Does that mean you can use those photos in your website without violating any copyrights in the photos? The answer is most likely “no.”

Posted August 19, 2015

Twitter, the DMCA and Copyright in the Age of Sharing

by Carolyn S. Toto

As social media platforms continue to find new ways to allow users to share, post, and forward nonoriginal content and users become more engaged in the practice, the platforms hosting the content and disgruntled original content owners are bound to clash. In the past, Google, YouTube and others have been targeted for allowing users to post copyright-protected material, and ordered to remove the objected to material. A recent case filed in the Central District of California involves similar allegations against social media powerhouse Twitter. In Pierson v. Twitter, Inc., the plaintiff alleges that users tweeted her copyrighted image and that Twitter failed to remove the infringing material.

Posted June 21, 2012

Game Cloning Can be Stopped!

A federal court recently found copyright infringement based on a developers copying of aspects of the popular Tetris game, even though the code itself was not copied. This ruling confirms that IP can be used to effectively prevent certain cloning practices that are prevalent with online games. While this case focused on copyright infringement, a passing note by the court highlights how patents can be instrumental to a comprehensive IP strategy as well.

In this case, Tetris sued Xio Interactive Inc. over its game Mino. Mino is a falling block game which incorporates game-play rules similar to Tetris, as well as utilizing a similar playing area and geometric block combinations. In its opinion, the court stated that game developers are free to use others’ ideas, but not the expression of those ideas. The court noted that the idea-expression dichotomy in the video game world is “simple to state- copyright will not protect an idea, only its expression – but difficult to apply, especially in the context of computer programs.”

The court summarized the law by stating generally that game mechanics and rules are not entitled to copyright protection, but courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works. Significantly however, the court noted that game mechanics and other functional game features can be patented.

The court determined that Xio did more than just incorporate Tetris‘ underlying rules in Mino. In looking at the similarity of the look and feel of the two games, the court stated that “[t]here is such similarity between the visual expression of Tetris and Mino that it is akin to literal copying” regardless of the fact that Xio did not actually copy the underlying Tetris code.

If you are a game developer and want to maximize your ability to shut down clones, it is critical to have a comprehensive IP strategy that incorporates both patents and copyrights. If you rely just on copyright, a more skillful game cloner can change the expressive elements enough to avoid copyright infringement. But if you patent core mechanics of your novel game, you can prevent others from copying that functionality regardless of how different they make the expressive elements.

Posted June 8, 2012

Around the Virtual World – June 4-8, 2012

Ubisoft Wants ‘Assassin’s Creed’ Copyright Claims Offed

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

Social network LinkedIn reports stolen passwords

Business social network LinkedIn said Wednesday that some of its users’ passwords have been stolen and leaked onto the Internet. LinkedIn Corp. did not say how many of the more than six million passwords that were distributed online corresponded to LinkedIn accounts. In a blog post Wednesday, the company said it was continuing to investigate.

Ubisoft Entertainment SA asked a California federal court on Wednesday to kill an author’s allegations that the video game maker’s popular “Assassin’s Creed” infringes a copyrighted novel, saying the writer’s claims cover generic aspects of the stories that can’t be protected.

Android Ruling A Sweeping Win For Open Source Software

A California judge’s ruling Thursday that certain Oracle Corp. Java software cannot be copyrighted is an important vindication for accused infringer Google Inc. and open source software in general, but whether the decision will have broad ramifications for software copyrights remains to be seen, attorneys say.

City introduces private social network for neighborhoods

San Mateo is making Nextdoor, www.nextdoor.com, available to all San Mateo neighborhoods. Nextdoor, the first private social network for neighborhoods, is designed to foster neighbor-to-neighbor and citywide communication. Starting now, San Mateo residents can use Nextdoor to create private websites for their neighborhoods where they can get to know their neighbors, ask questions and exchange local advice and recommendations. Topics of discussion on Nextdoor are as varied as local events, school activities, plumber and babysitter recommendations, disaster preparedness, recent crime activity, upcoming garage sales or even lost pets.

Smartphones, tablets threatening handheld video games

Smartphones and tablet computers are expanding the market for handheld video games and challenging traditional devices, forcing game developers to adapt to a rapidly changing landscape. Executives at the Electronic Entertainment Expo (E3) held this week in Los Angeles said the industry — long focused on generating blockbuster titles for PlayStation, Wii or Xbox 360 — are taking a new look at portable platforms.

World’s Largest Multi-Stakeholder Virtual Care Community Launched by the Premier Healthcare Alliance

The Premier healthcare alliance’s PremierConnect(TM) technology platform will be at the fingertips of more than 100,000 clinicians, supply chain leaders, hospital executives and other healthcare providers nationwide, allowing them to interact as one in communities of common interest.

Mary Meeker’s Latest Stunning Presentation About the State of the Web

No one in the entire world is as good at summarizing the state of the technology business through slideshow presentations as Kleiner Perkins partner Mary Meeker. She’s about to do it again at the All Things D conference.

Posted May 18, 2012

Around the Virtual World

Magid National Study Finds Social Networking Gaming Growth is Slowing

A weekly wrap up of interesting news about virtual worlds, virtual goods and other social media.

The research, conducted as part of the Magid Media Futures 2012 study, found social network gaming user growth has slowed in the United States. About two in five (38%) social network users, up slightly from 36% in ’11, say they regularly play games on social networks. Social network gaming has decreased among its primary demographic, females age 12-44, with less than 43% of users age 12-17 (down from 54% in 2011) and about 36% of users 25-44 (down from 40% in 2011) reporting playing on a weekly basis.

Internet Gaming On The Horizon For NJ, Lawmaker Says

Internet gaming could be a reality in New Jersey before the end of the year, eventually providing Atlantic City’s casinos with a much-needed influx of revenue, a state senator sponsoring such legislation told a roomful of attorneys Wednesday.

Overexposed? Thanks to SceneTap, San Francisco bars are now profiling you

SceneTap is a maker of cameras that pick up on facial characteristics to determine a person’s approximate age and gender. The company works with venues to install these cameras and track customers. It also makes web and mobile applications that allow random observers to find out, in real-time, the male-to-female ratio, crowd size, and average age of a bar’s patrons. And no one goes unnoticed. “We represent EVERYONE in the venue,” SceneTap proudly proclaims on its website.

Judge: An IP-Address Doesn’t Identify a Person (or BitTorrent Pirate)

A landmark ruling in one of the many mass-BitTorrent lawsuits in the US has delivered a severe blow to a thus far lucrative business. Among other things, New York Judge Gary Brown explains in great detail why an IP-address is not sufficient evidence to identify copyright infringers. According to the Judge this lack of specific evidence means that many alleged BitTorrent pirates have been wrongfully accused by copyright holders.

For Start-Up, Virtual Casinos

Andrew Pascal was one of Steve Wynn‘s trusted lieutenants when the Las Vegas magnate was rebuilding his gambling empire a decade ago. Now the former president of the Wynn Las Vegas and Encore casinos is the chief executive of a Silicon Valley gaming start-up aimed at running virtual casinos.

Posted April 11, 2012

Viacom Gets a Second Bite at YouTube

In one of the most closely followed cases involving the digital millennium copyright act (DMCA), an appeals court punted one of the key issues back to the lower court. The key issue left open relates to what constitutes actual knowledge for purposes of the DMCA. In light of this decision there are some interim steps companies should take in the event that the lower court rules in favor of the copyright owner.

On April 5th, 2012 the U.S. Court of Appeals for the Second Circuit issued an order in the ongoing case Viacom International Inc. et al. v. YouTube Inc. et al., vacating a lower court’s summary judgment in YouTube’s favor and remanding the matter back to the district court for consideration of whether YouTube had actual knowledge of the infringement alleged by Viacom. The underlying ruling by the district court in June of 2010 had granted summary judgment and found that YouTube was not liable to Viacom for copyright infringement relating to various videos that were available on its site due to the safe harbor language in the Digital Millennium Copyright Act.

The current opinion by the Second Circuit based its decision in part on and referenced an internal YouTube report noting that clips of certain Viacom shows were available on the site, and that such content was “blatantly illegal”. The Second Circuit’s opinion stated that “[o]n these facts, a reasonable juror could conclude that YouTube had actual knowledge of specific infringing activity, or was at least aware of facts or circumstances from which specific infringing activity was apparent”.

Moreover, while the Second Circuit agreed with underlying district court’s decision that only actual knowledge of specific and identifiable infringements bars a service provider from protection under the DMCA’s safe harbor, it felt that the lower court erred by not addressing whether YouTube had engaged in “willful blindness”. The ruling directed the district court to consider if YouTube (1) made a “deliberate effort to avoid guilty knowledge,” (2) had the ability to control the infringing activity, and (3) received a financial benefit from the infringing activity.

Ultimately, the Second Circuit opined that “we hold that summary judgment to YouTube on all clips-in-suit, especially in the absence of any detailed examination of the extensive record on summary judgment, was premature.” Given the online technology industry-wide reliance on the protections available under the DMCA, this case will continue to be one to watch. Its impact could be far-reaching whichever way it is finally decided.

Given the uncertainty regarding how this case will ultimately be decided, companies hosting user posted content should take reasonable steps to minimize any liability in the event the decision ultimately favors copyright owners. Contact us for more insights on how to do this.

Posted March 19, 2012

Real People in Video Games: 1st Amendment vs. Right of Publicity