Page 42 - AVN June 2013

Business Sense_06.13 5/20/13 6:59 PM Page 42
LEGALESE | By Clyde DeWitt
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
Cases in Point
Keeping an ear to the ground
There always are some newsy events that never make the
headlines but should be on your radar. There were two in April,
as I turned in this column. So, here you go:
The Patient Protection and Affordable Care Act
So-called “Obamacare”—perhaps not a very accurate name for it,
given its support by not just the president but also a majority of
both houses of Congress—is visited upon you now if you are an
employer. Did you know that?
The trigger for mandatory, employer-provided health
insurance is 50 employees. What you need to know is that
Obamacare is counting your employees this year, notwithstanding
Recall that the trial court (the United States District Court for the
Southern District of New York) initially found in summary judgment
that YouTube was entitled to DMCA safe-harbor protection. “Not so
fast,” said the Second Circuit Court of Appeals (cited above), sending
the case back to the trial court for more work to do, which it did.
[Viacom Intern. Inc. v. YouTube, Inc., ___ F.Supp.2d ___, 2013 W.L.
1689071 (S.D.N.Y., April 18, 2013)] Specifically, as summarized by
the trial court this time, the Court of Appeals required the trial court
to do the following:
“... allow the parties to brief the following issues, with a
view to permitting renewed motions for summary judgment
ClydeDeWitt@earthlink.net. More information can be
found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to
alert readers to legal issues warranting advice from
your personal attorney.
the fact that the requirement does not kick in until 2014. Many
employers in this arena operate a number of businesses, each
under a separate corporation. However, if you have eight
corporations, each employing seven people, don’t think you will
slip in under the Obamacare radar.
What about part-time employees? The
threshold is not 50 employees; it is 50
“full-time equivalent” employees—and,
by the way, 30 hours a week is full time.
With part-time employees, there is a
formula that rivals solving a system of
quadratic equations, directing
calculation of the number of full-time
equivalents.
The whole point of this is to tell you
that the time to sit down with your
medical insurance professional is
sooner than later. There are tall
penalties for screwing this up.
The New York
YouTubeCase
Recall the Viacom v.
YouTube case in New
York City? [Viacom
International, Inc. v.
YouTube, Inc., 676 F.3d 19
as soon as practicable:
“(A) Whether, on the current record, YouTube
had knowledge or awareness of any specific infringements
(including any clips-in-suit not expressly noted in this
opinion);
“(B) Whether, on the current record, YouTube
willfully blinded itself to specific infringements;
“(C) Whether YouTube had the ‘right and ability
The existence of
general willful
blindness wasn’t
enough. Rather, the
plaintiffs were
required to prove
willful blindness as
to the specific clips
”
(2nd Cir. 2012)] The
issue, of course, is how far
YouTube can stretch the
DMCA copyright “safe har-
bor” that allows the “tubes”
of the world to foster copy-
right infringement with
impunity. However, the DMCA
is what it is; it does serve an
important function in keeping
the internet manageable and
encouraging its growth,
to control’ infringing activity within the meaning of §
512(c)(1)(B); and
“(D) Whether any clips-in-suit were syndicated to
a third party and, if so, whether such syndication occurred
‘by reason of the storage at the direction of the user’ within
the meaning of § 512(c)(1), so that YouTube may claim the
protection of the § 512(c) safe harbor.”
The parties, with armies of attorneys on each side, did just that:
“YouT ube submitted a list of 63,060 clips-in-suit, claimed it never
received adequate notices of any of those infringements, and
challenged plaintiffs to fill in the blanks specifying how they claim
such notice was given,” noted the trial judge in his opinion. By the
way, 63,060 infringing clips at a minimum statutory damage of $750
per infringed copyright equals $47.3 million, plus attorney fees for
the plaintiffs’ army of lawyers. Any attorney (the author included)
will tell you that tasks like that constitute the most boring aspect of
litigation that is imaginable! Viacom couldn’t do it—the data just
’
wasn
t there. “Too bad,” the court said; the burden is on the
copyright owner, not YouTube.
Next, the court held that the plaintiffs had not carried the day on
the willful blindness issue. The existence of general willful blindness
wasn’t enough. Rather, the plaintiffs were required to prove willful
blindness as to the specific clips (“clips-in-suit,” in court parlance),
which it failed to do.
The plaintiffs did no better on the other two issues: Strike Three
and Strike Four. Plaintiffs were out, the court holding again that
YouTube was protected by the DMCA safe harbor.
You probably are not surprised to learn that the plaintiffs appealed.
T une in again in a couple of years.
Much sooner, however—indeed, in the month of June—watch
for news about two different legal actions that will affect the
adult industry.
LEGAL NEWS
which was its stated, leg-
islative purpose.
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