February 21, 2018

Annemarie Bridy

Annemarie Bridy has been a member of the faculty of the University of Idaho College of Law since 2007. Professor Bridy teaches Contracts, Copyrights, Introduction to Intellectual Property, and Cyberspace Law. Before joining the faculty, Professor Bridy was an associate with the lawfirm of Montgomery, McCracken, Walker & Rhoads in Philadelphia, where she practiced in the area of complex commercial litigation. Bridy holds a B.A from Boston University, a M.A from the University of California, Irvine, a Ph.D. from the University of California, Irvine, and a J.D. from Temple University James E. Beasley School of Law.

Takedown 2.0: The Trouble with Broad TROs Targeting Non-Party Online Intermediaries

On August 14, a federal district court in Oregon issued an ex parte temporary restraining order (TRO) in a civil copyright infringement case, ABS-CBN v. Ashby. The defendants in the case are accused of operating several “pirate websites” that infringe the plaintiffs’ copyrights in broadcast television programs. In addition to ordering the defendants to stop engaging in infringing conduct, the court ordered unspecified “Internet search engines, Web hosts, domain-name registrars, and domain name registries or their administrators [to] cease facilitating access to any or all domain names and websites through which Defendants engage in the [infringement] of Plaintiffs’ copyrighted works.” The court ordered the domain name registrars that had originally registered the defendants’ domain names to transfer the registrations for the pendency of the litigation to a new registrar chosen by the plaintiffs. It then ordered the new, as-yet-unidentified registrar to divert traffic from the defendants’ sites to a location displaying legal documents from the case. None of the online intermediaries targeted by the order is a named party in the case, and none was represented in court before the TRO issued.

A little over a week before the Oregon court issued its TRO, a federal district court in California issued a TRO in another “pirate website” case involving sites streaming and distributing pre-release copies of “The Expendables 3.” The California court’s order to stop providing services to the defendants was directed broadly to “persons and entities providing any services to or in connection with the domain names <limetorrents.com>, <billionuploads.com>, <hulkfile.eu>, <played.to>, <swankshare.com> and/or <dotsemper.com> or the websites to which any of those domain names resolve.” In addition to domain name registrars and hosting services, the California court’s order swept in “[a]ll banks, savings and loan associations, payment processors or other financial institutions, payment providers, third party processors and advertising service providers of Defendants.” Again, none of the online intermediaries targeted in the order is a named party in the case and none was represented in court before the TRO issued.

The reach of these orders is breathtaking, particularly in light of the non-party status of the targeted intermediaries. [Read more…]

Criminal Copyright Sanctions as a U.S. Export

The copyright industries’ mantra that “digital is different” has driven an aggressive, global expansion in criminal sanctions for copyright infringement over the last two decades. Historically speaking, criminal penalties for copyright infringement under U.S. law date from the turn of the 20th century, which means that for over a hundred years (from 1790 to 1897), copyright infringement was exclusively a civil cause of action. From 1897 to 1976, there were criminal penalties, but only misdemeanor ones. In 1976, felony penalties were introduced, but only for repeat offenders. Following enactment of the 1976 Copyright Act, the pace of amendments expanding criminal liability greatly accelerated—a trend that more or less coincided with the PC revolution. In 1982, felony penalties were extended to some first-time offenses, but not for all types of copyrighted works. In 1992, felony penalties were extended to all types of works. In 1997, as the commercial Internet was beginning its exponential growth, the No Electronic Theft (NET) Act eliminated a longstanding requirement of commercial motive for criminal liability, making some infringements criminally actionable even if they are undertaken without any expectation of financial gain. Under the NET Act, a willful infringer acting without any commercial motive faces up to three years in prison for reproducing or distributing as few as 10 unauthorized copies of a copyrighted work.

As criminal penalties have ballooned domestically, they have also been expanding internationally.  The international expansion in criminal copyright liability has occurred in part (and increasingly) through the vehicle of plurilateral and bilateral trade agreements. The United States uses its negotiating leverage in the trade policy arena to pressure trading partners, particularly less powerful ones, to incorporate strict IP norms into their domestic law.   [Read more…]

Fair Use, Legal Databases, and Access to Litigation Inputs  

In copyright-and-fair-use news, a significant case for the legal profession’s access to the inputs of judicial decision-making was decided last week in federal district court in New York. The case was brought against West Publishing Corp. (owner of the Westlaw database) and Reed Elsevier (owner of the LexisNexis database) by two lawyers who alleged that their copyrights in their legal briefs were infringed when West and Lexis included the briefs in their databases. The two databases have long provided paid subscribers with access to the judicial decisions that adjudicate the arguments raised by litigants. Now, Westlaw and Lexis will be able to continue providing their subscribers with access to the primary documents in which those arguments are made. In a decision that follows the lead of recent fair use decisions concerning the wholesale copying of literary works to repurpose them for search and research, the court held that West and Lexis are protected from the lawyers’ claims of infringement. A holding in favor of the plaintiffs would have made it effectively impossible for West and Lexis to continue to provide subscribers with access to copies of briefs, given the prohibitively high transaction costs associated with trying to license every brief filed by every lawyer in every case in every court in the United States.
[Read more…]