Tag Archives: Ninth Circuit

new blizzard decision

how on earth does blizzard keep winning these horrible cases? do they bribe the courts?

Patry covers the new case on software cheats, MDY Industries v. Blizzard.

How one might ask can there be a violation of the Copyright Act if no rights granted under the Act have been violated? Good question.

To get to its result, the court had to first find that WoW, even though sold over the counter, was licensed not sold. … Having found there was license not a sale, there still had to be a breach of the license in order to permit an infringement action to lie, and recall here that the claim is not one for direct infringement, but rather secondary liability; there was no privity between the parties. There was in fact no provision in the license that barred use of WoWGlider. The court took the extraordinary step of stitching together two unrelated provisions to create one. You have to read it to believe it, but it took the court 8 pages to go through this hard work, and why? Was the court offended by what it regarded to be cheating? If so, God help us if law is being reduced to such subjective, non-statutory grounds.

Read all of Patry’s analysis, as well as the opinion.

links from G.B. @ Public Citizen

roommates.com: no 230 safe harbor for discriminatory housing ads

Just saw that the 9th Circuit has issued its en banc opinion finding that Roommates.com is not eligible for Section 230 immunity for discriminatory postings. Haven’t read it yet.

Decision at up at the 9th Circuit website. Opinion by Kozinski, who usually gets this stuff so maybe it’s not too bad.

link from eric goldman

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9th Circuit again: P10 v. Google

The Ninth Circuit has weighed in on Perfect 10 v. Google (captioned Perfect 10 v. Amazon.com on the 9th Circuit case download website). The opinion is by Ikuta, who (IMO) got it right on the Fair Housing Council decision yesterday. It’s a long opinion, and I’m still working through it. But here’s a summary of holdings from my first quick scan:

  • Liability for thumbnails — P10 made out a prima facie case of direct liability for Google’s display of thumbnails (affirming lower court) (but see fair use below)
  • No direct liability for display on linking to full-size images (affirming lower court): Specifically,

    “While in-link linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion.” (at 5772, pdf p.19)

  • No direct liability for display of cache (affirming lower court)
  • No direct liability for distribution of full-size image (affirming lower court) (distinguishing Hotaling v. LDS (4th 1997) & Napster)
  • Fair use for thumbnails & vacated preliminary injunction for Google’s thumbnails (reversing lower court)
    • purpose & character of the use: Google’s use was so highly transformative (“significantly transformative nature of Google’s search engine, particularly in light of its public benefit” at 5782/PDF p.29) that it outweighs superseding & commercial uses; the superseding uses were trivial because no evidence that downloads for mobile phone use had taken place. District Court’s determination that use of thumbnails in AdSense partner direction was not significant. Instead of weighing “slightly” in favor of P10 as the District Court found, this favor weighs for Google. (reversing Dist Ct)
    • nature of the copyrighted work: photos were creative but previously published; this factor weighs “only slightly” to P10 (affirming Dist Ct)
    • amount & substantiality: did not weigh in favor of either party because reasonable in light of the purpose of a search engine (affirming Dist Ct)
    • effect on the market: no effect of thumbnails for full-size images (affirming Dist Ct); effect of Google’s thumbnails for P10’s cell phone market “remains hypothetical”; so this factor favors neither party (reversing Dist Ct)
  • Possibility of contributory infringement & enunciated a new test (reversing & remanding) Citing Grokster, Napster, and Netcom, the court found the Dist Ct had erred in assuming that Google did not materially contribute to infringing conduct.

    “Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10’s copyrighted works, and failed to take such steps.” (at 5793 / PDF p.40)

    Remanded for consideration of “whether Perfect 10 would likely succeed in establishing that Google was contributorily liable for in-line linking to full-size infringing images under the test enunciated today.”

  • No vicarious liability (affirming District Court)
  • Remand to do DMCA 512 analysis: The 9th said because there is now a possibility of contributory infringement, the District Court now has to do the DMCA 512(d) analysis to see whether Google met the qualifications for takedowns. The issues are whether, as P10 alleges, Google was not expeditious in takedown; and whether, as Google alleges, P10’s notice was not sufficient and did not comply with provisions.
  • Amazon.com: No direct infringement for linking to Google’s thumbnails or P10’s fullsize images, and no vicarious liability (affirming District Court). However, the Napster “knowledge” test (“actual knowledge that specific infringing material is available using its system”) popped up here as in Google, and so 9th remanded to consider this contributory infringement and the DMCA safe harbor.

….update 5/18: Thinking about the decision some more, I still really appreciate the “public benefit” aspect of the language that I previously highlighted. Probably not something that most artists will be able to rely on, but very helpful for information and indexing resources — so librarians can breathe a sigh of relief.

Various other scholars & interested parties have pointed out their own highlights:

  • Eric Goldman posted a brief comment on the case, pointing out that the court held that a plaintiff must disprove fair use, which Joe Gratz also pointed out. I was also amused to see his take on the case as difficult to teach.
  • Joe Gratz listed several points of interest, including the public interest point that I like.
  • John Ottovani posted also, pointing out that the court clarified that Section 512 is available for direct as well as contributory infringement. Hmm.
  • Jason Schultz @ EFF calls the decision a “huge victory” and parses out some of his insights.
  • Rebecca Tushnet points out the possible significance of footnote 8 for the Google Booksearch lawsuit, and also speculates on the transformativeness of search engines versus parodies.
  • The Washington Post covered the case too.

Roommate.com reversed

The Ninth Circuit reversed the lower court in Fair Housing Council v. Roommate.com, limiting Section 230. Section 230 is the federal statute that immunizes online services providers for their users’ content. Most courts have construed Section 230 broadly, protecting ISPs against all sorts of liability. Intellectual property is (surprise) specifically exempted.

In this case, the Fair Housing Council sued Roommate.com for violations of the Fair Housing Act, which prohibits housing advertisements that state discriminatory preferences. The lower court held that Roommate.com, as an online provider, was immunized by Section 230 for postings on its service that allegedly violate the Fair Housing Act’s discriminatory housing ads prohibition.

The Ninth Circuit’s opinion, written by J. Kozinski, distinguished Roommate.com from a protected service based on three main features:
* Roommate.com shaped its users’ input with a form questionnaire that specified gender, sexual orientation, and with-children choices;
* Roommate.com’s search mechanism which has the same pulldown search options (gender, sexual orientation, and with-children);
* Roommate.com emails people with listings based on profile preferences (gender, sexual orientation, and with-children)

J. Reinhardt would have also held Roommate.com liable for the discriminatory content posted by users in the comments section, but the majority held that that information, which was not solicited by nor built into the search engine, was not Roommate.com’s responsibility.

J. Ikuta dissented from liability, and would have followed Carafano finding broad immunity even on the form submission.

… So what does it mean? My quick take is this:

First, readers will probably be familiar with these issues from the Craigslist case, and concerned about the 7th Circuit appeal. In my opinion, this case can be reconciled with the decision in the Craigslist case (ND Ill, a 7th Circuit court). This decision expressly held that the “no parameters” forms that are just open-ended do not create liability, and Craigslist.com’s housing forms are primarily open-ended: address, rent, cats/dogs. That decision is on appeal to the 7th Circuit. Should the 7th Circuit elect to address this aspect of the decision, that’s a fairly clear distinction to make. The 7th Circuit need not address this, though, because both the search & the email features that Kozinski brought up really hinge on the structured data input, which is the only real point of distinction between a “content provider” and a “content service”.

Second, despite Kozinski’s dancing, the case will be harder to reconcile with Carafano v. Metrosplash.com, a 2003 9th Circuit case that considered defamation & privacy liability for an online personals service that set up forms for publishing user input. (Carafano, 339 F.3d 1119.) In particular, it adds some weight and significance to the distinction between an “ICP” and an “ICS” (information content provider and interactive content service, respectively).

Third, the decision’s major point of distinction between Carafano and this case was that the ISP established policies. So establishing policies that reiterate the law will be key for ISPs in the wake of this decision. Kozinski stressed that the service in Carafano did not solicit the problematic information and in fact expressly forbade some aspects of it. So, under this decision, establishing policies that reiterate the law will go some way toward protecting an ISP. While this isn’t the worst outcome for a speech-related law, it seems (to me) to be a waste of time, and I’d point out that it burdens ISPs with educating their users about the law. This sort of burden is, to my mind, inconsistent with notions of ISPs as “utilities”, and also inconsistent with the broad, unfettered access to communications that the First Amendment contemplates.

Fourth, I imagine that this case will be used by all who seek to limit Section 230’s broad immunity for ISPs. Whether the case constitutes a high-water mark for limitations on that liability immunity, or merely a beachhead, remains to be seen.

update: Eric Goldman analyzes the decision at greater length, and you can get the flavor from the title “Ninth Circuit screws up 47 USC 230”.

PS – More on the FHA: I always think about, and rarely remember to point out, that one of the contested categories is sexual orientation, which isn’t included in the Fair Housing Act, although various state anti-discrimination codes do include it. Some people have also been confused about the roommate exception, which permits discrimination by roommates for shared-housing situations. If you lease a room in your apartment or house, for instance, you can discriminate on religion, etc. (Although shared-housing people can discriminate, advertising those discriminatory preferences is not protected.) So, generally, commercial landlords may not discriminate on race, sex, familial status, etc. (but they can discriminate on sexual orientation); shared-housing lessors may discriminate; advertising discriminatory preferences is prohibited, period. (But, again, advertising preferences against or for sexuality would be okay under the FHA.)