Editor: Please summarize the legal issues pertaining to copyright infringement claims arising from work that a plaintiff alleges was accessed via the Internet.

Faber: In order to prevail on a claim for copyright infringement, a plaintiff must establish both ownership of a valid copy- right and that the defendant copied ele- ments of his or her work that are both origi- nal and subject to copyright protection. To establish copying, and absent allegations of direct copying, a plaintiff must show both that the defendant had access to his or her work and that the two works are substan- tially similar in their protected expression.

To establish access, a plaintiff must show that the defendant had a reasonable oppor- tunity to view the plaintiff ’s work; logically, you cannot copy something that you have never seen. Direct evidence of access might involve, for example, evidence that the plaintiff personally handed a copy of her screenplay to the defendant. Absent direct evidence, a plaintiff may establish indirect access in one of two ways. First, a plaintiff may establish access through a chain of events linking the plaintiff ’s work and the defendant’s access, such as through a third- party middleman.

The second way that a plaintiff may show indirect access is by  demonstrat- ing that his or her work has been widely disseminated. Traditionally, a showing of “widespread dissemination” of a song, book or film might involve evidence of radio airtime, circulation, number of sales or distribution. The Internet is a new way of distributing and sharing content, so it makes sense that the methods of proving widespread dissemination of a copyrighted work that was posted or made available online will be different.

Editor: I’d like to discuss an October 2014 decision from the Northern Dis- trict of California in Briggs v. Blomkamp, No.    C    13-4679, 2014  WL  4961396.

In  a  recent  blog, you  characterized Briggs  as  deliver- ing  “another  blow to entrepreneurial plaintiffs looking to establish a claim for copyright infringe- ment based in part on the theory that the defendant accessed his or her work via the Internet.” Would you describe this case and distill the interesting take- aways?

Faber: Briggs was a copyright infringe- ment action by screenwriter Steve Wilson Briggs against another screenwriter, Neill Blomkamp, and various film production and distribution entities involved in the sci- ence fiction movie “Elysium.” In a nutshell, Mr. Briggs alleged “Elysium” was based on his screenplay, “Butterfly Driver.” The court granted summary judgment in favor of the defendants on two grounds, first finding that Mr. Briggs couldn’t sufficiently demonstrate that thendants had access to his screenplay. Second, the court found that the two works, “Butterfly Driver” and “Elysium,” were not substantially similar, let alone strikingly similar, in their pro- tected expression as a matter of law.

Relevant to our discussion, Mr. Briggs’s primary theory of access was that he posted his screenplay on a website, triggerstreet. com, on which the site’s members would post their works in the hope of getting noticed by a “Hollywood insider.” The court found that Mr. Briggs’s Internet posting did not constitute “widespread dissemination” of his screenplay, and his allegations that Mr. Blomkamp could have accessed the screenplay through the web- site were purely speculative.

The court’s holding in Briggs is con- sistent with the general rule that mere posting of a work on  the  Internet  does not constitute widespread dissemination, but it nonetheless raises the interesting question of how courts will continue to address and define what constitutes wide- spread dissemination in the context of the Internet. There are multitudes of ways that someone can publish or share content on the Internet, including on websites, blogs, video-sharing sites such as YouTube, and on social media. Today’s technology, and mobile devices in particular, make that content extremely accessible – even third graders can share and access content. That simply was not the case ten years ago, and cases are increasingly reflecting that trend.

At this time, there are few published cases addressing the question of what constitutes widespread dissemination of work posted on the Internet. The majority of those cases involve a one-time posting on a website, which courts have uniformly held is not sufficient to show that work has been widely disseminated.

One case out of the Northern District of California, Rovio Entertainment LTD v. Royal Plush Toys, Inc. et al., may give us some indication of what type of evidence is sufficient to demonstrate widespread dis- semination through non-traditional chan- nels such as the Internet or mobile device applications. In Rovio, the developer of the puzzle video game “Angry Birds” sued the defendants for copyright and trademark infringement, alleging that the defendants were selling knockoffs of Rovio’s “Angry Birds” plush toys. In granting Rovio’s motion for a preliminary injunction, the court determined that  Rovio  was  able to demonstrate access to its products by widespread dissemination. Among other things, Rovio introduced evidence that “Angry Birds” had been downloaded 1 billion times since it was first released on Apple’s iOS mobile operating system, and the game had 40 million active monthly users.

Editor: Does Rovio speak to the types of evidence that courts might find com- pelling in infringement cases involving work posted on the Internet? Can you expand?

Faber: Rovio involved dissemination of copyrighted material via a mobile operat- ing system, but the type of evidence that the court considered – including quantifi- able evidence of the game’s popularity and exposure to a large audience – would be relevant when considering whether a defendant had access to a work posted on the Internet. For example, relevant evi- dence may include metrics derived from tools that monitor website traffic, such as page visits and views, and the extent to which content was downloaded or shared via linking or emailing. Search engine rankings for both webpages and images may be relevant, especially if an image or video goes “viral.”

Editor: Would it be safe to say that, in certain respects, Internet search engines may be responsible for how widely a work is disseminated?

Faber: In some respects, yes. Internet searches involve (native) formulas or algo- rithms that determine how sites are ranked (and a website’s ranking may be among the available metrics to serve as evidence). The higher the website is ranked, the more likely that it is going to get visitors who will view and access its contents. Search engines’ algorithms differ, so a website’s exposure may depend on the different formulas employed by Google, Bing, etc. There are also ways that users can manu- facture the popularity of their content, such as through search engine optimization or by inflating the number of page views of a website or a particular video. The fact that users may, to some extent, be able to manu- facture evidence of widespread dissemina- tion is something  that  courts  may  need to consider when faced with a copyright claim arising out of content posted online.

Editor: Are there any baseline consider- ations for creators who post their copy- righted work on the Internet?

Faber: Generally, if you are a creator and want to keep your work confidential or prevent others from accessing it, posting it on a publicly accessible sharing site such as YouTube is, for obvious reasons, not recommended.  Creators  who  are  looking to submit an idea or a script for a movie or television show should follow proper procedures, namely, submission through a licensed literary agent. Most, if not all, stu- dios have a strict policy of prohibiting the acceptance of unsolicited materials and will return those materials unread. In fact, the law in California is that an unsolicited idea cannot form the basis of an idea theft claim.

Along those same lines, a creator look- ing to establish that a defendant accessed his or her work via the Internet for pur- poses  of  proving  copyright  infringement

  • for  example,  on  a  content-sharing  site
  • is going to have to show more than he or she “blurted” his or her idea to the World Wide Web. The sheer fact of the content- sharing site’s popularity, which may host billions of hours of content, and the fact that the plaintiff also uploaded content to the site is likely not going to be sufficient to demonstrate access through “widespread dissemination.” Without evidence such as the number of page visitors, views or down- loads, similar to the Angry Birds case, the work is just another needle in a (very large) haystack. Just as in Briggs, without more, an allegation that the defendant had access to the content would be purely speculative.

Editor: Do elements such as reputation, online prominence or available resources count in these types of matters?

Faber: Those factors definitely could make a difference. For example, a popular author who publishes exclusive new writings on his or her website  likely  would  be  able to establish widespread dissemination of those new writings based on evidence of his or her fame, extensive fan following, and the website’s popularity, including page visits and the number of registered users. If there is extensive media coverage every time a writing is released on the website, that also may factor into the analysis. For obvious reasons, it would be harder for an unknown, starving artist to command that much attention.

Editor: Can you talk about some of the matters that you’ve handled?

Faber: I represent and advise entertain- ment companies, broadcasters and other entities in connection with a variety of claims, including copyright, idea submis- sion, trademark infringement, defamation, insurance coverage, breach of contract and motion picture title disputes.

Some  of  the  more  notable  copyright infringement claims that I have handled include Colo’n v. Kelsey Grammer, et al., in which 7th Circuit affirmed dismissal of a copyright infringement action concerning the television series “The Game.” Our team also obtained dismissal of the case when the plaintiff later filed similar claims in the U.S. District Court for the Central District of California.

I was also a member of  the  team that obtained summary judgment against copyright claims filed by The Sheldon Abend Revocable Trust, which asserted that a number of defendants involved in the movie “Disturbia” infringed the copyright in the short story upon which Alfred Hitch- cock based his 1954 film “Rear Window.” Currently, I’m defending against claims for copyright infringement and idea theft, among others, that arise out of a television show that aired in 2012 and 2013.

Editor: What developments do you antic- ipate in the area of copyright infringe- ment claims based on work accessed over the Internet?

Faber: Briggs struck me as interesting because there is not much case law address- ing when and under what circumstances posting a copyrighted work on the Internet constitutes widespread dissemination. I anticipate that case law will continue to reflect the changes in how people share, distribute and receive information. People are distributing and accessing content on the Internet to a greater extent. The num- ber of bloggers, vloggers and social media users has skyrocketed, as has the number of content-sharing platforms. I think it is inevitable that we will see more copyright plaintiffs arguing that defendants had access to their work via the Internet.

Courts nationwide uniformly hold that merely posting a copyrighted work on the Internet is not sufficient to give rise to an inference of access through widespread dis- semination, and that is unlikely to change. However, as cases like Rovio suggest, there may be circumstances under which a plain- tiff can successfully demonstrate access by proof of vast exposure via the Internet or other channels. As courts encounter more of these types of fact patterns, plaintiffs and defendants will gain a better understanding of what kinds of evidence may be relevant in establishing widespread dissemination and what degree of exposure is required in order to withstand a motion to dismiss or a motion for summary judgment.