Virtual Goods, Virtual Works, Human Rights and Virtual IPRs
Introduction
The ‘content’[1] problem first appeared with the emergence of the web and the domain name system. Then, it went viral with the convergence of copying technology (personal computers, smart devices) and ever-accessible global sales engagement and distribution channels (e-commerce websites and auction sites). These developments set the stage for the creation of an entirely new universe, complete with digital goods and virtual environments filled with virtual content, namely, massively multiplayer role playing games (MMORPG’s), virtual worlds, social networks and new media sites, cloud computing sites, virtual lockers, and now ‘replicator’ data download sites (3D printer schematic sharing online communities).
Such convergence of instantaneous worldwide access to technical tools necessary for creation, fixation, production of goods, distribution of goods and services, and compensation (even in terms of movement of the very tender being earned in relation to the sale or license of an intellectual property protected work or related good, i.e. from any currency, even virtual Linden dollars, to US dollars, for example via pay pal account), is a first in history. How could anyone work with creators (individual authors, artists and musicians) support limitation much less elimination of copyright or intellectual property rights protection?
Today, the problem is not that international intellectual property laws do not protect or extend to works developed online or made available for online use.[2] A content creators primary problem, as any other Internet user (whether American or foreign), is lack of rights enforcement and enforcement mechanisms generally online. There is a gaping black hole where individual enforcement support and small claims infrastructure should exist.
The existing enforcement system, based on traditional courts neither has the jurisdiction (as most terms of service agreements resolve legal disputes with users according to their the provisions of contracts they sign with those users) or the necessary reaction time. A persistent user with resources only recourse however is to turn to courts that do not have the legal tools to make appropriate decisions because they are either bound by old interpretations of old intellectual property laws which or in no way reflect the new Internet Of Things reality we all live in today, or if they do manage to get it right are too slow and have too limited reach (limited by jurisdiction) to be effective in todays’ information economy. For example, the damage made to a Facebook advertising campaign, if thwarted by a trademark owners’ competitor filing unfounded abuse complaints, cannot currently be effectively litigated. Also, many content claims involve internet and online service providers themselves, and not only with regard to basic copyright and trademark disputes between users (because the service themselves are protected by Online Copyright Infringement Liability Limitation Act (OCILLA)[3] but also many disputes involve protected data processed and published by those providers.[4] These are very valuable commodities in an information economy namely, one’s intellectual property, name and profile data (including reputation or friends and family network information) about oneself.
Despite requirements under the Digital Millennium Copyright Act, there is no enforcement of service provider practices with regard to repeat infringers and consequently there are basically no legal repercussions for repeated unauthorized distributions via upload or display of unauthorized copies of protected works or protectable data.[5] This moment represents an unprecedented opportunity and crisis situation for all holders of intellectual property rights but especially for individual authors.
The international intellectual property system began largely based on individual authors rights, specifically droit authore and to a lesser extent droit suite (French authors moral rights and resale laws).[6] After all, Victor Hugo, author of Les Miserables and The Hunchback of Notre Dame, was a driving force behind initiating and implementing the Berne Convention. In the United States, implementation of the WIPO Copyright, Performers and Berne treaties sealed recognition of individual authors rights to control first publication, distribution and the right to earn a living from the economic value of their works.[7]
There is a growing body of case law, but little to no uniform regulation of the ‘internet environment’[8] and still no rule of law directing the discussion of access rights or demanding equal treatment of content providers online. Only increasing the atmosphere of uncertainty is the growing desire of certain Internet service providers to provide their online service provider customers, capable of paying for the service, access to faster lanes and additional bandwidth (to prioritize their content over that of ‘slower’ sites).[9] Some legislative action aims to disable user access to certain sites, other regulations allow for the suspension of individual Internet access. [10]
Also, as almost always is the case, the newest generation of authors, artists, performers and filmmakers, because their methods are not recognized, neither are their works adequately defined, face difficulties protecting their interests under existing laws. At the same time industry practices, as reflected in contracts such as licensing and terms of service agreements, define content and regulating content rights unchecked, in an unregulated environment. Consider, for example, works of virtual art and the definition of ‘works of visual art’ under the Visual Artists Rights Act (VARA).[11] In the United States, the moral rights of all artists related to works of ‘visual art’ are protected under VARA.[12] In order to benefit from VARA, however the work must meet the definition of visual art under the criteria of the Act. Namely, that the work is a ‘painting, drawing, print, sculpture or a ‘still photographic image’ [produced for exhibition only], signed by the author [or bearing his mark] and consecutively numbered to no more than 200 copies.[13]
In the face of VARAs protection requirements and its narrow definition, these protections do not easily extend to virtual art. These works are often graphic design textures and image files whose sculpting onto primitive 3D shapes result in virtual objects and art, which can and often combine virtual 3D modeling, photographic images, audiovisual materials, performances as well as computer programming in the form of avatar animations. Additionally, there is little to no way of numbering let alone controlling copying and even reattribution of either the creator or owner of the virtual works. The ability and activities of museums, governments, collectors, and ultimately the public, to preserve and enjoy virtual art faces an uncertain future.[14] Existing protection mechanisms allow little to no enforcement of virtual intellectual property rights or accessible forums to challenge overreaching and often unconscionable dispute resolution provisions concerning content contained in service and end user agreements.
This new breed of designers, programmers and artists create and market their own virtual works into, not only virtual goods and services, but also related digital and actual products as well. By so doing they are simultaneously creating and feeding an entirely new source of culture and economy.
Here I propose that virtual intellectual property and related rights are born from individual author and user rights, in certain data or files embodying trademark, design or copyright protected works hosted on remote servers. For example, intellectual property protected master copies saved on remote servers of online service providers or remotely hosted author hard drives and transmissions of the same, including downloadable file offers and application software enabled perceptible displays or performances.
Related rights to virtual intellectual property include recognized interests in virtual content. Virtual content includes virtual goods, stored on remote servers without possibility of download. Consumer content rights are protected under contract and equity principles. Author rights in content are protected under international intellectual property laws. In addition, related rights cover virtual personality data and files protected under human rights based privacy and personal information including misappropriation laws and include the right to object to a posting or publication of such data, to be compensated for misappropriation, and a right to erase files conveying false or outdated information attributed to name, image, likeness and personality information available online.
Virtual works and content: display, distribution and publication
Virtual intellectual property also appears to represent an intersection area between intellectual property and broader human rights laws. [15] Because of the economic, cultural and social benefit created by our internet of things reality, access to a content neutral internet as such, meaning that there is no preference of delivery of content to users based on priority content lanes, [16] may constitute a widely recognized reasonable right moving forward. Initiating a discussion on the parameters of the relationship between access to a level playing field for all intellectual property rights holders, but especially individual creators, and a users human right to access to those works via internet technology is timely. Its original basis, the intersection between human rights and intellectual property law, is reflected in the balanced exchange within intellectual property law recognizing individual economic rights in the dissemination of an original work of authorship, product, or invention and the social benefit received in exchange for public access to that material.
Congressional ratification of Berne and the WIPO Treaties gave authority to human rights based principles of intellectual property protection in the United States.[17] The Berne Convention came into force in the United States on March 1, 1989, [18] it protects authors rights in member nations whether their works were published in that country or not.[19] In Moberg v. 33T LLC, the Court identified two issues in this case of first impression: considering the correlation between the posting of foreign copyrighted works on a foreign website and the ability of the copyright holder to file suit in the United States. In so doing the court considered (1) whether posting on the Internet constitutes “publishing” and (2) if so, whether “publishing” on the Internet causes the photographs to be published only in the country where the Internet site is located or simultaneously in every country in the world.[20]
The court determined that the work was not published in the United States simply by virtue of it being published on the Internet because, to rule otherwise ‘would overextend and pervert the United States [c]opyright laws, and would be contrary to the Berne Convention.’[21] The question of whether an Internet posting of a work from any member country of Berne constitutes publication under United States law and the Berne Convention, however, remains unresolved.[22]
In Article 3, the Berne Convention defines protected works as works published with the consent of their authors, whatever the means of manufacture of the copies, so long as enough copies are made available to meet public demand considering the work.[23]
The WIPO Copyright Treaty was ratified by the United States and is in force since March 6, 2002. It ensures all authors national rights, in countries that are members to the treaty, and rights specially granted under the treaty.[24] As far as US works, or works that originate in the United States, a foreign author enjoys the same rights as national authors in practice however those rights are not equally enforceable.[25]
Under the Copyright Act, unpublished works are subject to protection and published works are subject to protection if first publication was in the United States or in a foreign nation that, on the date of first publication, is a treaty party.[26]
In Harper & Row v. Nation Enterprises, Justice O’ Connor stated that § 106(3) “recognized for the first time a distinct statutory right of first publication,” and quoted the legislative history as establishing that § 106(3) gives a copyright holder “the right to control the first public distribution of an authorized copy . . . of his work.”[27] This right in the context of Internet distribution highlights considerations of how public is public in making available a virtual work to the universe of users of a particular Internet environment. This is a crucial determination because while all distributions to the public can be considered publication, not all publications are distributions to the public.[28] Under the Act itself there is a category of publications that are not distributions.[29]
Case law concerning the distribution practices and rights of authors in relation to availability of their works online illustrates, first, the distinction between an offer of a work online for display purposes, as opposed to downloading and, second, the importance of considering the intent of author when authorizing first publication of a work on and offline.[30] Because online posting, or display activity, can occur to any extent, for example through public or restricted website, peer to peer networks, email, or even less common method, each type of activity has a different affect either broadening or limiting the scope of publication.[31]
In the United States Copyright Act, the exclusive rights related to publication and distribution of copyright protected works, are granted to owners of copyrights, which includes corporations.[32] This is not a distinction without difference.[33] Quite the contrary, the treatment of equality in terms of protection but not in terms of access to enforcement forums creates a gaping gap in coverage of individual and foreign authors ability to enforce their rights in exactly the jurisdiction where many of the most widely accessed new media and social network service providers maintain their corporate seats. Such a lack of protection may be out of compliance with United States obligations under these laws as well as the enforcement provisions under TRIPs.[34]
The Constitution authorizes federal regulation of copyright protection.[35] Copyright law protects literary, musical, dramatic, choreographic, pictorial, graphic and sculptural works as well as motion picture, audiovisual, architectural works and sound recordings.[36] Congress eliminated all statutory prerequisites for obtaining copyright protection in the Copyright Act of 1976.
Cases interpreting the Act recognize copyright protection in a work the moment an original idea leaves the mind and finds its way to a page, screen, or other tangible medium.[37] A copyrighted work, namely also complete and fixed, is necessarily more creative in nature than fact based.[38] A copyright protected work is created when a digital expression of literary, design, artistic, musical, or software (computer programs and applications code) work is fixed in a copy for the first time.
This is still true when these works comprise the source and content data files comprising an aggregated temporal virtual world, which are made perceptible by use of viewer software. [39] These files are also considered fixed for the purpose of establishing copyright protection. In Microstar, the defendant argued that the content at issue was not a derivative work because the audiovisual displays generated when Duke Nukem-3D ran were not incorporated in any concrete or permanent form and the MAP files, comprising the display, did not constitute protected expression. The court found them wrong on both counts.[40]
Then, virtual works also include virtual content that is comprised of derivative works of completed copyright protected works. For example, an image of a painting created for publication online.[41] In Moberg v. 33T LLC, the court found it necessary to point out in a foot note…but not to address it directly, whether the thumb nail image is an actual ‘work’ in itself; reasoning that “Of course, if plaintiff’s photographs were taken digitally, and the images posted on the website were directly uploaded from plaintiff, those thumbnail images would be plaintiff’s original copyrighted work.”[42] The nature of the work or copy being transferred however, whether or not it is a derivative work, establishes a certain relationship between the user consumer and the work and informs the user of the nature of the rights to and in the copy.[43]
Virtual works comprise an uploaded file fixed and stored on remote servers as well as sever hosted copies made in response to user request, purchase and subsequent license to display an uploaded file to be fixed and stored on remote servers under the provisions and conditions of a terms of service or end user license agreement. A digital good or download by contrast is a transmission sent from an online server to a local hard drive or device under user control. A virtual good is then a non-downloadable remote server counterpart of a digital good. At least one court has found that the first sale defense is limited to material items[44] and that because the digital items in that case constituted unlawful reproductions, were not subject to first sale defense. In that case, Capitol Records v. Redigi, the court recognized the resale market for original digital goods downloaded onto a hard disk, iPod, or other memory device.[45]
The Copyright Act grants several exclusive rights to copyright holders 17 U.S.C. § 106.[46] Exceptions to these rights inure to an “owner” of a copy of copyrighted material.[47] Courts are currently reconciling the concept of ownership vs. possession rights of copyright protected works translated into data, all around the world. Particularly as it relates to the ownership of a copy of software downloaded either from the Internet or from a CD. [48] In 2009, German appeals courts decided first sale doctrine cases, that required a determination of whether granting a license to download computer programs constitutes a sale for the purposes of allowing a purchaser to resell downloaded programs without infringing the exclusive rights of the copyright holder. [49] The European Court of Justice decided, in Usedsoft v. Oracle, that restriction of the resale of copies of computer programs downloaded from the Internet would go beyond what is necessary to safeguard the specific subject matter of the intellectual property concerned.[50]
Because of the importance of control or ownership of the original distribution of protected works, the reasoning involved in software download decisions do not provide much useful guidance in the context of virtual works. For example, in Vernor, the Ninth Circuit held that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the users ability to transfer the software; and (3) imposes notable use restrictions. [51] The content license granted by the content creator when uploading content to a virtual space may be used to address these factors, however, unlike in software licensing cases, the license is drafted by the online service provider, not the copyright holder. Perhaps in the future that will have to change.
A court may one day have to determine, in the absence of legislative intervention, whether an online service provider is permitted to create contracts the provisions of which, in addition to providing the service eternal ownership of all virtual works that ever existed on their servers, allow it to stand in the shoes of three parties to a contract (namely licensor, licensees and online service provider) and bargain for all sides, forever. In ProCD, the court noted that ‘although Congress possesses power to preempt even the enforcement of contracts about intellectual property — -courts usually read preemption clauses to leave private contracts unaffected….Like the Supreme Court in Wolens, we think it prudent to refrain from adopting a rule that anything with the label “contract” is necessarily outside of the preemption clause….some applications of the law of contracts could interfere with the attainment of national objectives and therefore come within the domain of § 301(a).”[52]
Although ‘copies’ are defined under the Copyright Act as material objects, other than phonorecords, in which a work is fixed and can be perceived or communicated either directly or with the aid of a device,[53] electronic copies are considered material regardless of whether they are downloadable or not.[54] Copies of virtual works and virtual goods are attributable to users via account inventory and courts have recognized the monetary value as well as the commercial interest of the user purchaser in these forms of virtual content.[55] These displayed or downloaded copies do not transfer rights to the original virtual work, or upload file, from which all display or download copies attributable to that licensed authorization derive. They do however vest certain recognizable rights under contract and equity principles in copies ‘made’ by authorized users and service providers.
In 2009, because of its unique properties, at least one court ascribed a contract based property right to access the Second Life virtual world that could not be taken away without reasonable arbitration provisions in place. [56] There are, however, many new content platforms offering development tools or space to users and allowing them to create copyrightable applications, games and software. [57]
There are qualitative differences in control of upload copy material, treatment under laws and enforcement of virtual goods, as opposed to digital, or actual goods. The nature of a copyrighted work is significantly determined by whether it is published or unpublished.[58] For example, published works are more likely to qualify as fair use because the first appearance of the artist’s expression has already occurred.[59]
Publication, in virtual worlds, given their closed systems and, for the most part, lack of interoperability, demonstrates the intent of the author in restricting the sale or license of the work to a particular set of individuals, namely those operating necessary viewer software. Based on these considerations, at least limited publication occurs in virtual environments with the authorized distribution to a service provider of source material data files.[60] Regardless virtual works and content, in so far as it represents copyrightable subject matter, are protectable under the act as unpublished works.[61]
In addition, depending on the publication status of the work, different relationships, and consequently use related rights, exist to the work for authors, service providers and users respectively.[62] In establishing whether distribution of a work has occurred many factors are considered, including whether the distribution included a right of diffusion, reproduction, distribution, or sale.[63] Because public performance and display do not constitute publication in and of themselves, neither does exhibition of works of art,[64] distribution is critical to establishing publication,[65] and the nature of publication of virtual works uploaded to virtual worlds servers is likely to be considered a limited publication by courts.[66]
This may in practice affect the ability of virtual content collecting service providers to sell or transfer uploaded content to third parties for publication or display in other virtual environments, particularly without specific author consent. Courts do not seem to differentiate between posting and uploading, courts do however, make a distinction between display or performance and download of virtual content and works.[67] Downloads are transmissions of electronic files sent from an online server to a local hard drive.[68] So downloading online transmissions to RAM, a hard drive, smart phone or storage device, implicates the exclusive rights of copyright holders to make and distribute copies, material copies.[69]
Whereas streaming transmissions implicates performance or display rights in copyrighted works.[70] This is because streaming supports contemporaneous perceptibility under the Act.[71] In order to display, however, a ‘buffer’ copy must exist on server equipment.[72] In the Second Life virtual world, for example, the ‘viewer’ technology facilitates “live” performances of sound recordings via transmission of the stream from a users’ computer or home studio equipment. In most cases, however, virtual works and content are not streamed from users devices but stored on the service providers’ servers and equipment.
A user requested buffer copy of virtual intellectual property, or a virtual good, is generated when rights to display a work uploaded to online service provider servers are transferred or ‘sold’ to other users. This happens when a users clicks on a work or content for sale and orders a copy of the work or content displayed to be sent to his avatar account inventory. The inventory items may simply sit in inventory or be placed within the MAP files of the world, by the user and displayed as part of the environment.
Under § 101 of the Act: To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process.[73] Because displays of copies of virtual works and content are more like displays or performances, rather than downloads of material copies, it is uncertain what scope of distribution in a closed environment could be broad enough so as to support a finding of publication to the general public. Perhaps multiple uploads of the same virtual work involving more than one closed environment, or an open sim, could demonstrate an intent and ability to distribute a virtual work to the general public.
Syndication of virtual works and works of limited publication to third parties depends on the ability of authors and owners of virtual intellectual property to define and assign rights to downstream distribution of virtual works.[74] This may be effectively managed through introduction of defined standards for technical measures related to labeling content, documenting publication and instituting transparent takedown policies[75], as well as defining procedures for copyright cancellation[76] and providing an online copyright dispute resolution system.
Virtual intellectual property, as defined above, is recognized and present in the license provisions of most terms of service agreements.[77] It is generally referred to as ‘CONTENT’ and terms of service and end user license provisions control its license, lease, and publication (distribution or transmission of performance) to other users and the service provider. These provisions typically include rights to use and offer, for the purpose of display, uploaded works and infringement notification procedures.
At least three cases in the US have recognized that ownership or purchase of virtual goods, not digital but purely virtual, such as represented in an avatar account inventory, including trade and service marks, virtual currency balances and even virtual property, or land, (namely licenses to ‘occupy’ a simulated real estate location online) created a legally recognizable interest in access for the purchaser and required reasonably fair provisions.[78]
In those cases, access could not be terminated by the service without reasonable dispute resolution provisions in place and compensation for current value of virtual tender balances. In one, the service provider was forced to allow users whose accounts were terminated to sell their inventory items on the service provider owned virtual goods marketplace, XSTreetSL.com, commission free.[79]
There are virtual works and content management distribution models from the film and television (broadcast and cable), as well as music and software industries that can be used to clarify the practical nature of virtual works protection. The nature of the use of the work that is being authorized by the author is critical, namely whether an electronic copy is being made for download or simply for users to view or observe. This choice dictates the extent of publication and distribution respectively. In a non-download virtual environment, the license to make, versus to display, distinguishes the upload transmission to the service provider (as master licensee) from the transmission of authorized copies for display to users of the environment. Both however are licensed transactions under the Terms of Service Agreements of most new media online service providers.
Consider electronic transmission of a musical work. [80] A musical work consists of at least two, and arguably three, intangible but material and perceptible, copyright protected elements.[81] Those copyrights belong to, respectively the composer of the musical score and lyrics (composition or publishing rights), the owners of the recording of the performance of a composition by a particular artist or band (sound recording or master rights) and under some conditions performers (performance rights). [82] In other words, communicating a musical work in any digital format necessarily transmits complete information protected under multiple intangible but perceptible copyrights. The grant of transmission and use of a copyright in intangible works, whether commercial or personal, for advertising or endorsement, for play, or for download, each has its own particular kind of licenses, agreements and respective terms. These various licenses and agreements govern rights and responsibilities regarding the authorized use and transmission between the user of a copyright to an intangible work and its multiple copyright holders.[83]
In FBT v. Aftermath Productions, the agreement reflected a common industry practice, namely making a distinction, in terms of percentage of royalties due, between the ‘Records Sold’ and ‘Masters Licensed’ of a musical work. This practice demonstrates the difference in treatment in contracts between transmissions of a performance and distribution of copies, such as for download, of musical works.[84] Although licensing agreements for musical works are specific in their technology relevant provisions, because of the unforeseen ability to transmit (via performance and download) musical works over the internet, many agreements in the music industry were silent as to who had which right to internet performances and downloads of musical works.[85]
The internet and cloud computing has also supported the switch in the software industry from distribution and resale of actual copies to the licensing use of virtual software as a service. This is limited publication activity as well, because distribution as such is not technically taking place when software as a copyrighted work is only made for the purposes of limited licensed use. As a result, the nature of the relationship between the software user and the software product was transformed from purchaser or owner of an actual copy to a licensee/performer of a technical display copy (a copy to perceive).[86]
Because the act of uploading copyrightable content or copyrighted works constitutes a transmission of fixed works to a closed but populated virtual environment (outside of the circle of friends and family) [87], the granting of display rights subsequent to actual purchase, and licensing, of published, unpublished, or limited publication works, has, consequently, implicates authors exclusive rights under copyright law.
In particular, how and where publication online takes place is a factor in identifying where in the world those rights arise, namely virtual intellectual property rights.[88] If, for example, the author intends that an upload is technically first publication on a public website, its distribution (of the source master file) is taking place in the location of the upload catching, display copy streaming or post enabling, service provider.[89] Further, the nature of the authors intent to distribute can be demonstrated by the author accepting valid terms of service provisions of particular online service providers which grant license rights to use, display, and or copy virtual content or works to their particular users located worldwide and subsequently have access to content uploaded to that providers’ servers.[90]
This is important not only to determine the country of origin for copyright purposes but also for location of actual sales or transfers, which establish preliminary use of trademark rights as well. Trademark use, as demonstrated through internet use, for the purposes of registration, still appears to be limited by actual sales and distributions in particular locations. [91]
Although virtual goods are perceptible but intangible, virtual services are not perceptible but real. They are provided in real-time and exchanged for real value. Branded sale and trade in virtual goods and design services abounds in and surrounding virtual worlds.[92] According to a 2009 article in the New York Times, transactions in virtual worlds are estimated between 1 and 2 billion dollars annually and expected to grow.[93]
The majority of creators ‘in world’ do use symbols, watermarks, or logos on textures used to create objects in order to aid in identifying works that incorporate unauthorized materials. These virtual marks are also used in commerce and to identify the source or origin of the goods and form the basis of unregistered virtual trademark rights. Furthermore, many creators maintain domains where they advertise designs, animations or works and offer sales with in world delivery. The Rules for Uniform Domain Name Dispute Resolution Policy recognize reliance on a trademark registration anywhere in tge world in UDRP complaints pertaining to domain name disputes.[94] According to ICANN it is possible to demonstrate an interest in domains by replying to a complaint (based on a trademark registration) with evidence that an individual, business, or other organization has been known as the domain name.[95]
Trademark registration however is territorial and requires some level of examination of use on a jurisdiction-by-jurisdiction basis prior to registration. This established scope of trademark protection has its roots in considerations restricting the scope of trademark use in commerce to protect physical consumers of goods and services in their specific geographic locations.[96] Although use is required for registration purposes and generally established by a showing of sales, use in commerce to establish ownership of a mark, may not be required so long as the goods and services being offered over the internet are directed at US customers.[97]
In 2006, virtual art enthusiast, author, and renowned book artist Richard Minsky[98] opened a virtual gallery in Second Life and published an e-mag, which was also distributed in world, about art in the Second Life virtual world. He called both ‘SLART’. Minsky applied for and was granted registration of the SLART trademark in 2007.[99]
Minsky, with the help of VIPO[100], policed the use of the mark in the virtual world by sending cease and desist letters to users regarding unauthorized use in world of his registered SLART trademark. He was asked to stop and informed that the service did not recognize his rights in the SLART trademark. Minsky filed suit against Linden Research in the Northern District of New York. The court in Minsky v. Linden Research, protected his trademark in the first and only case involving a trademark originating in a virtual world being enforced against a service provider of that world. Linden Research was ordered to refrain from:
(I) presenting unauthorized uses of the SLART federal registered trademark or encouraging, enabling or condoning infringement of the mark by others, in the Second Life virtual world or any other medium, including but not limited to websites, blogs and printed matters; (ii) hiding the identity(ies) of user(s) of its service who infringe on the SLART trademark; (iii) harassing Plaintiff with threats and/or directives to stop contacting other users of Linden’s services for the purpose of stopping infringement and enforcing his registered trademark SLART; and (iv) claiming ownership of, control of, affiliation with, endorsement by, or other legal relationship to the SLART mark or Slart Enterprises
Trademark registration, though cost prohibitive in terms of most virtual content, is a more effective but no less unpredictable enforcement tool on the Internet. Minsky had the foresight and resources to apply for trademark registration and access to courts to prosecute for trademark infringement, however, most providers of goods and services in virtual worlds do not.
Regarding trademarks and related virtual content, another major issue facing use and enforcement of trademark rights online is anti competitive abuse of the general proposition that a trademark registered anywhere in the world is sufficient for all internet takedown purposes. There is no transparent dispute resolution, verification or adjudication procedure adjudging the coverage of the trademark right claimed.
Although trademark claims are not subject to OCILLA safe harbor, service providers under applicable provisions of most terms of service agreements, are authorized to unilaterally judge and remove content or disable accounts based on claims of trademark infringement by users. Bringing suit in such matters however is usually cost prohibitive as the competing trademark owners (or competing rights holders, trademark v copyright) are often in two different jurisdictions while the service provider sits in a third. There is no logical way to proceed with related claims, meanwhile the effect is an overextending the protection of some registered marks online, usually the first to send a cease and desist notice, as well as eliminating the relevance of unregistered but preliminary or actual use based forms of trademark protection.
Virtual Personality: name, profile and reputation data
Legislative action that will by default define content and access related rights of users online, whether content authors or consumers will necessarily have international effect and involve human rights inquiries and considerations.[101]
The expectation of individual authors, and each individual, to access and control communication of works online and uses of personality information, such as name and associations, is based on essentially a co existence human rights approach to economic interests in different types of data, including intellectual property protected and protectable data.[102]
There are two divergent approaches to the intersection between human rights and intellectual property laws.[103] The Universal Declaration of Human Rights sets out specific rights.[104] The first paragraph of Article 27 of the UDHR states “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” “The second paragraph adds: “Everyone has the right to protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he is the author.”[105]
Although the UDHR is only considered customary international law, specific rights have been codified as part of the International Covenant on Economic, Social and Cultural Rights (ICESCR).[106] The majority of states in the world are parties to the ICESCR. As of June 2012, only 33 states have either not yet signed the convention, or have signed but have not yet ratified the convention.[107] The United States stands out on the list among them.
Transmissions communicating particularly, name, image, likeness and reputational information, as a result of personal data processing and profile generating actions of online service providers are the subject of human rights based standards of data management and distribution.
These rights create norms based on reasonable expectations are also present in the Charter of Fundamental Human Rights, a uniting set of principles that guide development of laws and an active online population in the European Union, all member countries of which also codified the ICESCR.[108]
Recently the European Court of Justice decided that the activity of search engines as providers of content and the indexing, storing and making available information in order of preference when that information contains personal data, constitute “processing….of data” under the Personal Data Directive 95/46.[109] They also determined that an undertaking managing the activity is to be regarded as the controller, defined in the Directive, of the personal data contained in the web pages that it indexes. [110]
In Gonzalez, the ECJ further found that the information aggregating activities of a search engine were additional to the activities of the publishers of websites and the difficulties of chasing down website publishers made holding Google responsible more effective to the protection of fundamental individual rights of EU citizen data subjects.[111]
So, if EU citizens have some form of virtual personality rights, specifically the ability to require removal of inaccurate or outdated information based on the fact that information when aggregated provides a profile of their individual identity. What about here at home? What rights can American citizens claim in the face of unauthorized or inaccurate personal information being uploaded and disseminated while connected to their name, image or likeness?
In Garcia v. Google, the Ninth Circuit observed,
“This is a troubling case. Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen. Her unwitting and unwilling inclusion in “Innocence of Muslims” led to serious threats against her life. It’s disappointing, though perhaps not surprising that Garcia needed to sue in order to protect herself and her rights.”
“Her performance was used in a way that she found abhorrent and her appearance in the film subjected her to threats of physical harm and even death. Despite these harms, and despite Garcia’s copyright claim, Google refused to remove the film from YouTube. It’s hard to see how Google can defend its refusal on equitable grounds…”
In all Garcia filed eight (8) takedown notices under the Digital Millennium Copyright Act and when that didn’t work she applied for a temporary restraining order seeking removal of the film from YouTube claiming that the video infringed her copyright in her performance.[112]
Courts in the United States, specifically in California, have explored the boundaries of use of image and likeness rights as applied to virtual representations, specifically avatars. In the case No Doubt v. Activision, the decision hinged on whether Activision would be found to hold a valid license to use No Doubt’s likenesses in the manner in which they are used in Band Hero. As with all Guitar Hero games, players advance and can “unlock” characters and use them to play songs of the player’s choosing, including songs the player composed as well as those of other artists.
No Doubt did not approve the use of their likenesses to perform songs other than their own. The court found that Activision’s use of No Doubts avatars was not transformative. A determinative fact was that unlike in Kirby, the No Doubt avatars were not depicted as fanciful characters or anyone else doing anything else other than exactly what they do, performing rock songs.[113] There was nothing creative in the elements of Band Hero that elevated the depictions of No Doubt to something more than “conventional, more or less fungible, images” of its members that No Doubt should have the right to control and exploit.
The District Court for the Northern District of California in Fraley v. Facebook, found however, that the reasoning in those cases was inapplicable because a misappropriation claim is entirely different from a privacy tort claim. It was held in Fraley that it was not that the Facebook users’ personal information had economic value and its disclosure constituted loss of property, it was that the plaintiffs claimed to suffer because Facebook did not compensate them for their valuable endorsement of third party products and services to their Facebook friends.[114]
The court further stated that Facebook appeared to be creating and providing content, by deceptively mistranslating members’ actions, such as clicking on a ‘Like’ button on a company’s page, into the words “Plaintiff likes [Brand],” and further combining that text with Plaintiff’s photograph, the company’s logo and the label “Sponsored Story.”[115]
Just because the members of a social network are considered content creators, that does not prevent the social network from being an information content provider, and liable under California law, if, it undertakes to develop, in part, the personal information posted by members.[116]
Finally, we reach the issue of access. The existence of virtual intellectual property rights necessarily involves questions of rights access to the Internet, as a highway to distribution, enforcement and virtual content development management tools for individual creators and consumers of virtual goods and services.[117]
Questions of access to the Internet and equality of treatment of web content underline the importance of the ongoing debate on net neutrality, or more specifically the idea that all Internet traffic should be treated equally regardless of source. The FCC Open Internet Order in place from 2010 until early this year, meant that at least up until January 14, 2014, the following three rules, protected content on line:
1. That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network
2. That no legal content can be blocked and
3. That ISPs may not act in a commercially unreasonable manner to harm the internet, including favoring traffic from an affiliated entity[118]
On January 14, the Court of Appeals for the District of Columbia in Verizon v. FCC, vacated the no blocking and no unreasonable discrimination rules.[119] Considering the human rights norms requirements discussed supra it may be considered a violation of human rights norms to provide preferential access to the Internet in exchange for higher fees, particularly when virtual intellectual property is hosted there and certain classes of users (authors and holders), have an interest in enjoying and protecting the fruits of their labor and a right to benefit from their virtual works and goods as well as those of others.[120]
Conclusion
Creative as well as technical skill development and information sharing activities form the core of our humanity The ever-growing expansion of humankind reflects our insatiable need for culture, technology, products and services. The collective contributions by individual authors, artists and inventors help define our respective cultures, societies and civilization.
Because of not only the global nature of its information and content but also the individual nature of Internet access, only a human rights approach to intellectual property protection and enforcement reflects the necessary shape and character of rule of law in the Internet environment.[121]
The intent of the author when uploading or delivering a work may not always be readily discernible when viewing those works online. That virtual work may or may not have been uploaded or distributed without the authors’ authorization.[122] In policy terms ignoring the authors’ intent in transmitting a work would be in contravention to international copyright law as it would in effect prevent effective enforcement of foreign copyrighted works in the United States.[123] That is exactly what happened in Kernel v. Mosely.[124]
The authors’ intent in first ‘publication’ may be to distribute either download copies or display copies. That distribution or display may be to the general public or a limited group of users.[125] Author intent may reflect a limited purpose such as a particular use at a particular location online. It is expressed through how the transmission of the work is managed, namely content licensing conditions and enforcement activities.[126]
The nature of author intent in distribution determines the relationship of all classes of users (licensees) towards the work.[127] Transmission or publication of virtual works has enforceable repercussions in terms of liability of service and equipment providers as well as for users without an authorized relationship to the virtual work.[128]
The music industry with its multi level rights system to an actual product, namely cds, (that could be used to make copies of musical works and that embodied copyright protected elements) regulated contractually license rights allowing performers, producers, and publishers respectively to collect payment for digital uses; eventually legislation was enacted to recognize the scope of each of these related rights.[129]
Rule of law and predictability of outcomes in the Internet environment is particularly important as our collective and individual economic future depends more daily on its existence and the equal access of content creators and users to a neutral web. At the same time, the common law process of litigating cases and trying facts has identified and recognized related expectations, violations and claims; it is time to codify these common law and customary principles, and to clarify the nature and scope of these rights including enforcement and display, both of which require access to the internet, well as its published works and personal information.
It is time to recognize the opportunity presented by this ongoing legal ‘crisis’ and take advantage of it to determine the nature of rights and obligations related to Internet technology and perhaps by default a human right to technology in general. It is a unique opportunity.
An opportunity to create laws that reflect our new understanding of the content creating and consuming nature of human beings, anywhere in the world, and to address the global issues arising as a result of the transnational reach of technological advances. Culturally this moment is significant because of the impact of this human rights based approach to the allocation of content rights and Internet technology will either support or negatively impact individual dissemination of academic and creative productivity, the desire to express oneself, an ability to produce creative or useful works, and achieve scientific discoveries.
February 28, 2015
[1] Dictionary.com, llc, www.dictionary.com (User-generated content is “any data or media that is contributed by individual users of a website.”) http://dictionary.reference.com/browse/user-generated+content (last visited January 27, 2015)
[2] See Copyright Act of 1976, Pub. L. №94–553, 90 Stat. 2541 (Oct. 19, 1976), codified at various parts of Title 17 U.S. Code, 17 U.S.C. § 104 (1988), (1998) (The Berne Convention Implementation Act of 1988 amended section 104(b) by redesignating paragraph (4) as paragraph (5), by inserting after paragraph (3) a new paragraph (4), and by adding subsection © at the end. Pub. L. №100–568, 102 Stat. 2853, 2855.) (The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended section 104 as follows: 1) by amending subsection (b) to redesignate paragraphs (3) and (5) as (5) and (6), respectively, and by adding a new paragraph (3); 2) by amending section 104(b), throughout; and 3) by adding section 104(d). Pub. L. №105–304, 112 Stat. 2860, 2862.)) 17 U.S.C . 104 (§ 104 Subject matter of copyright: National origin (a) Unpublished Works. — The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author. (b) Published Works. — The works specified by sections 102 and 103 when published, are subject to protection under this title if — (2) the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party; or(3) the work is a sound recording that was first fixed in a treaty party) (available at http://www.copyright.gov/title17/92chap1.html) (last visited 7:29 am July 26, 2014); see also, Kernel Records Oy v. Mosley, №11–12769 at 14 (11th Cir.) (September 14, 2012) (“Congress overhauled federal copyright law by passing the Copyright Act of 1976, Pub. L. №94–553, 90 Stat. 2541 (codified at 17 U.S.C. § 101 et seq.). As part of that overhaul, Congress eliminated all statutory prerequisites to obtaining copyright protection. Instead, Congress provided “that a copyright exists the moment an original idea leaves the mind and finds expression in a tangible medium, be it words on a page, images on a screen, or paint on a canvas[]. (citation omitted)”).
[3] Online Copyright Infringement Liability Limitation Act, §512, 17 U.S.C. §§ 101–810 (Section 512 amends title 17, United States Code, to implement the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty, and for other purposes, as part of the Digital Millennium Copyright Act. (OCILLA is known as the DMCA ‘safe harbor’, it protects online service providers (including internet service providers) from liability by shielding them for their own acts of infringement when they make unauthorized copies and by shielding them from liability for a users infringement.) (October 28, 1998).
[4] See Google Spain SL, Google Inc. v. AEPD Mario Gonzalez, Case 131/12 at 13 (Eur. Ct. J.) (13 May 2014) (discussing Directive 95/46/EC Personal data) (“As has been stated in paragraphs 26 to 28 of the present judgment, the very display of personal data on a search results page constitutes processing of such data. Since that display of results is accompanied, on the same page, by the display of advertising linked to the search terms, it is clear that the processing of personal data in question is carried out in the context of the commercial and advertising activity of the controller’s establishment on the territory of a Member State, in this instance Spanish territory….That being so, it cannot be accepted that the processing of personal data carried out for the purposes of the operation of the search engine should escape the obligations and guarantees laid down by Directive 95/46, which would compromise the directive’s effectiveness and the effective and complete protection of the fundamental rights and freedoms of natural persons which the directive seeks to ensure, (citation omitted) in particular their right to privacy, with respect to the processing of personal data, a right to which the directive accords special importance as is confirmed in particular by Article 1(1) thereof and recitals 2 and 10 in its preamble.”).
[5] See Viacom International, Inc., v. YouTube, Inc., 10–3270-cv at 34, 2012 WL 1130851 (2d Cir. April 5, 2012) (“§512(i), conditions safe harbor eligibility on the service provider having “adopted and reasonably implemented . . . a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” Online Copyright Infringement Liability Act, 17 U.S.C. § 512(i)(1)(A). (1998)”); see also id. at 32 (“17 U.S.C. § 512(c)(1)(A) requires knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement.”) (noting that class plaintiffs asserted in a single sentence that YouTube ‘failed to implement any repeat infringer policy prior to March 2006, and that defendants are therefore excluded from the safe harbor for any infringing activity before that date’, unfortunately the sentence was not sufficiently argued and could not be reviewed by the court); see also UMG Recordings v. Shelter Capital Partners, 667 F.3d 1022 (9th Cir. 2011), №09–55902 at 21092 (9th Cir. Dec. 20, 2011) (available at https://copyrightalliance.org/2013/03/revised_umg_v_veoh_decision_includes_silver_linings_copyright_plaintiffs#.U_7vP0j3DIo ) (The court held concerning 512(c) and the right and ability to control, that it requires knowledge of specific infringing activities.); Viacom v. Youtube, 718 F.Supp.2d 514, 528 (S.D.N.Y. June 23, 2010) (“As the Corbis court noted, “[t]he key term, `repeat infringer,’ is not defined…. The fact that Congress chose not to adopt such specific provisions when defining a user policy indicates its intent to leave the policy requirements, and the subsequent obligations of the service providers, loosely defined.” (citing Corbis, 351 F. Supp. 2d at 1100–01)”).
[6] See Laurence Helfer, Towards a Human Rights Framework, 40 U.C. Davis L. Rev. 971, 1015 993–1015 (2007) (“The authors’ rights clauses of the UDHR and ICESCR share a close affinity with the natural rights tradition of droit d’auteur prominent in civil law jurisdictions. Constitutional courts in several European countries have recently relied on fundamental rights guarantees in their respective domestic constitutions to justify intellectual property protection. It would be but a short step for these courts to turn to international human rights law to enhance this protection still further.”); see also id. at 993 (“A human rights framework for authors’ rights encompasses a rule of equality between domestic and foreign owners of intellectual property products. But it goes much further, including many additional prohibited grounds of discrimination and mandating equal access to legal remedies for infringement, including access for “disadvantaged and marginalized groups.”), id. at 995–6 (“The key to understanding this framework is to identify the purposes of recognizing authors’ moral and material interests as human rights. According to the Committee, such rights serve two essential functions. First, they “safeguard[] the personal link between authors and their creations and between peoples, communities, or other groups and their collective cultural heritage.” And second, they protect “basic material interests which are necessary to enable authors to enjoy an adequate standard of living.”).
[7] See Ralph Oman, Berne Revision: The Continuing Drama, 4 Fordham Intell. Prop. Media & Ent. L.J. 139, 139 (1993) (“One hundred years ago Victor Hugo and his confrères who birthed the Berne Convention took special pride in the establishment of the International Bureau — -a secretariat with administrative and educational responsibilities and the mandate to prepare for periodic revisions of the Convention.”); see also The International Literary and Artistic Association, http://www.alai.org/en/presentation.html (last visited Aug. 28, 2014) (“The International Literary and Artistic Association (ALAI) is an independent learned society dedicated to studying and discussing legal issues arising in connection with the protection of the interests of creative individuals. Copyright and performing artists’ rights are today an integral part of fundamental human rights as enshrined in several international conventions, declarations and charters. Founded in 1878 by the great French writer Victor Hugo to promote the international recognition of the legal protection of authors for their intellectual work, the Association fulfills its purpose by fostering the wider international dissemination of works so as to enrich the heritage of humanity. This objective was initially achieved at the end of the 19th century with the adoption of the Berne Convention for the Protection of Literary and Artistic Works….ALAI promotes creativity by endeavoring to assure the protection of the moral and economic rights of creators in general, a goal that article 27(2) of the Universal Declaration of Human Rights also affirms.”)
[8] Ronda Hauben, “From the ARPANET to the Internet A Study of the ARPANET TCP/IP Digest and of the Role of Online Communication in the Transition from the ARPANET to the Internet” at xxx ("People participating in this transition of the ARPANET into the internet environment are participating in an event as exciting as the construction of the ARPANET and I am very proud to be a part of it." Vint Cerf )[9] See Federal Communications Commission, Notice of proposed rulemaking, May 14 2014 at 3–4 (available at http://www.fcc.gov/document/protecting-and-promoting-open-internet-nprm) (last visited June 1, 1:49 pm) (“As the Commission explained in its 2010 Open Internet Order, the Internet’s open architecture allows innovators and consumers at the edges of the network “to create and determine the success or failure of content, applications, services and devices,” without requiring permission from the broadband provider to reach end users. As an open platform, it fosters diversity and it enables people to build communities.” …“It is important to always remember that the Internet is a collection of networks, not a single network. And that means that each broadband provider can either add to the benefits that the Internet delivers to Americans — by maintaining Internet openness and by extending the reach of broadband networks — or it can threaten those benefits — by restricting its customers from the Internet and preventing edge providers from reaching consumers over robust, fast and continuously improving networks. This is a real threat, not merely a hypothetical concern. … Second, broadband providers may have incentives to increase revenues by charging edge providers for access or prioritized access to the broadband provider’s end users. In particular, excessive fees could reduce edge provider entry, suppress innovation, and depress consumer demand. Third, if providers could profitably charge edge providers they would have an incentive “to degrade or decline to increase the quality of service they provide to non-prioritized traffic.”)
[10] See e.g., Emma Woollacott, www.forbes.com, ISPs Slap Customers With 1.3m Copyright Alerts (“For example, 30 percent of people receiving a first warning in the US went on to receive a second; when France introduced a similar system in 2010, the figure was just nine percent. Despite this, though, it seems that the French policy — which was eventually dramatically scaled back — actually did little to curb piracy. Users simply switched to less-detectable methods, leading a team of researchers to conclude earlier this year that it had had no substantial deterrent effect. “In addition, we find evidence that individuals who are better informed about the law and piracy alternatives substitute away from monitored P2P networks and illegally access content through unmonitored channels,” the team concluded. Nevertheless, similar policies are in place in New Zealand, Taiwan, Ireland and South Korea, and are under consideration elsewhere. Australian attorney-general George Brandis, for example, is currently mulling the relative merits of site blocking and a three-strikes warning system.”)
[11] The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A (2007); see also Llewellyn Joseph Gibbons, Visual Artist Rights Act (“VARA”) and the Protection of Digital Works of “Photographic” Art, 11 N.C. J.L. & Tech. 531, 533 (2010) (“Assuming the work meets the requirements of VARA, the artist is entitled to some rights that are similar, but are not strictly equivalent, to the European or civil law concepts of moral rights.”).
[12] The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A at (a)(1)-(3)(2007) (“Rights of Attribution and Integrity. Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art (1) shall have the right (A) to claim authorship of that work, and (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create; id. at § 106A(a)(2)(2007); see also id. at (b) Scope and Exercise of Rights. –Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are co owners of the rights conferred by subsection (a) in that work.)
[13] 17 U.S.C. § 101 Copyright Act of 1976, Pub. L. №94–553, 90 Stat. 2541 (Oct. 19, 1976), 17 U.S.C. § 101 (“A “work of visual art” is — (1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. A work of visual art does not include — (A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication; (ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; (iii) any portion or part of any item described in clause (i) or (ii); (B) any work made for hire; or © any work not subject to copyright protection under this title.”).
[14] See, e.g., Peter E. Berlowe, Laura J. Berlowe-Heinish, and Peter A. Koziol, In this Digital Age, Are We Protecting Tomorrow’s “Masterpieces”? Protection of the Moral Rights of the Digital Graphic Artist, 81 Florida Bar Journal. 30 (October 2007) (available at http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/0/7d40f5831fae1b0c85257363005460be?OpenDocument); see also Gibbons, supra note 11 at 544–545. (“The third and harder case is more interesting. Under VARA, whether a digital photographic work that is only perceptible with the aid of a machine or device is protected remains an open question. Imagine a photographer who takes a digital photograph. The photographer never prints it onto a physical medium, but rather sells the photograph in a digital format VARA does not address the question of whether the aid of a machine or device in order to perceive the work is permissible under VARA. Other provisions of the Copyright Act specifically use statutory language such as “the work can be visually perceived, either directly or with the aid of a machine or device.” Congress did not use such language in VARA, thereby suggesting that VARA may be limited to works of visual art that are physically visually perceptible without the aid of a machine or device. This would also be a fair reading of the statute in light of the examples given in VARA — paintings, drawings, sculptures, and photographs. None of these enumerated examples requires the aid of a machine or device to be visually perceptible, and the specific exclusion for audio-visual works and motion pictures, which usually do require the assistance of a machine or device in order to perceive the work of visual art, seems to indicate that a literal reading of VARA would not apply its protection to purely digital works of art.”)
[15] See Laurence R. Helfer, Graeme W. Austin, Human Rights and Intellectual Property: Mapping the Global Interface 513 (Cambridge University Press, 2011) (“The protective dimension of the human rights framework for intellectual property is grounded in the state obligations to respect, protect, and fulfill creators’ rights and the right of property found in several international instruments, most notably UDHR Article 27, ICESCR Article 15(1)©, and Article 1 of the European Convention’s First Protocol.”) (*The United States signed but has not ratified the International Convention on Economic Social and Cultural Rights (ICESCR) and UDHR stands for the Universal Declaration of Human Rights.).
[16] See Federal Communication Commission Notice of Proposed Rulemaking, May 14 2014 at 12 (available at http://www.fcc.gov/document/protecting-and-promoting-open-internet-nprm ) (Last visited June 1, 1:49 pm) (‘The Internet is America’s most important platform for economic growth, innovation, competition, free expression, and broadband investment and deployment. As a “general purpose technology,” the Internet has been, and remains to date, the preeminent 21st century engine for innovation and the economic and social benefits that follow. These benefits flow, in large part from the open, end to end architecture of the Internet, which is characterized by low barriers to entry for developers of new content, applications, services, and devices and a consumer-demand-driven marketplace for their products.”“…[A]merican businesses have become even more dependent on the internet. For example, according to the Pew Research Project, as of January 2014, 87% of Americans used the Internet, compared to 14 percent in 1995… “Whole new product markets have blossomed in recent years, and the market for applications has both diversified and exploded. A total of $8.33 billion has been raised since 2007 on mobile media ventures, a majority of the funds (4.7) billion to companies that provide software services, including mobile Web development, carrier backend software, app development, and cloud based services in the United States.”).
[17] See S. Rep. №100–681, at 2–3 (1988), Comm. on the Judiciary, 100th Cong., Rep. on the Berne Convention Implementation Act of 1988, (1988) (“While the Berne Convention is also grounded in the concept of national treatment, it is superior to the UCC because it also requires that generally well-specified minimum rights be guaranteed under the laws of member states for works originating in other member states. Among these are: duration of copyright for life of the author plus 50 years, and rights of translation, reproduction, public performance, broadcasting, adaptation and arrangement.” … “Berne adherence will also complement a major trade policy goal of the United States — to formulate an intellectual property code within the General Agreement on Tariffs and Trade (the GATT). An intellectual property code, including a section on copyrights, within the GATT must be drawn from the fundamental economic rights established in the Berne Convention and adequate and effective copyright laws. The United States has an unparalleled stake in preserving Berne’s high levels of copyright protection. The development of a GATT intellectual property code, while a commendable goal, is no substitute for U.S. adherence to the Berne Convention.”); see also Laurence Helfer, Towards a Human Rights Framework, 40 U.C. Davis L. Rev. 971, 995 991–995 (2007) (“The Committee identifies several distinctive features of authors’ rights in the Covenant (Covenant on Economic Social and Cultural Rights. For example, article 15(1)© applies only to “individuals, and under certain circumstances groups of individuals and communities.”); id. at 991 (“These obligations also overlap with several provisions in intellectual property treaties, most notably the Berne Convention’s reproduction rights and moral rights clauses, the “making available” right in the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, and the enforcement provisions in TRIPS. These commonalities suggest that states can satisfy their obligations under article 15(1)©, at least in part, by ratifying international intellectual property agreements and by enacting national copyright and neighboring rights laws. The ICESCR’s state reporting procedures strongly support this claim. Since the early 1990s, member nations have regularly cited to such treaties and laws to demonstrate compliance with the authors’ rights provisions in the Covenant.”).
[18] Berne Convention for the Protection of Literary and Artistic Works, art.1, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979, S. Treaty Doc. №99–27 (1986) (“Article 1 Establishment of a Union ‘The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.’”); see also supra note 14.
[19] See Moberg v. 33T LLC, 666 F. Supp. 2d 415 (D. Del. 2009) Civil №08–625 at 8 (NLH)(JS) (D. Del. Oct. 6, 2009) (available at www.delawareiplaw.com/files/2014/06/08-625.pdf)
[20] See id. at 9–10.
[21] Id. at p. 7.; see also 17 U.S.C. §§ 101–810.
[22] See Moberg at 12. (“Professor Cotter explains that the question of whether an Internet posting constitutes publication under U.S. law and the Berne Convention remains unresolved. Cotter, supra, at 1749. Equating Internet postings with publication presents numerous issues, which are outlined by Professor Cotter. Id. at 1787–88 (summing up that “[o]n balance, despite some common-sense appeal to the notion that works transmitted over the Internet are necessarily published, and despite a plausible textual basis for reaching this result, it is hardly obvious that this result would be desirable”). The Court does not need to delve into yet another unsettled issue, however, because even assuming that the German website “published” plaintiff’s photographs, the Court holds that as a matter of U.S. statutory law the photographs were not published simultaneously in the United States.”)
[23] Berne Convention for the Protection of Literary and Artistic Works, art.3, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979, S. Treaty Doc. №99–27 (1986) (‘Article 3 Criteria of Eligibility for Protection: ‘…works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.’)
[24] WIPO Copyright Treaty art. 5, Dec. 20, 1996, 2186 U.N.T.S. 121, S. Treaty Doc. №105–17 (1997), 36 I.L.M. 65 (1997), (“Article 5 Rights Guaranteed: 1. and 2. Outside the country of origin; 3. In the country of origin; 4. “Country of origin” (1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention. (2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed. (3) Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors.”); But see United States v. Am. Soc’y of Composers, Authors & Publishers, (ASCAP) et al., №09–0539 at 21–22, n.10 (2d Cir.) (September 28, 2010) (“Several amici suggest that our obligations under the 1997 World Intellectual Property Organization Copyright Treaty (“WIPO Copyright Treaty”) require us to find that downloads of musical works constitute public performances. The WIPO Copyright Treaty provides authors with the following right: ‘[T]he exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.’ WIPO Copyright Treaty art. 8 “Congress has recognized that this treaty does not “require any change in the substance of copyright rights,” see H.R. Rep. №105–551(I), at 9 (1998), in part because the Copyright Act already permits copyright holders to control the reproduction and distribution of their musical works over the Internet. To the extent that a download implicates these rights, the conclusion that a download does not also trigger the public performance right does not infringe on Article 8 of the WIPO Copyright Treaty.”…“The other policy arguments raised by ASCAP and amici — regarding global harmony of doctrine, and adequate compensation — are better addressed to Congress, which has the power to amend the Copyright Act.”)
[25] See Laurence R. Helfer, Graeme W. Austin, Human Rights and Intellectual Property: Mapping the Global Interface, Cambridge University Press (2011) at 513. (“The protective dimension of the human rights framework for intellectual property is grounded in the state obligations to respect, protect, and fulfill creators’ rights and the right of property found in several international instruments, most notably UDHR Article 27, ICESCR Article 15(1)©, and Article 1 of the European Convention’s First Protocol.”)
[26] Copyright Act of 1976, Pub. L. №94–553, 90 Stat. 2541 (Oct. 19, 1976), codified at various parts of Title 17 U.S. Code, 17 U.S.C. § 104 (1988), (1998) (The Berne Convention Implementation Act of 1988 amended section 104(b) by redesignating paragraph (4) as paragraph (5), by inserting after paragraph (3) a new paragraph (4), and by adding subsection © at the end. Pub. L. №100–568, 102 Stat. 2853, 2855.) (The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998 amended section 104 as follows: 1) by amending subsection (b) to redesignate paragraphs (3) and (5) as (5) and (6), respectively, and by adding a new paragraph (3); 2) by amending section 104(b), throughout; and 3) by adding section 104(d). Pub. L. №105–304, 112 Stat. 2860, 2862.)) 17 U.S.C . 104 (§ 104 Subject matter of copyright: National origin (a) Unpublished Works. — The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author. (b) Published Works. — The works specified by sections 102 and 103 when published, are subject to protection under this title if — (2) the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party; or(3) the work is a sound recording that was first fixed in a treaty party) (available at http://www.copyright.gov/title17/92chap1.html) (last visited 7:29 am July 26, 2014)
27 Harper & Row v. Nation Enterprises, 471 U.S. 539 at 552 (1985) (The Copyright Act represents the culmination of a major legislative reexamination of copyright doctrine. See Mills Music, Inc. v. Snyder, 469 U.S. 153, 159 -160 (1985); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 462 -463, n. 9 (dissenting opinion). Among its other innovations, it eliminated publication “as a dividing line between common law and statutory protection,” House Report, at 129, extending statutory protection to all works from the time of their creation. It also recognized for the first time a distinct statutory right of first publication, which had previously been an element of the common-law protections afforded unpublished works. The Report of the House Committee on the Judiciary confirms that “Clause (3) of section 106, establishes the exclusive right of publications . . . . Under this provision the copyright owner would have the right to control the first public distribution of an authorized copy . . . of his work.” Id., at 62.”…” The right of first publication implicates a threshold decision by the author whether and in what form to release his work. First publication is inherently different from other 106 rights in that only one person can be the first publisher.”)
[28] See London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153 (D. Mass. 2008) №04cv12434NG at 25 (D. Mass. March 31, 2008) (available at http://www.law.berkeley.edu/7829.htm) (“By the plain meaning of the statute, all “distributions . . . to the public” are publications. But not all publications are distributions to the public — the statute explicitly creates an additional category of publications that are not themselves distributions. For example, suppose an author has a copy of her (as yet unpublished) novel. If she sells that copy to a member of the public, it constitutes both distribution and publication. If she merely offers to sell it to the same member of the public, that is neither a distribution nor a publication.”).
[29] See id. at n.21 (“And if the author offers to sell the manuscript to a publishing house “for purposes of further distribution,” but does not actually do so, that is a publication but not a distribution. Plainly, “publication” and “distribution” are not identical. And Congress’ decision to use the latter term when defining the copyright holder’s rights in 17 U.S.C. § 106(3) must be given consequence.”); id. at 26 (“Before the Copyright Act was passed in 1976, “publication” determined the date on which statutory protection of the copyright began. See 17 U.S.C. § 24 (1970), repealed by Copyrights Act of 1976, ch. 3, § 302, 90 Stat. 2541. It occurred when “‘the original or tangible copies of a work [were] . . . made available to the general public.”) (citation omitted).”).
[30] See Moberg v. 33T LLC, 666 F. Supp. 2d 415 (D. Del. 2009) Civil №08–625 at 11–12 (NLH)(JS) (D. Del. Oct. 6, 2009) (available at www.delawareiplaw.com/files/2014/06/08-625.pdf) (“A public performance or display of a work does not of itself constitute publication.” 17 U.S.C. § 101. The Berne Convention provides, “The expression ‘published works’ means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public having regard to the nature of the work.”); see also e.g., New York Times Co. Inc. v. Tasini, 533 U.S. 483, 498 (2001). (The Supreme Court stated it was “clear” that an online news database violated authors distribution rights by selling electronic copies of their articles for download.); Perfect 10 v. Google Inc., Case No. CV 04–9484 at 30 AHM (SHx) (C.D. Cal., February 2006) aff’d. in part, reversed in part, remanded, 487 F.3d 701 (9th Cir., May 16, 2007) (available at cdn.ca9.uscourts.gov/datastore/opinions/2011/08/03/10–56316.pdf ) (Google’s creation and public display of “thumbnails” were found likely to directly infringe P10’s copyrights.); United States v. Am. Soc’y of Composers, Authors and Publishers (ASCAP) et al., 485 F. Supp. 2d 438 (SDNY 2007), №41–1395 at 12, 131 (WCC) (S.D.N.Y.) (April 30, 2008) (available at www.ascap.com/~/media/files/pdf/.../ratecourtdecision.pdfASCAP) (“The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener. They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded.”…“The Copyright Act has long granted to creators of music and audio-visual works the exclusive right to perform their works publicly.” 17 U.S.C. § 106 (4). In 1995, Congress passed a new law (the Digital Millennium Copyright Act or “DMCA”) granting the right to perform copyrighted sound recordings publicly by means of digital audio transmissions. 17 U.S.C. § 106(6)”), id. at 131 (“Thus there are two separate copyrights implicated in Applicants’ digital audio performances of songs through their internet properties (a) the right to the musical works, which comprises the melody and/or lyrics that underlie all songs, and which are written by songwriters and generally licensed in the United States by performing rights organizations (ASCAP, BMI, SESAC); and (b) the right in the sound recordings, which is the particular recording of the work by a particular artist or band, the copyright of which is typically owned by record companies.”); see also Jane C. Ginsburg, Borderless Publications, the Berne Convention, and U.S. Copyright Formalities (October 20, 2009) (available at http://www.mediainstitute.org/IPI/2009/102009_BorderlessPublications.php) (The court appears, without explicit statement, to require that there be more than simultaneity of availability of copies; rather, the author must take steps specifically to effect first publication of the work in additional countries. Moberg first offered his photos to a group of persons in Germany, not in the United States. While his photographs thus became available in the United States, that event, standing alone, may not suffice to establish his designation of the U.S. public as the first audience for his work. Although the court did not say as much, in the context of the pre-suit registration formality, the key term is “first” publication. This is not merely incipient distribution of copies, but, the court appears to assume, deliberate territorial organization of the points of attachment of the work. Because the country of “first” publication carries consequences for the regime of protection, first publication is not something to be stumbled into.”).
[31] See Kernel Records Oy v. Mosley, №11–12769 at 19, 24–26, 37 (11th Cir.) (September 14, 2012) (“Thus, proof of distribution or an offer of distribution is necessary to prove publication. However, proof of distribution or an offer to distribute, alone, is insufficient to prove publication. Central to the determination of publication is the method, extent, and purpose of distribution.”) (citing Estate of Martin Luther King, Jr., Inc., 194 F.3d at 1214–1216 (discussing general and limited publication); cf. 17 U.S.C. § 101 (defining publication as distribution to the public)…“Although “online” and “Internet” are largely synonymous terms, the Internet consists of distribution methods of significantly different types. Thus, an “online” activity may occur through public websites, restricted websites, peer-to-peer networks, e-mail, or other less common methods. … Each of these “online” distribution methods utilizes the Internet, but none of them can be presumed to result in simultaneous, worldwide distribution.”…“Kernel failed to offer significantly probative evidence of distribution, that is, whether the disk was ever distributed, the breadth of distribution, the purpose of the distribution, and whether the distribution included a transfer of the right of diffusion, reproduction, distribution, or sale.”); see also Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211, 1214 n.3 (11th Cir. 1999) (“[P]ublication is a legal word of art, denoting a process much more esoteric than is suggested by the lay definition of the term.” ); Jane C. Ginsburg, Internet Publication and U.S. Copyright Imperialism, The Media Institute (Jun. 28, 2011), http://www.mediainstitute.org/IPI/2011/062811.php (The court determined that a work was “published” over the Internet when it became available for download, not merely for listening or viewing; Moberg’s disclosure of the photographs was limited to viewing, according to the court. By contrast, because the composer’s work could be downloaded from the Australian site, this availability meant that the composer was “distributing or offering to distribute his work to the public” within the meaning of the U.S. Copyright Act’s definition of “publication.”).
[32] The Copyright Act of 1976, 17 U.S.C. §§ 101–810, § 106 (available at http://www.copyright.gov/title17/92chap1.html) (last visited 7:29 am July 26, 2014) (§ 106 . Exclusive rights in copyrighted works (Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.).
[33] See Laurence Helfer, Towards a Human Rights Framework, 40 U.C. Davis L. Rev. 971, 993 (2007) (“The Committee identifies several distinctive features of authors’ rights in the Covenant (. For example, article 15(1)© applies only to “individuals, and under certain circumstances groups of individuals and communities. ”Corporations and other legal entities are expressly excluded. This represents a profound departure from Anglo American copyright laws, which have long recognized that legal entities can enjoy the status of authors of intellectual property products, for example, of works made for hire.”)
[34] See id. at 993–1015 (“These obligations (under the UCESCR) also overlap with several provisions in intellectual property treaties, most notably the Berne Convention’s reproduction rights and moral rights clauses, the “making available” right in the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, and the enforcement provisions in TRIPS…These commonalities suggest that states can satisfy their obligations under article 15(1)©, at least in part, by ratifying international intellectual property agreements and by enacting national copyright and neighboring rights laws. The ICESCR’s state reporting procedures strongly support this claim. Since the early 1990s, member nations have regularly cited to such treaties and laws to demonstrate compliance with the authors’ rights provisions in the Covenant.”). See also Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), art. 41–54, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement]; World Trade Organization, Member Information, www.wto.org (“The United States of America has been a WTO member since 1 January 1995.”) (http://www.wto.org/english/thewto_e/countries_e/usa_e.htm) (last visited August 15, 2014).
[35] U.S. Const. art. I, § 8, cl. 8.
[36] 17 U.S.C. § 102(a) (1) to (8) (The Berne Convention Implementation Act of 1988 amended the definition of “Pictorial, graphic, and sculptural works” by inserting “diagrams, models, and technical drawings, including architectural plans” in the first sentence, in lieu of “technical drawings, diagrams, and models.” Pub. L. №100–568, 102 Stat. 2853, 2854. The Visual Artists Rights Act of 1990 amended section 101 by adding the definition of “work of visual art.” Pub. L. №101–650, 104 Stat. 5089, 5128.)
[37] See e.g., Kernel Records Oy v. Mosley, №11–12769 at 14 (11th Cir.) (September 14, 2012) (“Congress overhauled federal copyright law by passing the Copyright Act of 1976, Pub. L. №94–553, 90 Stat. 2541 (codified at 17 U.S.C. § 101 et seq.). As part of that overhaul, Congress eliminated all statutory prerequisites to obtaining copyright protection. Instead, Congress provided “that a copyright exists the moment an original idea leaves the mind and finds expression in a tangible medium, be it words on a page, images on a screen, or paint on a canvas[]. (citation omitted)”); Twentieth Century Fox Film Corporation v. Cablevision Systems Corporation, 06 Civ. 3990, 06 Civ. 4092 at 31 (S.D.N.Y. 2007) (“Indeed, the United States Copyright Office, in its August 2001 report on the Digital Millennium Copyright Act (“DMCA Report”), has indicated that buffer copies are “copies” within the meaning of the Copyright Act. Specifically, the Copyright Office concluded that temporary copies of a work in RAM are generally “fixed” and thus constitute “copies” within the scope of the copyright owner’s right of reproduction, so long as they exist for a sufficient amount of time to be capable of being copied, perceived or communicated. (DMCA Report at xxii, 110–11).”). See also
17 U.S.C. § 101 Copyright Law of the United States of America (available at http://www.copyright.gov/title17/92chap1.html) (last visited 7:01 am July 26, 2014) (“The Act defines a work as fixed in a tangible medium of expression when ‘its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. Also, ‘A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.’
[38] See Perfect 10 v. Google Inc., Case No. CV 04–9484 at 30 AHM (SHx) (C.D. Cal., February 2006) (“‘Works that are creative in nature are closer to the core of intended copyright protection than are more fact-based works.’” Kelly II, 336 F.3d at 820 (citing A&M Records, 239 F.3d at 1016)). “Photographs that are meant to be viewed by the public for informative and aesthetic purposes . . . are generally creative in nature.” Id.; accord Elvis Presley, 349 F.3d at 629 (“[P]hotographs taken for aesthetic purposes, are creative in nature and thus fit squarely within the core of copyright protection.”); see also e.g. Oracle America Inc. v. Google Inc., Nos. 2013–1021, 2013–1022 at 20, 34–5 (Fed. Cir. May 9, 2014) (according api code copyright protection) (“It is well established that copyright protection can extend to both literal and non-literal elements of a computer program. See Altai, 982 F.2d at 702. The literal elements of a computer program are the source code and object code. See Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th Cir. 1989). Courts have defined source code as “the spelled-out program commands that humans can read.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 533 (6th Cir. 2004). Object code refers to “the binary language comprised of zeros and ones through which the computer directly receives its instructions.” Altai, 982 F.2d at 698. Both source and object code “are consistently held protected by a copyright on the program.” Johnson Controls, 886 F.2d at 1175; see also Altai, 982 F.2d at 702 (“It is now well settled that the literal elements of computer programs, i.e., their source and object codes, are the subject of copyright protection”). …“Because Oracle “exercised creativity in the selection and arrangement” of the method declarations when it created the API packages and wrote the relevant declaring code, they contain protectable expression that is entitled to copyright protection. See Atari, 975 F.2d at 840; see also 17 U.S.C. §§ 101, 103 (recognizing copyright protection for “compilations” which are defined as work that is “selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship”). Accordingly, we conclude that the district court erred in applying the short phrases doctrine to find the declaring code not copyrightable.”)
[39] See Micro Star v. FormGen Inc., 154 F.3d 1107, 1111–2 (9th Cir. 1998) (“This raises the interesting question whether an exact, down to the last detail, description of an audiovisual display (and — by definition — we know that MAP files do describe audiovisual displays down to the last detail) counts as a permanent or concrete form for purposes of Galoob. We see no reason it shouldn’t.”…“What, after all, does sheet music do but describe in precise detail the way a copyrighted melody sounds? See 1 William F. Patry, Copyright Law and Practice 168 (1994) (“[A] musical composition may be embodied in sheet music . . . .”). To be copyrighted, pantomimes and dances may be “described in sufficient detail to enable the work to be performed from that description.” Id. at 243 (citing Compendium II of Copyright Office Practices § 463); see also Horgan v. MacMillan, Inc., 789 F.2d 157, 160 (2d Cir. 1986). Similarly, the N/I MAP files describe the audiovisual display that is to be generated when the player chooses to play D/N-3D using the N/I levels. Because the audiovisual displays assume a concrete or permanent form in the MAP files, Galoob stands as no bar to finding that they are derivative works.”)
[40] See Micro Star at 3; see also Chris Dombkowski, ‘Simultaneous Internet Publication and the Berne Convention’, 29 Santa Clara High Tech. L.J. 643 at 655 (2012). (Available at: http://digitalcommons.law.scu.edu/chtlj/vol29/iss4/3) (“In London-Sire Records, Inc. v. Doe 1, the court held that the term “material object” indeed includes electronic copies. This court reasoned that the term “material” “should not be understood as separating tangible copies from non-tangible copies. Rather, it separates a copy from the abstract original work . . . .” For example, sounds — the abstract original work — are separate from the phonorecord — the copy or material object — in which they are fixed. Further, Congress defined material object as a tangible medium of expression in which an abstract original work is fixed. The only express limitation on this medium of expression is that it be “sufficiently permanent or stable to permit [the work] to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Clearly, electronic files satisfy this limitation. Therefore, the copyright owner’s rights extend beyond tangible, physical objects to include purely electronic distributions of their work.”)
[41] See Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007) №06–55425 at 15459–15463 (available at http://itlaw.wikia.com/wiki/Perfect_10_v._Google ) (finding Google displays but does not distribute) (“A photographic image is a work that is “’fixed’ in a tangible medium of expression,” for purposes of the Copyright Act, when embodied (i.e., stored) in a computer’s server (or hard disk, or other storage device). The image stored in the computer is the “copy” of the work for purposes of copyright law.; see also id. at 15459–60 (“In sum, based on the plain language of the statute, a person displays a photographic image by using a computer to fill a computer screen with a copy of the photographic image fixed in the computer’s memory. There is no dispute that Google’s computers store thumbnail versions of Perfect 10’s copyrighted images and communicate copies of those thumbnails to Google’s users.6 Therefore, Perfect 10 has made a prima facie case that Google’s communication of its stored thumbnail images directly infringes Perfect 10’s display right.); id. at 15463 (“Google’s search engine communicates HTML instructions that tell a user’s browser where to find full-size images on a website publisher’s computer, but Google does not itself distribute copies of the infringing photographs. It is the website publisher’s computer that distributes copies of the images by transmitting the photographic image electronically to the user’s computer. As in Tasini, the user can then obtain copies by downloading the photo or printing it.”).
[42] See Moberg v. 33T LLC, Civil №08–625 at 16, nt. 14 (NLH)(JS) (D. Del. Oct. 6, 2009); id. at (“The Court need not consider whether thumbnail images of a copyrighted work, rather than the actual work itself, are subject to copyright protection. Presumably, the art gallery scanned or digitally imaged plaintiff’s photographs so that they could be displayed on its website. If that were the case, it would be incongruous not to afford the thumbnail images the same copyright protection as the original prints. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 711 (9th Cir. 2007) (explaining what thumbnail images are and affording them copyright protection). If not the original work itself, they are protected derivatives. See 17 U.S.C. § 106(2) (copyright owner has rights to derivative works). Of course, if plaintiff’s photographs were taken digitally, and the images posted on the website were directly uploaded from plaintiff, those thumbnail images would be plaintiff’s original copyrighted work.” ….“Regardless of the mechanics of posting the images of plaintiff’s photographs onto the website, the site contained attribution to plaintiff for each of the works displayed. Thus, there is no question about who authored the images defendants allegedly used without authorization on their websites.”); see also, Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 711 (9th Cir. 2007) (explaining what thumbnail images are and affording them copyright protection.)
[43] See generally, id.; see also, Playboy Enter., Inc. v. Webbworld, Inc., 991 F.Supp. 543, 551–2 (N.D. Tex. 1997) (Webbworld “displayed” Playboy’s photos because it caused them to be shown on users’ computers and because “[t]he image existed in digital form on Webbworld’s servers.).
[44] Capitol Records v. ReDigi, №1:12-cv-00095-RJS at 12 (S.D.N.Y. March 30, 2013) at 11 (“Put another way, the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce.”)
[45] See id. (“Section 109 (a) still protects a lawful owners sale of her “particular” phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded.” ); id. at 12 (“…when confronting this precise subject in its report on the Digital Millennium Copyright Act, 17 U.S.C. § 512, the United States Copyright Office (“the USCO”) rejected extension of the first sale doctrine to distribution of digital works, noting that the justifications for the first sale doctrine in the physical world could not be imported into the digital domain. See USCO, Library of Cong., DMCA Section 104 Report (2001) (“DMCA Report”); see also Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 129 (2d Cir. 2008) (finding that the DMCA report is entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 , 140 (1944)).
[46] 17 U.S.C. § 106 (1976).
[47] 17 U.S.C. § 109 (1976).
[48] See generally, Vernor v. Autodesk, №09–35969 (9th Cir. 2010) (appeal from decision Vernor v. AutoDesk, No. C07–1189RAJ (D. W.D. Wash. 2009.)
[49] Usedsoft GmbH v. Oracle, C-128/11 (ECJ July 3, 2012) (first sale doctrine applies to downloaded software)
See generally, Decision of Courts of Appeals Frankfurt am Main, №11W15–09 (12 May 2009); see also Judgment of OLG Dusseldorf Court of Appeals, №1–20 U 247/08 (29 June 2009); see also Jorg-Alexander Paul, Software publishers can prevent resale of bare licenses and back-up copies of used software, bird & bird, http://www.twobirds.com/English/News/Articles/Pages/Software_publishers_prevent_resale_bare_licences.Aspx (last visited February 24, 2015); see also Computer Programs Directive (91/250/EEC) Article 4(c) (“The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of that copy.”); s.29 Recital 29 Council Directive 91/250/EEC
[50] Id. at 10 (paragraph 63).
[51] Vernor v. Autodesk, United States Court of Appeals for the Ninth Circuit, Case №09–35969 at 13879].
[52] Procd v. Matthew Zeidenberg and Silken Mountain Web Services, United States Court of Appeals, Seventh Circuit, 86 F.3d 1447 (1996), p.7 paragraph 22.
[53] The Copyright Act of 1976, 17 U.S.C. §§ 101–810, § 101 Chapter 1 Subject matter and scope of copyright (“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.”) (available at http://www.copyright.gov/title17/92chap1.html) (last visited 6:21 am July 26, 2014); American Broadcasting Cos. v Aereo, Inc., №13–461 at 11–12 (S. Ct. June 25, 2014) (“Thus, for present purposes, to transmit a performance of (at least) an audiovisual work means to communicate contemporaneously visible images and contemporaneously audible sounds of the work. Cf. United States v. American Soc. of Composers, Authors and Publisher s, 627 F. 3d 64, 73 (CA2 2010) (holding that a download of a work is not a performance because the data transmitted are not “contemporaneously perceptible”).”); see also, e.g. , United States v. American Society of Composers, Authors and Publishers (ASCAP) et al., №09–0539 at 2, 2010 WL 3749292 (2nd Cir. 2010) (defining download “A download is a transmission of an electronic file containing a digital copy of a musical work that is sent form an on-line server to a local hard drive.” (citing District court ), id. at 15–20 (distinguishing downloads from streams and public performance implications”); Capitol Records v. ReDigi, №1:12-cv-00095-RJS at 6, 7 (S.D.N.Y. March 30, 2013) (“Accordingly when a user downloads a digital music file or “digital sequence” to his “hard disk” the file is “reproduced” ….within the meaning of the Copyright Act.”…“ReDigi’s service by necessity creates a new material object when a digital music file is either uploaded to or downloaded from the Cloud Locker.”);
[54] See Chris Dombkowski, Simultaneous Internet Publication and the Berne Convention, 29 Santa Clara High Tech. L.J. 643 at 655 (2012) (available at: http://digitalcommons.law.scu.edu/chtlj/vol29/iss4/3) (“In London-Sire Records, Inc. v. Doe 1, the court held that the term “material object” indeed includes electronic copies. This court reasoned that the term “material” “should not be understood as separating tangible copies from non-tangible copies. Rather, it separates a copy from the abstract original work . . . .” For example, sounds — the abstract original work — are separate from the phonorecord — the copy or material object — in which they are fixed. Further, Congress defined material object as a tangible medium of expression in which an abstract original work is fixed. The only express limitation on this medium of expression is that it be “sufficiently permanent or stable to permit [the work] to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Clearly, electronic files satisfy this limitation. Therefore, the copyright owner’s rights extend beyond tangible, physical objects to include purely electronic distributions of their work.”); see also London Sire Records Inc., et al. v. Doe 1 et al., №04cv12434 at 28, 29 (D. Mass.) (March 31, 2008) (“The Court concludes that § 106(3) confers on copyright owners the right to control purely electronic distributions of their work.” … “Congress intended for the copyright owner to be able to control the public distribution of items that can reproduce the artist’s sound recording. It makes no difference that the distribution occurs electronically, or that the items are electronic sequences of data rather than physical objects.”)
[55] See Carl Evans, et al., v. Linden Research, Inc. et al., №10–1679 at 6 (E.D. Pa. 2011), [ftnt 3], (“In Bragg, Plaintiff alleged similar claims, that Linden and Rosedale had unlawfully confiscated his virtual property. Bragg, 487 F. Supp. 2d 593. …’The Court applied California law and found that the arbitration clause of the governing TOS was invalid because enforcing the arbitration clause would be both procedurally and substantively unconscionable. Thus the clause was unenforceable, allowing Plaintiff to continue his action in court.”), id. at 2 (“The court granted the motion to certify Subclass A to proceed on claims for conversion, intentional interference with contractual relations and prospective economic advantage, and unjust enrichment, certifying a class as follows: ‘All persons whose assets, including virtual items, virtual land, and or currency in lindens and or U.S. dollars, have been deliberately and intentionally converted by Defendant Linden’s suspension or closure of their Second Life accounts.’”); see also e.g. Minsky v. Linden Research, supra at note 5, (“In addition, it would seem to be in Defendants [Linden Research] best interest to demonstrate a continued commitment to safeguarding their users intellectual property rights as SL continues to grow and attract more and more users and more substantial investors in virtual businesses.”); Bragg v. Linden Research, №06–4925 at 29 (E.D.Pa.) (May 30, 2007) (“Although it is not the only virtual world on the Internet, Second Life was the first and only virtual world to specifically grant its participants property rights in virtual land.”) (“Moreover, there was no “reasonably available market alternatives [to defeat] a claim of adhesiveness.” Cf. Dean Witter Reynolds, Inc. v. Superior Court, 259 Cal. Rptr. 789, 795 (Ct. App. 1989) (finding no procedural unconscionability because there were other financial institutions that offered competing IRA’s which lacked the challenged provisions.)”).
[56] See Bragg v. Linden Research, №06–4925 at 29 (E.D.Pa.) (May 30, 2007) (“Although it is not the only virtual world on the Internet, Second Life was the first and only virtual world to specifically grant its participants property rights in virtual land.”)(“Moreover, there was no “reasonably available market alternatives [to defeat] a claim of adhesiveness.” Cf. Dean Witter Reynolds, Inc. v. Superior Court, 259 Cal. Rptr. 789, 795 (Ct. App. 1989) (finding no procedural unconscionability because there were other financial institutions that offered competing IRA’s which lacked the challenged provisions); see Carl Evans, et al., v. Linden Research, Inc. et al., №10–1679 at 6 (E.D. Pa. 2011), [ftnt 3], (“In Bragg, Plaintiff alleged similar claims, that Linden and Rosedale had unlawfully confiscated his virtual property. Bragg, 487 F. Supp. 2d 593. …’The Court applied California law and found that the arbitration clause of the governing TOS was invalid because enforcing the arbitration clause would be both procedurally and substantively unconscionable. Thus the clause was unenforceable, allowing Plaintiff to continue his action in court.”); see also Evans et al v Linden Research Inc. et al., No. C-11–01078 at 2 (N. D. Ca. 2013) (“The court granted the motion to certify Subclass A to proceed on claims for conversion, intentional interference with contractual relations and prospective economic advantage, and unjust enrichment, certifying a class as follows: ‘All persons whose assets, including virtual items, virtual land, and or currency in lindens and or U.S. dollars, have been deliberately and intentionally converted by Defendant Linden’s suspension or closure of their Second Life accounts.’”); see also Minsky v. Linden Research, supra at 5, (“In addition, it would seem to be in Defendants [Linden Research] best interest to demonstrate a continued commitment to safeguarding their users intellectual property rights as SL continues to grow and attract more and more users and more substantial investors in virtual businesses.”)
[57] See, e.g., Harry McCracken, Who’s Winning iOS or Android? All the Numbers, All one Place (Time.com; Techland.time.com) (available at: http://techland.time.com/2013/04/16/ios-vs-android/ (last visited Tuesday July 29, 2014) (“After years of obsessing over the sheer quantity of apps available for these two platforms, the numbers seem to be similar, and similarly impressive, on both sides. Both Apple and Google currently claim more than 800,000 third-party programs for their respective platform.”)
[58] See Perfect 10 v. Google Inc., Case No. CV 04–9484 at 30 AHM (SHx) (C.D. Cal., February 2006) aff’d. in part, reversed in part, remanded, 487 F.3d 701 (9th Cir., May 16, 2007) (“The fact that a work is published or unpublished also is a critical element of its nature” given a copyright holder’s right of first publication. Kelly II, 336 F.3d at 820 (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985)); see also, Moberg v. 33T LLC, Civil №08–625 at 16, nt. 14 (NLH)(JS) (D. Del. Oct. 6, 2009) “The Court need not consider whether thumbnail images of a copyrighted work, rather than the actual work itself, are subject to copyright protection. Presumably, the art gallery scanned or digitally imaged plaintiff’s photographs so that they could be displayed on its website. If that were the case, it would be incongruous not to afford the thumbnail images the same copyright protection as the original prints, id. at note 14 (explaining what thumbnail images are and affording them copyright protection). If not the original work itself, they are protected derivatives. See 17 U.S.C. § 106(2) (copyright owner has rights to derivative works). Of course, if plaintiff’s photographs were taken digitally, and the images posted on the website were directly uploaded from plaintiff, those thumbnail images would be plaintiff’s original copyrighted work.”).
[59] See Perfect 10 v. Google Inc., Case No. CV 04–9484 at 30 (AHM) (SHx) (C.D. Cal., February 2006) aff’d. in part, reversed in part, remanded, 487 F.3d 701 (9th Cir., May 16, 2007) (“Published works are more likely to qualify as fair use because the first appearance of the artist’s expression has already occurred.” (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985)).”
[60] Kernel Records Oy v. Mosley, №11–12769 at 18, 19 (11th Cir. September 14, 2012) (“[P]ublication is a legal word of art, denoting a process much more esoteric than is suggested by the lay definition of the term.” Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211, 1214 n.3 (11th Cir. 1999) (quotations omitted).”…“The Copyright Act defines “publication” as: the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” @ p 18…“The offer to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.” @ p 18…“when an authorized offer is made to dispose of the work in any such manner[,] even if a sale or other such disposition does not in fact occur.” Brown v. Tabb, 714 F.2d 1088, 1091 (11th Cir. 1983) @ p 19 “and when copies are “given away” to the general public, a sufficient transfer of ownership has occurred.”); see also Twentieth Century Fox Film Corporation v. Cablevision Systems Corporation, 06 Civ. 3990, 06 Civ. 4092 at 31 (S.D.N.Y. 2007) (“Indeed, the United States Copyright Office, in its August 2001 report on the Digital Millennium Copyright Act (“DMCA Report”), has indicated that buffer copies are “copies” within the meaning of the Copyright Act. Specifically, the Copyright Office concluded that temporary copies of a work in RAM are generally “fixed” and thus constitute “copies” within the scope of the copyright owner’s right of reproduction, so long as they exist for a sufficient amount of time to be capable of being copied, perceived or communicated. (DMCA Report at xxii, 110–11).”)
[61] See Kirtsaeng, DBA Bluechristine99 v. John Wiley and Sons, Inc., 11–697 at 2 (March 19, 2013) 568 U.S. ___(2013) (“§ 104 says that works “subject to protection” include unpublished works “without regard to the [authors] nationality or domicile,” and works “first published in any of the nearly 180 countries that have a signed a copyright treaty with the United States.”); Moberg v. 33T LLC, 666 F. Supp. 2d 415 (D. Del. 2009) Civil №08–625 at 1, 13 nt12 (NLH)(JS) (D. Del. Oct. 6, 2009) (available at www.delawareiplaw.com/files/2014/06/08-625.pdf) (“Plaintiff is the owner and exclusive copyright holder of these photographs. The photographs were first published in 2004 on a German website, blaugallery.com, which is an online art shop that offers copies of the works for sale as canvas prints stretched over a wooden framework.”…“If these photographs had been “published” prior to the posting on the website, and that publication did not occur in the United States, the Court’s analysis would be moot, because it could not be disputed that the photographs are not United States works, and therefore not subject to the registration requirements of the Copyright Act.”… “First, the proposition that publishing a work on a website automatically, instantaneously, and simultaneously causes that work to be published everywhere in the world, so that the copyright holder is subjected to the formalities of the copyright laws of every country which has such laws is contrary to the purpose of the Berne Convention.”)
[62] See American Broadcasting Cos. v Aereo, Inc., №13–461 at 15 (S. Ct. June 25, 2014) (available at www.supremecourt.gov/.../13-461_l5... ) (“Neither the record nor Aereo suggests that Aereo’s subscribers receive performances in their capacities as owners or possessors of the underlying works. This is relevant because when an entity performs to a set of people, whether they constitute “the public” often depends upon their relationship to the underlying work.”; see also Twentieth Century Fox Film Corporation v. Cablevision Systems Corporation, 06 Civ. 3990, 06 Civ. 4092 at 23 (S.D.N.Y. 2007) “Cablevision’s reliance on Sony is misguided. First, Cablevision has waived any arguments based on fair use. (See June 7, 2006 Order). Second, apart from their time-shifting functions, the RS-DVR and the VCR have little in common, and the relationship between Cablevision and potential RS-DVR customers is significantly different from the relationship between Sony and VCR users.)”
[63] See, e.g. Kernel Records Oy v. Mosley, №11–12769 at 36, 37 (11th Cir. September 14, 2012) (“Gallefoss attests to the computer disk being “published . . . in Australia . . . in August 2002,” but he fails to attest to whether the disk was ever distributed, the breadth of distribution, the purpose of the distribution, and whether the distribution included a transfer of the right of diffusion, reproduction, distribution, or sale. See id. at 1216. The unsupported, conclusory, and general attestation by Gallefoss that Acidjazzed Evening was “published” lacks probative value, and is insufficient to prevent a grant of summary judgment. Leigh, 212 F.3d at 1217 (“This court has consistently held that conclusory allegations without specific supporting facts have no probative value.” (quotation omitted)).”…“Kernel failed to offer significantly probative evidence of distribution, that is, whether the disk was ever distributed, the breadth of distribution, the purpose of the distribution, and whether the distribution included a transfer of the right of diffusion, reproduction, distribution, or sale, no reasonable fact-finder could find that Acidjazzed Evening was first published on a physical computer disk in August 2002. (citation omitted)Without a finding that publication occurred, no reasonable fact-finder could find the location of the August 2002 publication, whether in the United States or abroad. See 17 U.S.C. § 101 (defining “United States work”).”
[64] Moberg v. 33T LLC, 666 F. Supp. 2d 415 (D. Del. 2009) Civil №08–625 at 11–12 (NLH)(JS) (D. Del. Oct. 6, 2009) (available at www.delawareiplaw.com/files/2014/06/08-625.pdf) (“A public performance or display of a work does not of itself constitute publication.” 17 U.S.C. § 101. The Berne Convention provides, “The expression ‘published works’ means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public having regard to the nature of the work.”)
[65] See Kernel Records Oy v. Mosley, №11–12769 at 36 (11th Cir. September 14, 2012) (“Gallefoss’s declaration, alone, is insufficient to establish that Acidjazzed Evening is a foreign work; he fails to address distribution, an essential element of publication.”)
[66] Id. at 22–23 (“Thus, proof of distribution or an offer of distribution is necessary to prove publication. However, proof of distribution or an offer to distribute, alone, is insufficient to prove publication. Central to the determination of publication is the method, extent, and purpose of distribution.”…“Assume [in both of the hypotheticals above] that an advance copy of the pamphlet had been mailed only to a small number of reporters in Canada in an effort to gain media attention. Such a mailing to the press would not be a distribution to the public, and is therefore not a publication. See Estate of Martin Luther King, Jr., Inc., 194 F.3d at 1216 (explaining that distribution to the news media, as opposed to the general public, for the purpose of enabling reporting is only a limited publication”… “Any person . . . with a computer connected to the Internet can ‘publish’ information. . . . Publishers may either make their material available to the entire pool of Internet users, or confine access to a selected group . . . .” The Internet consists “of a wide variety of communication and information retrieval methods. . . . [including] electronic mail (e-mail) . . . and the ‘World Wide Web.’” (citing Reno v. ACLU, 521 U.S. 844, 849–50 (1997).”); Estate of Martin Luther King, Jr., Inc., 194 F.3d at 1214–1216 (discussing general and limited publication); cf. 17 U.S.C. § 101 (defining publication as distribution to the public); see also Moberg v. 33T LLC, 666 F. Supp. 2d 415 (D. Del. 2009) Civil №08–625 at 11–12 (NLH)(JS) (D. Del. Oct. 6, 2009) (available at www.delawareiplaw.com/files/2014/06/08-625.pdf) (“A public performance or display of a work does not of itself constitute publication.” 17 U.S.C. § 101. The Berne Convention provides, “The expression ‘published works’ means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public having regard to the nature of the work.”…“To perform or display a work ‘publicly’ means — (1) to 11 perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” 17 U.S.C. § 101.)”
[67] (check citation format) See Capitol Records v. ReDigi, №1:12-cv-00095-RJS at 6, 7 (S.D.N.Y. March 30, 2013) (“Accordingly when a user downloads a digital music file or “digital sequence” to his “hard disk” the file is “reproduced” ….within the meaning of the Copyright Act.”…“ReDigi’s service by necessity creates a new material object when a digital music file is either uploaded to or downloaded from the Cloud Locker.”), (“Courts have consistently held that the unauthorized duplication of digital music files over the Internet infringes a copyright owner’s exclusive right to reproduce. See, e.g. A&M Records Inc, v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001)”); see also e.g. United States v. Am. Soc’y of Composers, Authors & Publishers, №09–0539 at 17 (2d. Cir. September 28, 2010) (“…our interpretation in Cartoon Network recognizes that a “transmittal of a work” is distinct from a transmittal of “a performance” — the former being a transmittal of the underlying work and the latter being a transmittal that is itself a performance of the underlying work. See 536 F.3d at 134.”), Kernel Records Oy v. Mosley, №11–12769 at 6 (11th Cir. September 14, 2012) (“Mosley contended that by making Acidjazzed Evening available to download from an “Internet site,” Gallefoss simultaneously published his work in every country in the world with Internet service. Mosley claimed such worldwide and simultaneous publication made Acidjazzed Evening a United States work subject to registration, and that Kernel’s failure to register doomed its infringement claim.”), NFL v. PrimeTime JointVenture, 211 F.3d 10, 18–19 (2d Cir. 2000), (“The relevant issue was whether the uplink transmission was a public performance even though the uplink was only to a satellite and could not, itself, be perceived by viewers.”…“We determined that PrimeTime’s uplink transmission of signals captured in the United States amounted to a public performance because it was an integral part of the larger process by which the NFL’s protected work was delivered to a public audience.”)
[68] United States v. Am. Soc’y of Composers, Authors & Publishers, №09–0539 at 7–8 (2d. Cir. September 28, 2010) (“A download is a transmission of an electronic file containing a digital copy of a musical work that is sent from an on-line server to a local hard drive.”)
[69] See Twentieth Century Fox Film Corporation v. Cablevision Systems Corporation, 06 Civ. 3990, 06 Civ. 4092 at 31 (S.D.N.Y. 2007) (“Indeed, the United States Copyright Office, in its August 2001 report on the Digital Millennium Copyright Act (“DMCA Report”), has indicated that buffer copies are “copies” within the meaning of the Copyright Act. Specifically, the Copyright Office concluded that temporary copies of a work in RAM are generally “fixed” and thus constitute “copies” within the scope of the copyright owner’s right of reproduction, so long as they exist for a sufficient amount of time to be capable of being copied, perceived or communicated. (DMCA Report at xxii, 110–11).”)
[70] Id. at 27 (“To “perform” a work, as defined in the Copyright Act, is “to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” 17 U.S.C. § 101. Cablevision does not contest that the streaming of recorded programming in response to a customer’s request is a performance. It again suggests, however, that it is passive in this process — that it is the customer, not Cablevision, that is “doing” the performing. I reject this suggestion, for the same reasons that I reject the argument that the customer is “doing” the copying involved in the RS-DVR.”), American Broadcasting Cos. v Aereo, Inc., №13–461 at 15 (S. Ct. June 25, 2014).
[71] United States v. Am. Soc’y of Composers, Authors & Publishers, №09–0539 at 13 (2d. Cir. September 28, 2010) (“Section 101 of the Copyright Act, its definitional section, fully defines “[t]o ‘perform’ a work” as “to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” 17 U.S.C. § 101.”)
[72] See American Broadcasting Companies, Inc. v. Aereo Inc, №13–461 at 11–12, 13, 15 (S. Ct. June 25, 2014) (holding that a download of a work is not a performance because the data transmitted are not “contemporaneously perceptible”) …“The text of the Clause effectuates Congress’ intent. Aereo’s argument to the contrary relies on the premise that “to transmit . . . a performance” means to make a single transmission. But the Clause suggests that an entity may transmit a performance through multiple, discrete transmissions. That is because one can “transmit” or “communicate” something through a set of actions.” …“The fact that a singular noun (“a performance”) follows the words “to transmit” does not suggest the contrary. One can sing a song to his family, whether he sings the same song one-on-one or in front of all together. Similarly, one’s colleagues may watch a performance of a particular play — say, this season’s modern-dress version of “Measure for Measure” — whether they do so at separate or at the same showings. By the same principle, an entity may transmit a performance through one or several transmissions, where the performance is of the same work… So whether Aereo transmits from the same or separate copies, it performs the same work; it shows the same images and makes audible the same sounds. Therefore, when Aereo streams the same television program to multiple subscriber s, it “transmit [s] . . . a performance” to all of them.” But…“Neither the record nor Aereo suggests that Aereo’s subscribers receive performances in their capacities as owners or possessors of the underlying works. This is relevant because when an entity performs to a set of people, whether they constitute “the public” often depends upon their relationship to the underlying work.”…“When, for example, a valet parking attendant returns cars to their drivers, we would not say that the parking service provides cars “to the public.” We would say that it provides the car s to their owners. We would say that a car dealership, on the other hand, does provide cars to the public, for it sells cars to individuals who lack a pre-existing relationship to the cars. Similarly, an entity that transmits a performance to individuals in their capacities as owners or possessors does not perform to “the public,” whereas an entity like Aereo that transmits to large numbers of paying subscribers who lack any prior relationship to the works does so perform.”)
[73] 17 U.S.C. § 101 Copyright Law of the United States of America, Chapter 1 Subject matter and scope of copyright (available at http://www.copyright.gov/title17/92chap1.html) (last visited 6:21 am July 26, 2014)
[74] See Fox Television Systems Inc. v. Barry Driller Content Systems, PLC et al, 915 F.Supp.2d 1138 at 1146 (C.D.Cal. Dec. 27, 2012) (“…Congress has rejected that mode of reasoning in this context. The equivalency between (1) what individuals could lawfully do for themselves and (2) what a commercial provider doing the same thing for a number of individuals could lawfully do, was the basis for Supreme Court jurisprudence before the 1976 Copyright Act.” “The Supreme Court held that if an individual: erected an antenna on a hill, strung a cable to his house and installed the necessary amplifying equipment, he would not be ‘performing’ the programs he received on his television set. The result would be no different if several people combined to erect a cooperative antenna for the same purpose. The only difference in the case of CATV is that the antenna system is erected and owned not by users but by an entrepreneur.”).
[75] (check citation format) See UMG Recordings, Inc. v. Augusto, №08–55998 at 29, 32 (9th Cir. 2011) (“..proper DMCA notice gives rise independently to an obligation to remove the allegedly infringing material as well as to procedures for ascertaining whether the material is indeed infringing. See § 512(g).”) nt 12 …“Requiring specific knowledge of particular infringing activity makes good sense in the context of the DMCA, which Congress enacted to foster cooperation among copyright holders and service providers in dealing with infringement on the Internet. See S. Rep. №105–190, at 20 (noting OCILLA was intended to provide “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements”); H.R. Rep. №105–551, pt. 2, at 49 (1998) (same). Copyright holders know precisely what materials they own, and are thus better able to efficiently identify infringing copies than service providers like Veoh, who cannot readily ascertain what material is copyrighted and what is not. See S. Rep. №105- 190, at 48”); But see Viacom International, Inc., v. YouTube, Inc., 10–3270-cv, 2012 WL 1130851 at 32 (2d Cir. April 5, 2012) (“§ 512(i), conditions safe harbor eligibility on the service provider having “adopted and reasonably implemented . . . a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” 17 U.S.C. § 512(i)(1)(A).”).
[76] See Syntek Semiconductor Co., Ltd. v. Microchip Technology Incorporated, 285 F.3d 857 (9th Cir. 2002) (stating that there is no standardized and transparent copyright cancellation procedure).
[77] (check citation format) See Linden Research, Second Life Terms of Service Agreement, Section 2.3 is referred to as the “Service Content License.” (“Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration or remuneration for any of the rights granted in this Section.
Except as otherwise described in any Additional Terms (such as a contest’s official rules) which will govern the submission of your User Content, you hereby grant to Linden Lab, and you agree to grant to Linden Lab, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You agree that the license includes the right to copy, analyze and use any of your Content as Linden Lab may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section 2.3 is referred to as the “Service Content License.”…”Linden Lab has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at Linden Lab’s cost and expense, to which you hereby consent and irrevocably appoint Linden Lab as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest). See also Your Content in our Services.” (Available at http://lindenlab.com/tos) (last visited July12, 2014 6:22 am); see also Google Inc., Google Terms of Service Agreement, (“Some of our Services allow you to upload, submit, store, send or receive content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours. …When you upload, submit, store, send or receive content to or through our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. (Available at http://www.google.com/policies/terms/ ) (last visited June 10 2014 3:08pm)
[78] See Marc Bragg v. Linden Research, №06–4925 at 29 (E.D.Pa. 2007) (“Although it is not the only virtual world on the Internet, Second Life was the first and only virtual world to specifically grant its participants property rights in virtual land.”)(“Moreover, there was no “reasonably available market alternatives [to defeat] a claim of adhesiveness.” Cf. Dean Witter Reynolds, Inc. v. Superior Court, 259 Cal. Rptr. 789, 795 (Ct. App. 1989) (finding no procedural unconscionability because there were other financial institutions that offered competing IRA’s which lacked the challenged provisions); Carl Evans, et al., v. Linden Research, Inc. et al., №10–1679 at 6 (E.D. Pa. 2011), [ftnt 3], (“In Bragg, Plaintiff alleged similar claims, that Linden and Rosedale had unlawfully confiscated his virtual property. Bragg, 487 F. Supp. 2d 593. …’The Court applied California law and found that the arbitration clause of the governing TOS was invalid because enforcing the arbitration clause would be both procedurally and substantively unconscionable. Thus the clause was unenforceable, allowing Plaintiff to continue his action in court.”); Evans et al v Linden Research Inc. et al., No. C-11–01078 at 2 (N.D. Ca.) (October 25, 2013) (“The court granted the motion to certify Subclass A to proceed on claims for conversion, intentional interference with contractual relations and prospective economic advantage, and unjust enrichment, certifying a class as follows: ‘All persons whose assets, including virtual items, virtual land, and or currency in lindens and or U.S. dollars, have been deliberately and intentionally converted by Defendant Linden’s suspension or closure of their Second Life accounts.’”); Richard Minsky v. Linden Research, Inc., U.S. District Court for the Northern District of New York, Case №1:08-CV-819 (Memorandum Decision and Order) (Minsky met requirement to show significant risk that evidence of trademark infringement of his SLART mark in Second Life could continue to disappear in a way that might have prevented preservation of evidence or individual remedies; SDNY granted TRO restraining service provider from (1) presenting unauthorized uses of the mark, (2) hiding the identities of users who infringed the registered trademark (3) threatening the trademark with demands not to conduct enforcement activities in the environment and (4) claiming ownership , control of or affiliation with the mark.; (available at http://www.3dinternetlaw.com/Trademark/Trademark/Minsky.html (last visited Friday June 13 2014, 12:31 pm); see also Leah Shen, Who Owns the Virtual Items?, 9 Duke Law & Technology Review 1–14 at 4 (2010) Available at: http://scholarship.law.duke.edu/dltr/vol9/iss1/10 (“However, once game-play is explored more thoroughly, many elements of game-play make virtual items more akin to intellectual property. Like property without a material representation, virtual items can be reproduced and supplied at almost zero marginal cost because virtual items are merely streams of code that a game operator can inject into the virtual world at any time.”)
[79] See Evans et al v Linden Research Inc. et al., No. C-11–01078 at 5 (N.D. Cal.) (Oct. 25, 2013). (“Finally, regarding virtual items, Linden will offer class members making valid claims the choice of (a) $15 per class member (not account) whose account(s) contains virtual items, transmitted by Linden to his or her PayPal account within ten days of Linden verifying the validity of the claim; or (b) the class members may attempt to sell their virtual items on the Second Life Marketplace, and Linden will waive Second Life’s commission on the sales. Those class members who elect the second option will be entitled to all proceeds of the sales. (Revised Agreement § 3.1(D)(4).”)
[80] See United States v. American Society of Composers, Authors and Publishers (ASCAP) et al., №41 Civ. 1395 (DLC) at 2–3, 9–10, 116 (April 30, 2008) (Decision as rate court to determine fees for blanket licenses for performance of ASCAP repertory music by AOL, RealNetworks and Yahoo Inc.; they applied for licenses but were not able to agree on royalty rates for various internet uses.); see also Twentieth Century Fox Film Corporation v. Cablevision Systems Corporation, 06 Civ. 3990, 06 Civ. 4092 at 5 (S.D.N.Y.) (March 22, 2007) (“Today, television signals are increasingly delivered in digital form. (See id. ¶ 35). Digital signals are transmitted as compressed data in the form of binary digits, or “bits.” (Id. ¶¶ 19–20, 38). The number of bits that can be sent in a second is known as the “bitrate.” (Id. ¶ 41). Digital signals allow for a greater variety in television programming — because more signals can be transmitted in the same space — as well as interactive services and, often, better audio and image quality than analog television. (Id. ¶¶ 39–42).”)
[81] United States v. American Society of Composers, Authors and Publishers (ASCAP) et al., №41–1395 at 14, 17 (April 30, 2008) (describing ASCAP); (describing BMI); WIPO Performances and Phonograms Treaty, Dec. 20, 1996, 2186 U.N.T.S. 203, S. Treaty Doc. №105–17 (1997); 36 I.L.M. 76 (1997)
[82] Id. at 131 (“In 1995, Congress passed a new law (the Digital Millennium Copyright Act or “DMCA”) granting the right to perform copyrighted sound recordings publicly by means of digital audio transmissions. 17 U.S.C. § 106(6)”); (“Thus there are two separate copyrights implicated in Applicants’ digital audio performances of songs through their internet properties (a) the right to the musical works, which comprises the melody and/or lyrics that underlie all songs, and which are written by songwriters and generally licensed in the United States by performing rights organizations (ASCAP, BMI, SESAC); and (b) the right in the sound recordings, which is the particular recording of the work by a particular artist or band, the copyright of which is typically owned by record companies.”)
[83] See e.g., United States v. Am. Soc’y of Composers, Authors and Publishers (ASCAP) et al., №41–1395 at 19–20, 40 (WCC) (S.D.N.Y.) (April 30, 2008) (“AOL has applied for an ASCAP blanket license that covers a wide array of AOL sites and services covering music performance, not just the so called “music areas” of AOL.com. These sites and service use music to attract users and to enhance the portal experience.”…”ASCAP entered into negotiations with AOL , but the parties were unable to agree on final fees for the open period. Consequently … ASCAP applied to the Court for a determination of interim and final license fees for AOL.” ); “Real Networks applied for a single blanket license commencing January 1, 2004 an covering the following sites and services: Real Networks.com, Real.com (including its subdomains such as Real Guide, and affiliated sites such as Rolling Sotne.com and Film.com), Rhapsody.com, RhapsodyDirect.com and Listen.com. ASCAP entered into negotiations with RealNetworks, but the parties were unable to agree on final fees for the open period.”…. “ASCAP applied to the Court for a determination of interim and final license fees for RealNetowrks’s performances of music.”)
[84] See FBT Productions v. Aftermath, №09–55817, №09–56069 at 13404, 13408–13409, 13411 (9th Cir. September 3, 2010) (“The contract defines “master” as a “recording of sound, without or with visual images, which is used or useful in the recording, production or manufacture of records.”), (“Regarding the licensing requirement under the terms of the agreement, Aftermath did not dispute that it entered into agreements that permitted iTunes, cellular phone carriers, and other third parties to use its sound recordings to produce and sell permanent downloads and mastertones. …Those agreements qualified as licenses under Aftermath’s own proposed construction of the term.” … “Here, the Masters Licensed provision explicitly applies to (1) masters (2) that are licensed to third parties for the manufacture of records “or for any other uses,” (3) “notwithstanding” the Record Sold provision. This provision is admittedly broad, but it is not unclear or ambiguous.”), (“Aftermath admitted that permanent downloads and mastertones are records. The sound recordings that Aftermath supplied to third parties were “used or useful” in the production of permanent downloads and mastertones, so those sound recordings were masters.”)
[85] Id.
[86] See Vernor v. Autodesk, Inc., №09–35969 at 13871–2, 13878 (9th Cir.) (September 10, 2010) (available at cdn.ca9.uscourts.gov/datastore/opinions/2010/09/10/09–35969.pdf) (“This case requires us to decide whether Autodesk sold Release 14 copies to its customers or licensed the copies to its customers. If CTA owned its copies of Release 14, then both its sales to Vernor and Vernor’s subsequent sales were non infringing under the first sale doctrine.6 However, if Autodesk only licensed CTA to use copies of Release 14, then CTA’s and Vernor’s sales of those copies are not protected by the first sale doctrine and would therefore infringe Autodesk’s exclusive distribution right.”), (“We read Wise and the MAI trio to prescribe three considerations that we may use to determine whether a software user is a licensee, rather than an owner of a copy. First, we consider whether the copyright owner specifies that a user is granted a license. Second, we consider whether the copyright owner significantly restricts the user’s ability to transfer the software. Finally, we consider whether the copyright owner imposes notable use restrictions.”)
[87] See American Broadcasting Companies, Inc. v. Aereo Inc, №13–461 at 11–12, 13, 15 (S. Ct. June 25, 2014) (“Thus, for present purposes, to transmit a performance of (at least) an audiovisual work means to communicate contemporaneously visible images and contemporaneously audible sounds of the work. Cf. United States v. American Soc. of Composers, Authors and Publishers, 627 F. 3d 64, 73 (CA2 2010) (holding that a download of a work is not a performance because the data transmitted are not “contemporaneously perceptible”) …“The text of the Clause effectuates Congress’ intent. Aereo’s argument to the contrary relies on the premise that “to transmit . . . a performance” means to make a single transmission. But the Clause suggests that an entity may transmit a performance through multiple, discrete transmissions. That is because one can “transmit” or “communicate” something through a set of actions.” …“The fact that a singular noun (“a performance”) follows the words “to transmit” does not suggest the contrary. One can sing a song to his family, whether he sings the same song one-on-one or in front of all together. Similarly, one’s colleagues may watch a performance of a particular play — say, this season’s modern-dress version of “Measure for Measure” — whether they do so at separate or at the same showings. By the same principle, an entity may transmit a performance through one or several transmissions, where the performance is of the same work… So whether Aereo transmits from the same or separate copies, it performs the same work; it shows the same images and makes audible the same sounds. Therefore, when Aereo streams the same television program to multiple subscriber s, it “transmit [s] . . . a performance” to all of them.” But…“Neither the record nor Aereo suggests that Aereo’s subscribers receive performances in their capacities as owners or possessors of the underlying works. This is relevant because when an entity performs to a set of people, whether they constitute “the public” often depends upon their relationship to the underlying work.”…“When, for example, a valet parking attendant returns cars to their drivers, we would not say that the parking service provides cars “to the public.” We would say that it provides the car s to their owners. We would say that a car dealership, on the other hand, does provide cars to the public, for it sells cars to individuals who lack a pre-existing relationship to the cars. Similarly, an entity that transmits a performance to individuals in their capacities as owners or possessors does not perform to “the public,” whereas an entity like Aereo that transmits to large numbers of paying subscribers who lack any prior relationship to the works does so perform.”)
[88] See Kernel Records Oy v. Mosley, №11–12769 at 25, 26 (11th Cir. September 14, 2012) (“Throughout this case, the district court (as well as the parties) confounded “the Internet” and “online” with “World Wide Web” and “website.” Because of the strict temporal and geographic requirements contained in the statutory definition of “United States work,” conflating these terms had a profound impact on the district court’s evidentiary analysis. By confounding “Internet” with “website,” the district court erroneously assumed that all “Internet publication” must occur on the “World Wide Web” or a “website.” The district court then erroneously assumed all “Internet publication” results in simultaneous, worldwide distribution. As outlined below, a proper separation of the terms yields a very different analysis.”) (citing ACLU v. Reno “Although it may be possible to presume simultaneous worldwide availability of a public website, see ACLU v. Reno, 929 F. Supp. 824, 831, 836–37 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997), such a presumption could not apply to restricted websites, peer-to-peer networks, and e-mail. A restricted website is only available to those willing to pay a fee or who meet specified criteria; a peer-to-peer network is only available to those who have downloaded the required software; and an e-mail only goes to the addresses input by the sender.”)
[89] See generally Moberg v. 33T LLC, Civil №08–625 at 11–12 (NLH)(JS) (D. Del. Oct. 6, 2009); see also Kernel Records Oy v. Mosley, №11–12769 at 25–26 (11th Cir. September 14, 2012) (“Thus, unlike public websites on the World Wide Web, each of these other methods of online distribution would be inconsistent with a presumption of simultaneous worldwide availability.”… “To determine the countries to which these other online methods distribute material would require additional evidence, such as the country of residence of the users of a certain restricted website or peer-to-peer network, or the recipient of a certain e-mail. For example, if a restricted website has subscribers only in the United States, Germany, and Japan, placing a file on that website would not make the file simultaneously available to a worldwide audience. Similarly, if the software for a peer-to-peer network was downloaded only in Canada, Egypt, and the Netherlands, offering a file for download on the peer-to-peer network would not make the file simultaneously available to a worldwide audience. Finally, if the recipients of an e-mail are all located in Mexico, sending a file by e-mail attachment would not make the file simultaneously available to a worldwide audience. Each of these “online” distribution methods utilizes the Internet, but none of them can be presumed to result in simultaneous, worldwide distribution.”)); But see American Broadcasting Cos. v. Aereo Inc, at 16 (S. Ct. June 25, 2014) (“And we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content. See Brief for United States as Amicus Curiae 31 (distinguishing cloud based storage services because they “offer consumers more numerous and convenient means of playing back copies that the consumers have already lawfully acquired.”)
[90] See Rodriguez v Instagram, LLC No. CGC-13–532875 at 6 (Sup. Ct. Cal. Feb. 28, 2014) (“The question here is whether Instagram breached the Original Terms by imposing the New Terms.”… “Perhaps Instagram might breach the Original Terms (e.g. if it sub-licenses content of users who never agreed to the New Terms).”; see also Comb v. Paypal, 218 F. Supp.2d 1165 at 1177, 1175 (2002) (“The court decided having considered the terms of the User Agreement generally and the arbitration clause in particular, decided that the Agreement and clause were substantively unconscionable under California law.”); (The court stated “While in theory a customer may seek provisional relief in the courts, including presumably an order to unfreeze an account, the cost of doing so would be prohibitive in relation to the amounts typically in dispute.”), id. at 1175 (“Although PayPal alone may amend the User Agreement without notice or negotiation, a customer is bound to any and all such amendments for the duration of the customers relationship with PayPal. PayPal has not shown that “business realities” justify such one-sidedness.”).
[91] THE WIPO JOINT RECOMMENDATION CONCERNING PROVISIONS ON THE PROTECTION OF MARKS, AND OTHER INDUSTRIAL PROPERTY RIGHTS IN SIGNS, ON THE INTERNET, SCT/24/4 Annex II, page 9; available at http://www.wipo.int/freepublications/en/marks/845/pub845.pdf (last visited July 31, 2014; World Intellectual Property Organization member states, available at http://www.wipo.int/members/en/ (last visited July 31, 2014 at 3:56pm) (“Circumstances that may be relevant in determining whether use of a sign on the Internet constitutes use of a sign in a Member State, which basically means whether a sign has ‘commercial effect’ in that Member State, include but are not limited to:
a. circumstances indicating that the user of the sign is doing, or has undertaken significant plans to do, business in the Member State in relation to goods and services which are identical or similar to those for which the sign is used on the Internet.
b. the level and character of commercial activity of the user in relation to the Member State….;
c. the connection of an offer of goods and services on the Internet with the Member State….;
d. the connection of the manner of use of the sign on the Internet with the Member State….;
e. the relation of the use of the sign on the Internet with a right in that sign in the Member State ….
Under b), examples of circumstances indicating the level and character of commercial activity include 1) whether the user of the mark has customers, or entered into commercially motivated relationships with persons, located in the Member State; 2) whether the user stated that there will be no delivery offered to the Member State and whether that statement is followed; 3) whether other commercial activities are undertaken by the user which are related to the use of the sign on the Internet but which are not carried out over the Internet; 4) whether the prices are stated in the official currency of the Member State; 5) whether the user has indicated, in conjunction with the use of the sign, an address, telephone number or other mean of contact in the Member State and 6) whether the sign is used in connection with a domain name which is registered under the ccTLD (country code Top Level Domain) referring to the Member State.”).
[92] See Barry Werbin, Trademarks in Virtual Worlds, INTA Bulletin Vol. 62 №22 at 9 (December 1, 2009) (“Some virtual world players have even obtained trademark registrations for their “branded” avatars. For example, the pictured image of the popular Second Life avatar named “Aimee Weber,” whose real-world owner creates virtual designs and products in the game, was registered in 2008 with the U.S. Patent and Trademark Office in Class 42 for “computer programming services, namely, content creation for virtual worlds and three dimensional platforms.” (Reg. №3531683, Nov. 11, 2008.)”; See also Secondlife marketplace for virtual items and related design services (www.xstreelsl.com).
[93] See Barry Werbin, Trademarks in Virtual Worlds, INTA Bulletin Vol. 62 №22 at 9 (December 1, 2009) (“Times have changed dramatically over the last few years for virtual worlds, which are growing exponentially along with significant real-world revenues. According to the New York Times, virtual world transactions are “estimated at between $1 billion and $2 billion a year in real dollars.” (www.nytimes.com/2009/10/22/fashion/22Avatar.html?scp=1&sq=%22second%20life%22&st=cse.)
[94] Internet Corporation for Assigned Names and Numbers (ICANN), Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”). As approved by the ICANN Board of Directors on 30 October 2009. (Available at http://www.icann.org).
[95] Internet Corporation for Assigned Names and Numbers, How to demonstrate rights and legitimate interests in a domain name, (Available at http://www.icann.org/dndr/udrp/policy.htm) (c. How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint. When you receive a complaint, you should refer to Paragraph 5 of the Rules of Procedure in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii): (i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.)
[96] International Trademark Association, www.inta.org, Online Trademark Use at 23 (available at www.inta.org/Advocacy/Documents/Online%20Trademark%20Use.pdf) (last visited Monday August 11, 2014) (“The U.S. recognizes the territoriality principle, namely, the general rule that a mark must be used in the United States to acquire trademark rights in the United States. (citing Person’s Co. v. Christman, 900 F. 2d 1565 (Fed. Cir. 1990))”.)
[97] Id. (“Trademark Manual of Examining Procedure (“TMEP”) § 901 Use in commerce sufficient to establish ownership does not necessarily require a sale. For example, in Planetary Motion, Inc. v. Techsplosion, Inc., the distribution of trademarked software over the Internet, even absent any sales, was sufficient to establish ownership in the mark. 261 F.3d 1188, 1194 (11th Cir. 2001). The Court stated that “the existence of sales or lack thereof does not by itself determine whether a user of a mark has established ownership rights therein.” Id. at 1196. Although a sale may not be required, the goods or services available over the internet must be directed toward US consumers.”)
[98] See Richard Minsky, The Art World Market of Second Life, (2007). (The version published here is not the original version including the SLART trademark notice, or link to slartgallery online because of conditions of settlement of Minsky v. Linden. An actual book titled ‘SLART’ was published by Richard Minsky and is a part of various permanent library collections however no further printing of the text is permissible.) (available at
https://www.academia.edu/223981/The_Art_World_Market_of_Second_Life_PDF.
[99] ‘SLART’ Registration №3399258, United States Patent and Trademark Office, Trademark Electronic Search System (TESS) (The application for the mark was filed on March 22, 2007, registration was granted on March 18, 2008. The mark was cancelled on April 7, 2009) (http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4809:t493az.2.1)
[100] Virtual Intellectual Property Organization, Inc. (VIPO Inc.); see Benjamin Duranske, Non-profit “Virtual Intellectual Property Organization” Opens Office in Second Life, Virtuallyblind.com (Jan. 27, 2008), http://virtuallyblind.com/2008/01/27/vipo-second-life.
[101] See Audrey R. Chapman, American Association for the Advancement of Science, A Human Rights Perspective on Intellectual Property, Scientific Progress, and Access to the Benefits of Science at 4 (Nov. 9, 1998) WIPO Panel Discussion on Intellectual Property and Human Rights, (available at )(“…[T]hese rights establish minimal standards of decent social and governmental practice…Although human rights are viewed as setting minimal standards, contemporary rights declarations tend to posit rights that are numerous and specific rather than few and general . The Universal Declaration replaces Locke’s three generic right — to life, liberty and the property — with nearly two dozen specific rights.”); See also Cynthia Williams, John Conley ‘Is There an Emerging Fiduciary Duty to Consider Human Rights?’, University of Cincinnati Law Review, Vol. 74 (2005) at 83, 84 (“Moreover, a decision of the United States Supreme Court last term (2005) has heightened the litigation risk. In Sosa v. Alvarez-Machain, the Supreme Court ruled 6–3 that the Alien Tort Reform Act gives the federal courts subject matter jurisdiction to hear claims arising out of “violations of the law of nations” and establishes a cause of action for torts in violation of international law.” … “This decision rejected the narrower view of the ATCA that the underlying causes of action must be established by federal statute before they are cognizable. The Court also recognized that the causes of action that can be heard under the ATCA will continue to be extended (albeit with caution) whenever an international law norm becomes sufficiently definite, universal among civilized nations, and obligatory.”) [citing Sosa v. Alvarez-Machain, 542 U.S. 692, 719–20 (2004).”).
[102] See generally, Laurence R. Helfer, Human Rights and Intellectual Property Conflict or Coexistence?, Minnesota Intel. Property Review, Vol. 5:1 (2003).
[103] See Laurence R. Helfer, Human Rights and Intellectual Property Conflict or Coexistence?, Minnesota Intel. Property Review, Vol. 5:1 at 48, 49 (2003). (“The first approach views human rights and intellectual property as being in fundamental conflict. This framing sees strong intellectual property protection as undermining –and therefore incompatible with- a broad spectrum of human rights obligations, especially in the area of economic, social, and cultural rights….The second approach to the intersection of human rights and intellectual property sees both areas of law as concerned with the same fundamental questions: defining the appropriate scope of private monopoly power that gives authors and inventors a sufficient incentive to create and innovate, while ensuring that the consuming public has adequate access to the fruits of their efforts.”… “This school views human rights law and intellectual property as essentially compatible, although often disagreeing over where to strike the balance between incentives on the one hand and access on the other.”)
[104] UN General Assembly, Universal Declaration of Human Rights (UDHR), G.A. Res. 217A(III), U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 10, 1948).
[105] Id.
[106] International Covenant on Economic Social and Cultural Rights, art.15(1)©, Dec. 16, 1966, 993 U.N.T.S. 3.
[107] Id.
[108] id.
[109] See Google Spain SL, Google Inc. v. AEPD Mario Gonzalez, Case 131/12 at 11 (13 May 2014) (Directive 95/46/EC Personal data) (“It follows from all the foregoing considerations that the answer to Question 2(a) and (b) is that Article 2(b) and (d) of Directive 95/46 are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(d).”)
[110] Id. at 8–9, 17 (“ … it should be held that, having regard to the sensitivity for the data subject’s private life of the information contained in those announcements and to the fact that its initial publication had taken place 16 years earlier, the data subject establishes a right that that information should no longer be linked to his name by means of such a list. Accordingly, since in the case in point there do not appear to be particular reasons substantiating a preponderant interest of the public in having, in the context of such a search, access to that information, a matter which is, however, for the referring court to establish, the data subject may, by virtue of Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46, require those links to be removed from the list of results.”)
[111] See Google Spain SL, Google Inc. v. AEPD Mario Gonzalez, Case 131/12 at 10, 17 (13 May 2014) (“Inasmuch as the activity of a search engine is therefore liable to affect significantly, and additionally compared with that of the publishers of websites, the fundamental rights to privacy and to the protection of personal data, the operator of the search engine as the person determining the purposes and means of that activity must ensure, within the framework of its responsibilities, powers and capabilities, that the activity meets the requirements of Directive 95/46 in order that the guarantees laid down by the directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved.”….. “Given the ease with which information published on a website can be replicated on other sites and the fact that the persons responsible for its publication are not always subject to European Union legislation, effective and complete protection of data users could not be achieved if the latter had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites.”)
[112] Garcia v. Google, Inc., №12–57302, 2014 BL 51739 at 8, 109 U.S.P.Q.2d 1799 (9th Cir. Feb. 26, 2014).
[113] See No Doubt v. Activision Publishing Inc., 192 Cal.App.4th at 1018, 1034 (2011) (“In Kirby, the pop singer was portrayed as an entirely new character — the space age news reporter Ulala. In Band Hero by contrast, no matter what else occurs in the game during the depiction of the No Doubt avatars, the avatars perform rock songs, the same activity by which the band achieved and maintains its fame.” … “That the avatars can be manipulated to perform at fanciful venues…does not transform the avatars into anything other than exact depictions of No Doubt’s members doing exactly what they do as celebrities.”)
[114] See id. at 32 (“To the extent Plaintiffs allege that they can prove that their endorsement of commercial products to their Facebook Friends has concrete, quantifiable value for which they are entitled to compensation, the Court finds that Plaintiff’s have properly alleged loss of money or property for purposes of establishing standing under the UCL.”)
[115] Id. at 18–9 (“[Facebook] [i]t appears to be a content provider, in addition to being an interactive computer service provider. Communications Decency Act immunity “applies only if the interactive service provider is not also an ‘information content provider’”. …“Facebook’s actions in creating Sponsored Stories goes beyond “a publisher’s traditional editorial functions[,] such as deciding whether to publish, withdraw, postpone, or alter content.” Batzel, 333 F.3d at 1031 n.18 (internal quotation marks omitted); accord Gentry v. Ebay Inc., 99 Cal. App. 4th 816, 828–29 (2002).”…“Although Facebook meets the definition of an interactive computer service under the Communications Decency Act, see 47 U.S.C. § 230(f)(2) (defining an interactive computer service, in part, as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server”), in the context of Plaintiff’s claims, it also meets the statutory definition of an information content provider, see id. § 230(f)(3) (defining an information content provider as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other Interactive computer service” (emphasis added)).)”
[116] Fraley v. Facebook, №11CV-01726-LHK at 18 (N.D. Cal.) (December 16, 2011) (“As the Ninth Circuit has clearly stated, “the party responsible for putting information online may be subject to liability, even if the information originated with a user.” (citing Batzel v. Smith, 333 F.3d 1018, 1033 (9th Cir. 2003).”)
[117] Federal Communications Commission, Notice of proposed rulemaking, May 14 2014 at 3–4 (available at http://www.fcc.gov/document/protecting-and-promoting-open-internet-nprm) (last visited June 1, 1:49 pm) (“As the Commission explained in its 2010 Open Internet Order, the Internet’s open architecture allows innovators and consumers at the edges of the network “to create and determine the success or failure of content, applications, services and devices,” without requiring permission from the broadband provider to reach end users. As an open platform, it fosters diversity and it enables people to build communities.” …“It is important to always remember that the Internet is a collection of networks, not a single network. And that means that each broadband provider can either add to the benefits that the Internet delivers to Americans — by maintaining Internet openness and by extending the reach of broadband networks — or it can threaten those benefits — by restricting its customers from the Internet and preventing edge providers from reaching consumers over robust, fast and continuously improving networks. This is a real threat, not merely a hypothetical concern. … Second, broadband providers may have incentives to increase revenues by charging edge providers for access or prioritized access to the broadband provider’s end users. In particular, excessive fees could reduce edge provider entry, suppress innovation, and depress consumer demand. Third, if providers could profitably charge edge providers they would have an incentive “to degrade or decline to increase the quality of service they provide to non-prioritized traffic.”)
[118] FCC Report and Order, “In the Matter of Preserving the Open Internet Broadband Industry Practices”, FCC 10–201 (adopted December 21, 2010) at 17906.
[119] See Verizon v. FCC, №11–1355 (USCA D.C. Cir.) (January 14, 2014)
[120] FCC Notice of proposed rulemaking, May 14 2014 at 3, 11–12 (Available at http://www.fcc.gov/document/protecting-and-promoting-open-internet-nprm ) (Last visited June 1, 1:49 pm) (‘The Internet is America’s most important platform for economic growth, innovation, competition, free expression, and broadband investment and deployment. As a “general purpose technology,” the Internet has been, and remains to date, the preeminent 21st century engine for innovation and the economic and social benefits that follow. These benefits flow, in large part from the open, end to end architecture of the Internet, which is characterized by low barriers to entry for developers of new content, applications, services, and devices and a consumer-demand-driven marketplace for their products.”…“…[A]merican businesses have become even more dependent on the internet. For example, according to the Pew Research Project, as of January 2014, 87% of Americans used the Internet, compared to 14 percent in 1995.”…“Whole new product markets have blossomed in recent years, and the market for applications has both diversified and exploded. A total of $8.33 billion has been raised since 2007 on mobile media ventures, a majority of the funds (4.7) billion to companies that provide software services, including mobile Web development, carrier backend software, app development, and cloud based services in the united States.”…“Finally we have seen tremendous growth in the online and video markets…[Between 2010 and 2013, revenues from online video services grew 175 percent, from $1.86 billion to $5.12 billion. Real Time entertainment (that is programming that is viewed as it is delivered, such as video streamed by Netfix and Hulu) grew from 42.7 percent of downstream fixed access traffic at peak time (generally 8:00 to 10:00 pm) in 2010 to 67 percent of the downstream fixed access peak time by September 2013. VoIP usage has similarly continued to increase. The number of global over the top mobile VoIP subscriber increased by 550 percent in 2012.”)
[121] See Laurence R. Helfer, Graeme W. Austin, Human Rights and Intellectual Property: Mapping the Global Interface 513 (Cambridge University Press, 2011) (“Today, however, the connection between human rights and the rule of law is well established and provides A salient example is the recent example is the Anti-Counterfeiting Trade Agreement (ACTA), a proposed multilateral treaty that would establish more robust obligations to suppress unauthorized uses of intellectual property. For two years, ACTA negotiations occurred in secret and governments refused to disclose a draft of the treaty. Only after a French NGO leaked a document revealing “contradictions between the text and public comments by negotiators” did governments release an official text. Such lack of transparency involving potentially far-reaching changes to intellectual property laws and enforcement mechanisms is disturbing, as is the inability of interested constituencies, in the words of the Committee on Economic, Social and Cultural Rights, “to take part in…any significant decision making processes that have an impact on their rights and legitimate interests.”) (citing Monika Ermert, Leaked ACTA Text Shows Possible Contradictions with National Laws, Intellectual Property Watch (Mar. 29, 2010), available at http://www.ip-watch.org/weblog/2010/03/29/leaked-acta-text-shows-possible-contradictions-with-national-laws/.;The Office of the U.S. Trade Representative stressed that “ACTA will not interfere with a signatory’s ability to respect its citizens’ fundamental rights and liberties, and will be consistent with the TRIPs Agreement and will respect the Declaration on TRIPS and Public Health.” Id.; and the Comm. Econ., Soc. & Cultural Rights, General Comment №17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He is the Author, art 15(1)©, U.N. Doc. E/C.12/GC17, para. 34 (Jan. 12, 2006).”).
[122] See Moberg v. 33T LLC, Civil №08–625 at 14–15 (NLH)(JS) (D. Del. Oct. 6, 2009) (“…based on the purpose of the Convention to constitute “a Union for the protection of the rights of authors in their literary and artistic works,” Berne Convention art. 1, the transformation of plaintiff’s photographs into United States works simply by posting them on the Internet would allow American citizens to infringe on foreign copyrighted works without fear of legal retribution, since the majority of foreign works are never registered in America.”)See, id.
[123] Id.
[124] See Kernel Records Oy v. Mosley, №11–12769 at 25 (11th Cir. September 14, 2012) (“Although it may be possible to presume simultaneous worldwide availability of a public website, such a presumption could not apply to restricted websites, peer-to-peer networks, and e-mail. A restricted website is only available to those willing to pay a fee or who meet specified criteria; a peer-to-peer network is only available to those who have downloaded the required software; and an e-mail only goes to the addresses input by the sender.” … “Thus, unlike public websites on the World Wide Web, each of these other methods of online distribution would be inconsistent with a presumption of simultaneous worldwide availability.”) (citing ACLU v. Reno, 929 F. Supp. 824, 831, 836–37 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997)).
[125] Id.
[126] See id. at 18–9 (“Thus, proof of distribution or an offer of distribution is necessary to prove publication. However, proof of distribution or an offer to distribute, alone, is insufficient to prove publication. Central to the determination of publication is the method, extent, and purpose of distribution. See Estate of Martin Luther King, Jr., Inc., 194 F.3d at 1214–1216 (discussing general and limited publication); cf. 17 U.S.C. § 101 (defining publication as distribution to the public).
[127] American Broadcasting Cos., v. Aereo, Inc., №13–461 at 15 (S. Ct. June 25, 2014) (“Neither the record nor Aereo suggests that Aereo’s subscribers receive performances in their capacities as owners or possessors of the underlying works. This is relevant because when an entity performs to a set of people, whether they constitute “the public” often depends upon their relationship to the under lying work.”).
[128] See e.g. American Broadcasting Cos., v. Aereo, Inc., №13–461 at 10, 25 (S. Ct. June 25, 2014) (“For a monthly fee, Aereo offers subscribers broadcast television programming over the Internet, virtually as the programming is being broadcast. Much of this programming is made up of copyrighted works. Aereo neither owns the copyright in those works nor holds a license from the copyright owner s to per form those works publicly.” ….“But the many similarities between Aereo and cable companies, considered in light of Congress’ basic purposes in amending the Copyright Act, convince us that this difference is not critical here. We conclude that Aereo is not just an equipment supplier and that Aereo “perform[s].”); Getty Images (US), Inc. v. Virtual Clinics et al, 2:13-cv-00626, №31 at 14 (W.D.Wash. Sep. 9, 2013) (“There is a greater pubic benefit in securing the integrity of plaintiffs’ copyrights than in allowing [a defendant] to make Plaintiffs’ copyrighted material available to the public.”); Metro-Goldwyn Mayer Studios, Inc. v. Grokster, Ltd., №04–480 at 2, 7–8, 9–10 (S. Ct. June 27, 2005) (“When a widely shared product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, so that the only practical alternative is to go against the device’s distributor for secondary liability on a theory of contributory or vicarious infringement. One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise the right to stop or limit it.”…“In this case, the Ninth Circuit misread Sony to mean that when a product is capable of substantial lawful use, the producer cannot be held contributorily liable for third parties’ infringing use of it, even when an actual purpose to cause infringing use is shown, unless the distributors had specific knowledge of infringement at a time when they contributed to the infringement and failed to act upon that information. Sony did not displace other secondary liability theories. Pp. 13–17.“) (“nothing in Sony requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law. Sony Corp. v. Universal City Studios, 464 U. S., at 439 (“If vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with constructive knowledge” of the potential for infringement). Thus, where evidence goes beyond a product’s characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony’s staple-article rule will not preclude liability.”); New York Times Co. Inc. v. Tasini, 533 U.S. 483, 498 (2001). (The Supreme Court stated in Tasini it was “clear” that an online news database violated authors distribution rights by selling electronic copies of their articles for download.”); Perfect 10 v. Google Inc., Case No. CV 04–9484 AHM (SHx) at 29, 32 (C.D. Cal., February 2006) aff’d. in part, reversed in part, remanded, 487 F.3d 701 (9th Cir., May 16, 2007). (“In early 2005, after it filed suit against Google, P10 entered into a licensing agreement with Fonestarz Media Limited for the sale and distribution of P10 reduced-size images for download to and use on cell phones. Google’s use of thumbnails does supersede this use of P10’s images, because mobile users can download and save the thumbnails displayed by Google Image Search onto their phones.”) ( “…the Court concludes that Google’s creation of thumbnails of P10’s copyrighted full-size images, and the subsequent display of those thumbnails as Google Image Search results, likely do not fall within the fair use exception.”);
[129] See United States v. Am. Soc’y of Composers, Authors & Publishers, (ASCAP) et al., №09–0539 at 21–22, n.10 (2d Cir.) (September 28, 2010) (“Several amici suggest that our obligations under the 1997 World Intellectual Property Organization Copyright Treaty (“WIPO Copyright Treaty”) require us to find that downloads of musical works constitute public performances. The WIPO Copyright Treaty provides authors with the following right: ‘[T]he exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.’ WIPO Copyright Treaty art. 8 “Congress has recognized that this treaty does not “require any change in the substance of copyright rights,” see H.R. Rep. №105–551(I), at 9 (1998), in part because the Copyright Act already permits copyright holders to control the reproduction and distribution of their musical works over the Internet. To the extent that a download implicates these rights, the conclusion that a download does not also trigger the public performance right does not infringe on Article 8 of the WIPO Copyright Treaty.”…“The other policy arguments raised by ASCAP and amici — regarding global harmony of doctrine, and adequate compensation — are better addressed to Congress, which has the power to amend the Copyright Act.”); see also The Digital Performance Right in Sound Recordings Act of 1995 amended section 106 by adding paragraph (6). Pub. L. №104–39, 109 Stat. 336. In 1999, a technical amendment substituted “121” for “120.” Pub. L. №106–44, 113 Stat. 221, 222. The Intellectual Property and High Technology Technical Amendments Act of 2002 amended section 106 by substituting sections “107 through 122” for “107 through 121.” Pub. L. №107–273, 116 Stat. 1758, 1909.
