Technology Law Update

MPAA Files Suit Against Online Video Linking Sites

The Motion Picture Association of America filed copyright infringement suits this week in federal district court in the Central District of California against online video sites YouTVPC and Peekvid. According to the MPAA press release, the suit seeks to impose liability for "identifying, posting, organizing, and indexing links to infringing content found on the Internet that consumers can then view on-demand by visiting these sites."

This lawsuit raises the issue of liability for linking to infringing content, on which there are surprisingly few judicial opinions. Among those few, however, is the Ninth Circuit opinion of only a few weeks ago in Perfect 10 v. Amazon.com, No. 06-55405 (9th Cir. May 16, 2007). See further discussion of that ruling here. Perfect 10 v. Amazon.com (captioned Perfect 10 v. Google in the lower court) is one of several cases in which the adult content provider seeks to impose liability on third parties such as search engines for providing access to unauthorized copies of their copyrighted images. While the circuit court ruled out vicarious liability against defendants Google and Amazon.com for providing links to unauthorized copies, it did leave open the door for contributory liability and remanded for further proceedings on that issue.

Perhaps it is not a coincidence that the MPAA filed suit within weeks of the Perfect 10 v. Amazon.com ruling.

News Coverage, BetaNews

UTube.com Trespass Claims Against YouTube Dismissed

You've got to feel sorry for the folks at Universal Tube & Rollform Equipment, whose Web site is hosted at www.utube.com. Prior to October 2005, they got a few thousands visits a month to their site. After YouTube came on line at www.YouTube.com, that number started to climb, and now the pipe company's site gets 70,000 visitors a day. Apparently most of the visitors are looking for online videos, not used tube and pipe equipment. The increase in traffic has caused the utube.com site to crash, and the company's Web hosting costs have gone from less than $100 a month to more than $2,500 a month.

So the pipe company has sued. In Universal Tube & Rollform Equipment Corp. v. YouTube, Inc., No. 06-2628, 2007 U.S. Dist. LEXIS 40395 (N.D. Ohio June 4, 2007), the district court dismissed most, but not all, of the pipe company's claims against the online video company and its founders Chad Hurley and Steve Chen.

1. Trespass to chattels, dismissed, because a domain name isn't a chattel, because the web site hosting company, not the plaintiff, has custody of the physical property, i.e., the servers, that that allegedly were trespassed upon and because it is mistaken Internet users, not YouTube, that caused the contact with the servers.

2. Nuisance, dismissed, because no real property is involved.

3. Negligence, dismissed, because the allegations are conclusory and the company has not pleaded how or why a duty of care arises.

4. Ohio RICO claims against Hurley and Chen, dismissed, because the allegations are conclusory.

Remaining in the case are claims under federal and Ohio trademark law, and Ohio unfair competition law. Regarding Ohio dilution law, the court commented that under Ohio law a senior mark need not be "famous" but need only be "strong" in a particular geographic area.

E-Discovery Ruling In P2P Case Requires Logging Of User Data In Server RAM

The order was issued in copyright infringement litigation brought by motion picture studios against the operators of a P2P Web site. According to the written ruling, the operator deliberately chose not to log certain user data on the site, but an expert indicated that user data was held in server RAM for about six hours. The court ordered the website to archive and produce that data.

The lengthy ruling addresses a number of issues, including the First Amendment and the Stored Communications Act, but of particular interest is the magistrate's treatment of the Web site's argument that the archiving and production of the user data would violate the site's privacy policy. Among other things, the court noted that the ruling was prospective only, and that the Web site had retained the right to change its privacy policy at any time. The magistrate commented: "nothing in this order prevents defendants from modifying their privacy policy so that it accurately reflects defendants' prospective retention and production obligations pursuant to this order, [thus] defendants themselves retain the ability to ensure that they do not violate their own privacy policy."

Columbia Pictures Industries, Inc. v. Bunnell, No. 06-1093 (C.D. Cal. May 29, 2007) (ruling of Magistrate Judge). Order: http://www.thelen.com/tlu/ColumbiaVBunnell.pdf.

The ruling is discussed in an article on Law.com, RAM Ruling Portends a New E-Discovery Brawl.