E-Commerce Law Week, Issue 451

Big Content Gets Court to Kill Television Time Shifting System

If you had really wanted to see how Sanjaya styled his hair each week, you should have watched American Idol live or recorded it on your TiVo -- you should not have used a cable provider's remote video-recording system.  That is the upshot of a recent ruling by a federal court in New York in Twentieth Century Fox Film Corp. v. Cablevision Systems Corp.  The court granted summary judgment to several owners of copyrighted TV programming in their copyright infringement suit against Cablevision and its parent, CSC Holdings, Inc.  The court found that Cablevision's planned Remote-Storage Digital Video Recorder System (RS-DVR) would not be a customer-controlled "machine" (like a VCR or TiVo), but a centrally administered "service" (like video on demand), and that therefore Cablevision would directly impinge on the plaintiffs' reproduction and public performance rights.  Since the ruling did not consider fair use, its value as precedent may be limited.  But for now, the ruling represents another victory for "Big Content" in its efforts to fend off new technologies and services that they perceive as undermining the monetary value of their copyrighted programming.

Google Makes Peace with French Press, Avoiding Drip of Litigation And Bitter Aftertaste

Google and news service Agence France-Presse (AFP) have reportedly signed a licensing agreement giving the search engine "the right to post AFP news and photos."  The agreement settles suits filed in both Paris commercial court and U.S. federal court, in which AFP had alleged that Google "reproduce[d] and publicly display[ed] AFP's photographs, headlines, and story leads" without its permission.  In addition to allowing AFP's stories to once again appear on Google News -- which displays brief snippets of news stories culled from many different websites, as well as links to the stories themselves -- the deal will apparently "enable the use of AFP's newswire content in innovative, new ways."  Although the details of the agreement remain confidential, the companies' announcement reaffirms Google's apparent strategy of settling litigation that challenges its basic business practices, in order to avoid potentially damaging precedents.

Ninth Circuit Helps DMCA Defendants Find Safe Harbor

The Digital Millennium Copyright Act (DMCA) limits service providers' liability for certain online material, including for "Transitory Digital Network Communications," "System Caching," "Information Residing on Systems or Networks At [the] Direction of Users," and "Information Location Tools" (17 U.S.C. § 512(a-d)).  But claiming these safe harbors can be difficult, since online service providers must first show that they have "adopted and reasonably implemented ... a policy that ... terminat[es] in appropriate circumstances ... subscribers ... who are repeat infringers," and that they have not "interfere[d] with standard technical measures" of "identify[ing] or protect[ing] copyrighted works."  In Perfect 10, Inc. v. CCBill LLC, the Ninth Circuit addressed the plaintiff's claim that CCBill, an online payment processor, and CWIE, a web hosting service, should not be given safe harbor.  By offering a definition of a "reasonably implemented" termination policy, this ruling should help providers of online services more easily determine whether they meet the threshold for claiming DMCA safe harbor.  And, for copyright holders, the ruling shows what not to do when giving a service provider notice of infringement.

NY Court Converts Conversion into e-Tort

The common law tort of conversion provides a remedy for the theft or other unauthorized interference with the ownership of the plaintiff's personal property.  This cause of action has traditionally been limited to tangible objects.  But in Thyroff v. Nationwide Mutual Insurance Co., the New York State Court of Appeals last month explicitly extended the Empire State's conversion tort to "electronic records," finding that the tort's history supported its expansion to "keep pace with the contemporary realities of widespread computer use."  Specifically, the ruling allows an insurance agent to maintain a conversion claim against his former employer, which had allegedly prevented the agent from accessing personal and business information stored on the company computer system.  But the conversion tort also gives employers another tool for going after workers who purloin company data.

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