Offshore Research Partners, one of the upcoming LPOs in India, had been providing you with news, articles and other information related to Legal Process Outsourcing and Expert Witness Marketing through this blog.

We have now bifurcated this wordpress blog into two new blogs: -

1. Expert Witness Marketing Blog

Please visit and subscribe to our new blog dedicated to expert witness marketing in the United States and Canada. Through this blog, we aim to provide you latest news, events and insights into expert witness marketing in particular and expert witness litigation in general. You can read the blog here.

2. Offshore Research Partners’ Blog

Our other blog, Offshore Research Partners’ Blog, will update you with our views and insights on Legal Process Outsourcing.

Currently, all out posts were being published here and we thought we should classify our contents and provide more relevant information to our readers.

Hope to see you at the “Expert Witness Marketing Blog” and “Offshore Research Partners’ Blog“.

Ashish Arun

We intend to organize free webinars and exchange notes on the practices related to expert witness testimony in the United States courts. If you’re an attorney who works with expert witnesses, please join.

http://www.linkedin.com/groups?mostPopular=&gid=3343783

Dr. Higby later filed a complaint with ACOG’s grievance committee contending that Dr. Halbridge had violated ACOG’s Code of Ethics by making false statements and fabricating information in his expert reports, and by rendering opinions outside of his area of expertise in the aforementioned suit. The American College of Obstetricians and Gynecologists (ACOG) is a professional organization of physicians specializing in healthcare for women.

Following this, Dr. Halbridge sued Dr. Higby for defamatory statements made to ACOG in the grievance proceeding. ACOG’s grievance committee abated its proceeding pending the resolution of the lawsuit. During his deposition in the lawsuit filed by Dr. Halbridge, Dr. Higby refused to answer all questions pertaining to his complaint to ACOG’s grievance committee on the basis of the medical peer review privilege. Dr. Halbridge moved to compel answers to the deposition questions. The trial court agreed with Dr. Hallbridge and signed an order compelling Dr. Higby to respond to the requests. Dr. Higby filed a petition for writ of mandamus and moved to stay proceedings in the trial court.

The court, in its order dated 10^th June, 2010 noted that it was undisputed that neither Dr. Higby nor Dr. Halbridge had treated the parties in the underlying malpractice suit, and that Dr. Higby’s grievance concerned the quality of Dr. Halbridge’s testimony; thus, the ACOG grievance proceeding filed by Dr. Higby did not fall within the limited scope of the medical peer review privilege under TEX. OCC. CODE ANN. § 151.002(a)(8), which defines “medical peer review committee” and In re Living Ctrs., 175 S.W.3d at 258 , which says that holding medical peer review privilege must be strictly construed. The court also noted that even in the records provided to the court, nowhere did ACOG describe its grievance committee as a medical peer review committee. The court also added emphasis on ACOG’s statement, “The professional competence and conduct of obstetrician-gynecologists are best examined by professional associations, hospital peer-review committees, and state medical and licensing boards.” Finally, the court added that the Texas statutes treating the medical peer review privilege did not expressly provide or reasonably imply that a medical peer review committee might review the quality of a physician’s expert witness testimony in a medical malpractice proceeding and that “Nothing in the provisions of the above statute, however, expressly provides or reasonably implies the professional body is empowered to review the quality of a physician’s testimony in a medical-malpractice proceeding,” citing Fullerton v. Florida Medical Assn.

Therefore, the court declined to characterize ACOG’s grievance committee as a medical peer review committee and also declined to apply the medical peer review privilege to communications concerning expert witness testimony not directly related to the care of a patient. The court concluded that the discovery sought by Dr. Halbridge was not protected by the medical peer review privilege and therefore, the mandamus relief sought by Dr. Higby was denied.

Written by Shweta Nawani, Offshore Research Partners

These were the words of US attorney, Preet Bharara, while commenting on the crackdown on nine websites involved in movie piracy. The investigation, involving about 100 federal agents in 9 states, led to the closure of sites like TVShack.net, PlanetMoviez.com, ThePirateCity.org, Movies-Links.TV, FilesPump.com, Now-Movies.com, ZML.com, NinjaVideo.net andNinjaThis.net, reported the NY Times.
On Wednesday, U.S. Immigration and Customs Enforcement (ICE) and the U.S. Attorney for the Southern District of New York (SDNY) had announced the launch of “Operation In Our Sites,” a new initiative aimed at Internet counterfeiting and piracy.
Seizure warrants were executed and assets from 15 bank, Paypal, investment and advertising accounts were seized along with the execution of four residential search warrants in several states.
Kathy Garmezy, associate executive director of government and international affairs for the Directors Guild of America, commented that “there has been a dramatic rise in the number of foreign and domestic Web sites that are in the business of making films and television shows – created by our members – available for illegal download or streaming”.
The Indian authorities need to take some lessons for the sake of our own industry as almost all latest songs and movies created by the Indian film and music industry are also available for download and streaming. Songs.pk, a website providing free Indian and Pakistani music download, has an estimated worth of $3.44 Million USD with daily ad revenues of more than $4000 USD and is hosted in the Czech Republic with 77.5% users visiting the site from India. And this is just the tip of the iceberg. Though the legislation (The Copyright and the IT Act) is in place, law enforcement seems to be concentrating mainly on the physical form of piracy, such as fake CDs and DVDs. With rising increase in internet users in India, digital piracy’s share in hurting the entertainment industry will also increase and it will only be prudent to kill digital piracy before it kills the industry.

In its complaint filed on March 13, 2007, Viacom alleged that YouTube knew and intended that a substantial amount of the content on the YouTube site consisted of unlicensed infringing copies of copyrighted works and had done little or nothing to prevent this massive infringement. With respect to YouTube’s duty to remove copyrighted material, Viacom argued that YouTube proactively reviews and removes pornographic videos from its library, but refuses to do the same thing for videos that obviously infringe Plaintiffs’ copyrights.

It is to be noted that the American Society of Composers, Authors and Publishers, Broadcast Music, Inc., Sesac, Inc., Disney Enterprises, Inc., NBN Universal, Inc., Warner Bros. Entertainment Inc., Association of American Publishers, Center for the Rule o f Law and a few others had filed an amicus brief in support of Viacom’s complaint against YouTube whereas Ebay Inc., Facebook, Inc., Interactive Corp, and Yahoo! Inc. had filed amicus briefs supporting the position of YouTube and Google in this case.

On April 30 2007, YouTube filed its response and argued that Viacom was trying to challenge the careful balance created by Congress when it enacted the Digital Millennium Copyright Act. All claims made by Viacom with respect to primary or secondary copyright infringement were refuted by YouTube and it moved for summary judgment. In that motion, YouTube even outlined the public service it had been doing by affording political candidates and elected officials a new way to communicate with the public; enabling first-hand reporting from war zones and from inside repressive regimes; allowing unknown performers, filmmakers, and artists to rise to worldwide fame; inspiring laughter at the antics of dancing babies and skateboarding dogs; letting students of all ages audit classes at leading universities; and giving creators of all sorts a powerful new way to promote their work to a global audience. Taking the ball back to Viacom’s court, YouTube alleged that Viacom had previously authorized many clips to be on YouTube and were now suing for hosting the same.

Section 512(c) of the DMCA sets out the safe harbor applicable to Internet sites hosting user-submitted content and it was argued that YouTube, which had pioneered efforts to protect copyright while maintaining an open environment for creative, political, and personal expression, was exactly the kind of service that Section 512(c) was enacted to protect. The motion for summary judgment read:

“At the heart of the safe harbor was a notice-and-takedown procedure that required cooperation between content owners and service providers. To claim the safe harbor, a service provider like YouTube must remove purportedly infringing materials when notified of their existence and location on its service. This regime gives copyright holders a quick and efficient way to stop any misuse of their content, while protecting service providers against the fear of crushing liability that could stifle technological innovation and free speech. In this way, the DMCA balances the interests of copyright holders with those of online services and the First Amendment rights of their users.”

The Section 512(c) safe harbor presumptively applies to a service provider that meets the threshold “conditions for eligibility” set out in Section 512(i) and designates an agent to receive “notifications of claimed infringement” (§ 512(c)(2)). The agent’s role is to facilitate the notice-and-takedown regime at the heart of the safe-harbor. Using the procedures described in the statute, copyright holders can avoid a costly and time-consuming judicial process by notifying service providers that certain material stored on their systems is not authorized to be there. § 512(c)(3). The copyright holder must identify the work that it owns and believes to be infringed, identify the location of the allegedly infringing material on the service provider’s system, and certify its claims under penalty of perjury. § 512(c)(3). Service providers in turn must respond expeditiously by taking down or blocking access to that material. § 512(c)(1)(C). The DMCA also gives the users who posted the material subject to a takedown notice an opportunity to contest the copyright-owner’s claim by filing a counter-notice confirming that they have the authority to upload the work in question. § 512(g)(3).

The critical question to be decided in this case was the determination of “actual knowledge” and “facts and circumstances from which infringing activity is apparent” as mentioned in § 512(c)(1)(a)(1) and (2). The Court looked into the legislative history of the provision and noted that the above mentioned phrases described knowledge of specific and identifiable infringement of particular items and not a general awareness or knowledge of prevalence of such activity in general.

Talking about the burden of notifying the infringement, the Court reiterated that the burden of notification under the DMCA was on the copyright owner and could not be shifted to the provider. (See Perfect 10, Inc. v. CCBill Inc. 488 F.3d 1102). The Court also noted that the “safe harbor” protection was unconditional and was not limited to a pro-active provider who took affirmative action to remove infringing activity.

It was held that the DMCA provisions were effectively followed by YouTube as it had removed virtually all the content mentioned in the take down notice sent by Viacom. Summary judgment was granted to YouTube.

While many would argue that this would promote more copyright infringement and work as a legal approval for service providers to turn a blind eye to the same, it needs to be seen that the world at large would suffer in the absence of such services. However, it will be unfortunate if this law is applicable to all kinds of service providers through a straight jacketed formula. Websites providing access to movie torrents, which are again uploaded by individuals, cannot be put with YouTube on the same pedestal. Such cases need to be decided on their individual merit and while the Court seems right in upholding YouTube’s safe harbor protection, judges should look at the nature of the website and the overall content that is available to the users before determining whether availability of copyrighted materials is just a small part of the game or is it the game itself!

Written by: Ashish Arun and Rajni Ghosh

About the Authors: Ashish Arun is the Managing Partner at ORP while Rajni Ghosh is an Associate at ORP.