Oddities: Apple Doesn't Use DMCA Safe Harbors In Response To iBird Copyright Lawsuit

from the doesn't-make-much-sense dept

Tue, Nov 30th 2010 9:17pm — Mike Masnick

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?

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Filed Under: dmca, ibird, safe harbors
Companies: apple

23 Comments

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Doug, 30 Nov 2010 @ 9:34pm

They are probably worried that having a curated store where they hand-approve every app will disqualify them from safe harbor protection, and they don't want to test it in this lawsuit if they think they can win without it.
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- TheStupidOne, 1 Dec 2010 @ 9:31am
  
  Re:
  Agreed, there could be some doubt about Apple's ability to claim DMCA safe harbors because every app is had screened before being posted, but it is unreasonable to expect Apple to know what material is protected by copyright. Since there is ambiguity, Apple should not test that defense unless it has no other choice because if a judge rules that Apple does not have DMCA safe harbor protection then Apple will be sued repeatedly and will have no further defense.
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Anonymous Coward, 30 Nov 2010 @ 9:42pm

Mike - Have you ever actually read the DMCA? What possible safe harbor do you think apple in its capacity as itunes qualify for? You seem to be under the impression that anything on the internet is inherently entitled to dmca protection. Itunes markets and sells the apps in its store, it doesn't fit into any of the dmca safe harbors.
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- Anonymous Coward, 30 Nov 2010 @ 9:55pm
  
  Re:
  Apple didn't write the app, so, as I understand it, the party responsible for writing the app would be the infringer, not the hosting service.
  
  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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  - Anonymous Coward, 30 Nov 2010 @ 10:47pm
    
    Re: Re:
    Safe Harbors don't stop applying when you have a in-house vetting system. Otherwise forums would be sued non-stop, since they have Moderators.
    
    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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    - Scote, 30 Nov 2010 @ 10:57pm
      
      Re: Re: Re:
      "Safe Harbors don't stop applying when you have a in-house vetting system. Otherwise forums would be sued non-stop, since they have Moderators."
      
      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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      - Anonymous Coward, 30 Nov 2010 @ 11:21pm
        
        Re: Re: Re: Re:
        And once again, there is no clause in the DMCA that you don't get safe harbours if your "approval process isn't good enough".
        
        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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        Travis Miller (profile), 1 Dec 2010 @ 1:44am
        
        Re: Re: Re: Re: Re:
        I swear this has come up here before with a different company, doing basic moderation but not losing their safe harbor protection. I can't figure out what to search for to find it, however.
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- Anonymous Coward, 30 Nov 2010 @ 10:42pm
  
  Re:
  Are you serious?
  
  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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- abc gum, 1 Dec 2010 @ 4:55am
  
  Re:
  Why do you choose to show your ignorance with such vigor?
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Anonymous Coward, 1 Dec 2010 @ 12:26am

(1) In general. � A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider -

...

(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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Anonymous Coward, 1 Dec 2010 @ 2:10am

Apple isn't a disinterested host here. They are in a contractual relationship with the app author to sell and profit from the app sales. DMCA safe harbor protects hosts acting as hosts, but not businesses active engaged in commerce.

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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- Nauer, 1 Dec 2010 @ 6:09am
  
  Re:
  I have to agree. This isn't passive hosting of material posted by users. It's a store, where Apple sells content.
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mike allen (profile), 1 Dec 2010 @ 2:20am

look there is a bird signing shoot it for breaking copyright. you should not be able to copyright bird song.
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- abc gum, 1 Dec 2010 @ 4:57am
  
  Re:
  Damn terrorist birds anyways.
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Anonymous Coward, 1 Dec 2010 @ 2:47am

It's because using the safe harbor defenses would admit that they're actually a legitimate thing to use. This would make them look like hypocrites in the future when they try to sue people despite obvious safe harbor protection.
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- HrilL, 1 Dec 2010 @ 8:40am
  
  Re:
  This was my exact thoughts. It doesn't want to use the same safe harbors it doesn't like.
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- harbingerofdoom (profile), 1 Dec 2010 @ 9:35am
  
  Re:
  i am unaware of a single large corporation that really worries about being seen as hypocrites when it comes to suing anyone. they pretty much all do it anyway and then say "but its different this time because......"
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harbingerofdoom (profile), 1 Dec 2010 @ 9:32am

i actually do not think that safe harbors are in play when someone releases an app that gets approved by apple.
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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Anonymous Coward, 1 Dec 2010 @ 9:52am

A number of people (I'm looking at you, TheStupidOne) seem to suggest above that because Apple may have good defenses to a copyright lawsuit, it should go ahead and raise a DMCA defense. That's not how it works. The DMCA safe harbor ratehr clearly does *not* apply to Apple here. The material int he iTunes store is not there simpyl at the direction of users. As has been covered on TD repeatedly, Apple has a laborious (if seemingly arbitrary, at times) approval process, and they get a diretc financial beenefit from iTunes sales. That role doesn't fit within any of the categories of providers listed in the Sec 512 safe harbors. So it would be rather silly for Apple to raise such a defense. That doesn't mean they don't have lots of other good defenses.
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- Scote, 1 Dec 2010 @ 1:41pm
  
  The only real question...
  The only real question is not why did Apple not use Safe Harbor as a defense but rather why Mike Masnick thought it would even be an option given how clearly iApps are not user posted content comparable to forum threads or eBay listings, given all the obvious reasons everyone has listed.
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Anonymous Commenter, 3 Dec 2010 @ 9:01pm

After reading all these comments, I am compelled to say that if you don't see how Apple could be liable for copyright infringement, then you simply didn't read either the complaint or Apple's answer closely.
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Fact Finder, 11 Dec 2010 @ 1:34pm

Oddities: Apple Doesn't Use DMCA Safe Harbors In Response To iBird Copyright Lawsuit
So what happens now? Has the guy who recorded these birdsounds have any claim at all, and will it be him who will ultimately be out of pocket for launching this lawsuit against Apple when it was they who were using his recordings? Or has he been lying all along.........
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