New Media and Technology Law Blog : Technology Lawyers & Attorneys : Proskauer Rose Law Firm : Trademarks, Patents & Copyright

After reviewing the divergent district court opinions, the court in Cable v. Agence France Presse took the plain language approach, concluding that the plaintiff's name and the link on the Web site constitute copyright management information within the scope of 17 U.S.C. § 1202:

The plaintiff notes, however, that several courts have rejected the IQ Group court’s conclusion regarding the meaning of copyright management information. For instance, in Associated Press v. All Headline News Corp., 608 F. Supp.2d 454 (S.D.N.Y. 2009), the defendant moved to dismiss the DMCA claim on the ground that the information at issue was not copyright management information as defined by the IQ court. Id. at 461-62. The Associated Press court, noting that the IQ court “relied heavily on the DMCA's legislative history in reaching [its] conclusions about the goals and purpose of the DMCA and limiting its reach,” rejected that approach. Instead, the Associated Press court followed Second Circuit precedent that “has  held that legislative history should not be considered as a first resort, and that statutory language should be applied as written.” Id. (citations omitted). Because the defendant had failed to provide any textual support in favor of limiting the definition of copyright management information, the Associated Press court denied the motion to dismiss this count. Id. at 462. See also Interplan Architect, Inc. v. C.L. Thomas, Inc., No. 4:08-cv-03181, 2009 WL 6443117, at *5 (S.D. Tex. Nov. 13, 2009)(“Because this Court does not find that the terms of Section 1202 are sufficiently ambiguous such that resort to legislative history is necessary, this Court does not adopt the findings in Textile Secrets [a case following IQ Group]. Because there is no textual support for Morris's contention that Section 1202 should be limited to technological processes, this Court declines to import such a limitation.”); Fox v. Hildebrand, No. CV 09-2085 DSF (VBKx), 2009 WL 1977996, at *3 (C.D. Cal. Jul. 1, 2009)(accepting plain language of the DMCA and noting that “Defendants cite two cases that analyze the legislative history of the DMCA to come to the opposite conclusion, but even given ‘contrary indications in the statute's legislative history,’ a court should ‘not resort to legislative history to cloud a statutory text that is clear’”)(citation omitted).

Likewise, the Seventh Circuit has stated that “‘[s]tatutory interpretation begins with the plain language of the statute,’” U.S. v. Ye, 588 F.3d 411, 414-15 (7th Cir. 2009)(citation omitted), and further that “this court assumes that the purpose of the statute is communicated by the ordinary meaning of the words Congress used; therefore, absent any clear indication of a contrary purpose, the plain language is conclusive.” Id. (citation omitted). Because under the plain language of the statute, the plaintiff’s name and hotlink fall within the scope of “copyright management information,” in the absence of evidence to the contrary, which may be considered in the context of future dispositive motions, the court denies the motion to dismiss this claim.

The court also declined to dismiss Cable's Lanham Act and related state law claims.

The manner in which Cable's attribution was displayed relative to the subject photographs can still be viewed on the realtor's Web site http://5040greenwood.com/ . The home for sale is notable for, among other things, being located directly next to the Obama family residence in Chicago, Illinois.
 

The essence of the dispute is that Power Ventures, instead of developing its interface through the Facebook Connect developer program, created a Facebook user account and accessed Facebook content through that account. Facebook alleged that the creation and use of that account was in violation of the Facebook Terms of Use. Facebook Complaint ¶ 24, 41. The complaint also alleges that Power Ventures used the interface that it created to induce Facebook users to share their usernames and passwords, and then utilized that information to access Facebook servers via its interface in a manner that violated the Facebook ToU.

The complaint alleges that the ToU prohibits a variety of activities, including, among other things, solicitation of passwords or personally identifying information for commercial or unlawful purposes; using or attempting to use the account of another user or creating a false identity; using automated scripts; impersonating another person or entity; sending “junk mail” or “spam”; harvesting e-mail addresses; registering for more than one account; and “using Facebook’s website for commercial use without the express permission of Facebook.” The ToU also provides that the limited license granted to access and use the site terminates when the site is used “other than as specifically authorized herein.”

The copyright claim alleges that in violation of the ToU, Power Ventures used its account to access and copy the Facebook Web site, including the Facebook home page for which Facebook has obtained a copyright registration. Complaint ¶ 31, 70. Judge Fogel concluded that the allegations of the complaint made out a sufficient claim of copyright infringement because Power Ventures “need only access and copy one page to commit copyright infringement.” The court also found that the ToU prohibited downloading, scraping or distributing content from the Facebook Web site content except that belonging to the user, and that in any event, using automated methods, i.e., “data mining, robots, scraping, or similar data gathering or extraction methods” to access any content were also prohibited by the ToU. Thus, the court found that the allegation that Power Ventures accessed Facebook via automated means constituted made out a claim of direct copyright infringement, while the allegation that Facebook users utilized the Power.com interface to access their own profile pages made out claim of secondary copyright infringement.

Judge Fogel also declined to dismiss Facebook’s claim that the use of automated scripts to access Facebook copyrighted content bypassed specific technical measures designed to block such access and thus violated the DMCA. The trademark infringement claims were sustained based upon the inclusion in the complaint of a screenshot illustrating the use of the Facebook mark on an e-mail sent by Power Ventures to Facebook users. The court did order Facebook to file a short statement clarifying the basis for its California unfair competition claim.

The complaint also alleges a federal CAN-SPAM claim stemming from the transmission of e-mails to other Facebook users encouraging them to use the Power.com interface. According to the opinion, Power Ventures abandoned its challenge to the sufficiency of the CAN-SPAM claim, as well as its challenge to the sufficiency of the complaint under the CFAA. The CFAA claim also is grounded on the allegation that Power Ventures’s access to Facebook’s computers was unauthorized because it was in violation of the Facebook ToU.

The court’s refusal to dismiss Facebook’s claims demonstrates that careful drafting of a Web site terms of use is essential to obtaining legal redress for unauthorized access, particularly unauthorized access by competitors and others for commercial purposes. Access that violates the clear proscriptions of a ToU can form the basis for a multiplicity of legal claims, thereby maximizing the chances of a successful challenge to unwanted access.
 

In The Associated Press v. All Headline News Corp., et al., the AP alleged several causes of action arising from the aggregator's alleged unlawful copying and alteration of AP news stories: Violation of the Copyright Act, the copyright management provisions of the DMCA, the Lanham Act and New York common law, i.e., the hot news misappropriation claim. As to the business of All Headline News Corp (AHN), the opinion related the following drawn from the AP's complaint (with citations thereto omitted):

By contrast [to plaintiff AP], defendant AHN does not undertake any original reporting.  It hires “poorly paid individuals” to find news stories on the internet and prepare them for republication under the AHN banner, either rewriting the text or copying the stories in full.  Defendants W. Jeffrey Brown and Danielle George, who oversee AHN’s day-to-day operations, instruct AHN writers to locate breaking news stories and revise them for AHN use. Many of AHN’s stories are based on the original work of the AP, but they are marketed as originating with AHN. Brown and George instructed reporters to remove or alter the identification of the AP as author or copyright holder of the articles.  Once completed, AHN distributes its articles to paying clients – web sites to which AHN markets itself as a news provider.  As noted, the AP characterizes AHN’s conduct as “free riding” on the original reporting of others.

In declining to dismiss the hot news misappropriation claim, the court had to clear a few hurdles. First, the court found that after Erie Railroad v. Tompkins in 1938 ("there is no general federal common law"), the federal common law cause of action survived under New York law and second, that the hot news misappropriation claim was not preempted by the federal Copyright Act. On these points, the court had the assistance, or rather the mandate, of the Second Circuit's ruling in National Basketball Association v. Motorola, Inc., 105 F.3d 841, 845 (2d Cir. 1997) (hot news misappropriation claim remains viable under New York law and is not preempted by copyright). The court found that it saw no basis for ruling otherwise than as indicated by the NBA case.  Finally, in its conflicts of law analysis, the court rejected the argument that Florida law (as urged by the defendant) applied. In doing so the court concluded New York law did not conflict with Florida law even though Florida has no authority recognizing a hot news misappropriation claim.

The court declined to dismiss the AP's claim under the DMCA copyright management provisions, which prohibits the removal or alternation of "copyright management information." 17 U.S.C. §1202. The court rejected the argument that the DMCA provision is limited to alternation of "technological" copyright management information and does not extend to the simple mechanical removal of references to the AP as author or copyright owner of the news stores.

In construing the DMCA, the court relied on a plain language approach and refused to consider the legislative history cited by AHN. Accordingly, the court rejected the contrary analysis adopted by judges in the District of New Jersey and the Central District of California. For example, in IQ Group, Ltd. v. Wiesner Publishing LLC, 409 F. Supp. 2d 587 (D.N.J. 2006) a claim that removal of a copyright owner's logo and a hyperlink to its Web site violated 17 U.S.C. §1202 was rejected as a matter of law. The court in IQ Group acknowledged that the plain language interpretation was "plausible," but concluded that not only would that interpretation blur the lines between copyright law and trademark law, it was inconsistent with focus in the DMCA legislative history on tampering with "automated copyright management systems functioning within a computer network environment."

The court did dismiss the AP's trademark related claims finding in general that those claims were not sufficiently specific.

The ruling in The Associated Press v. All Headlines News Corp. is certainly a big win for the AP, but it does not answer all outstanding questions concerning the use of news reports in the online arena. First, it does not address the use of headlines and lead-ins, also an open issue and the subject of dispute. Second, it is not a ruling on the merits of the AP hot news claims against AHN, although the opinion strongly favors the AP position on the merits. Third, it does not address the more difficult and complex questions concerning the use of news reports by bloggers and others who do not merely excerpt and link to online news reports such as those produced by the AP, but add commentary to them as well. Last year, controversy erupted in the blogosphere when the AP sent a DMCA take-down notice to The Drudge Retort blog, and then indicated that it would disseminate a set of fair use guidelines for bloggers who wished to use its content. No guidelines were forthcoming, however, and the dispute with The Drudge Retort blog was settled without litigation.

Note also that the AP is not the only news organization to make claims or bring suit with respect to online news aggregators.  A lawsuit by Gatehouse Media involving Web site screen scraping and excerpting of news stories on the Boston Globe newspapers Boston.com site was settled last fall. A representative of The New York Times Co., the parent company of the Boston Globe and the defendant in the case, took the position in a post-settlement statement that "the use of headlines and ledes is fair use."