Published by LawTechie - March 20, 2012 - LawTechie

apple trademark lawReuters reports that Apple has been sued by a group of 22 Chinese authors for copyright infringement arising from the allegedly unauthorized e-book sales of their copyrighted work via the Apple Store.

The writers are seeking 50 million yuan ($8 million) compensation from Apple, saying it was selling pirated versions of 95 books via its online store, Xinhua reported, without stating where the claim had been filed.

In the US, this type of copyright infringement case over e-book sales would quickly make a DMCA § 512(c) defense on the basis that all of the allegedly infringing content was uploaded by users and that Apple should, therefore, have a chance to absolve itself of liability to the authors by timely processing notice-and-takedown requests. Which brings up to the Viacom v. YouTube case…

As some recall, Viacom sued YouTube a few years back for allowing users to upload a bunch of infringing videos. YouTube made is § 512(c) defense and the Southern District dismissed the case. Viacom appealed. We are still waiting on the results of the appeal, and the could have serious consequences on this Apple matter.

To wit: Back in November 2011, the Second Circuit asked YouTube to clarify “whether YouTube’s ‘syndication’ of videos to third parties falls outside the scope of safe harbor protection for activities that occur ‘by reason of . . . storage at the direction of a user’ under § 512(c)(1).” In other words, should the fact that YouTube “syndicates” (read: promotes and monetizes) user-uploaded-videos bar YouTube from asserting a § 512(c) in the first place?

If the Second Circuit — whose ruling is due soon — rules against YouTube on this issue, then certainly Apple’s obvious promotion and monetizing of the “products” sold on the Apple Store (in this case, the allegedly infringing e-books) could potentially deny Apple the ability to rely on the DMCA’s safe harbor provisions.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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