If the beginning of 2009 is any indication, there seems to be a couple of new trends in copyright litigation.  The first trend is suits alleging copyright infringement against those who illegally access a copyright owner's website to view copyright content that they don't have permission to view.  Presumably, such illegal access violates the copyright owner's exclusive rights of display and distribution under the Copyright Act.   Examples of these claims can be seen in two cases:

• CoStar Realty Information sued Dumann Realty for copyright infringement in the U.S. District Court for the District of Maryland, alleging that the defendant’s managers illegally accessed the CoStar website by using another customer’s user information to access the site.  Through its website, CoStar provides its clients with real estate information by charging a subscription which costs hundreds of dollars a month.  In the complaint, CoStar argues that, by accessing its website illegally, Dumann’s managers engaged in the illegal distribution of CoStar’s content in violation of the Copyright Act.  Costar is demanding that Dumann pay $150,000 for each instance of infringement.

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On February 17th, in Associated Press v. All Headline News Corp., the U.S. District Court for the Southern District of New York denied defendants motion to dismiss several of AP’s claims, most significantly AP’s claim that defendant AHN was liable for “hot news” misappropriation and for violating the copyright management information protections provided under Section 1202 of the Digital Millennium Copyright Act (DMCA).  For those who have been living in a cave and are not familiar with the Associated Press (AP) -- it's an organization that --  through its employees, affiliates and subsidiaries --  engages in significant effort and expense to get access to news and to gather, report, package and transmit news stories throughout the world.  As stated in the court decision, All Headline News (AHN) scours the Internet for news stories and then either copies them or rewrites them for publication under the AHN banner.  Even though the stories are original AP content, AHN markets them as their own by, among other things, removing or altering the identification of the AP as author or copyright holder of the articles.  AP sued AHN for these activities and AHN moved to dismiss all the AP claims except the copyright infringement claim.  Although AHN prevailed in getting the trademark infringement and the Federal (but not state) unfair competition claims dismissed, the court refused to dismiss:  (1) AP’s claims of hot news misappropriation – holding that “[a] cause of action for misappropriation of hot news remains viable under New York law, and the Second Circuit has unambiguously held that it is not preempted by federal law;” and (2) AP’s claim that AHN violated Section 1202 of the DMCA by removing and/or altering copyright-management information – holding that there is no support for AHN’s position that this prohibition is limited to “the technological measures of automated systems” because no such requirement appears in the statute. More...

After the news broke on January 12 that the Supreme Court had asked the Solicitor General for its views as to the CNN v. Cablevision case, which is now under review for certiorari,  I overheard two attorneys saying that the case could have a lot to say about the application of copyright law to user-generated content (“UGC”). That struck me as wrong, until I started thinking about it and realized that I had really never bothered to define that term very precisely. Roger Faxon, CEO of EMI Music Publishing, has been quoted as saying that UGC is “taking copyrighted content, whether that is a song or a recording, and the user is, without authorization, turning it into another product.”   That is precisely what’s going on in the Cablevision case: users are turning a time-bound television broadcast into a view-on-demand product.  Does the lack of “authorship” by the user change anything? Should it? 

If somebody uploading a copy of a sound recording onto YouTube gives rise to UGC, why not somebody telling Cablevision to record a movie for them on a digital video recorder (DVR)? Copyright consequences aside, does it matter that the YouTube content is visible to the world and the Cablevision DVR content is accessible only by a single subscriber? What follows is an attempt to think about these fundamental UGC questions without translating them into the language of copyright.  To paraphrase Benjamin Kaplan in his 1967 book, An Unhurried View of Copyright,  “I shall take you on a stroll over some of the [UGC] terrain and examine various knolls and gullies in a rather desultory, even naïve way; finally we shall climb to the top of a hill and see whether anything can be usefully said about the whole landscape.” More...