Author: Thomas James

Thomas James (also known as Tom james) is an attorney located in Cokato, Minnesota (USA) with over thirty years of experience as a sole practitioner. His practice is focused on trademark and copyright registration and protection, small business and nonprofit organization formation, and applications for 501(c) tax-exempt status. Also an author and continuing legal education course developer and instructor. Admitted to the bar of Minnesota, the Federal Circuit Court of Appeals, and the United States Supreme Court. Also authorized to represent clients before the Copyright Office, the Copyrigh Claims Board, the USPTO (Trademark Office), and the Trademark Trials and Appeals Board. For information about legal representation regarding trademarks, copyrights, or busines law, visit ⁠the Law Office of Thomas James, https://tomjameslaw.com.

DMCA Lawsuit re: YouTube Videos

The DMCA claims

Ted Entertainment Inc. v. ByteDance, Inc., No. 3:25-cv-10933 (N.D. Calif., October 2, 2026)

The complaint alleges that ByteDance obtained YouTube videos for use in developing AI products such as MagicVideo and Seedance. Specifically, plaintiffs Ted Entertainment, Inc. and Matt Fisher allege that ByteDance circumvented technological measures controlling access to their YouTube videos, in violation of the Digital Millennium Copyright Act (DMCA).

The technological measures allegedly used by YouTube include a “rolling cipher” signature system; IP-based blocking and rate limiting; brief session-bound streaming URLS; CAPTCHA challenges triggered by automated activity; and proof-of-origin tokens verifying requests from authorized client environments. The complaint also alleges that ByteDance’s acquisition of the videos violated YouTube’s terms of service.

The motion to dismiss

ByteDance filed a motion to dismiss. On October 2, 2026, the court denied the motion.

ByteDance had argued, among other things, that individual copyright owners lack standing because they do not own the technological measures that YouTube has implemented on its website. Basically, the argument was that if a copyright protection measure was circumvented, it was YouTube’s copyright protection measure, so only YouTube should have the right to complain about its circumvention. The court rejected that contention, holding that copyright owners whose works are protected by a third party’s technological measures are within the class of persons that Congress intended to protect by enacting a prohibition against circumvention of copyright protection measures.

The court did not rule on whether the use of YouTube videos to train AI is copyright infringement.

At the pleading stage, a motion to dismiss only challenges the sufficiency of a complaint to state a cause of action. It is not a determination that a plaintiff has proven its case, or that the allegations in the complaint are true.

Why It Matters

The ruling is significant because it supports an alternative strategy for copyright owners seeking redress when their works have been used by AI companies without their permission: Consider suing under the DMCA’s anti-circumvention provisions either in addition to, or as an alternative to, a copyright infringement claim.

For more information about the Copyright Act’s protections against copyright circumvention, read my previous post on the DMCA anti-circumvention provisions. The applicable statute is 17 U.S.C. § 1201.

The “Demise” of the Server Test

As with Mark Twain, reports of the death of the server test are greatly exaggerated. In this article, Minnesota attorney Thomas James (“The Cokato Copyright Attorney”) explains what happened – and what did not happen – in Emmerich Newspapers, Inc. v. Particle Media, Inc.

The Copyright Act gives a copyright owner the exclusive right to publicly display the work.

In Perfect 10 v. Amazon, the Ninth Circuit Court of Appeals held that a website is liable for unauthorized public display of a coprighted work only if the image is stored on the website’s server. The court reasoned that “display” means showing a copy of the work. To show a copy, it is necessary to possess one. But it is not necessary for a website owner to possess a copy of a work to write code that instructs a user’s browser to display the content of a file that is hosted somewhere else. Therefore, encoding a website to instruct a user’s browser to display as an embedded image a copy of a work that is hosted on a different server does not infringe the copyright owner’s public display right.

That case involved the display of images in search engine results. Astute readers with remarkably good memories will recall that I have previously written about a case that extended the “server test” announced in Perfect 10 to social media. Specifically, a district court held that directing a user’s browser to an image that is hosted on Instagram’s server does not constitute “display” of the image. Since no direct infringement by means of “public display” occurred, Instagram could not be held secondarily liable for contributing to the unauthorized public display of the image. The Ninth Circuit has since affirmed the decision. See Hunley v. Instagram. I described this as one of the “Top Copyright Cases of 2022.”

As I indicated in that article, a Ninth Circuit affirmance could result in a circuit split. It has.

In McGucken v. Newsweek, LLC, a court in the Second Circuit held that Newsweek publicly displayed another person’s copryighted photograph when it embedded the photograph from the copyright owner’s Instagram page. The photograph was hosted on Instagram’s server, not Newsweek’s. And in Nicklen v. Sinclair Broadcast Group, a New York court explicitly rejected the server test, declaring that it is “contrary to the text and legislative history of the Copyright Act.” Of course, these were district court decisions, not decisions of Circuit Courts of Appeals, so they would not suffice to create a “circuit split.” A recent case out of the Fifth Circuit, however, might. That case is Emmerich Newspapers v. Particle Media.

Emmerich Newspapers v. Particle Media

Particle Media runs NewsBreak, a news aggregator that embeds stories from various news media into a single feed. When a user clicked on an Emmerich story, it opened in a frame that loaded the Emmerich page from Emmerich’s server on the user’s browser. Emmerich filed a copyright infringement lawsuit claiming that Particle Media violated its exclusive aright to publicly display the work.

The district court applied the server test, holding that the framed view of the story did not infringe Emmerich’s exlcusive right to publicly display the work. The Fifth Circuit Court of Appeals rejected the server test.

The Transmit Requirement

For the Fifth Circuit, the inquiry should not be into who possesses a copy of the work, but who transmits it. In many cases, including this one, the outcome will be the same. Emmerich’s story was neither stored on Particle Media’s server nor transmitted by it. Therefore, under either test, it was not liable.

URLs as Copyright Management Information

A second issue raised in Emmerich Newspapers is whether a website URL is a kind of “copyright management information” (CMI) under the Digital Millennium Copyright Act (DMCA). If it is, then removing it would violate the DMCA.

So is it or isn’t it? Well, possibly yes and possibly no. It depends on whether a person looking at the URL would understand it as identifying the work or its owner, on one hand, or as idenfiying only a website address, on the other.

The Fifth Circuit Court of Appeals did not resolve the issue in this case. Instead, it remanded it to the district court to decide. Nevertheless, the decision establishes a precedent that a URL, in principle, can be copyright manamgement information for purposes of the DMCA.

Is There Really a Circuit Split?

The Fifth Circuit clearly rejected the Ninth Circuit’s server test. On the other hand, though, both circuits agree that embedding generally does not infringe the copyright owner’s public display right. They disagree about the rationale, but the result is the same. That might not be enough for the Supreme Court to perceive a need to resolve a circuit split.

Conclusion

When assessing the public display right in the embedding context, some courts will apply the server test. Others will apply the transmit requirement. In most cases, merely encoding a website to instruct a third-party server to display content in a user’s browser will not result in liability for infringement of the copright owner’s public display right under either test.

Websites that deploy embedding, however, have reason to be careful about stripping the URL from embedded content. If the URL is perceived as identifying a work or its author, stripping it from the embedded display could violate the DMCA.

Whiskey & Dog Toys: The Last Word

After more than a decade of litigation, the showdown between Jack Daniel’s whiskey and Bad Spaniels dog toys has come to an end, most likely.

The Claims

I’ve written about this case before. (See, e.g., Balancing the First Amendment on Whiskey and Dog Toys, 5/4/2023).

Basically, Jack Daniel’s Products claimed trademark rights, including trade dress, in its Old No. 7 Tennessee whiskey, including the distinctive shape and label of its whiskey product. VIP Products made a dog toy called “Bad Spaniels,” shaped like a bottle of Jack Daniel’s whiskey with a label that looks like the famous whiskey label. Instead of “Jack Daniel’s,” the dog toy is called “Bad Spaniels.” Instead of “Old No. 7 Brand Tennessee sour mash whiskey,” the dog toy label reads, “Old No. 2 on your Tennessee carpet.”

Jack Daniels whiskey bottle and Bad Spaniels dog toy - parody goods trademark infringement

Jack Daniel’s sued VIP, claiming trademark infringement and dilution.

The district court ruled in favor of Jack Daniel’s. The court ruled that the “Bad Spaniels” dog toy was likely to confuse consumers about the source of the product and to tarnish the Jack Daniel’s brand.

The Ninth Circuit Court of Appeals reversed. The dog toys, the Court ruled, are parody goods protected as expression by the First Amendment.

The U.S. Supreme Court granted certiorari to review the decision. (See Court Agrees to Hear Parody Goods Case, 11/27/2022).

The Supreme Court Decision

The United States Supreme Court reversed the Ninth Circuit Court of Appeals. The Court held that although using a trademark for an expressive purpose might qualify for First Amendment protection, that protection does not insulate the user from trademark infringement or dilution liability if it is also used as a source-identifier for a product. Parodic uses of other people’s trademarks may result in trademark liability if they are used not only for expressive purposes but also to identify the source of a product or service. (See Can We Talk Here? Trademark Speech Rights, 6/14/2024.)

The First Amendment does not shield parody goods from trademark infringement and dilution claims when the alleged diluter uses a mark (or something confusingly similar to it) as a designation of source for its own products or services. (See Enduring (Non-AI) Legal Issues, 5/16/2026).

The Ninth Circuit Remand

The case returned to the Ninth Circuit Court of Appeals with the infringement question having been decided in VIP’s favor on the facts. The Court addressed only the tarnishment claim.

The Court ruled in favor of VIP Products:

“Neither Bad Spaniels nor the toy’s trade dress facially tarnished Jack Daniel’s corresponding famous marks, and neither was portrayed in an unwholesome or unsavory context that was likely to tarnish the reputation of the famous marks”

VIP Products v. Jack Daniel’s Properties (August 4, 2026).

Jack Daniel’s proved its word mark (“Jack Daniel’s) and trade dress (the whiskey bottle shape) are sufficiently famous to be protected against dilution. It did not, however, prove that “Old No. 7” is famous.

More significantly, the Court ruled that the evidence did not support a finding of likely reputational harm. An expert had testified that consumers generally are disgusted by an association between a consumable product and feces. The Court, however, ruled that this is not enough. Evidence of likely harm from the specific product and marks involved in the case is necessary. When it is obvious to consumers that a product is a parody, consumer disgust cannot be assumed.

What this means is that although parody is not a complete defense to a claim of trademark dilution by tarnishment, winning a claim that parody goods tarnish a trademark’s reputation might not be easy. Parody is not absolutely protected, but it raises a trademark claimant’s burden to demonstrate actual likelihood of reputational harm. If it is an effective parody, consumers are likely to recognize it as a joke rather than a serious claim about the nature or quality of the trademarked product.

Anti-Nudification

This is clearly a radical non sequitur, but if you have a prurient or other interest in developments in AI law, check out my analysis of the constitutionality of Minnesota’s new anti-nudification law in Why Minnesota’s Anti-Nudification Statute Is Probably Unconstitutional.

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