For more than 20 years, the copyright industry, the public, and others involved in creating and preserving works have followed the Sony Corporation of America v. Universal City Studios case which “found that a distributor cannot be held liable for users' infringement so long as the tool is capable of substantial non-infringing uses” (under the Ninth Circuit).  Meaning that as long as the technology is capable of performing techniques that do not infringe any copyright laws, the distributor cannot be held responsible for what users do.  On the other hand, if a device was sole purpose was to perform illegal procedures, the distributor could in fact be held, at least somewhat, responsible.  Therefore, when the case of MGM v. Grokster was brought to court, official had to follow the example.  In this specific case, “twenty-eight of the world's largest entertainment companies brought the lawsuit against the makers of the Morpheus, Grokster, and KaZaA software products, aiming to set a precedent to use against other technology companies (P2P and otherwise).”  Interestingly, the court sided with StreamCast Networks, “the company behind the Morpheus peer-to-peer (P2P) file-sharing software,” thus not giving Hollywood what they “wanted – a veto over technological innovation.” 

            The ever changing technology and subsequent copyright laws are seriously affecting producers, consumers, and the market. Many of these cases are so technical and delicate, that it has become inevitable that someone is going to be unhappy with the outcome.  The trick for copyright officials is to try and set some standard that applies to all devices, all copyright infringements, and all users and distributors. In an ideal world, this could all be possible.  In the meantime, everyone involved must work with what they are given and find a way to revive the media industry against copyright pirates. 

    From October 4, 2004 until March 15, 2005, courts heard the arguments of the American Library Association (ALA) versus the Federal Communications Commission (FCC).  The FCC hoped to pass a piece of legislation to have a broadcast flag placed in every digital television.  These flags would signal that the taped program or a DVD being watched on a certain digital device was not legally copied.  Flags would thus “not record or output an unencrypted high-def digital signal if the flag were set.”  This may be a good idea in theory, indicating and preventing the viewing of not copyright, illegal materials.  However, the court decided that “the FCC lacked [the] authority to regulate what happens inside your TV or computer once it has received a broadcast signal.”  Upon the court’s decision, the FCC jumpstarted their latest endeavor of fighting to have legislation passed to give them the authority to regulate the digital television broadcast signal. 

            This original documentation gives insight that is otherwise excluded in summaries of the trial.  The first-hand accounts give readers an opportunity to get the full effect of both sides of the argument.  Though the FCC is adamant about implementing broadcast flags, it doesn’t seem to be in the public’s best interest to do so.  “During the development of the broadcast flag, both before and after it was submitted to the FCC, the concerns of smaller innovators, libraries, archives, consumer groups and open source developers were ignored.”  If either legislation is put into effect, not only will television be completely changed, but copyright laws will need to be updated in order to support this new technological development.

While the Internet promotes creativity and diffusion of ideas and entertainment, it has also enabled widespread dissemination of copyrighted materials. This class action lawsuit filed by Viacom International Inc. against Youtube in 2005 details the large-scale infringement Youtube has committed against music, film, and television companies. Although Youtube claims the websites purpose is to provide a forum for "user generated" material, the website contains innumerable copyrighted content. One could view clips from every genre of film or television and music clips from live shows or music videos. The plaintiffs hold Youtube responsible because they have enabled the format for such infringement without assuming the responsibility of monitoring the content. Furthermore, the plaintiffs argue "the availability on the Youtube site of a vast library of the copyrighted work is the cornerstone of the Defendant's business plan." Because Youtube makes significant profit off of these copyrighted works, they leave it to law abiding individuals and copyright owners to monitor the site. Even if the site removes the illegal content once notified, it usually returns to the site within no time. Moreover, Youtube has devised a feature that precludes copyright owners from finding infringing videos.

Viacom holds Youtube responsible because the site "knowingly reproduces and publicly performs the copyrighted works" and allows for extended distribution by enabling one to "embed" a video into another website. Although users are the ones who originally upload the content, Youtube converts the material to their own software format for display and reproduction. More importantly, such websites dissuade people from producing creative works in fear their copyrights will be violated and subject to egregious exploitation. Youtube acknowledges such illegality by sending cease and desist letters to people who provide software that can be used to make copies of Youtube's videos. Youtube sites that such copies are "unauthorized" yet the plaintiffs recognize that Youtube does not want such copies available because they need viewers for their own site to retain advertising revenues. As compensation for Youtube's violations, the plaintiffs order that the defendants device a system to prevent infringement and provide statutory damages for past and present infringements amounting to at least one billion dollars.

This lawsuit directly pertains to my paper in that it shows the legal measures the film industry is taking to combat piracy. Because my paper also focuses on the evolution of the industry in this online world, it is important to note the setbacks such technological develoments have caused for the industry.

Diane Von Furstenberg Studio, LP v. Forever 21, Inc. et al - 19, No. 1:07-cv-02413-VM (United States District Court Southern District of New York July 9, 2007).

This source is court case; specifically, high-end designer Diane Von Furstenberg filed a copyright- infringement lawsuit against the store Forever 21, who has more than once created apparel with designs that were extremely similar to Furstenberg's pieces. In addition to seeking financial damages, von Furstenberg requested a court order that Forever 21 remove and take back the dresses and any promotional display or commercial distribution of any of their pieces that infringe on DVF's copyrights. Furstenberg and many other designers have always had problems with copying from stores such as Forever 21. This is just one example out of numerous other court cases Furstenberg filed against Forever 21. Of course, Forever 21 and other stores at present are still creating knock-off copies of designer dresses because there is still no copyright law enforced prohibiting them from doing so.

This source will be very helpful for my paper because it is an actual lawsuit filed against a store that produced knockoffs of a particular designer. Since this is a specific example, I will be able to refer to this court case when I mention the designers' point of view on fashion copyright and whether it should be enforced. Moreover, including an actual court case will give my essay more credibility.

    In a copyright infringement case, the judge ruled against the company Cablevision.  Customers were given a DVR remote to store television shows where “the hard drive itself was stored on Cablevision property.”  The courts decided that this made “Cablevision liable for reproducing and transmitting the programs without permission.” In other words, when Cablevision customers record television shows, no matter if they actually watch them or not (“buffer copies”), Cablevision is responsible for creating this “infringing copy.” Since all the saved programs are stored in Cablevision’s hard drive, the shows are then transmitted to the user after the broadcast, whenever they choose to watch their show.  Thus, officials are claiming that Cablevision “needs to manipulate signals in order to record the shows a user has selected” and, in essence, calling the company a “broadcast pirate.” The Cablevision case “does nothing to curb piracy”; if anything it “discourages innovation.” Also, it seems that Cablevision did nothing to actually infringe any copyright laws, which “center not on the details of the machinery, but on how the rights in a work are affected.” This is a major problem for the officials who deal with copyright laws.  If DVR and other recording techniques become so complicated and so afflicted with copyright laws, consumers may refuse to use them; thus, consumers would not be able to keep up with their favorite shows and probably never be willing to buy the DVD box sets later in life.  These copyright laws could negatively affect the market more so than DVRS (what they see to be the problem in this case) ever would have.

Consumers using Cablevision were not affecting how the works were used, the general market was in no way affected, and there was no copyright infringement.  Therefore, it seems that all this lawsuit did was enrage the public and prove that copyright laws are only “being used as a tool to scrape more money from wherever the studios can get some.”

In a recent case, television studios realized that a certain individual had gotten a copy of a number of episodes of the popular Fox television show 24. These episodes had yet to be aired, but were soon uploaded to the Internet. The individual was charged with “uploading copyrighted material…knowing the work was intended for commercial distribution.” The episodes were first uploaded to the website LiveDigital, but quickly reached YouTube, therefore both “were served subpoenas under the DMCA demanding they disclose the identities of the users who uploaded the episodes.” In this landmark case, the individual could receive a rather severe punishment. Not only were the uploaded episodes considered valuable because of the popularity of 24 and the fact they hadn’t been aired yet, but copyright officials are trying to use this case as an example for future pirates. Normally, Internet copyright infringement cases are taken up against “user share sites.” The fact that an individual did the same gives copyright officials more incentive to protect “‘the rights of the content owners who invest millions of dollars in a television series must be protected.’”

Twentieth Century Fox, who produces 24 and is a major studio in the television industry “hopes it [this case] will serve as a powerful warning that uploading copyrighted TV shows and movies to the Internet can be a crime with significant penalties and will be prosecuted as such. ”It seems fair to say that this particular studio is not alone in their beliefs. It also seems that the individual prosecuted in the 24 case is being so harshly is so that others will be deterred from attempting the same. Television copyright officials “have no choice but to take it seriously, because if they don’t catch it early, they won’t be able to stop it at all ’” Without enforcing harsh punishments, illegal downloading and uploading of copyrighted material will continue to the point that there will be no laws to prevent it or punish for it. Officials are implementing harsh penalties, but more importantly they are putting into effect laws that are current with the technology.

Jon Johansen, from Norway, was tried and acquitted on charges “for writing a software tool that can be used to overcome anticopying technology built into most commercial DVDs.” At the time, Norway was being pressed to mimic the strict copyright laws of the United States.  With stricter laws, officials can ensure sufficient punishments for violators rather than having the charges completely dismissed, as they were in this instance.  Stricter laws would also give companies more power to better protect themselves from people caught or accused of copying media products.  In the past, “court cases targeting alleged piracy have generally gone in favor of the content owners to date, but the industry is still on the defensive and needs to bolster legal victories with better antipiracy technology.”  However, as of now, the current “DMCA-like laws are the entertainment industry's best hope of fending off a new era of digital piracy.”  

Currently, copyright officials are in limbo between the former and future laws, thus making it difficult to try cases.  This specific case helped bring officials’ attention to the fact that copyright laws dealing with the Internet and anticopying technology need to be updated and made universal. Having non-universal laws makes it easier for piracy to go unpunished.  By implementing and enforcing stricter punishments, companies would not only have stronger defense cases against Internet pirates, individuals would be potentially deterred from ever downloading illegally (or attempting to decode encryptions) in the first place. 

            This source is a blog which highlights several opinions on the decision.  Some agree with my thesis while others disagree.  I will use the supporters as examples to prove my thesis and will rebut the opinions of the dissenters.  William Patry offers the opinions in the first two blog entries on the page.  Both are highly critical of the Court's decision in favor of Google.  First he points out that if you tally up the factors, Google received none and Perfect 10 received three, according to him.  This argument is highly flawed because it was actually 2-1 in favor of Google according to the case.  The second argument stated that the Court erred in its assessment of Google as "consumptive."  The case has a good explanation for why this is their opinion and it seems valid.

            John Ottaviani argues that using Copyright Law from the 1970s is not very relevant for this type of technologically-based case.  He fails to realize that it is the concept of what is copyright that has carried over for that long of a time.  Copyright law would have changed had it not been working.  They also used contemporary examples in the decision. C.E. Petit argued against the first and fourth factors of Fair Use.  She argues that they are very similar and will almost always favor the same side.  According to her, the judge used the same facts for each factor and that they are likely being double counted.  She is probably right that these factors overlap and more than they should.  They should, however count for more because of how important they are to Fair Use.  The similarity was likely on purpose.

            Martin Schwimmer wrote, "The thought occurs as I read this section that Google makes this go away by cropping a corner off the thumbnail (or perhaps reproduces thumbs using sepia tone)."  This is amusing, but at the same time, it makes a very good point.  Much of the argument centers on whether or not the thumbnails are the same as the image.  Removing a corner would actually resolve this argument.  It would not change the function of the thumbnails.  This shows me that the argument is being over thought and that thumbnails shouldn't be considered the same.  If such a small alteration can change an opinion that greatly, then it should not even need to be done.

            New York Times Co. v. Tasini is a case with similar information and applications to the topic of my thesis.  This case was taken to the Supreme Court, therefore, the decision and reasoning is very strongly applicable to any case.  In this case, six freelance authors (Tasini) had articles published in three publications, including the New York Times.  Two computer database companies took their articles, along with all the other articles in these publications and added them to their databases.  They had permission from the New York Times and other publications to do this, but not from the freelancers.  Within these databases, the articles are all retrievable by a user in isolation of its context in the original print publication. Like Google, users of these databases can search for several key terms or names (including author and where it was published) to find what they are looking for.

            The Supreme Court ruled in favor of the New York Times and the database companies.  As stated in Perfect 10 v. Google, "The Supreme Court has indicated that in the electronic context, copies may be distributed electronically."  Google's search engine uses HTML instructions that tell a user's browser where to find the full-size images, but Google does not actually distribute the copies.  It is the publisher of the website that actually allows users to transmit the images to their computers.  Then, like in Tasini, the user can download or print the image.

            New York Times Co. v. Tasini is both similar and very different from Perfect 10 v. Google.  It is similar in that they both involve distributing copyrighted works electronically.  The databases from the Tasini case were allowed to distribute copies of work electronically without direct permission from the authors.  Therefore, shouldn't Google be able to do the same thing with images?  The difference makes this question even more obvious.  Google, unlike the databases, is not even distributing the copyrighted works.  They are merely creating links to make the works more easily accessible.  This case supports my thesis by showing a related case with a decision that is similar to that which I am arguing for.

Lindey A & Landau M. Chapter 16. Art Work [*] VII. Protection of Artists' Rights in Federal and State Statutes and Court Decisions. B. Federal Laws. Lindey on Entertainment, Publishing and the Arts. 3, Nov 2008.

Beginning like many of the other sources, this chapter begins with a background of VARA.  However, newly noted is the fact that a bill like this was proposed several times between 1979 and 1990.  It provides insight into the concerns of legislators regarding how critical including some type of moral protection for artists really was.  Also, the notion that some states already had moral rights provisions in their laws is important, but now the federal law trumps the states’ provisions.  Emphasis is placed on the fact that this act is setting a precedent of not just preserving the economic rights of the artist, but the moral rights as well.  Because VARA is explicitly geared towards protecting “visual arts” there is argument as to whether the work is  “applied art.”  If the work is considered a visual art, then it must be viewed as a whole, and not on an elemental basis.  This research is useful to understand the opposing argument; as to why the one party might believe that they are not infringing on VARA.  The case, Carter v. Helmsley Spear Inc., is described to show how substantial of a reach VARA can have.  Other cases such as Pavia v. 1120 Avenue of the Americas Associates are cited to show how state law and federal law can be interrelated.  Summary paragraphs of cases include: In English v. BFC & R East 11th Street LLC; Peker v. Masters Collection; Grauer v. Deutsch; Pollara v. Seymour; and Scott v. Dixon among others.  These cases all combine to specify and determine VARA’s jurisdiction, as well as putting it into application. 
There are a great deal of cases in this treatise, and by giving a brief summary of each, the researcher can then go to other resources to find more detailed information about each case.  Using each court case to define the limits, scope, and extent of VARA is key to its interpretation and incorporation into United States law.  By starting with the history behind the act and then seeing its implementation and interpretation through court cases, we can construct a big picture of how VARA has helped shape our copyright culture.

            The Hotaling v. Church of Jesus Christ of Latter-Day Saints case is important because it helps distinguish Google's use of thumbnails with cases that are actually not Fair Use.  In this case, Hotaling, a group of researchers, compiled and copyrighted a number of genealogical research materials.  At some point, the Church of Latter-Day Saints received one legitimate copy of the microfiche and added it to its main library's collection in Salt Lake City, Utah.  Later, they made microfiche copies of the works without the Hotalings' permission and sent the copies to several of its branch libraries.  There were many extenuating circumstances, but even with them the appellate court decided that this was copyright infringement.

             This is especially relevant because Perfect 10 attempted to cite this case as part of their argument.  "Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of Latter-Day Saints and Napster for the proposition that merely making images "available" violates the copyright owner's distribution right."(Perfect 10 v. Google)  The Hotaling case differs significantly from the Google case.  Hotaling made exact copies and distributed them to places that would otherwise have had to buy the copies.  The infringement in this case was much more direct and obvious than what Perfect 10 accuses Google of doing with their thumbnails.

             Regardless, this case demonstrates an important difference between Google and the average Fair Use case.  Google is not distributing copies; they are creating thumbnails from other sites.  Google is not creating these images entirely, nor are they distributing the images.  Since merely making images "available" has been shown to not be enough for copyright infringement in the Hotaling case, we can carry that over to the Google case.  This completely nullifies one of Perfect 10's arguments, even according to the Court, than this case is very essential to supporting my thesis.  It both supports my thesis by both contrasting Google with the Hotaling case and establishing a precedent which takes away one of the opposing viewpoint's arguments.

           The A&M Records, Inc. v. Napster, Inc. case is cited several times throughout the Perfect 10 v. Google case and many of the decisions made in this case are vital to the outcome of the Google case.  First of all, the District Court's decision to grant a preliminary injunction for an abuse of discretion originated with the Napster case.  Also, the Napster case is similar because they both stress copyright infringement and had trial de novo, or new trials with a different decision maker.  For my paper, I can look at the examples from the Napster case which were cited in the Google case.  Regardless of whether or not they support my thesis, I can analyze whether or not these aspects should be part of decision making in copyright.

            Preliminary injunctive relief is available to a party that demonstrates either that they have "a combination of probable success on the merits and the possibility of irreparable harm" or "that serious questions are raised and the balance of hardships tips in its favor." These conditions were outlined in the Napster case and used as criteria in the Google case.  In the Napster case, this meant that A&M Records had to show that Napster's program for file sharing could cause irreparable harm to their copyrighted works or that it at least tips the burden towards A&M Records to stop the infringement of the illegal downloading.  In the Napster case, these conditions are very clear and seem to be a very necessary assessment to make in cases of copyright infringement.

            These conditions were used in the Google case and according to the Court's decision, support Google's argument. This was because Perfect 10, in the Court's opinion, was unable to show either of these criteria.  It does not seem to be that important of a criterion in the Google case, but the seemingly black and white use in the Napster case shows how important this type of analysis is in copyright infringement.  Because it supports my thesis, it is important to show that the criterion is essential for keeping things fair under copyright.  The Napster case shows that this analysis, which supports Google, is very well thought out and essential for Fair Use.

                This is the case and decision handed down by the United States District Court that is amending the decision of the Central District Court of California.  My paper will focus on this decision and the reasoning behind its decision.  First, it summarizes the case, which is that Perfect 10, Inc. sued Google, Inc. for infringing their copyrighted photographs of nude models among other claims.  The district court originally prohibited Google from creating and publicly displaying thumbnail versions of Perfect 10's images.  They did, however, allow Google to link to third party websites that display infringing full-size versions of Perfect 10's images.  Both Perfect 10 and Google appealed the decision.

            The decision also discusses the background of the situation including the use of the internet, HTMLs, search engines, and specifically how "Google Image Search" works.  Generally, Google uses HTML instructions to access other websites and, through a third-party website, shrink their pictures or graphics down into thumbnails.  These thumbnails are displayed in "Google Image Search" and linked to image where it is stored on the website publisher's computer.  It also discusses the background information of the previous interaction between Perfect 10 and Google.  This included notifications sent from Perfect 10 and Google, and the time of the filing of the suit.

            This case also discusses the "Standard of Review" involved in the decision.  This includes the aspects of Copyright law that are involved and how they apply to this situation. It also discusses how Perfect 10 accuses Google of Direct Infringement, its specific requirements, Perfect 10's argument for it, and Google's defense (Fair Use).  It discusses how Google is not secondarily liable for copyright infringement as well as Amazon.com's involvement and their innocence according to the same reasoning.  Finally, they conclude that since Perfect 10 is unlikely to overcome Google's Fair Use defense, the district court's decision is reversed and Google is innocent for both the direct and secondary infringement charges.

            This is the original case brought against Google.  It both supports and rebuts my thesis.  The decision was not a full victory for Perfect 10, but compared to the appeal, it was more successful.  I will use this case to point out the flaws in the decision and to contrast Google's argument with the appeals case.  Just like the case in the Court of Appeals, this case focuses on the question: "does a search engine infringe copyrighted images when it displays them on an "image search" function in the form of "thumbnails" but not infringe when, through in-line linking, it displays copyrighted images served by another website?"

            Perfect 10 moved for a preliminary injunction against Google and Amazon solely based on copyright claims.  They wanted to prevent Google and Amazon from displaying thumbnail copies of their copyrighted images and also from linking to the third-party websites that host the infringing images.  The court decided that Google's use of thumbnails likely do directly infringe Perfect 10's copyright.  They also decided that Perfect 10 will likely not succeed with its vicarious and contributory liability theories. Just like the appeal, this case goes pretty far into the details of both Google and Perfect 10, as wells as the charges and how the charges either apply or do not apply.

            In the charge of direct infringement, Google defends themselves by arguing that many of its actions do not infringe upon any of the exclusive rights granted to the owner of a copyright, and to the extent that its actions do implicate those rights, such use is fair according to Fair Use.  The court rejects the Fair Use argument partly.  They state that Google's use of the thumbnails is commercial and thus against the first part of Fair Use. In my paper, I will argue against this decision because an overwhelming majority of Google's commercial gain from thumbnails is not copyright infringement.  They state that Google's use is very transformative and that their use no greater than necessary to provide their goal, which is providing effective image search capabilities.  These assessments show that the Court believed that Google was compliant with the second and third factors of Fair Use, and agrees with my thesis.  They argue that Google's images likely do harm the potential market for Perfect 10.  This would mean that Google infringes upon the fourth and final factor of Fair Use.  I disagree on the grounds that Google is not even creating these images and thus the burden falls upon the people downloading the images.