In recent days, the press has been full of stories about Axl Rose from the band Guns N’ Roses sending take-down notices to websites, including Google affiliated sites, that feature a picture taken of him from one of his concerts making him look to be overweight (see, e.g. stories available here, here and here). The photos are often accompanied by captions, reinterpreting Guns N’ Roses songs by modifying the lyrics to include references to food or overeating or otherwise making light of the picture. The take down notice is premised on Rose’s alleged ownership of the underlying photo. According to the press reports, Rose requires all professional photographers taking photos at his concerts to sign releases, giving Rose ownership of all copyrights in the images taken. The legal issues raised by the take down notice are many – including reflecting on the recent calls for reform of the “safe harbor” provisions of the Digital Millennium Copyright Act for user-generated content much in the news lately, particularly with respect to YouTube videos including music (see our article here). No doubt, however, the first issue that will be considered in answering these take down notices is whether the images and associated commentary constitute “fair use.”

The DMCA has adopted a “safe harbor” for “internet service providers” including website owners who host user-generated content – content that is posted not by the site owner and its employees, but instead by users of the site (see our article here). As the hosts of these sites do not control what is being posted, Congress in adopting the DMCA, thought that it was important that the site owners not be liable if users post content that could potentially infringe on some third party’s intellectual property rights. However, the site owner must take certain steps to minimize the posting of infringing content – including making clear in its descriptions of the proper use of the site that users need to respect intellectual property rights, and providing both on the site and in a registration form filed with the Copyright Office the name and contact information for a person who copyright holders should contact if they believe that infringing content has been posted on the site (the Copyright Office is proposing changes to that form, see our article here). Copyright holders can then notify these identified individuals of the perceived infringement by sending what are commonly referred to as “take down notices.” Certain formalities need to be followed in sending these notices are provided under the provisions of the DMCA, including a specific identification of the infringing content, and a good faith belief that the content is in fact infringing. In connection with any take down notice and the decision of the site owner as to whether to honor that request, the question of fair use must be evaluated.
Continue Reading Axl Rose DMCA Takedown Notices Illustrate the Difficulty With Safe Harbor Reforms – User-Generated Content and Fair Use Issues

Both the popular and media trade press has been full of reports in the last few weeks about musicians and other artists petitioning the Copyright Office to hold YouTube and other online services liable for infringement when the artists’ copyrighted material appears on the service (see, e.g. the articles here and here). The complaints allege that these services are slow to pull infringing content and, even when that content is pulled from a website, it reappears soon thereafter, being re-posted to those services once again. While the news reports all cite the filings of various artists or artist groups, or copyright holders like the record labels, they don’t usually note the context in which these comments were filed – a review by the Copyright Office of Section 512 of the Copyright Act which protects internet service providers from copyright liability for the actions taken by users of their services (see the Notice of Inquiry launching the review here). All of these “petitions” mentioned in the press were just comments filed in the Copyright Office proceeding, where comments were due the week before last. The Copyright Office will also be holding two roundtable discussions of the issues raised by this proceeding next month, one in California and one in New York City (see the notice announcing these roundtables here). What is at issue in this inquiry?

Section 512 was adopted to protect differing types of internet service providers from copyright liability for material that uses their services. Section 512(a) protects ISPs from liability for material that passes through their systems. That section does not seem to be particularly controversial, as no one seems to question the insulation from liability of the provider of the “pipes” through which content passes – essentially a common carrier-like function of just providing the infrastructure through which messages are conveyed. Sheltered from liability by Section 512(b) are providers of systems caching – temporary storage of material sent by third-parties on a computer system maintained by a service provider, where the provider essentially provides cloud storage to third-parties using some automated system where the provider never reviews the content. That section also does not seem particularly controversial. Where the issues really seem to arise is in the safe harbor provided in Section 512(c) which is titled “Information residing on systems or networks at the direction of users” – what is commonly called “user-generated content.”
Continue Reading Copyright Office Reviews Section 512 Safe Harbor for Online User-Generated Content – The Differing Perceptions of Musicians and Other Copyright Holders and Online Service Providers on the Notice and Take-Down Process

Do you allow the posting of content created by third parties on your website (e.g. videos, audio files, or even written comments)?  Do you run any on-line service where you collect information provided by third parties (whether that be a dating service, auction site or other classified service)?  If you do, you probably know that you are safe from copyright claims for infringing content that is posted by those who are not your employees or agents if you follow certain steps.  We have written about these steps to give you the "safe harbor" from copyright liability for "user-generated content" before.  The steps include requirements that you not encourage or profit from the infringing content, that you have terms of use for your service that forbid users from posting infringing content, and that you take down infringing content when you receive notice from copyright holders that it has been uploaded to your site or service by a third party.  To take advantage of this safe harbor from liability, services are required to register with the Copyright Office the name of someone in their company who can be served with "take-down notices" from copyright owners.  The process of registration is now proposed to be changed in a Notice of Proposed Rulemaking just issued by the Copyright Office.  Comments on this notice can be filed through November 28. Replies are due by December 27.

The safe harbor was created by the Digital Millennium Copyright Act, adopted in 1998.  Since that time, the registration of agents to receive take-down notices has been governed by interim rules.  Services register by sending a paper form and a filing fee to the Copyright Office, and that information is manually entered by the Copyright Office into a list that is available on the Copyright Office website.  From experience, the time from the filing of such a registration to its appearance on the Copyright Office’s website can take several weeks or more.  The Copyright Office, in its Notice, states that it has done some informal checks on the information in its database of registered agents, and found that the list contains duplicate registrations, registrations for companies or sites that are no longer in operation (services are supposed to tell the Office when they stop their operations), and many outdated addresses (services are supposed to update their agents as employees change, but apparently they sometimes forget).  The NPRM proposes to move to an electronic registration system, which will automatically request a verification of the registered information on a regular basis.  In making this proposal, the Copyright Office asks for public comment on a number of issues.


Continue Reading Claiming Safe Harbor Protection for User Generated Content – Copyright Office Proposes Changes to Registration of Agent for Service of Take Down Notices