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Judge finds insufficient evidence of DMCA violation

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

The Internet provides a vast platform on which creative works in written, photographic, film and video formats can be reproduced. Unfortunately, this also creates a bigger universe within which parties can violate copyrights by posting protected works online without permission.

This became a problem for Internet service providers, called ISPs, like website hosting services, or online marketplaces, like Amazon or eBay, that post creative works to view for potential purchase. The legal issues became thorny when third parties presented works to ISPs for posting that raised accusations of copyright violations. 

The DMCA 

In response, Congress in 1998 enacted the Digital Millennium Copyright Act, popularly called the DMCA, to create a legal process for this kind of conflict. The DMCA sets out a detailed procedure for serving a takedown notice on the ISP based on alleged copyright violation. 

The ISP must then remove the allegedly violating material with notice to the third party that provided the material. The allegedly-infringing party then may send back a "counter notification" saying the content does not infringe on copyright, which the ISP must provide to the copyright owner. The ISP then puts the material back online unless it hears from the copyright owner that it has filed a lawsuit to stop the publication. 

So long as the ISP complies with the specific processes, requirements and deadlines in the DMCA, it is protected from legal liability. This protection is called a "safe harbor." 

Of course, there may still be a legal dispute between the copyright owner or the exclusive licensee and the third party who requested the posting of the disputed work. 

"Weekend in Vegas" DMCA suit fails  

The December 11 case of ISE Entertainment Corporation v. Longarzo in the U.S. District Court in the Central District of California illustrates how exacting DMCA claims must be to survive. ISE, the owner and creator of the television series "Weekend in Vegas" sued Jeff Civillico, the show's host and co-producer, and Civillico's lawyer, Gerald Longarzo, Jr., in response to Civillico and Longarzo's request to Amazon to take down the series. ISE had offered the show on Amazon for downloading. 

ISE accused Civillico and Longarzo of making a false claim of copyright infringement in the takedown request, an alleged violation of the DMCA's prohibition of "knowingly materially misrepresent[ing]" copyright infringement.  

The judge concluded that the DMCA claim failed because the takedown request did not meet the requirements to be a DMCA notice and because there was insufficient evidence that the defendants knowingly made any material misrepresentations. Specifically: 

  • DMCA requests only cover allegations of copyright violation and the defendants only asserted violation of Civillico's right of publicity and right of privacy by using his image and name without permission. Other DMCA notice requirements were not met such as including particular allegations and serving the notice on a designated agent. Therefore, the request was not a DMCA takedown notice and the Act did not apply, because the law requires "substantial compliance" with all provisions.

  • Plaintiffs presented no evidence that either defendant knowingly misrepresented anything. An "unknowing mistake" is not enough. 

We will continue to provide interesting developments in the DMCA arena in this space.

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