Annemarie Bridy is a Professor of Law at the University of Idaho. She is also an Affiliated Fellow at the Yale Law School Information Society Project and a former Visiting Associate Research Scholar at the Princeton University Center for Information Technology Policy. Professor Bridy specializes in intellectual property and information law, with specific attention to the impact of new technologies on existing legal frameworks for the protection of intellectual property and the enforcement of intellectual property rights. She has testified before Congress on the safe harbor provisions of the Digital Millennium Copyright Act and is widely published on the shifting landscape of intermediary copyright liability and online anti-piracy/anti-
Professor Bridy holds a BA, summa cum laude and with distinction, from Boston University; an MA and a PhD from the University of California, Irvine; and a JD, magna cum laude, from the Temple University James E. Beasley School of Law. At the University of California, she was a Humanities Predoctoral Fellow and an Andrew W. Mellon Research Fellow in the Humanities.
The Pirate Bay (TPB), that perennial nemesis of copyright holders, is on the ropes again following the CJEU's decision this week in BREIN v. Ziggo. BREIN, the Dutch entertainment industry trade group, sued two ISPs—Ziggo and XS4ALL—seeking a court order to compel them to block the domain names and IP addresses of the legendary torrent sharing site. The Supreme Court of the Netherlands referred two questions to the CJEU: (1) whether TPB’s operation of a searchable index of torrent files violates copyright holders’ right of communication to the public under Article 3(1) of the EU InfoSoc Directive; and (2), in the event that it does, whether the requested injunctions are appropriate against intermediaries under Article 8(3) of the InfoSoc Directive and Article 11 of the IPR Enforcement Directive. This post will focus on the first question, concerning TPB’s liability for unauthorized “communication to the public.”
This is the last of three posts on the Ninth Circuit’s decision in Mavrix v. LiveJournal. The first post considered the court’s conclusion that LiveJournal’s moderation and curation of user-submitted posts created a triable issue of fact on the question of the site’s eligibility for the section 512(c) safe harbor for sites that store material “at the direction” of users. The second post examined the court’s analysis of LiveJournal’s potential knowledge of the alleged infringements in light of the fact that Mavrix didn’t send takedown notices for them. This final entry takes a look at what I identified in the first post as issue (4): whether LiveJournal had the right and ability to control the infringements, as evidenced by the required “something more” than the right to remove or block access to user-submitted infringing material.
This is the second of three posts on the Ninth Circuit’s decision in Mavrix v. LiveJournal. The first post considered (and found fault with) the court’s conclusion that LiveJournal’s moderation and curation of user-submitted posts created a triable issue of fact on the question of the site’s eligibility for the section 512(c) safe harbor for sites that store material “at the direction” of users. This post will consider the court’s analysis of issue (3) of the six issues I called out in the first post: whether, in the absence of takedown notices, LiveJournal had actual or red flag knowledge that the watermarked Mavrix photos were infringing.
The Ninth Circuit has decided Mavrix Photographs v. LiveJournal, and the outcome is in every respect bad news for LiveJournal. In some respects, it’s also bad for the safe harbors themselves, as I’ll explain below and in subsequent posts. The district court in the case granted summary judgment for LiveJournal on grounds that there were no material factual disputes concerning LiveJournal’s eligibility for safe harbor under Section 512(c) of the DMCA. Mavrix alleged that LiveJournal infringed copyrights in its watermarked photographs. Users submitted the photos to LiveJournal along with celebrity gossip news items, and the site's moderators posted them following a fairly intensive screening process (including screening for copyright infringement). There was no question in the case that LiveJournal complied with the DMCA’s notice and takedown requirements when it received notices from right holders. However, Mavrix did not send notices for any of the photos in suit. LiveJournal removed the photos when Mavrix filed its complaint.
These comments were prepared and submitted in response to the U.S. Copyright Office's November 8, 2016 Notice of Inquiry requesting additional public comment on the impact and effectiveness of the DMCA safe harbor provisions in Section 512 of Title 17
Making Sense of the Recent Upheaval at the U.S. Copyright Office
These comments were prepared and submitted in response to the U.S. Copyright Office's December 31, 2015 Notice and Request for Public Comment on the impact and effectiveness of the DMCA safe harbor provisions in Section 512 of Title 17.
"“DNS blocks are easy to circumvent, because site operators can just register a different domain name in the same top level domain or move to a different top level domain,” Annemarie Bridy, Professor of Law at the University of Idaho told Motherboard. “It will always be a game of cat-and-mouse, with no real permanent effects.”
"“The fair use defense in this context has never been litigated,” noted Annemarie Bridy, a law professor at the University of Idaho and an Affiliate Scholar at the Center for Internet and Society at Stanford Law School. “Internet Archive is a non-profit, so the exposure to statutory damages that they face is huge, and the risk that they run is pretty great ... given the scope of what they do; that they’re basically archiving everything that is on the public web, their exposure is phenomenal.
"However, Judge’s book likely falls under fair use, says Annemarie Bridy, professor of law at the University of Idaho. For one, Judge’s book is out of print, so the Internet Archive is not making revenue or taking revenue away from the author or publisher. Wasted is also a memoir, and copyright is stronger in creative works of fiction.
"The Recorder affiliate Legaltech News recently caught up with one of the forefront experts in both DMCA and automated notice sending, Annemarie Bridy, a University of Idaho College of Law professor who also works with Stanford’s Center for Internet and Society. LTN picked her brain about out of control bots, DMCA takedowns’ potential threat to freedom of speech and more. The conversation has been condensed for clarity.
"Annemarie Bridy, an affiliate scholar at the Center for Internet and Society at Stanford University echoed that, telling the Daily Dot that “the First Amendment limits only the government’s ability to restrict freedom of speech. It doesn’t limit what corporations that own social media platforms can do.”
Bridy also brings up a second important point: that social media users agree to abide by the terms of service of the site they’re posting on.
One of the most dangerous aspects of SOPA and other copyright proposals is the idea of moving enforcement and liability further down the stack of technology that powers the internet, even all the way to the DNS system. Although SOPA's DNS-blocking proposals were heavily criticized and the bill ultimately defeated, the idea of deep-level copyright enforcement has lived on and been implemented without changes to the law.
We've been talking about internet platform regulation for a long time, but in the past year these issues have gotten a huge amount of increased focus — for a bunch of fairly obvious reasons.