September 2015 – TCPA Watch

Consider Fair Use Before Submitting Takedown Request

Sep 30 2015

By Alexis Crawford Douglas (As originally posted at K&L Gates IP Law Watch)

The U.S. Digital Millennium Copyright Act (DMCA) has been a potent tool for combatting copyright infringement on the Internet. Section 512 shields Internet service providers from liability if they expeditiously remove content after copyright owners submit takedown requests notifying the ISP of infringing content. Last week, in Lenz v. Universal Music Corp., the Ninth Circuit held that copyright owners must consider fair use before sending takedown notices, or they could face liability for damages.

Southern District of New York Court Parses ‘Fair Use’ in Fox News’ Copyright Infringement Dispute with Media Monitoring Service

Sep 10 2015

By Mark H. Wittow and Alanna E. Peterson (as originally posted on K&L Gates’ IP Law Watch blog)

On 25 August 2015, the U.S. District Court for the Southern District of New York (SDNY) ruled that certain functions of the TVEyes media-monitoring service infringe Fox News’ copyrights in its programming content.

TVEyes is a for-profit, media-monitoring service with over 22,000 subscribers that indexes nearly all news-related television and radio content in a searchable database. TVEyes allows users to track the usage of words or phrases of interest and to view the transcripts and video clips of the portions of the television broadcast that use the search term. Subscribers may set ‘watch lists’ for terms to receive real time alerts when certain terms are used and search past broadcasts. TVEyes also provides subscribers with analytic data such as a segment’s Nielsen viewership rating, the frequency with which a term has been mentioned over a specified time period and the geographic markets and channels where a term is used. Additionally, TVEyes users may archive, indefinitely, video clips that appear in response to search queries on TVEyes’ server. Users can also email the video clip links to others, allowing the recipients of the link to view the video clip on TVEyes’ server, as well as download copies of identified digital video clips for offline use and permanent storage.

Sixth Circuit Finds No TCPA Liability For Debt Collection Calls Made To Phone Number Provided After Inception of Credit Relationship

Sep 03 2015

By Joseph C. Wylie and Molly K. McGinley

In Hill v. Homeward Residential, Inc., the Sixth Circuit recently held that a plaintiff could not recover under the Telephone Consumer Protection Act for autodialed calls made to a wireless phone number that the plaintiff provided to the creditor. In so holding, the Court clarified that a consumer is deemed to have provided express consent to be contacted regarding a debt, so long as the consumer provides his or her wireless phone number “in connection with a debt he owes,” even if the phone number is not provided at the time the debt is created or the credit relationship is initiated.

The plaintiff in Hill obtained a mortgage but did not provide his cell phone number to the mortgage provider when the mortgage was first entered into. After his mortgage was sold, he voluntarily provided his cell phone number to the new mortgage company on a number of occasions, both orally and in writing. The successor mortgage provider proceeded to contact him at that number on hundreds of occasions, many of which involved use of a device that the plaintiff contended was an automated telephone dialing system under the TCPA.

The trial court denied summary judgment and allowed the case to proceed to trial on two disputed issues of material fact: whether the device in question was an ATDS, and whether the plaintiff had consented to be called via ATDS on his cell phone. The jury returned a general verdict in the defendant’s favor, and the plaintiff appealed.

FCC Confirms Fax to Email Subject to TCPA, Releases Additional Fax Rulings

Sep 01 2015

On August 28, 2015, the Federal Communications Commission, through its Consumer & Governmental Affairs Bureau, issued three separate rulings on petitions relating to its fax rules under the Telephone Consumer Protection Act.

In a declaratory ruling, CGAB clarified that:

faxes sent and received over telephone lines are subject to TCPA regulation even if those faxes are “converted to and delivered to a consumer as an electronic mail attachment.”
“the consumer to whom the content of a fax or efax is directed,” and not the company hosting the fax servers that receive the faxes over a telephone line and re-send the faxes to the subscriber of the service, is the recipient of the fax under the TCPA.
the act of sending a previously-faxed document by email is not subject to TCPA regulation.

CGAB also declined to provide “safe harbor” fax opt-out language, noting that the TCPA rules and orders already set forth the required content for opt-out notices. Finally, CGAB declined to issue a blanket rule as to whether “third parties, including fax broadcasters, who are retained to accept opt-out requests” are subject to TCPA liability, and instead noted that the question of whether a third party has sufficient involvement in the sending of faxes to create liability is an individualized inquiry.

Archive:September 2015