Viacom Denied Attorney's Fees in TM Dispute With Gibson Guitars

Gibson Guitar Corp. v. Viacom Inc'l, Inc., No. 12-cv-10870 (C.D. Cal. July 18, 2013) [Doc. 51].

Plaintiff owns a trademark for the "FLYING V" mark and sued Viacom for trademark infringement relating to SpongeBob Square Pants "alleging that Flying V SpongeBob SquarePants ukuleles have been advertised and distributed without Gibson's authorization".  The Court previously granted Viacom's motion to dismiss for failure to state a claim, and Viacom moved for attorney's fees under the Lanham Act.  The Court denied the motion.  "The court finds that Gibson's case against Viacom is not 'exceptional' in the sense of the Lanham Act. The fact that allegations are insufficient to survive a motion to dismiss does not in itself render a complaint groundless under Lanham Act."

Reconsideration in MP3Tunes Case

Capitol Records, Inc. v. MP3Tunes, LLC, No. 07-cv-9931 (S.D.N.Y. filed May 14, 2013) [Doc. 368].

All parties moved for reconsideration of the Court's October 25, 2011 order (821 F. Supp. 2d 627), springing from the 2nd Circuit's decision in Viacom Int'l v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012).  Plaintiff's motion was granted in part and denied in part: plaintiff's motion was granted as to the issue of willful blindness and "red flag" knowledge, and denied as to the inducement of copyright claim.  Defendant's motion regarding direct copyright infringement was granted in part and denied in part.  Defendant's motion for reconsideration regarding infringement of cover art, regarding personal jurisdiction and summary judgment as to his vicarious liability was denied.

There is an interesting discussion of "red flag" knowledge of infringement, under which service providers can lose the protection of the DMCA safe harbors if they have actual or apparent (i.e., "red flag") knowledge of infringing conduct.

2d Cir Decision On DMCA Safe Harbor In Viacom v Youtube

Viacom v. YouTube (2d Cir. Apr. 5, 2012). Decision. Not a "music" case, but extremely important decision that will impact future infringement cases.

This appeal required the Second Circuit to clarify the contours of the “safe harbor” provision of the Digital Millennium Copyright Act (DMCA) that limits the liability of online service providers for copyright infringement that occurs “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” 17 U.S.C. § 512(c). The District Court held that the defendants were entitled to DMCA safe harbor protection primarily because they had insufficient notice of the particular infringements in suit. The Second Circuit held:

We conclude that the District Court correctly held that the § 512(c) safe harbor requires knowledge or awareness of specific infringing activity, but we vacate the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website. We further hold that the District Court erred by interpreting the “right and ability to control” provision to require “item-specific” knowledge. Finally, we affirm the District Court’s holding that three of the challenged YouTube software functions fall within the safe harbor for infringement that occurs “by reason of” user storage; we remand for further fact-finding with respect to a fourth software function.

DMCA & The Safe Harbor - Web Video

IO Group, Inc. v. Veoh Networks, Inc., (N.D.Cal. Aug. 27, 2008), granting defendant's motion for summary judgment in a copyright case based on user-generated web-video content.

Though not a music case, the EFF describes the decision as "required reading". 

Viacom v. YouTube - Answer

Though not a "music case" per se, we venture to link to the Defendants' Answer in Viacom v. YouTube. The outcome of this case, without doubt, will have a tremendous impact on the world of copyright and in turn, the evolution of the music business in the digital age.

In reading the Answer, note that Defendants take the rare step of providing an introduction Rather than merely admit, deny, or d.k.i, Defendants offer a glimpse at their theory of the case.

Note also that Defendants assert twelve affirmative defenses. Although this case is pending in Federal Court in the Southern District of New York, in New York State courts (and especially the Second Department), one sentence affirmative defenses bereft of any factual support are subject to dismissal. Here, the affirmative defenses are one sentence and completely bereft of any factual support. [New York practioners: if you would like case citations, shoot an e-mail to OCTS.) Would Plaintiff's lawyers pursue such a motion, or would it be a waste of time, especially if Defendants can file an Amended Answer?

Pro Se Success Rate?

A case filed late last month by a pro se plaintiff in the Southern District of New York for copyright (and patent) infringement against media giant Viacom Int'l and affiliated company VH1 raised OTCS's eyebrows a bit: how successful are pro se plaintiffs in copyright infringement cases?

Professor Patry has noted in his blog the perils (and annoyances) of proceeding pro se, but does anyone have hard numbers? This is potentially an interesting topic for a law review note or article to explore.

[Jincea Butler v. Viacom Int'l.; VH1; Lee Rolantz; Jack Benson; Louis Horvitz; Tim Cohen; filed 1/23/2008; case no. CV-0557]

Safe Harbor No More?

CMJ: Perfect 10 on remand. A challenge to DMCA safe harbor by requiring affirmative steps to protect against infringement? I think big-media (e.g., Viacom v. YouTube) will say "It's about time!"

But, smarter minds offer brighter opinions (the following is a polling of great copyright minds):

(1) The more accepted view is that 512 safe harbor provisions trump the common law doctrines of secondary liability. Thus, assuming that Google has complied with all the Section 512 preconditions (ie notice and takedown, repeat offender policy, etc.) there really ought not to be liability for the Google Image search.

(2) The Court is focusing on Google AdSense. It is not at all clear that Adsense "activity" is protected under the "search engine" prong of 512(d). So you are back to "traditional" contributory/vicarious liability analysis for the AdSense program.

...of course, Google is in the land of the 9th Circuit, home to Silicon Valley.