Another Misguided Lawsuit: Ustream Sued Over Users' Actions

from the trademark-safe-harbors dept

Tue, Aug 18th 2009 7:16am — Mike Masnick

It's no surprise these days to see that service providers are getting sued for the actions of their users, but it is always fun to see how the lawyers for the plaintiffs try to get around the obvious problems of DMCA or CDA safe harbors. The latest case involves boxing promoter One Ring suing Ustream, one of a number of live video streaming companies out there. Like the misguided ~~lawsuit~~ threat against Justin.tv, this involves a sports group suing the platform provider because a user turned their webcam towards the television, so that others could watch the stream. The DMCA pretty clearly makes these lawsuits entirely baseless, as the only liability is on the person who actually used the account and pointed the webcam at the TV (separately, the fact that you can potentially be guilty of copyright infringement for showing the world what you see with your own two eyes is quite troubling, but a discussion for a different day).

In this case, though, there's a little tidbit, brushed over by the original article, but which suggests how One Ring hopes to get around the DMCA safe harbors on copyright infringement. It's not just suing Ustream over copyright, but it's also claiming that since its logo was seen via the broadcast, Ustream is also guilty of trademark infringement. That's because there's an annoying loophole in that trademark is not technically covered by either the DMCA's safe harbors or the CDA's safe harbors. The DMCA only covers copyright, and the CDA specifically exempts "intellectual property," thus leaving trademark in nowhere's land between the two. Not surprisingly, this has become a popular loophole for lawyers to try to exploit (in fact, we were recently threatened on this very point).

That said, it still seems like Ustream should have a strong case. Even if trademark is not explicitly covered by a safe harbor, simple common sense should make it clear that the company should in no way be liable for the actions of its users. On top of that, claiming that its trademark infringement to show the One Ring logo is also quite questionable and hardly seems likely to stand up under scrutiny. Still, it's an annoying lawsuit that Ustream has to deal with, for no particular reason.

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Filed Under: copyright, liability, safe harbors, streaming, trademark, video
Companies: one ring, ustream

15 Comments

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Steve, 18 Aug 2009 @ 7:47am

"Even if trademark is not explicitly covered by a safe harbor, simple common sense should make it clear that the company should in no way be liable for the actions of its users."

Too bad we see corporations and courts devoid of common sense lately. One Ring has no leg to stand on yet Ustream will still end up spending a pile of cash to defend itself. Ustream should counter sue for frivolous litigation to recoup legal fees.
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Dark Helmet (profile), 18 Aug 2009 @ 7:50am

See?
"The latest case involves boxing promoter One Ring suing Ustream"

Well, that's just the beginning, I can assure you. I don't know much, but I DO know that One Ring wants to rule them all....
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Anonymous Coward, 18 Aug 2009 @ 7:54am

Re:
It's not that they're devoid of common sense, it's that they don't want Joe Blow to provide content because they want to have a monopoly on content so what they do is they sue the medium that provides content in an attempt to make it more difficult for USTREAM or anyone to provide us with the means to provide content and hence retaining their monopoly. Their motives aren't necessarily to prevent users from providing their content illegally, its to suppress legal competition. Going after the users themselves, even if successful, does nothing to suppress competition by taking out USTREAM and giving a disincentive for anyone else to start up a similar service.
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Justin, 18 Aug 2009 @ 7:59am

common sense is not so common these days...
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Richard, 18 Aug 2009 @ 8:10am

Re: See?
Expect One Ring to be sued by the heirs of JRR Tolkien next...
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Ryan, 18 Aug 2009 @ 8:11am

Common Sense
I don't know why you keep bringing up common sense as if the interpretation of the law or of plaintiffs' actions should somehow be dictated by it. Common sense comes into play when making the laws, and when we the people discuss their utility. Unfortunately, the latter is an amalgamation of stupid persons, and the former could care less whether their actions make a positive impact on the country.
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Anonymous Coward, 18 Aug 2009 @ 8:13am

Re:
I was bitten by a radioactive logic book...My common sense is tingling!

(Common sense, so rare it's a super power)
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Sean T Henry, 18 Aug 2009 @ 8:14am

Could be good... HA
It would be wonderful if the ruling on this case became president to include trademark under the "DMCA's or the CDA's safe harbors". It is wishful thinking.
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Robert Jacobs, 18 Aug 2009 @ 10:41am

Ustream is a flagrant copyright violator
Ustream has been flagrantly violating copyrights for years, and unless they get their act together, this is really just the beginning.

Go to their site, and search for soccer or football or any number of other sports -- you'll find streams ripped straight from television, complete with the logos of the channels from which the content is being stolen!

It would be different if ustream were making any effort to take these streams down, but any sports fan can tell you that they do NOTHING to respect copyrights. That's why they're being sued.
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Anonymous Coward, 18 Aug 2009 @ 11:08am

Re: Ustream is a flagrant copyright violator
that is something their users do. the users should be sued, not the site.
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Anonymous Coward, 18 Aug 2009 @ 11:21am

"simple common sense should make it clear that the company should in no way be liable for the actions of its users"

Simple common sense says that you should be responsible for what appears on your website. Ustream is flagrant in their disregard for copyright and trademarks.

This is one of those situations where "230" protections are unfair to copyright holders.
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Fiercedeity (profile), 18 Aug 2009 @ 12:18pm

Re: Ustream is a flagrant copyright violator
Ustream doesn't violate anything. All those streams are uploaded by users, not Ustream.
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FYI, 18 Aug 2009 @ 12:40pm

Justin.tv is the real abusing
Justin.tv is by far the worst abuser of copyright...

Its unbelievable these guys are still in business.
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Luci, 18 Aug 2009 @ 12:55pm

Re:
How, precisely, is the website at fault for the actions of the user? This was a live stream, not an uploaded video file. So, now you need to explain your reasoning to us. That's like saying the city is at fault for a streaker running through the middle of downtown.
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AllRise, 19 Aug 2009 @ 2:56pm

Elvina Beck VS. Facebook
This case is now online at the AllRise Court - http://bit.ly/Wh8Op
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