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Navigating the YouTube Safe Harbor: One Year Later (or Netflix Not Chill) February 23, 2018

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One year after presenting “Navigating the YouTube Safe Harbor” at the 2017 SxSW 2017 Music Festival with Kelly Klaus, John Tehranian and David Schelzel, I find that the SxSW organizers have posted audio from our presentation on SoundCloud.

(Thanks, SxSW!)

Cut to 2018. Former disrupters Netflix and Amazon Studios have aligned themselves with traditional Big Content to sue the makers of Dragon Box and Tick Box for their online streaming devices. The complaints rely in part on the marketing language used by the defendants.

On February 13, 2018, Tickbox stipulated to a preliminary injunction where they agreed to (among other things), not include, provide links to, curate, or create add-ons or otherwise technologically enable third-party cyberlockers or streaming sites that Tick Box knows or has reason to know transmits pirated content. (Internet Explorer, Google Chrome, Safari, and Firefox are not defined as such transmitters).

The Dragon Box is at an earlier stage, with no preliminary injunction application filed and no response due until March 5, 2018. Dragon Box’s attorney had some interesting quotes in Ars Technica on the stakes raised by this case, if it does not go the plaintiffs’ way.

Netflix and chill, this is not.

This Week in Law, Copyright School and Commercial Privacy Bill of Rights Act May 14, 2011

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It is always great to talk to Denise Howell and Evan Brown on This Week in Law. I had the pleasure of being a guest on Episodes 107 (April 15, 2011) and 87 (November 19, 2010) on this video podcast, which I consider essential listening for keeping up with technology law trends. Here are the replays:

We talk a lot about changing norms in copyright and Internet use. Here, we had a very spirited discussion of Youtube’s new “Copyright School.” Also, the Internet rights discussion has now entered the lawmaking process with the Kerry-McCain draft Commercial Privacy Bill of Rights Act currently circulating on Capital Hill.

IP Protection for Blog Posts August 21, 2008

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Steve Kwok in China recently asked:

What is the most comprehensive law regarding IP protection for blog posts?

The short answer: the blogger retains copyright but the owner of the blog publishing system may reserve the right to sell the content back to the blogger.

Terms of Service increasingly try to carve out property rights for the owners of sites offering free publishing tools on the Internet. Fair enough, given the theory that a Terms of Service agreement is a contract between the user and the hosting site.

To take it a step further, does ownership of copyright in blog posts create property rights vis-a-vis third parties? The plaintiff in Lenz v. Universal Music Publishing Group, the “dancing baby” Youtube case thinks so.

Most of the commentary on the Lenz case focuses on whether posting the video, which embodied portions of the Prince song, “Let’s Go Crazy,” was fair use under the copyright laws. Fair use is always hotly contested, and always will be, due to the number of factors involved.

However, this case also raises the question of whether posting video to Youtube is a privilege or a right. In the first version of the complaint, Lenz claimed it is a right under her contract with Youtube. Presumably the contract arises from a user’s agreement to abide by Terms of Service. Based on that, Lenz sought damages against Universal for interfering with that right.

“Because Universal’s notice was intimidating, Ms. Lenz is now fearful that someone might construe some portion of a new home video to infringe a copyright. As a result, she has not posted a
single video on YouTube since she received the takedown notice.”

It’s a bold claim. How extensive are these rights, and how would they be quantified?

In the Second Amended Complaint, Lenz dropped the tortious interference claim.  However, as user-generated content becomes an increasingly important component of new media business models, it’s worth considering whether others will test similar claims.