3 Count: Red Flags

Not just for bulls anymore...

3 Count LogoHave any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

Note: After some time away for Halloween, we are back and begin by covering some news that we missed while we were away!

1: Content Industry Gets Favored Interpretation of “Repeat Infringers” in MP3Tunes Appeal

First off today, Eriq Gardner at The Hollywood Reporter Esquire reports that the 2nd Circuit Court of Appeals had handed down a very favorable ruling to Capitol Records and EMI in the MP3Tunes case. The ruling both limits the safe harbor protections MP3Tunes enjoys and  upholds previous victories.

MP3Tunes was a music digital locker service that also allowed people to “sideload” MP3 files from third parties. In 2014 a jury handed down a $48 million verdict against the site but the judge whittled it down to $12.2 million after reducing damages and ruling on matters of law.

However, the appeals court has undone much of that. First, it found that MP3Tunes policy terminate repeat infringers was inadequate, despite the judge claiming it was. MP3Tunes had terminated some 153 infringers but they were deemed “blatant infringers” not “repeat infringers” as required under the law to maintain safe harbor protections. The court also upheld that MP3Tunes had red flag knowledge of infringement, which also strips it of safe harbor protection. Historically, red flag knowledge has been reduced in importance by courts, with this ruling being one of the first to more liberally apply it.

2: Justices Consider Copyright in Fashion

Next up today, Jacob Gershman at The Wall Street Journal reports that The Supreme Court heard the Star Athletica vs. Varsity Brands case, which looks at copyrightability and cheerleading uniforms.

Varsity Brands sued Star Athletica in 2010 alleging copyright infringement of copyrights it holds on its uniforms. While copyright does not apply to “useful articles” such as clothing, it can apply to the patterns and images on it. Still, Star Athletica argued that the Varsity designs were not protected by copyright. The lower court agreed. However, Varsity appealed and the case heard by the Supreme Court on Monday.

The ruling could have an impact well beyond this case, particularly in the fashion industry. There, the boundaries between what is and is not copyrightable are not well-tested and this case could be a major shift depending on the ruling.

3: YouTube Agrees to Pay Royalties, Ending German Music Dispute

Finally today, Melissa Eddy at the New York Times reports that a long-running dispute between YouTube and German music rightsholders has come to an end. As a result, German YouTube users can again watch music videos on the site.

The dispute began in 2009 when German rights group GEMA pulled their permissions from the site. This meant music videos, even official ones, and other content containing GEMA-represented music could not be played in Germany. The two sides wrangled to reach a deal even as German YouTubers were frustrated by the lack of music.

The new deal ends the stalemate and is hailed by both YouTube and GEMA as a victory for musicians. No details are known about the agreement.


That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

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