Cameo Clips

Peer File-Sharing/Developer Liability

On remand from the U.S. Supreme Court, the U.S. District Court for the Central District of California found StreamCast Networks, the Internet peer-to-peer file-sharing developer, guilty of violating copyrights through the unauthorized content sharing of its consumers. Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. CV0108541SVWPJWX. The U.S. Supreme Court had stated that 'one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is [contributorily] liable for the resulting acts of infringement by third parties.' Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005). The Central District's ruling set out the following list of activities that led its active-inducement finding:

• StreamCast's software overwhelmingly was used for infringement;
• StreamCast targeted users of Nap-ster, the peer-to-peer file-sharing network found in 2001 by the U.S. Court of Appeals for the Ninth Circuit to have likely committed contributory and vicarious copyright infringement;
• StreamCast provided users with technical assistance for use of copyrighted content;
• Infringing use was clearly in Stream-Cast's thinking when it developed its software;
• StreamCast's actions ensured its technology would be capable of infringing use;
• Massive infringement was key to StreamCast's business model;
• StreamCast took no meaningful affirmative steps to prohibit infringement; and
• StreamCast couldn't reasonably claim it lacked knowledge of the infringement by consumers.

The Court of Appeal of California, Second District, Division Eight, decided that the transformative nature of a character in the videogame 'Space Channel 5' (SC5) was a complete defense under the First Amendment to a suit by Keirin Kirby, the former lead singer of the musical group Deee-Lite. Kirby v. Sega of America Inc., B183820. Kirby claimed that she had developed a 'specific, distinctive' appearance of a 'fashionable, provocative, and funky diva-like artistic character.' In its unpublished opinion, the court of appeal acknowledged there were material issues of fact regarding whether Kirby's likeness was appropriated without her permission, in violation of the federal Lanham Act and state common and statutory law. For example, the court noted: 'Ulala's facial features, her clothing, hair color and style, and use of certain catch phrases are sufficiently reminiscent enough of Kirby's features and personal style to suggest imitation.' But the court of appeal added: 'Ulala [the videogame character] is not a literal depiction of Kirby. We agree with the trial court that any public confusion that Kirby endorses SC5, based on similarities between her and Ulala, would arise from a false assumption that the game could not contain a character resembling Kirby without her imprimatur. ' [G]iven the many dissimilarities between the Ulala character and Kirby, any public confusion arising from a mistaken assumption is easily outweighed by the public interest in free artistic expression.'

October's Entertainment Law & Finance, p. 8, reported on a ruling by the U.S. District Court for the Middle District of Louisiana barring enforcement of a state statute that prohibited the sale to minors of videogames with violent content. The cite for that case was Entertainment Software Association v. Foti, 06-431-JJB-CN. Since that ruling, the U.S. District Court for the Western District of Oklahoma preliminarily enjoined enforcement of a similar state law, noting: 'Plaintiffs present strong arguments that the Act contains unconstitutional content-based restrictions and that the Act's language is unconstitutionally vague.' Entertainment Merchants Association v. Henry, CIV-06-675-C.

Peer File-Sharing/Developer Liability

On remand from the U.S. Supreme Court, the U.S. District Court for the Central District of California found StreamCast Networks, the Internet peer-to-peer file-sharing developer, guilty of violating copyrights through the unauthorized content sharing of its consumers. Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. CV0108541SVWPJWX. The U.S. Supreme Court had stated that 'one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is [contributorily] liable for the resulting acts of infringement by third parties.' Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd. , 545 U.S. 913 (2005). The Central District's ruling set out the following list of activities that led its active-inducement finding:

• StreamCast's software overwhelmingly was used for infringement;
• StreamCast targeted users of Nap-ster, the peer-to-peer file-sharing network found in 2001 by the U.S. Court of Appeals for the Ninth Circuit to have likely committed contributory and vicarious copyright infringement;
• StreamCast provided users with technical assistance for use of copyrighted content;
• Infringing use was clearly in Stream-Cast's thinking when it developed its software;
• StreamCast's actions ensured its technology would be capable of infringing use;
• Massive infringement was key to StreamCast's business model;
• StreamCast took no meaningful affirmative steps to prohibit infringement; and
• StreamCast couldn't reasonably claim it lacked knowledge of the infringement by consumers.

The Court of Appeal of California, Second District, Division Eight, decided that the transformative nature of a character in the videogame 'Space Channel 5' (SC5) was a complete defense under the First Amendment to a suit by Keirin Kirby, the former lead singer of the musical group Deee-Lite. Kirby v. Sega of America Inc., B183820. Kirby claimed that she had developed a 'specific, distinctive' appearance of a 'fashionable, provocative, and funky diva-like artistic character.' In its unpublished opinion, the court of appeal acknowledged there were material issues of fact regarding whether Kirby's likeness was appropriated without her permission, in violation of the federal Lanham Act and state common and statutory law. For example, the court noted: 'Ulala's facial features, her clothing, hair color and style, and use of certain catch phrases are sufficiently reminiscent enough of Kirby's features and personal style to suggest imitation.' But the court of appeal added: 'Ulala [the videogame character] is not a literal depiction of Kirby. We agree with the trial court that any public confusion that Kirby endorses SC5, based on similarities between her and Ulala, would arise from a false assumption that the game could not contain a character resembling Kirby without her imprimatur. ' [G]iven the many dissimilarities between the Ulala character and Kirby, any public confusion arising from a mistaken assumption is easily outweighed by the public interest in free artistic expression.'

October's Entertainment Law & Finance, p. 8, reported on a ruling by the U.S. District Court for the Middle District of Louisiana barring enforcement of a state statute that prohibited the sale to minors of videogames with violent content. The cite for that case was Entertainment Software Association v. Foti, 06-431-JJB-CN. Since that ruling, the U.S. District Court for the Western District of Oklahoma preliminarily enjoined enforcement of a similar state law, noting: 'Plaintiffs present strong arguments that the Act contains unconstitutional content-based restrictions and that the Act's language is unconstitutionally vague.' Entertainment Merchants Association v. Henry, CIV-06-675-C.