This Week in IP Enforcement

Last Thursday, the U.S. Court of Appeals for the Second Circuit issued a decision in Viacom v. YouTube — the well-publicized copyright infringement case brought by several motion picture companies. The Second Circuit reversed portions of a 2010 decision by the lower court that held YouTube was not liable for copyright infringement and sent the case back to lower court for trial on the basis that “a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website.” The three key takeaways from this case are:

(1) under the DMCA, ISPs can be liable if they either “subjectively” know of the specific infringements or they were subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person, but cannot be liable for having a mere general awareness that the service was being used for infringing purposes;

(2) in an issue of first impression, the doctrine of willful blindness (defined as engaging in “‘conscious avoidance’ amounting to knowledge where the person was aware of a high probability of the fact in dispute and consciously avoided confirming that fact,”) “may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under the DMCA;” and

(3) for an ISP to be held liable under the DMCA’s “right and ability to control” standard “requires something more than the ability to remove or block access” but the copyright owner need not go so far as to prove that the ISP has specific knowledge, item by infringing item, in order to control the activity.

IP News

Rosetta Stone Lawsuit Against Google Gets Green Light To Proceed (The Washington Post)
The Fourth Circuit Court of Appeals decided Rosetta Stone can move forward with its trademark infringement lawsuit against Google in which it accuses Google of selling trademarked Rosetta Stone phrases without the company’s permission in the form of keywords to third-party companies that make copycat software.

RIM To Start Encrypting App Downloads To Combat Piracy (
RIM’s Alec Saunders announced that RIM will drop app side-loading for end-users and introduce encrypted apps, which would lock individual installs to a particular BlackBerry PIN, in order to fight piracy.

Viacom’s Copyright Suit Against Google’s YouTube Reinstated (BusinessWeek)
The U.S. Court of Appeals in Manhattan reversed a lower court ruling in the Viacom v. YouTube case, reinstating Viacom’s suit against YouTube for allegedly violating Viacom’s copyrights by letting users post clips from shows without authorization.

Russia Audits ISPs For Piracy (The Wall Street Journal)
The Russian Interior Ministry is auditing ISPs to uncover the prevalence of copyright infringement by network subscribers.

Lakewood Man Arrested On Suspicion Of Selling Counterfeit Software (Los Angeles Times)
Collier Bennett Harper was arrested on suspicion of importing more than 1,000 counterfeit Microsoft products and selling them over the Internet.

New Commerce Report Shows Economic Impact of IP-Intensive Industries (U.S. Department of Commerce)
The U.S. Commerce Department released a comprehensive report showing that intellectual property-intensive industries support at least 40 million jobs and contribute more than $5 trillion dollars to the U.S. economy.

Keith Kupferschmid is General Counsel and SVP, Intellectual Property Policy & Enforcement at SIIA.

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