MPAA and Fair Use: A Quick History

by Ben Sheffner 04/11/2013 15:43 (UTC-08:00) Pacific Time (US & Canada)

The MPAA files lots of amicus briefs, most of which get read by no one except judges, law clerks, the attorneys in the case, and a few insomniac PACER addicts. But when we team up with our friends at the Stanford Fair Use Project, the International Documentary Association , and Film Independent to take a strong stand in favor of fair use, people take notice. Of course we have no problem with the attention to our brief, and we were pleased to be able to join forces with groups with whom we sometimes disagree, in support of a good cause: that copyright should not be used to block an accurate depiction of historical facts – in this case, Bouchat v. Baltimore Ravens, the fact that the Ravens football team wore uniforms incorporating a certain logo for several years in the 1990s.

But we do want to push back a bit on the suggestion in some of the commentary about our brief that the MPAA and its members somehow “oppose” fair use, or that our embrace of it in the Baltimore Ravens brief represents a  shift in our position. That’s simply false, a notion that doesn’t survive even a casual encounter with the facts. Our members rely on the fair use doctrine every day when producing their movies and television shows – especially those that involve parody and news and documentary programs. And it’s routine for our members to raise fair use – successfully – in court. Here are a few examples:

Indeed, the MPAA filed another amicus brief in favor of fair use in the Baltimore Ravens dispute back in 2010.

Of course when the MPAA litigates antipiracy cases, we strongly reject the notion – as do the courts – that it’s fair use to download, stream, or “share” movies and TV shows over the Internet without permission from copyright owners. But that position is entirely consistent with that we took in our Baltimore Ravens brief. No thinking person is “for” or “against” fair use in all circumstances. As the Supreme Court and countless others have said, fair use is a flexible doctrine, one that requires a case-by-case examination of the facts, and a careful weighing of all of the statutory factors. Some uses are fair; some aren’t.  In this case, we were happy to unite with our amici at Stanford, IDA, and Film Independent in arguing that “It is antithetical to the purposes of copyright to use it to force an inaccurate depiction of actual events.” Let’s hope the Fourth Circuit sees things the same way.

How Google profits from illegal advertising -- and keeps the money even after getting caught

by Ben Sheffner 01/10/2012 10:32 (UTC-08:00) Pacific Time (US & Canada)

The BBC has an interesting report highlighting the fact that Google’s advertising services distribute large numbers of ads for illegal services, in this case unauthorized brokers of tickets to the 2012 Olympics in London. The BBC piece notes that Google removes the ads upon requests from police (or when they’re informed by the BBC that they’re about to be the subject of an embarrassing news report) – but also that Google keeps “keeps any money it might make from companies advertising illegal services before such adverts are removed.”

A couple points relevant to the debate over SOPA and the PROTECT IP Act:

• Advertising by purveyors of illegal products and services is a huge problem. Even without the enhanced procedures contained in SOPA and PROTECT IP, Google says that “In 2010, we took action on our own initiative against nearly 12,000 sites for violating this policy” against advertising by “infringing sites.” And in 2011, it took action on 12,000 more. While it’s nice that Google removed these ads “on [its] own initiative,” this clearly hasn’t solved the problem, and more needs to be done.

• Google readily admits that it profits from advertising of illegal services. It keeps its ill-gotten advertising gains – even after being informed by the police of their tainted source. Google could easily choose to hand over these corrupt proceeds to law enforcement, or to other worthy causes devoted to combating illegal online activities. But apparently its commercial interests trump doing the right thing. (One would have thought that having to pay a $500 million settlement for “knowingly show[ing] illegal ads for fraudulent Canadian pharmacies” would have tempered Google’s willingness to serve and profit from ads for illegal services. Apparently not.)

This is all just a reminder that many of the opponents of SOPA and PROTECT IP, while they like to portray themselves as brave Internet freedom-fighters, are in reality doing little more than protecting their own business interests. They profit from illegal activities, and they will vigorously resist legislation that seeks to put this practice to an end.

Categories: Content Protection, Copyright, Policy


Zediva 'suspending' operations; many legal alternatives remain

by Ben Sheffner 08/11/2011 10:48 (UTC-08:00) Pacific Time (US & Canada)

Zediva, the unlicensed video-on-demand service that a federal court has determined violated the MPAA members’ copyrights, has announced that it is “suspending” its operations. Of course we welcome Zediva’s statement that it will begin complying with the law. But we also want to emphasize that there remain many legal alternatives for movie fans to watch movies over the Internet on their own schedule. As we said when the judge granted the studios’ motion for a preliminary injunction against Zediva on August 1, “Movie fans today have more on-demand options than ever for watching films at home, from iTunes to Netflix to Amazon to Vudu to Hulu to the VOD offerings from cable and satellite operators. All these legitimate companies have obtained licenses from the copyright owners.” We look forward to bringing our litigation against Zediva to a final conclusion, and to continuing to help foster a thriving marketplace where illegal operators can’t undermine legitimate businesses that play by the rules.

Federal judge grants injunction against Zediva

by Ben Sheffner 08/01/2011 18:29 (UTC-08:00) Pacific Time (US & Canada)

Stating that its “service threatens the development of a successful and lawful video-on-demand market,” federal Judge John F. Walter today granted the MPAA member studios' motion for a preliminary injunction against the operators of Zediva, an unlicensed video-on-demand service that the studios sued for copyright infringement in April 2011. The following is a statement by Dan Robbins, Senior Vice President and Associate General Counsel for the MPAA, in response to the ruling in Los Angeles:

“Judge Walter’s decision is a great victory for the more than two million American men and women whose livelihoods depend on a thriving film and television industry.  Judge Walter rejected Zediva’s argument that it was ‘renting’ movies to its users, and ruled, by contrast, that Zediva violated the studios’ exclusive rights to publicly perform their movies, such as through authorized video-on-demand services.

“Movie fans today have more on-demand options than ever for watching films at home, from iTunes to Netflix to Amazon to Vudu to Hulu to the VOD offerings from cable and satellite operators. All these legitimate companies have obtained licenses from the copyright owners. The court found Zediva’s service threatened the development of these lawful VOD and Internet-based services.”

Background: Zediva is an unlicensed video-on-demand service that streams movies over the Internet from its Silicon Valley data center. The MPAA’s six member studios sued WTV Systems, the parent company of Zediva, and Venkatesh Srinivasan, Zediva’s founder and CEO, on April 4, 2011, and filed their motion for a preliminary injunction on May 26. The studios’ lawsuit alleged that Zediva violated the studios’ exclusive right to publicly perform their movies under Section 106(4) of the Copyright Act. Following the issuance of the preliminary injunction, the case will now proceed toward a final resolution.

Here is the MPAA's set of FAQs on the case.

Cablevision amicus brief largely backs studios in Zediva case

by Ben Sheffner 07/18/2011 17:02 (UTC-08:00) Pacific Time (US & Canada)

In a very interesting development, Cablevision today filed an amicus brief that largely backs the positions taken by the MPAA member studios in their lawsuit against the unlicensed video-on-demand service Zediva. Cablevision’s brief strongly supports the studios’ position in several respects. First, it agrees with us that Zediva’s service transmits movies “to the public” within the meaning of the Copyright Act. Second, it agrees with us that Zediva is a video-on-demand service, not a bricks-and-mortar “rental” service like Blockbuster. As the brief states on page 3, “conventional video-on-demand systems have always been understood to require public performance licenses” – licenses Zediva did not obtain. While we don’t agree with or endorse everything in Cablevision’s brief, the fact that it largely supports the studios’ positions is particularly significant given that Cablevision was on the opposite side from the studios in The Cartoon Network LP, LLLP v. CSC Holdings, Inc. (the “Cablevision case”). The hearing on the studios’ motion for a preliminary injunction is set for July 25 in federal court in Los Angeles.

Studios file reply brief in Zediva case

by Ben Sheffner 06/27/2011 11:26 (UTC-08:00) Pacific Time (US & Canada)

Today the MPAA's member studios filed their reply brief in support of their Motion for a Preliminary Injunction in their copyright suit against the unlicensed video-on-demand service Zediva. The studios' brief rebuts Zediva's arguments, explaining to the court why such cases as Columbia Pictures Indus. v. Redd Horne, 749 F.2d 154 (3d Cir. 1984) and On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) demonstrate that Zediva is violating the studios' exclusive right to publicly perform their works under Section 106(4) of the Copyright Act. And our reply brief explains why the Second Circuit's Cablevision decision does not aid Zediva. As the introduction to our brief states:

 Zediva is clearly violating the Studios’ public performance right under settled law. The statute’s plain language, as consistently construed for decades, makes it clear that the thousands of separate transmissions of the Studios’ films that Zediva sends to users “in separate places” and “at different times” constitute performances “to the public.” 17 U.S.C. § 101; Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 159 (1984); On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787, 790 (N.D. Cal. 1991). The only difference between the transmissions in Redd Horne and On Command, and those here, is that Zediva uses the Internet instead of its own cable wires to transmit the Studios’ films. But the Internet does not make Zediva any less liable than the services in those cases. Zediva itself admits that the Internet simply functions as “a very long cable” for its transmissions. Opp. at 8:14. And the cases are clear that streams over the Internet are public performances, even where (as is common) each stream is sent separately to an individual user. See United States v. Am. Soc’y of Composers, Authors, Publishers, 627 F.3d 64, 74 (2d Cir. 2010) (“ASCAP”). The rule Zediva advocates would eviscerate protection for a wide range of works streamed over the Internet.

Zediva’s near-total reliance on Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”), in arguing that its performances are private, is misplaced. Cablevision repeatedly said that its holding applied only to a service that transmitted from one “unique copy” made at the direction of a unique user to that same user. Id. at 135, 138, 139. Zediva concedes that the facts of its service are different than those that were critical to the Cablevision court’s holding. Opp. at 9. The case does not assist Zediva.

The equities cry out for an injunction. Video-on-demand (“VOD”) over the Internet is an important and fast-growing market. Legitimate participants recognize they have to respect the rights that Congress created and obtain licenses to exploit companies that have tried to jump-start a business by violating copyright owners’ the Studios’ public performance right. Zediva is just the latest in a line of rights. Notwithstanding the oft-repeated cries of “we’re small,” and “an injunction will destroy our business,” courts have not hesitated to issue injunctions to protect the rights of content owners and licensees who play by the rules that Congress established. The Court should grant the Studios’ Motion.

Our motion is scheduled to be heard before Judge John Walter of the Central District of California on July 25. Here is the MPAA's set of FAQs on the case.



Studios Seek Order Enjoining Infringing Zediva Service

by Ben Sheffner 05/26/2011 14:53 (UTC-08:00) Pacific Time (US & Canada)

Today the MPAA's member studios asked a federal court to order the operators of the unlicensed video-on-demand service Zediva to stop their infringing activities. Our motion for a preliminary injunction argues that Zediva violates the studios' exclusive right to "publicly perform" their works under Section 106(4) of the Copyright Act. And it refutes Zediva's false, self-serving description of itself as a "rental" service. As the introduction to our motion states:

Defendants are blatantly violating the Studios’ exclusive right to publicly perform their copyrighted works.  Defendants use Internet streaming technology to transmit performances of the Studios’ movies from DVD players at their data center to their customers around the country.  The Copyright Act, however, gives the Studios — not Defendants, and not anyone else — the exclusive right to publicly perform their works.  17 U.S.C. § 106(4).  Defendants do not have authorization from any Studio to publicly perform their movies.  That is copyright infringement, pure and simple.  This Court can and should enjoin it.

Our motion is scheduled to be heard before Judge John Walter of the Central District of California on July 25.
The studios sued Zediva's corporate owners and founder and CEO on April 4. As Dan Robbins, the MPAA's Senior Vice President and Associate General Counsel, said when we filed the lawsuit, "When legitimate companies stream movies to their customers, they pay license fees to the copyright owners, enabling content providers to invest in new products and services that pay writers, set builders, wardrobe designers, and countless others who contribute to a movie production. Companies like Zediva profit off creators without paying them what is required by the law.” Here is the MPAA's set of FAQs on the case.

Harvard Business Review: ‘Copyright Is Not Dead’

by Ben Sheffner 05/19/2011 09:51 (UTC-08:00) Pacific Time (US & Canada)

Good post today at the Harvard Business Review’s blog explaining why “copyright is not dead” (though you already knew that!). Author Anthony Accardo takes on some of the reasons for anti-copyright stance among many in Silicon Valley, including a culture “structurally tied to patent law, not copyright,” the bias of the tech media, and “psychological rationalization”:

If the tech community spent a little more time understanding the business of its supply-chain partner, content owners, we'd see more compromise and fewer unlicensed content plays.

Imagine if the tech giants used their powers of innovation to better detect and control online copyright infringement rather than the bare minimum steps companies such as Google take — omitting an app from the Android market or omitting a few search terms? If they helped take the head out of the bell curve of piracy with some creative innovation, we'd be seeing licenses thrown around to the Googles and the Spotifys of the world.

It would be much easier for content owners to explore innovative suggestions about pricing, distributing free content for promotion, and using distribution technologies such as bitTorrent, if they saw any material steps taken by the tech community to help them, not challenge them, in the copyright arena.

Definitely read the whole thing.

Categories: Copyright

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