Does the VEOH Case Affect My Website?

Dear Rich: We're a web startup (a pre-startup, actually).  Can you explain the effect of the recent VEOH ruling regarding website infringement? Wow, a pre-startup! That sounds hopeful!
The case you're referring to -- UMG Recordings v. Shelter Capital, Partners -- has to do with the level of policing required by a website when users post infringing content. Veoh, a site that permits users to upload video content, was sued by Universal Music, after infringing videos were discovered on the site. Veoh had complied with all requests to remove content and had used software to seek out and identify infringing content, but some infringing music videos still made it on to the site.
DMCA as a shield. Universal argued that Veoh (our source for the kitty video) must have known of the "apparent" infringements and should not be able to use the Digital Millenium Copyright Act (scroll down) as a shield. The 9th Circuit Court of Appeals -- the first appeals court to rule on this issue -- held that the burden was on Universal to report the infringements to Veoh, stating,"Copyright holders know precisely what materials they own, and thus are better able to identify infringing copies than service providers likeVeoh." The ruling doesn't shield websites from liability for infringement but it does permit websites to use the DMCA as a shield when the website has anti-infringement policies and has otherwise responded to all requests for takedowns.

Publishing Personal Stories: What Permission is Needed?

Dear Rich: I am creating an online platform for people to share their personal stories that I am going to publish. What kind of legal document do I need to put together? Personal stories? We have a personal story we'd like to post. It's about a blogger who ordered some T-shirts but there was a problem making the registered symbol -- ® -- appear properly on the back (we're not assessing blame just yet) and so the blogger spent a lot of money on shirts with a misplaced ®. It started as a sad story but after some exchanges with customer service, we're starting to think that it will have a happy ending.
Right, you had a question. The good news is that your site can avoid most liability by abiding by the Digital Millenium Copyright Act (which shields you from claims of copyright infringement) and the rules set forth in Section 230 of the Communications Decency Act (which shields you from liability for statements published by others). Keep in mind, you must follow the rules for the shields to work. In general, your concerns for posting personal stories are outlined below:

• Copyright: You should obtain an assurance that the work is original to the author and that the author has the right to permit publication and that the author grants you the limited right to post it online. If you want more rights -- say to publish a collection of stories in eBook format -- you should acquire those rights now. The same is true if you want the option for more rights. You should learn more about acquiring publishing rights 
• Invasion of Privacy and Trade Secrets: Personal stories involve personal details. You need an assurance that the posting won't reveal any personal or trade secrets that will cause you to get sued.
• Children's Privacy: We would suggest avoiding taking any materials from children under 13.  (You can seek an assurance that person submitting the story is 13 or older.) If you start taking information from children under that age, you'll need to deal with a law known as COPPA and that may not be worth the effort.
• Defamation: Personal stories that include untrue statements about others could lead to defamation suits. You need an assurance there's nothing defamatory.

So, in summary, you need permission to publish and assurances that the publications don't violate any laws. These assurances and permissions can be bundled in a click-to-accept statement that the user must agree to before uploading the information. Any electronic method of assent that can be verified -- checking a box, clicking to accept, etc. --  will suffice.

Can You Be Sued Over What's in Your Digital Music Locker?

Dear Rich: Can a music service like Amazon's Cloud delete tunes that I upload? Cloud services or "music locker" services can (and are obligated) to delete infringing copies of music if requested to do so by a copyright owner. At least that's the position taken recently by the district court in Capitol Records v. MP3Tunes LLC.
Backstory. MP3Tunes offered a cloud based service in which people could purchase songs and place them in their digital music lockers, or they could upload songs they owned, or they could search for versions of the songs they owned online (including unauthorized versions).
MP3Tunes received DMCA notices from record labels and removed user links to the infringing songs but the company failed to delete the infringing copies from the user's music locker.
Here comes da' judge. The district court ruled against MP3Tunes for failing to remove the infringing content from user's music lockers, although that ruling was considered a "hollow victory" for the labels because the judge refused to grant the label's request to remove "MP3Tunes' safe harbor exemption. As long as MP3Tunes removed links to infringing material and deleted infringing content as requested by the copyright owner, the company could take advantage of the DMCA's so-called safe harbor.
Rock Me Amadeus. We hope you're not downloading unauthorized Falco recordings. We got in a nostalgic mood the other day and Spotified some great Falco tunes. Funny thing, Falco doesn't sound nostalgic at all. So sad he's gone. (And don't forget one of our favorite-ist Falco lyrics.)

Is Coffee Shop an ISP for Purposes of DMCA?

Dear Rich: A friend of mine runs a coffee shop and just received a DMCA notice — apparently someone in his shop has been bit-torrenting a TV show. Does my friend have any liability? Can he be considered an ISP? What should he do next?  A DMCA takedown notice is sent because a copyright owner believes someone has posted an infringement and they want it removed without the hassle of filing an infringement lawsuit. For example, the Dear Rich Staff periodically finds infringing copies of its eBooks posted at websites or blogs. Instead of writing to the individual user, we send a DMCA notice to the company that owns the blogging service or the web provider that hosts the site (the Internet Service Provider or ISP). The ISP (assuming they're not in Rumania, China, or some other country where the locals don't fear U.S. copyright lawyers) typically removes whatever is complained about -- for example, an infringing picture at a blog, an infringing movie at YouTube, etc. By promptly removing the material, the ISP is given a "safe harbor" meaning that the ISP can't be sued for infringement. The ISP then may write to the individual user who maintains the blog, website, or YouTube account and inform them about the Notice to explain why the music, movie or eBook is now missing. The individual user then has the right to file a counter-notice. (We explain the procedural aspects here.)
What's an ISP? We believe that if the copyright owner sent the notice to your friend's coffee shop, then your friend's coffee shop is beng considered as an ISP. An Internet Service Provider (ISP) also sometimes referred to as an Online Service Provider (OSP) is any business that provides access to the Internet. That includes big access providers like AOL, Yahoo! and Google, or it can refer to companies that provide website hosting, commercial wi-fi services, or file-transferring (FTP) services.
What's confusing about your friend's notice ... A DMCA takedown notice is intended to direct the recipient to take something down from the Internet (or disable access). This is obviously something within the ISP's control. We're not clear how that would work in the case of a wifi coffee shop. If there are standalone computers at the coffee house, perhaps the notice is requesting deletion of bit-torrent files -- for example, if the in-shop computers are serving as bit-torrent clients. But if the customers bring their own computers to the coffee shop, we're not sure what can be "taken down."  More information is needed. (BTW, if this answer seems disjointed, it's because we stopped mid-answer to make ourselves a cup of coffee. We've fallen pretty hard for the Blue Bottle party line and we can't seem to free ourselves).

Photo Credits: Can You Remove Them?

no shoes, no shirt;
no fair use defense

Dear Rich: Please discuss Murphy v. Millennium Radio Group, a recent case that deals with nudity, defamation and copyright law. Okay, here goes: A photographer's copyrighted picture of two nude radio "shock jocks" was published in the New Jersey Monthly. The radio station that employed the men scanned and posted the photo online (after removing the photo credit that ran alongside the photo -- known in the trade as a "gutter credit"). The station then encouraged listeners to download the photo, modify it and resubmit the photos to the station for posting. When the photographer's lawyer complained to the station, the jocks did what is expected from men who pose nude to promote radio shows -- they insulted the photographer, advised others not to do business with him, and made crude comments about his sexuality. The photographer sued for defamation, copyright infringement, and for violation of the Digital Millennium Copyright Act (DMCA). The district court ruled in a summary judgment against the photographer on all counts.
The Court of Appeals Decision. On appeal, the Third Circuit reversed. More discovery was needed to decide the defamation claims (the tapes of the show had been destroyed). The Third Circuit also blew off any fair use defense. Posting the original photo and encouraging listener modifications was a purely commercial use and carried no additional transformative message. For those keeping score, all four fair use factors weighed against the station.
Removal of the credit. The most interesting claim was the argument that the DMCA prohibited the removal of copyright management information (CMI), which includes digital identifying information such as the name of the author. The Third Circuit ruled that the "gutter credit" qualified as CMI and cutting it off the photo violated the DMCA.
Takeaway Dept. In this case, someone physically cut off the photo credit, scanned the photo and posted the digital result, something not many people anticipated would trigger a DMCA claim. Does this mean that you must always include a photo credit when you reproduce a photo? Not necessarily; it just means you cannot remove an existing credit. This issue may become more confusing if the credit is not adjacent on the printed page, perhaps something that other cases will decide. For now, gutter credits qualify as CMI, at least in the Third Circuit.

Facebook Group Copied My Photograph

Dear Rich: I recently uploaded a picture I designed for a Facebook group. Someone has taken this picture and used it in another group but slightly modified it. Would this be copyright infringement? Probably. Assuming your photo qualifies for copyright protection (most do) and assuming the copy doesn't qualify as a fair use (most don't), then the unauthorized taking of your photo is an infringement. What do you want to do about it? If you want it taken down,  a simple solution would be to use Facebook's DMCA Notice policy. Fill out this online form and unless the other party objects to the notice, the photo will be removed and that will be that. If the other Facebook group disagrees with you and files a counter notice, then the photo will stay up unless you file a copyright lawsuit. That's expensive, time-consuming and probably a financial loss for you, even if you win, (unless you can prove that you suffered serious financial damages). If you don't want to be confrontational, you can always try writing to the other Facebook group, explain that you have a copyright in the photo and ask them to remove the photo voluntarily.