Rose Leda Ehler

Rose Ehler often describes her practice as being at the intersection of IP and technology. Some of her recent litigation proves her point. In one case, she is enforcing the Digital Millenium Copyright Act's against an online streaming service. Two other cases test the limits of the fair use doctrine in the Internet age.

Ehler represents the Recording Industry Association of America battling a "streaming-ripping" service called Yout that allows users to save recordings from YouTube. It can allow someone to "create a massive library of MP3s from YouTube without ever going to YouTube and using the service as it is authorized and intended to be used," she said.

When the RIAA asked Google to block Yout, it sued for defamation and other business torts, claiming that its service does not violate the DMCA's anti-circumvention provisions.

Ehler said Yout works by "accessing the [YouTube] digital file and rolling cipher," according to its complaint. "If that, in fact, is how the Yout service operates, that would be circumvention," she said. "Our argument was that they sort of pled themselves out of a claim."

That argument worked to get the lawsuit dismissed. Ehler argued Yout's appeal at the 2nd Circuit in February. Yout LLC v. RIAA Inc., 22-2760 (2nd Circ., filed Oct. 25, 2022).

Far more challenging is litigation Ehler is handling on behalf of standards-developing and setting nonprofits, including the National Fire Protection Association, which creates and publishes some 300 sets of very detailed standards on electrical safety, fire protection, chemical hazards and more.

Its standards are copyrighted, but many individual standards are also adopted into state and local statutes and building codes by reference. That way, when a standard needs to be updated, the statute doesn't need to be amended.

With the rise of the internet, some people have argued that standards incorporated into law by reference lose copyright protection. In 2013, Ehler sued a nonprofit that had copied and published those and other standards online for free. Ten years later, the D.C. Circuit upheld a mixed ruling, holding that fair use applies to some standards. American Society for Testing and Materials v. Public.Resource.Org Inc., 22-7063 (D.C. Circ., filed April 29, 2022).

In a second case, she sued a for-profit company that is selling the fire group's standards. She is awaiting a ruling on summary judgment. "They don't recognize the degree to which they're undermining this public service," Ehler said about the company. National Fire Protection Association Inc. v. UpCodes Inc., 2:21-cv-05262 (C.D. Cal., filed June 29, 2021).

The issues are difficult, she said. Judges "do understand the policy implications. I think they really struggle with the constraints of what they're able to do."