Wednesday, August 24, 2016

Judge Locke denies motion to quash in Malibu Media v Doe, stay lifted


In Malibu Media v. Doe, EDNY 15-3504, Judge Locke has denied the defendant's motion to quash, and lifted the stay on all of the EDNY Malibu Media cases, which had all been consolidated.

The Court accepted the representations of plaintiff's expert, a Michael Patzer of a company called Excipio, that Malibu relies on "direct detection" rather than "indirect detection", and that it is "not possible" for there to be misidentification.

Memorandum Decision of Magistrate Judge Locke denying motion to quash

Thursday, June 16, 2016

Second Circuit rules for Vimeo on DMCA issues in Capitol Records v Vimeo


The US Court of Appeals for the Second Circuit has overturned those parts of the District Court's rulings which were in favor of the plaintiff record companies in Capitol Records v. Vimeo.


The Court decided three major issues under the Digital Millenium Copyright Act.

1. It totally rejected the 2011 report of the US Copyright Office, upon which the District Court had relied, which had concluded that pre-1972 recordings are not subject to the DMCA. The Court went into great detail as to the Copyright Office's errors in interpreting the Copyright Act.

2. It overturned the District Court's ruling that wherever the plaintiff could show that a Vimeo employee had at least partially viewed the infringing video, there was a factual issue on the subject of "red flag knowledge", therefore precluding summary judgment. The Court held that this was not itself a sufficient basis to require a trial, and remanded this issue to the District Court to reconsider it.

3. The Court affirmed the District Court's rejection of plaintiffs' argument that Vimeo had adopted a "policy" of willful blindness, reiterating the principle that willful blindness, like actual knowledge, must relate to specific infringements. The court also noted that plaintiff's evidence that such a "policy" had been adopted, consisting of a "handful of sporadic instances", did not rise to the level of showing such a policy.

Decision of US Court of Appeals, 2nd Circuit, June 16, 2016

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