Videos – Media Tech Law

Circuits Weigh-in on PII Under the VPPA

Posted April 21, 2017 by Andrew Mirsky 0

The Video Privacy Protection Act (VPPA) was enacted in 1988 in response to Robert Bork’s Supreme Court confirmation hearings before the Senate judiciary committee, during which his family’s video rental history was used to great effect and in excoriating detail. This was the age of brick-and-mortar video rental stores, well before the age of instant video streaming and on-demand content. Nonetheless, VPPA compliance is an important component to any privacy and data security programs of online video-content providers, websites that host streaming videos and others that are in the business of facilitating consumers viewing streaming video.

Judicial application of the VPPA to online content has produced inconsistent results, including how the statute’s definition of personally-identifiable information (PII)—the disclosure of which triggers VPPA-liability—has been interpreted. Under the VPPA, PII “includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” 18 U.S.C. § 3710(a)(3). Courts and commentators alike have noted that this definition is vague particularly when applied to new technological situations, as it describes what counts as PII rather than providing an absolute definition. Specifically in the streaming video context, the dispute of the PII definition typically turns on whether a static identifier, like an internet protocol (IP) address or other similar identifier uniquely assigned to consumers, counts as PII under the VPPA.

Trademarks: Apple Still Fighting “Video Pod”

Posted August 21, 2011 by Andrew Mirsky 0

Sector Labs, a California company that makes a smartphone-size video projector, filed a federal trademark registration in 2003 for the name “video pod”.

Apple, Inc. challenged the registration, filing an opposition to Sector Lab’s registration with the U.S. Patent and Trademark Office. Apple claimed (among other things) that Sector Labs’ “video pod” “is extremely similar to Apple’s [“iPod” trademarks]”, “consists in part of a significant portion of [iPod] and the entirety of POD, which consumers use as an abbreviation to identify and refer to Apple’s iPod mark and products”, and that Video Pod “covers a device that is or will be used to transmit video for entertainment and other purposes” – much like Apple’s iPod.

Apple’s legal position is that Sector Labs registration would cause source confusion, namely a likelihood of confusion among consumers as to the source of the two companies’ products, and trademark dilution. Or in other words, “video pod” would dilute the value of Apple’s iPod franchise by reducing the exclusive association in the marketplace of “pod” with Apple and its ubiquitous iPod.

Podcast #10: BitTorrent Copyright Infringement: Trouble for DMCA?

Posted June 20, 2011 by Andrew Mirsky 0

Today, I discuss BitTorrents, and a particular case in California challenging the copyright validity of what one service provider is doing. BitTorrent has been in the (copyright) news lately – and not surprisingly – after the movie studios set their sites on bringing down yet the latest iteration of file-sharing technology.

Some of the issues I discuss are these:

What is the BitTorrent file sharing technology? And how is it different from Napster and its peer-to-peer progeny?

What are the 2 biggest distinctions between BitTorrent and peer-to-peer and, in particular, BitTorrent’s distributive approach to file-sharing?

Why is bitTorrent in the (copyright) news? I will particularly discuss a case in federal court in California, involving Columbia Pictures and other film studios who sued a bitTorrent company called isoHunt, together with its founder, Gary Fung.

What were the relevant legal issues in this case? Several important copyright arguments were made, but of most significance were 2 particular issues: inducement of copyright infringement, and the safe harbor for providers of “information location tools” under Section 512 of the Digital Millennium Copyright Act (the DMCA).

Why did Google get involved? I discuss how this case was an unusual instance where a court ruled that DMCA safe harbor protection was not available to a provider of “information location tools” who knew or should have known about potential or actual copyright infringement happening on its service.

Please click below for the podcast.

Podcast #4: Inline Links, Embedded Videos and Copyright Infringement

Posted February 9, 2011 by Andrew Mirsky 0

In today’s podcast, we discuss copyright issues, specifically the distinctions – practical and legal – between “inline” or “hot” or “embedded” links and downloaded images. This comes up usually in the context of using video, but the principles should apply to any uses of images on websites, blogs, twitter, Facebook and other social media.

I am joined today by my colleague Thomas Yarnell.

In a series of cases starting around 2002 (a case called Kelly v. ArribaSoft) and accelerating in 2007 (a series of cases involving Google and Amazon and a photography database called “Perfect 10”), web hosting companies, search engines and sites like Amazon were accused of copyright infringement when they used thumbnail images of copyrighted works for their search or catalog results. So for example, Google Images routinely shows images from copyrighted works in search results. Google (based on the Kelly case and subsequent caselaw) argued that the use of the images was a “fair use”, in that the search engine’s cataloguing of images was a “transformative” type of use that should be protected under copyright’s fair use doctrine.

In the more recent cases involving Perfect 10, Google (and Amazon) were initially successful in arguing that their use of copyrighted images wasn’t copyright infringement at all – making a fair use defense unnecessary. Those cases were appealed and reversed, but only partially. The big point that was upheld was that a search web user’s (Google, Amazon, or anybody else for that matter) embedding of inline links would not constitute direct copyright infringement.

Please click the audio player below for the podcast.

Fair Use and Mashups

Posted December 12, 2010 by Andrew Mirsky 0

I was recently asked about “fair use” standards for use of copyrighted video or audio in mashups.

What’s a Mashup?

First: What are mashups? From WiseGeek:

A mash-up is a combination of tools or data from multiple sources. Mash-ups typically collect data from multiple web pages and bring their information into one simplified web application.

Mashups are common in the application development world, but also common in music and videos, and examples are legion (and some notorious). In particular, a music mashup is (according to Squidoo) …

when the vocals from one song are laid over the music of a second song to create a mashed up version that’s both but neither. If a good job is done, it enhances the original music.

Actually, the last part of that definition is most critical to a fair use analysis. I recently wrote about fair use in the context of the republishing of copyrighted photographs or artworks in a magazine, book or electronic publications.