By Pedro Celis

The anti-Islamic YouTube video The Innocence of Muslims has had widespread ramifications. It caused riots around the world and played a prominent role in the Benghazi scandal. But could the YouTube video also lead to groundbreaking copyright case law?

The Ninth Circuit recently ordered Google to remove the video from YouTube. The court ruled that Cindy Garcia, an actress who appeared in the video for approximately 5 seconds, proved that she was likely to succeed on her copyright claim against the filmmaker. Garcia argued that she had an independent copyright in her performance in the film, despite the fact that she received $500 for her performance. Although she did not contest that her performance was both scripted and directed, the court found that her performance had enough creativity to support an independent copyright claim.

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By Shira Zucker

Last summer, those who tuned in to watch live telecasts of the George Zimmerman murder trial witnessed the prosecution fumble through an embarrassing technological snag.  The prosecution’s cross-examination of a defense witness who appeared remotely via Skype was interrupted when dozens of other Skype users “jammed” the chatline.  According to at least one source, pranksters had posted the witness’s Skype username to the online community 4chan and the username was broadcast on national television.  After a barrage of distracting “pings,” the judge aborted the Skype testimony and ordered that it continue via speakerphone.

Remote testimony is not new to courtrooms.  Back in 1990, the Supreme Court ruled in Maryland v. Craig that testimony by an alleged child sex abuse victim via Closed-Circuit Television (CCTV) did not violate the Confrontation Clause of the Sixth Amendment.  An increasing number of trial courts have since ruled that live web-based video interviews in criminal trials do not impinge the defendant’s right to confront witnesses against him.  Notably, the CCTV technology used in Craig transmits a closed signal.  Arguably, web-based technologies could increase the risk of interference with the defendant’s right of cross-examination or the jury’s ability to adequately assess the witness’s body language and demeanor, due to the threat of technical glitches or unsecure networks.

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By Rachael Wallace

On February 27^th, the Washington State Supreme Court reversed two cases in which criminal defendants had their text messages read and later used against them in trial. The Washington State Supreme Court is one of many courts weighing in on this national debate: whether text messages are “private” and protected from warrantless searches under state and federal constitutions.

Courts at the state and federal level have struggled with the intersection of technology and privacy, so much so that the U.S. Supreme Court is scheduled to hear arguments next month on the issue. In Washington, the Supreme Court did not reach the question of whether the warrantless searches of cell phone text messages violated the U.S. Constitution; instead, the Court determined that these warrantless searches violated the state constitution and the Washington privacy act.

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By Alex Boguniewicz

The rich really do get richer. Last week, a federal magistrate judge awarded Donald Trump $32,000 in a case that pitted the billionaire business tycoon against a 34-year old Brooklyn “domainer”—a speculator in unused domain names that may later be desired by individuals and businesses. While we could write off this suit as yet another chapter in the bizarre canon of Mr. Trump’s litigation history it may indeed have implications for the world of online parody and freedom of speech. The judge’s award sent the message that cybersquatting, even when not done for profit, can cost you big time. But is this really what cybersquatting legislation was meant to protect, and does this case overly restrict online fair use?

Cybersquatting is the act of registering, selling, or using a domain name with intent to profit from another’s trademark. Celebrities such as Kevin Spacey and Bruce Springsteen faced difficulty in reclaiming their names from cybersquatters in early cases. To combat this, Congress passed the Anticybersquatting Consumer Protection Act (ACPA), codified at 15 U.S.C. §1125(d), in 1999. A plaintiff bringing an ACPA claim must essentially show (1) its mark—even if it is a personal name—is distinctive or famous; (2) the defendant’s domain name is identical or confusingly similar to the plaintiff’s mark; and (3) the defendant registered the domain name with the bad faith intent to profit from the plaintiff. The ACPA goes on to list nine nonexclusive factors that the courts may consider in determining whether a person acts in bad faith.

But the courts also must take into consideration genuine First Amendment and fair use defenses. In Mayflower Transit LLC v. Prince, the District Court of New Jersey held that the drafters of the ACPA intended to specifically target those with the bad faith intent to profit. Noncommercial uses of a mark, on the other hand, such as for comment, criticism, parody, or news reporting, were determined to be outside the scope of the act. While the defendant in Mayflower registered a domain that was confusingly similar to the plaintiff’s distinctive trademark, he did not act with bad faith intent to profit by using to website to criticize the plaintiff’s company. Conversely, in PETA v. Doughney, the defendant was not afforded First Amendment protection for creating a parody site under the name peta.org—People Eating Tasty Animals—when he suggested that PETA “settle” or “make an offer.”

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By Evan Brown

Can you infringe copyright by linking to somebody else’s work? In the United States, courts have largely answered “no,” relying on the fair use doctrine. According to a recent ruling of the European Court of Justice (ECJ), the answer in the European Union (EU) is also now “no,” at least so long as the link-targeted content is freely available to anyone on the Internet.

The ECJ was responding to a certified question from a Swedish appellate court. That court was hearing a copyright infringement case brought against an aggregator site called Retriever Sverige that linked to, among other things, articles from the Swedish newspaper Göteborgs-Posten’s website. Notably, the organization of Retriever Sverige’s own site made it difficult to determine whether a user clicking a link had actually accessed the newspaper’s website rather the aggregator’s. This was similar to the scenario faced by U.S. courts in Kelly v. Arriba Soft and Perfect 10 v. Google. But while those cases turned on fair use consideration, the ECJ based its ruling on the nature of Internet distribution itself.

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