Tuesday, November 8, 2011

Apple keeps getting sued for copyright infringement

Apple is in trouble again for copyright infringement. They were recently sued for copyright violations for selling an application through the iStore that extracts pictures from Flickr and then re-publishes them. The application doesn't seek permission in advance, and it even (allegedly) strips any embedded copyright management information.
This is a problem, in general, in several ways. First, re-publishing someone's photographs is absolutely precluded by copyright laws unless you have permission. I don't know what sort of implied or explicit permissions are granted by uploading photos to Flickr, but since suit was filed, I have to assume not many. Second, removing the copyright management information is a DMCA violation. We were (I believe) the first lawyers to succeed on the argument that stripping a photographer's copyright information from a digital picture is a DMCA violation in a case we had a few years back.
This is a problem, for Apple specifically, in a few other ways. First, Apple likely won't be able to hide behind the DMCA "safe-harbor" provision for service providers to escape liability. Apple takes an aggressive role in selecting what applications make their way into the iStore, so they are hardly the type of passive service provider envisioned by that safe-harbor provision. Copyright liability is pretty much strict liability, so if it happened, Apple is probably on the hook. Next, both the copyright act and the DMCA have separate provisions for awarding attorneys fees. Anyone who has litigated copyright cases knows that the difference between a small case and a big case is generally the availability of attorneys fees.
We've had a couple of other cases similar to this one in the past. Based on my experience, Apple should be looking for a reasonable way out of this case.