Tuesday, April 27, 2010

"Eurosports" versus YouTube

Here's the text of my recent post on the international IP-Sharing website:

On March 11, 2009 YouTube submitted a motion for summary judgment against Viacom’s various claims of copyright infringement. But the motion isn’t aimed only at Viacom. YouTube is simultaneously moving to dismiss plaintiffs’ claims in a “related” action, in which the UK’s Football Association Premier League Ltd., the Féderation Française de Tennis, and a collection of smaller US music publishers allege many of the same claims found in Viacom’s briefs and motions.

This related action has gotten less press than the Viacom suit, but it’s already raised some interesting issues of its own, particularly involving the French and UK plaintiffs. First, Judge Stanton (overseeing both suits in the Southern District of New York) agreed that the foreign plaintiffs, unlike the US claimants, didn’t need to have registered the allegedly infringing works with the US Copyright Office prior to bringing suit. Nothing surprising there: this exception is written explicitly into the copyright statute. So for foreign plaintiffs like Premier Football and the FFT, registration isn’t a requirement to bring a lawsuit. Eurosports 1; YouTube 0.

But…there’s more to registration than getting in the courthouse door. If a plaintiff hopes to recover the hefty statutory damages written into the Copyright Act (potentially in the hundreds of thousands of dollars, if not more), the work has to have been registered not only before bringing suit, but also before the infringement even occurred. Judge Stanton ruled that there was no exception for foreign plaintiffs here. They can bring suit, but they can’t recover statutory damages. Eurosports 1; YouTube 1.

But wait. There’s one more exception to the requirement for pre-registration: live broadcasts. Congress recognized that it’s impossible to register something like a sports match for copyright protection before it’s been taped, so a content owner can theoretically bring suit and recover statutory damages if a website copies and distributes a live broadcast of a sports program. Eurosports 2; YouTube 1.

But…bad news for Eurosports: you only qualify for the “live broadcast” exception if you notify the potential infringer in advance. Setting aside the obvious question of how one identifies all possible infringers in advance, the notification has to be very detailed and meet a list of incredibly specific requirements. It’s easy to issue an advance notice that’s disqualified on technical grounds. Moreover, the plaintiffs’ complaint didn’t specifically say that they had served this advance notice. YouTube noted in its motion to dismiss that plaintiffs’ complaint didn’t mention any “Advance Notices of Potential Infringement.” Eurosports 2; YouTube 2.

However…Judge Stanton then notes one of the supplementary affidavits submitted by Premier Football’s IP counsel Oliver Weingarten. According to Weingarten, he had served on YouTube “more than three hundred and forty four ‘Advance Notices of Potential Infringement’” before sports matches that were nevertheless posted on YouTube shortly after airing. What do you know? Someone in Europe read Section 201.22 of the Code of Federal Regulations. The Judge deemed the plaintiffs’ complaint to incorporate all of the relevant information from Weingarten’s affidavit. Eurosports 3; YouTube 2.

It’s clear that there are common issues between the Viacom case and the class-action suit, but the Premier Football action has its own peculiar international element; we’ll have to see what the court’s ruling will mean for the European sportscasters.

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