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Cease-and-Desist letters as self-executing copyright bombs

Originally posted 2007-10-13 23:50:07. Republished by Blog Post Promoter

Techdirt reports (thanks, Pennywit!) on a law firm that tells recipients of its questionable “C&D” letters that if they dare post them, they’ll be liable for copyright infringement. This is the law firm, and this is the letter. And this is the response. (And here’s the definitive treatment, via the Citizen Media Law Project).

A very good lawyer taught me, as a young pup, that you should never put anything on your legal stationery you’re not prepared to use, or see the other side use, as an exhibit to a motion — i.e., ask yourself, “What will the judge think when he reads this?” Now the question is a lot broader, as is the advice: Don’t write a so-called “lawyer’s letter” that you’re not prepared for the whole world to see.

Some more homey advice: Don’t make threats you can’t back up. And don’t try making a bomb just to have it blow up in your face.

UPDATE:  The other shoe drops.  Are you moved?  Pennywit writes:  “I’m actually quite surprised at the intense personal tone of parts of it; wouldn’t even a minimum amount of professionalism mandate a certain detachment?”

Schadenfreude hits a new high

You are now reading the only sentence I’m writing in this, the first-ever “no comment,” utterly self-explanatory (besides these introductory words) post on LIKELIHOOD OF CONFUSION® — via a site called Hyperallergic:

In December, documentary photographer Carol Highsmith received a letter from Getty Images accusing her of copyright infringement for featuring one of her own photographs on her own website. It demanded payment of $120. This was how Highsmith came to learn that stock photo agencies Getty and Alamy had been sending similar threat letters and charging fees to users of her images, which she had donated to the Library of Congress for use by the general public at no charge.

Now, Highsmith has filed a $1 billion copyright infringement suit against both Alamy and Getty for “gross misuse” of 18,755 of her photographs. “The defendants [Getty Images] have apparently misappropriated Ms. Highsmith’s generous gift to the American people,” the complaint reads. “[They] are not only unlawfully charging licensing fees … but are falsely and fraudulently holding themselves out as the exclusive copyright owner.” According to the lawsuit, Getty and Alamy, on their websites, have been selling licenses for thousands of Highsmith’s photographs, many without her name attached to them and stamped with “false watermarks.” . . .

Screen Shot 2016-07-27 at 4.18.50 PM

Photo by Carol Highsmith on the Getty site, with a false watermark (image via Highsmith v. Getty et al. complaint by the author) — Via Hyperallergic

Since each violation of copyright in this case allows the plaintiff to seek damages up to $25,000, the statutory damages for Getty’s 18,755 violations amount to $468,875,000. But because the company was found to have violated the same copyright law within the past three years — in 2013, Daniel Morel was awarded $1.2 million in a suit against Getty, after the agency pulled his photos from Twitter and distributed them without permission to several major publications — Highsmith can elect to seek three times that amount: hence the $1 billion suit. . . .

“The injury to Ms. Highsmith’s reputation has been … severe,” it continues. “There is at least one example of a recipient of a threatening letter for use of a Highsmith Photo researching the issue and determining that Ms. Highsmith had made her photos freely available and free to use through the Library website. … Therefore, anyone who sees the Highsmith Photos and knows or learns of her gift to the Library could easily believe her to be a hypocrite.”

Will New York State Go With (the) Flo (& Eddie)?

More of a Grass Roots fan.

More of a Grass Roots fan.

Every once in a great while comes along an intellectual property law decision so significant that blawgers fall over themselves and each other in the scramble to write something pithy about it. The April 13, 2016, decision from the Second Circuit in Flo & Eddie, Inc. v. Sirius XM Radio, Inc. is not such a case. Rather, it is a decision worth writing about because of the handful of opportunities it presents to make puns involving song titles and lyrics.

That’s not to say that the decision isn’t important on its own merits. Indeed, as the brief opinion begins, “This case presents a significant and unresolved issue of New York copyright law.” On the other hand, the issue is not resolved by the decision. Because it is that important! You’ll see.

The plaintiff-appellee is a California corporation that “asserts that it owns the recordings of ‘The Turtles,’ a well-known rock band with a string of hits in the 1960s.” The California corporation is “controlled by two of the band’s founding members, [and] acquired the rights to The Turtles’ recordings in 1971 and continues to market the recordings in a variety of ways, including by licensing the rights….” Let’s unpack this before we go any further. Read More…

King Kong meets Godzilla

Originally posted 2014-04-22 21:57:10. Republished by Blog Post Promoter

Via Drudge — FT.com unleases a whopper:

Microsoft on Tuesday launches a fierce attack on Google over its “cavalier” approach to copyright, accusing the internet company of exploiting books, music, films and television programmes without permission.Tom Rubin, associate general counsel for Microsoft, will say in a speech in New York that while authors and publishers find it hard to cover costs, “companies that create no content of their own, and make money solely on the back of other people’s content, are raking in billions through advertising and initial public offerings”.

Mr Rubin’s remarks, presaged in an article in Tuesday’s Financial Times, come as Google faces criticism and legal pressure from media companies over services allowing users to search online for books, films, television programmes and news. Viacom, the US media group, instructed YouTube, which Google owns, to remove 100,000 clips of copyright material.

Okay, so there’s a touch of irony here:

You see, Microsoft excels at marketing. They don’t excel at innovation. In fact, very little of what Microsoft has to offer is truly innovative. There is a tendency to come late to the game and snatch up an idea and build on it, perhaps years after the concept has hit the market, and call it their own. They market themselves as innovators and do a degree they are. Their innovation comes in the spit and polish and not in the technological breakthrough itself.

Examples of this go way back …

Arguably, Google has innovated more — with its search engine technology and the applications it has spun off them, and in the way it has changed the face of how people use their (and others’) computers — than Microsoft ever will. What commercial reality is motivating this attack, then? Read More…

There’s no haven like Righthaven

Originally posted 2012-07-01 01:19:00. Republished by Blog Post Promoter

PayOn June 7th I will be on a panel discussing the Righthaven litigation and the concept of “mass copyright infringement campaigns” — they weren’t, after all invented by Righthaven — at the annual meeting of the Copyright Society of the U.S.A along with Steven Gibson of Righthaven in Bolten’s Landing, New York.  Our talk will be moderated by Stacey L. Dogan of Boston University School of Law. I first blogged about Righthaven and Gibson here, not necessarily saying what you’d think I’d say.  I subsequently got involved in one Righthaven case, on behalf of the Media Blogger’s Association, at the urging of Marc Randazza and in connection with a favorite topic of mine:  The misuse of statutory copyright damages.

Should be some fun!

UPDATE:  Our brief out in Nevada is noticed by a newspaper from around here.

Someone dropped in an extra zero, right? RIGHT?

Originally posted 2008-10-16 00:01:17. Republished by Blog Post Promoter

It’s a month-old story, and how it got past us here notwithstanding, it’s not getting past us now.  Per the ABA Journal, remember the Bratz litigation?  Well, you haven’t read half of it yet:

Two toy companies battling for rights to the Bratz dolls-with-attitude have racked up legal fees of at least $93 million in the case.

MGA Entertainment has spent $63 million in fees since 2004 defending a lawsuit by Mattel Inc. that contended the doll’s designer conceived of the idea before leaping from Mattel to MGA, the Daily Journal reports (sub. req.). Plaintiff Mattel has spent $30 million in just the first half of the year, the story says.

Mattel was awarded $100 million in the case, far short of the more than $2 billion in damages it had sought.

The Daily Journal got MGA’s figures in a lawsuit it filed against its insurers seeking full payment of the Bratz fees, while the publication got the Mattel figure from a stock analyst.

The ABA item quotes a Jones Day litigation partner who is flummoxed at the idea that there is any conceivable way to get to $93 million for a trademark case, even over the course of four years.  We sure are, too.  And re-read this ‘graph:

MGA Entertainment has spent $63 million in fees since 2004 defending a lawsuit by Mattel Inc.  . . . Plaintiff Mattel has spent $30 million in just the first half of the year, the story says.

That $30 million was just the first half of ’08!  That means Mattel spent WAY more than $30 million since the suit began in ’04, and that the total legal fees must have blasted way, way past $100 million since the case began.

Is there anyone out there who can even remotely do this math and explain how you can get to numbers like this — not how they can be justified, for, given the business interests involved, they are not irrational.  But how many widgets, and of what kind, does a law firm have to spit out to get to these kinds of numbers?

The Parody Bomb Goes Off

Originally posted 2014-06-17 16:41:05. Republished by Blog Post Promoter

When it rains, it pours. Via Andrew Sullivan (and reported here too) a report that Volkswagen is going to sue— in the UK — the pair who made that tasteless mock commercial circulating around the Internet in which a suicide bomber detonates himself but the explosion is contained by the well-built Volkswagen. I don’t know anything about UK law on parodies, and I am not sure whether this would be a trademark suit for use (or dilution?) of the Volkswagen trademarks (which would probably lose here) or a copyright suit based on some similar commercial which I have not seen (which theoretically could win here). (See our discussion on what does and does not qualify as a parody here.)

If you’re Volkswagen, you may have to sue first and ask questions later. There are times when, as long as there is a colorable claim (i.e., the markholder does not believe the complaint violates legal ethics or Federal Rule 11 as frivolous) — even though it’s not a likely winner, you’ve got to file to protect the brand and make a public statement where there’s the risk of public outrage. The lawsuit is a way to distance yourself from the use of the mark.

That’s when it’s not frivolous. And it’s when we’re talking about a morally outrageous use of the mark, as opposed to a commercially or politically, religiously, philosophically competitive use — or one where you just plain resent that your property is part of the picture and you weren’t cut in on the profits.

Slippery slopes? That’s why lawyers are paid to exercise judgment.

UPDATE:  Hm.  Maybe the whole story was a dud:

After a week of prevarication [sic], the car giant has decided to go ahead and sue the people behind the advert on the grounds that it was damaging its reputation around the world and falsely linked the VW with terrorism.

“We are taking legal action but because it’s early stages we cannot comment further,” a Volkswagen spokesman said.

But the company privately admitted that it cannot locate Lee and Dan, the London based advertising creative partnership who dreamed up the film, which has been seen around the world via the internet.

“We are prepared to pursue the two individuals but need to locate them to ensure the success of our legal claim,” the company said in a private memo, details of which have been obtained by MediaGuardian.co.uk.

Jonathan Rogers: Is YouTube “Monetizing Piracy”?

Originally posted 2015-08-10 23:40:48. Republished by Blog Post Promoter

Originally posted 2012-06-11 19:57:19. Republished by Blog Post Promoter.

I like this from Jonathan Rogers:

On the YouTube blog, the company posted an announcement about a deal struck with many music publishers. Now, when users upload videos with background music that is copyrighted music, instead of begin taken down, if it belongs to certain publishers, an ad will play, and at least some of the revenue sent to that publisher to pay for the royalties that should be paid. . . .

My problem with this is that it only further to cloud the layman YouTube user’s understand of proper copyright music use in videos. Google tried to educate users with a cute video. But you still see people upload full songs with nothing but a picture of the artist then post in the comments “COPYRIGHT NOTICE – I DONT OWN THIS MUSIC NOR CLAIM TO, DONT TAKE THIS DOWN OR SUE ME”. There is a terrible lack of understanding about what copyright protects with most users.

Okay, I don’t love it, I like it.  I like it because I have also written at length about the way copyright enforcement and policy feeds back into the public’s understanding of, and willingness to comply with (or, if you must, “buy into”) intellectual property laws, and why that matters.

In this case, however… “meh.”  I think YouTube had to come to an accommodation with music publishers on this knotty problem.  There’s a limit, especially in a bilateral context such as this one (holding the “publishers” as one “side”), to how much the parties can do to both come to an agreement and make this an effective “teaching moment.”

If you disagree, though, SUE ME!

War Is Peace; Freedom is Slavery; Ignorance is Strength

Originally posted 2014-11-26 12:58:03. Republished by Blog Post Promoter

And free speech is a form of negotiable intellectual property, right?

Maybe I can give up the blog. There is no percentage in clever commentary when the claimants provide the self-parody.  Credit to Instapundit.

IP piggies

Originally posted 2015-06-12 09:15:13. Republished by Blog Post Promoter

Ars Technica:

Not content with the current (and already massive) statutory damages allowed under copyright law, the RIAA is pushing to expand the provision. The issue is compilations, which now are treated as a single work. In the RIAA’s perfect world, each copied track would count as a separate act of infringement, meaning that a copying a ten-song CD evenpig_2_md.gif one time could end up costing a defendant $1.5 million if done willfully. Sound fair? Proportional? Necessary? Not really, but that doesn’t mean it won’t become law.

The change to statutory damages is contained in the PRO-IP Act that is currently up for consideration in Congress. We’ve reported on the bill before, noting that Google’s top copyright lawyer (and the man who wrote a seven-volume treatise on the subject of copyright law), William Patry, called the bill the most “outrageously gluttonous IP bill ever introduced in the US.”

Out. Of. Control.

Should we be doing something?