Beware: Copyright Trolls Have Landed in Tennessee

It was only a matter of time before copyright trolls filed a bit-torrent lawsuit in Tennessee, like they've done in so many other jurisdictions across the country.  Over the past couple of years, I have helped individuals who find themselves at the opposite end of one of these lawsuits.  Now they've come to roost in our own backyard, filing suit on behalf of "Inseparable Prez" against more than 80 unknown defendants in Nashville, and more than 70 in Knoxville.  I imagine this is just the tip of the iceberg.  (For a 2012 article in the ABA Journal where I'm quoted on the copyright troll problem, see here.)

I am a strong believer in our copyright system, and I represent rights-holders every day against infringers.  But this is a different animal.  While owners of copyrights have every right to enforce and protect their copyrights, the technique the trolls are employing here is a modern twist on the old-fashioned shake down.  In my opinion, their methods are questionable at best and close to extortion at worst.

Their methods are similar wherever they go.  They obtain IP (Internet protocol) addresses of individuals they suspect have used a "bit-torrent" device to access movie content without paying for it.  They then file suit in federal court against multiple "John Does" and attach a list of the IP addresses as an exhibit to the complaint.  Next, they file a motion explaining that they need a subpoena to order the ISPs (Internet service providers, such as Charter or Comcast) to reveal the identity of individuals associated with each particular IP address.  By law, the ISPs are required to reach out to the John Does and tell them they have 30 days to file a "motion to quash" the subpoena, or otherwise settle the lawsuit.  If the individuals take no action, the ISPs will release their identities to the Plaintiff, after which the Plaintiff will amend the complaint to name the individual in the copyright infringement action -- for all the world to see.

Some courts have found several problems with the Plaintiffs' methods in these cases.  First, these Plaintiffs are suing IP addresses, not individuals.  Second, many of the individuals may not reside in Tennessee -- in legal terms, the court has no personal jurisdiction over them.  Third, they are attempting to "join" multiple defendants into a single action, when they involve completely different facts.  The only thing linking them together is that they allegedly accessed the same movie without permission, but all on different days and times, and all in different places.  When faced with copyright trolls in West Virginia, the federal court there dismissed the entire action, forcing those attorneys to pack their bags and find a friendlier location -- Washington, D.C. 

There are also practical problems with this approach to suing for copyright infringement.  I'll be the first to disagree with people who believe that everything on the Internet should be free.  But plenty of the folks who receive these letters from their ISP never actually accessed these movies.  Some did, but plenty of them merely neglected to password protect their wireless router, or trusted their teenage children to use the Internet responsibly.  Defending one of these lawsuits is time consuming and expensive, so many people choose to settle.  Others need to settle to protect their anonymity, either because they work in the entertainment business and their credibility is on the line, or because they're high profile individuals, or because the movie in question is x-rated and they don't want their names associated with the title. 

Individuals who receive one of these letters from their ISPs should contact a qualified attorney familiar with this area to seek advice and possible representation.   Another good option is to read over the subpoena defense resources provided by the EFF (Electronic Frontier Foundation).

Using Pinterest without Committing Copyright Infringement

            Pinterest is a platform that is gaining popularity like Facebook and Twitter did a few years ago.  Its users report an addiction stronger than Starbucks coffee.  Pinterest invites users to find images that other people have posted on the web and add them to the Pinterest user’s virtual pin board.  It has the potential to drive tremendous traffic to business websites and to help them sell products and services, but most of the images selected by each Pinterest user are “owned” by someone else under U.S. Copyright Law, presenting many pitfalls to be sued for copyright infringement.

            Copyright law in the United States protects all original content from the moment of creation for the life of the author plus 70 years, whether or not it is registered with the Copyright Office and whether or not it bears the copyright symbol of ©.  The copyright laws give exclusive rights to the author to publish, distribute, and make derivative works of the original work of authorship.

            Many people think that giving attribution to the original source is good enough, but attribution and permission are two different things.  How do you use Pinterest without committing copyright infringement?  Here are eight practical tips to minimize your exposure to claims of copyright infringement:

1.      Use your own content.  By using your own content, such as photographs that you personally take, you minimize the risk of copyright infringement.  (There is still a risk of copyright infringement if, for example, you photograph then pin an entire poem that belongs to someone else.)  The trade-off of using your own material on Pinterest is that you are giving Pinterest a “non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to use, display, reproduce, re-pin, modify . . . , rearrange and distribute” your content, according to its updated Terms of Service.  By pinning it on Pinterest, you give up your exclusive rights to that work whenever you pin it on Pinterest.

2.      Get permission.  The surest way to avoid claims of copyright infringement is to get permission from the owner of the work that you wish to pin.  Get it in writing.

3.      Use the “pin it” button.  If a content owner encourages users to share their material with the Pinterest “pin it” button, arguably the content owner is giving you an implied license to pin it.

4.      Give attribution.  Whenever you pin something that belongs to someone else, be sure to attribute the original source.  This will not protect you from a claim of copyright infringement if you’re lacking actual permission, but it may minimize your exposure.  A further tip:  don’t just upload directly from Google Images.  When you do that, Pinterest gives the attribution to you by stating “uploaded by user,” rather than giving it to the original source.

5.      Pin products rather than art.  This is based more on common sense than the law, but businesses selling products presumably want to get the word out about their products and appreciate the free word of mouth publicity you’re generating on their behalf.  Some artists appreciate you pinning their work, too, but many artists make money selling or licensing original works, and would argue that you’re driving down the value of their work.  (Caveat: some brand owners may assert claims of trademark infringement if you use their marks without permission.)

6.      Limit your pinning to repining.  When you re-pin material that has already been pinned on someone else’s board, you arguably have the protection of Pinterest’s Terms of Service, which explain that no one should pin anything on Pinterest unless they have the right to do so.  Thus, if ever sued for copyright infringement, you could argue that you had a good faith belief, based on Pinterest’s Terms of Service, that any material you re-pinned was originally posted on Pinterest by someone who had rights to put it there.

7.      Be careful when pinning for profit.  A defense many people point to when sued for copyright infringement is the Fair Use Doctrine, which looks at four factors, one of which is the nature of the copying, and whether it is commercial (meaning, for money) or not.  It is harder to successfully argue fair use when the copying is done for profit than for a hobby or educational purposes.

8.      Pin less than an entire image.  Back to the Fair Use Doctrine: it’s harder to succeed with this defense when you’ve copied the entire image of a work belonging to someone else.  Consider copying only a small portion of the image instead.

            Using Pinterest is a lot like riding in a car.  In a car, you can use a seat belt, turn on your lights, and pay attention to the road to avoid accidents, but you can still be hit.  These are some tips to help you minimize the risk of being sued for copyright infringement when using Pinterest.  The smarter you are, the lower your risk; the more aggressive you are, the higher your risk. 

            Businesses have a lot to gain by using Pinterest, mainly driving traffic to their websites and building brand identity, loyalty, and interaction with customers.  To help protect your business from exposure to lawsuits when using Pinterest, consult a qualified intellectual property lawyer who can tailor advice to your unique situation.  The above tips are not intended as legal advice.

Entertainment Industry's New Copyright Alert System May Create New Form of Evidence in Copyright Infringement Lawsuits & Lead to Higher Damages

It was big news earlier this month when many of the big entertainment companies entered into an agreement with Internet service providers (ISPs) regarding efforts they will take to self-regulate and self-police copyright infringement. The name of this plan is the "Copyright Alert System."

According to the Wall St. Journal and the Center for Copyright Information, the plan has six steps, from the mildest (in issuing warnings), to the intermediate (in requiring users to acknowledge that they received notice), to the most severe (in slowing down the speed at which alleged infringers may access the Internet).

As a copyright lawyer who goes to court to resolve disputes, I am most interested in the intermediate step. It strikes me that if users are forced to acknowledge that they have received a warning that their conduct may constitute infringement and yet they proceed forward anyway, the fact that they acknowledged such warning may be used against them in a copyright infringement action. The ISPs will not be releasing the identity of these users voluntarily. But a court can always grant permission to subpoena material showing that they took this intermediate step. This new policy may be opening up a whole new world of evidence of willfulness that can be used against people who knowingly infringe on others' copyrights. And willful infringement entitles copyright plaintiffs to increased money damages.

Video: Protecting Your Family & Your Reputation when Using Social Media

I was recently invited to speak on "Digital Citizenship and the First Amendment" at The Leadership and Civility in a Digital Age speaker series, presented by Lipscomb University’s Nelson & Sue Andrews Institute for Civic Leadership and Department of Communication and Journalism and by Centerstone.  My friend Debi Tate, a former commissioner on the FCC, invited me to join First Amendment scholar Gene Policinsky on the panel. 

Typically when I speak on legal issues in social media, it is to an audience of business leaders or marketing professionals.  Last night was an opportunity to look at these issues from the perspective of the individual consumer and citizen.  With that in mind, I titled my talk "Protecting Your Family & Your Reputation when Using Social Media."  We had a great crowd and a good conversation.  For a link to the video, go here. 

Want to Limit Liability Against Copyright Infringement Claims when Hosting User Content on your Website?

If you host a website that invites the public to submit content, often called UGC (or User Generated Content), you may want to read the recent summary judgment decision in Arista Records LLC v. Myxer Inc. and stay tuned to the final outcome at trial.  Website hosts that allow UGC run the risk of being sued for copyright infringement, among other claims, because users sometimes submit material whose copyright belongs to someone else.  If a copyright owner sues you for copyright infringement in your role as a website host, one of the most common defenses asserted is that the web hosting is protected under the DMCA (Digital Millennium Copyright Act). 

On April 1, 2011, a federal court in California issued the above decision in a case pitting content owners against website hosts.  UMG Records and other music companies sued Myxer and its principals for copyright infringement because Myxer hosts a website that invites the public to upload music and then download it as ring tones on cell phones.  Myxer doesn't pay UMG anything, and UMG argues that it loses money every time a ring tone is downloaded through Myxer.

Myxer asserted two primary defenses: that its use was fair use and that it was protected by the DMCA's "safe harbors."  On summary judgment, the court rejected Myxer's fair use defense, finding that converting the songs into ring tones did not qualify as a "transformative" use and finding that Myxer's business model likely cut into UMG's market. 

But the court kept alive Myxer's DMCA defense.  It found that genuine issues of fact existed regarding Myxer's implementation of a DMCA policy and regarding the speed with which it removed allegedly infringing material.  Now it will be up to Myxer to prevail on this defense at trial.

Just like Myxer is hoping to do, businesses that allow the public to post content on their websites may limit their liability against copyright infringement lawsuits by following some steps under the DMCA.  As a ground rule, if you create or direct content on your website that infringes on another's copyright, you can't turn to the DMCA for help.  But if all you do is host content created by others, to get the benefits of DMCA protection you need to (1) adopt a  DMCA policy and communicate it to your users, (2) appoint a DMCA agent, (3) follow the DMCA steps of quickly responding to accusations of hosting material that infringes another's copyright, (4) permanently remove repeat infringers, and (5) receive no financial benefit directly attributable to any infringing activity on your site. 

To read more about how to protect your business under the DMCA, check out this great resource from the EFF (Electronic Frontier Foundation), or contact an attorney with experience in copyrights and intellectual property law.