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Oddities: Apple Doesn't Use DMCA Safe Harbors In Response To iBird Copyright Lawsuit
from the doesn't-make-much-sense dept
Back in June we wrote about a somewhat odd copyright lawsuit, involving a guy who has spent many years recording bird sounds. Some of those sounds appeared (without his permission) in an iPhone app called "iBird" and so the guy sued both the developer of iBird and Apple. Of course, he also had only just filed for a copyright on the recordings, which would make it impossible to get any statutory damages. With the initial lawsuit, I noted that it wasn't clear that recordings of birds chirping could even qualify for copyright, but more importantly there was the question of why he was suing Apple, which would appear to be protected by the DMCA's safe harbors, since it wasn't the one who created the app.
Venkat Balasubramani has an update on the case, noting that the late timing of the copyright registration has indeed backfired on the guy, but what's odd is that Apple has not raised the DMCA's safe harbors in its own defense. This seems really strange, and Venkat is also at a loss as to why Apple would not raise such a defense. I'd be curious if anyone here has any ideas why Apple would avoid such an easy "get out of lawsuit" card?
Venkat Balasubramani has an update on the case, noting that the late timing of the copyright registration has indeed backfired on the guy, but what's odd is that Apple has not raised the DMCA's safe harbors in its own defense. This seems really strange, and Venkat is also at a loss as to why Apple would not raise such a defense. I'd be curious if anyone here has any ideas why Apple would avoid such an easy "get out of lawsuit" card?
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But I think the first poster may have the gist of it, since Apple approves the apps for sale in their store, so that might knock their ship out of the safe harbor?
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DMCA Safe Harbors apply to ONLINE SERVICE PROVIDERS. ONLINE. Like iTunes, which is an ONLINE store.
I suggest you stop talking from now on.
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Take-downs and blocks are only required when a notice is filed and no counter notice is received, and that's it. There is no clause for "having an approval process that lets things through".
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iApps aren't like forum posts. As the first post notes, each and every app is hand approved, not merely moderated. iApps are not user posted content. Apple posts the content. So it isn't even comparable to eBay listings. Apple takes a cut of all sales, and not only are all apps are individually approved by Apple, Apple has sole control of all apps that are allowed to run on iOS, and Apple is a partner in the sales of all those apps--Apple has a monopoly on all iOS apps. Again, not like forum posts and such.
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That would be moronic. I can imaging the Viacom vs Youtube case now:
"We approve every video now, just like you asked."
"Ha! We found an infringement that slipped through! Now we can sue you for millions of dollars!"
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(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
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Once apple agreed to sell the app, it became party to the infringement, if any (and I don't believe there is any here, since the recordings are of natually occurring sounds).
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apple reviews every single app, apple makes money from the sale of apps it approves and those apps are approved on the basis that they will produce revenues. since the monetary gain is directly related to apples actions, no safe harbors.
which is not the same thing as someone making a post on a forum that has volunteer moderators, while that site makes a buck or two from ad revenue. the two really are very different things.
does that mean i think its a legit lawsuit? not for one second. but i do think apple is right for not trying to go down that road as i think they are looking at it from the same perspective.
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The only real question...
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Oddities: Apple Doesn't Use DMCA Safe Harbors In Response To iBird Copyright Lawsuit
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