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In the Canadian Equustek ruling in June 2017, Canada's Supreme Court ordered Google to de-list search results for users everywhere in the world, based on Canadian trade secret law. However, it left open the possibility that this outcome could change on remand to lower Canadian courts if Google established that the order conflicted with law in other countries. This November 2017 ruling, from a US first instance court, establishes that this conflict exists in the US. In its filing, Google requested "declaratory judgment that the Canadian court’s order cannot be enforced in the United States and an order enjoining that enforcement.” Here, the court grants preliminary injunctive relief. Google raised three arguments: that the Canadian order "directly conflicts with the First Amendment, disregards the Communication Decency...

This copyright case plays out against a complex factual backdrop addressed at trial and pleadings in the court below. The evidence included internal emails in which employees of Cox, a major ISP, express disrespect for, and arguably skirt compliance with, the Digital Millennium Copyright Act (DMCA). The DMCA requires that intermediaries implement policies for termination of repeat copyright infringers. In Cox’s implementation, users accused of infringement via DMCA notices were not suspended until after a tenth notice, and could be considered for reinstatement after later notices. The Court held that this policy was insufficient, and rejected an argument that users could be deemed repeat infringers only after judicial adjudication of infringement. By failing in this DMCA requirement, Cox forfeited the defense for its...

This detailed and somewhat confused opinion concerns LiveJournal, a blog hosting site. LiveJournal’s most successful hosted content, by a wide margin, is a celebrity gossip blog called Oh No They Didn’t. The platform stepped beyond its usual role in relation to this blog: it hired and paid a content moderator, who in turn managed teams of volunteer moderators. The teams rejected material on grounds of pornography, harassment, irrelevance (for gossip that is too old), and more - in sum, rejecting some 2/3 of uploads. They also enforced a list of sources that were not to be used on copyright grounds. The Court considers the platform’s defenses to copyright infringement under the Digital Millennium Copyright Act (DMCA), and concludes that the common law of agency applies. The Court holds that a jury must decide the...

This case affirms summary judgment in favor of copyright defendant Giganews’s Usenet service, and upholds massive attorneys’ fees against a plaintiff that shaped US Intermediary Liability law: the adult magazine Perfect 10. The court rejects a direct copyright liability claim, holding that Usenet lacked volition - and that the volition requirement for direct infringement remains intact after the Supreme Court’s ruling in Aereo. It also rejects a contributory liability claim, on the basis that defendant did not materially contribute to infringement. The court discusses the knowledge of specific material, rather than general knowledge of infringement, as it relates to the contributory liability test. It also rejects a claim of inducement liability under the US Supreme Court’s Grokster case. Considering a vicarious...

This case concerns the latest business venture of serial copyright defendant Michael Robertson. In earlier proceedings, a jury ruled against the company, MP3Tunes. Here, the Circuit court considers multiple issues, including repeat infringer policies and red flag knowledge under the Digital Millennium Copyright Act (DMCA). Eric Goldman provides a more detailed summary here. Regarding the repeat infringer policy, the Second Circuit says: “at trial the plaintiffs could prevail by demonstrating that MP3tunes's failure to track users who created links to infringing content identified on takedown notices or who copied files from those links evidenced its willful blindness to the repeat infringing activity of its users.” It rejects arguments that this standard amounts to a monitoring requirement, in violation of 17 USC 512(m...

This case considers defenses under the Digital Millennium Copyright Act (DMCA) for video hosting service Vimeo. The court rejects plaintiff’s arguments, supported by the US Copyright Office, that the DMCA does not apply to sound recordings from before 1972. It also considers the DMCA’s provision that hosts forfeit their DMCA immunity if they have “red flag” or constructive (not actual) knowledge of infringement. The red flag knowledge dispute centers on “lip dub” videos, in which users lip sync or mouth the words of songs. Plaintiffs maintain that if platform employees see lip dub videos featuring full-length songs on the site, they can be charged with red flag knowledge that the videos are infringing. The court rejects this argument, noting that employees are not copyright or music experts, and cannot be expected to...