Photo of Edwin Komen

Edwin Komen is a partner in the Entertainment, Technology and Advertising and the Intellectual Property Practice Groups.

Détente can be a beautiful thing.  However, as demonstrated by the recent settlement agreement between Mega-media giants Google and Viacom, achieving it can be very expensive.

In 2007, Viacom filed suit against YouTube (now owned by Google) in federal court in the Southern District of New York for more than a billion dollars in damages. The claim was that over 60,000 clips of Viacom programs were available on YouTube without authorization and that YouTube was aware of instances of copyright infringement, but failed to take appropriate action to stop it.  Google maintained it was immune from liability under the “safe harbor” provisions of the Digital Millennium Copyright Act (“DMCA”), which essentially provides that Internet Service Providers (“ISPs”) are not liable for infringing activity unless they had actual knowledge or the awareness of facts or circumstances demonstrating infringing activity (often referred to as “Red Flag” Knowledge) and failed to remove or block access to the material. Additionally, if the ISP receives a financial benefit directly attributable to the infringing activity where it has the “right and ability to control” such activity or, upon notification of claimed infringement (in the form of a “takedown notice”) fails to expeditiously remove or disable access to the claimed infringing material, the safe harbor is no longer available.


Continue Reading The DMCA: Seeking Safe Harbor in a Sea of Troubles

New FCC regulations on closed captioning of IP-delivered video programming have caught many by surprise even though they have been in the works for the past two years. Many of those who will be directly impacted by the new rules may still be unaware of the rapidly approaching compliance deadline of September 30, 2012. Most pre-recorded video programming must be captioned for IP-delivery if it is shown on television with captions on or after September 30, 2012. The producer or supplier of the content bears the initial responsibility for inserting the captioning but the distributors also have the duty to confirm compliance. There are many variations and different applicable dates for different kinds of programming (e.g., live vs. pre-recorded but edited vs. archived). As in all aspects of the law, the application of the law and the associated regulations depends on the specific circumstances surrounding each video program in a library. However, since the dates for implementation vary widely depending on the content and whether it has been broadcast on television in the US, producers, suppliers and distributors must carefully consider each video program in relationship to the relevant regulations. Video programming distributers will also be subject to new consumer complaint procedures that require distributors to have prescribed procedures in place by September 30, 2012. And while the deadline for device manufacturers to comply with their new closed captioning requirements is not until 2014, the reality of equipment development cycles requires device manufacturers to pay close attention to the new requirements immediately.
Continue Reading FCC’s New Closed Captioning Rules Kick Into Gear