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DMCA – Dumb Management of Copyright Accusations?

Originally posted 2012-05-30 14:31:31. Republished by Blog Post Promoter

Fleet week! 26

 Not every big stick makes sense in every context.

Idiotic DMCA takedown notices:  They’re all the rage.  Tim Bukher links to this item from Mike Masnick, riffing on some of the “best of” DMCA takedown notices published by Google and initially combed through for brickheadedness by TorrentFreak.  Meanwhile, Jonathan Bailey anoints GoDaddy.com “DMCA Overreactor Extraordinaire.”

Follow that?

Tim notes that this may be the by-product of “automated” or otherwise outsourced-to-non-lawyers IP enforcement programs or firms.

That’s giving lawyers a lot of credit for non-dumbness, wouldn’t you say?

Suing bloggers for dollars

Originally posted 2011-12-05 10:40:50. Republished by Blog Post Promoter

Interior of rotunda, New York Supreme Court, New York CountyGlenn Reynolds links to a an article in Wired about a newspaper “chain”‘s — actually, lawyer Steve Gibson’s — “new business model”:  Suing bloggers who post newspaper articles, evidently more or less intact ones, on their sites.  Glenn says suing bloggers “seems like a poor business plan” — mainly, of course, because most bloggers are broke, or pretty close to it.

The article also explains why these one-off claims by outfits such as the Las Vegas Review-Journal are unlikely, in the long run, to pay off.  One reason is that at least the music industry, through the Recording Industry Association of America, is theoretically going for some degree of bulk in its litigation trawling against unlawful file sharing.  And we did say “theoretically”:  Remember, in 2008 the RIAA managed to spend about $16 million on legal fees to reel in a whopping $391,000.  As the article says, “You’d have to go after a lot of people for a relatively small amount of money,” says Jonathan Band, a Washington, D.C. copyright lawyer. “That is a riskier proposition.”

So, yes, it is hard to comprehend the return on investment here.

There are other reasons this doesn’t seem to make sense.  “Defendants might be less willing to settle a lawsuit stemming from their posting of a single news article, despite the Copyright Act’s whopping damages,” says the article.  But no, not quite on the “whopping damages” stuff.  Contrary to myth — and to the threats routinely uttered by copyright plaintiff attorneys — statutory damages are not meant to be a windfall, as I explain at some length here.  Now it is true that some juries think intellectual property infringement damages are a jackpot unrelated to actual harm — usually because judges don’t instruct them properly.  But other judges in high profile cases are refusing to be part of the copyright shakedown.  Thus in the recent Tannenbaum copyright case, the District Judge reduced the jury’s damages award of $675,000 for infringement of 30 songs to $67,500, ruling that the amount awarded was unconstitutional under the Due Process clause.

Still, $67,500 is a lot of money, a lot, and still pretty darned distant from any plausible quantum of loss to the copyright owner.   Read More…

SOPA box

Originally posted 2012-01-18 15:32:45. Republished by Blog Post Promoter

Lawyer's break, Herald SquareYou don’t need a link to find out what’s going with the SOPA “Blackout,” or all that other stuff.  It’s all over the place, beyond those with a special interest in intellectual property.

Real news over an IP issue?  Not quite.

Rather, the news and the attention arise from the fact that the threatened power-grab that SOPA represents goes far beyond IP, or “enforcement,” or “brands,” or even “piracy.”

Oh, those are all real things, real concepts.  But their meaning has become so distorted in the public and political debate and spin that they get scare-quotes here today.  It is precisely by turning piracy into a mission-critical bogey-man that the strong-IP advocates have perhaps, for once, overplayed their hands.

A few years ago “civil libertarians” told us our liberties were at an end because of the Homeland Security Act and related policy changes arising from terrorist threats.  Those protests were mainly sincere, but they turned out to be overstated.  For most of us, life in America is pretty much like it was before, except mainly at the airport.

If, however, there had been a serious and widespread degradation in the quality and quantity of our civil rights because of the “new world” that the September 11th attacks, we would have something serious to discuss.  In fact it is still something serious to discuss.  How much are we, indeed, prepared to give of our privacy, our freedom of movement, our personal space, for what may or may not be enhanced physical safety?  Important, fundamental questions.

But I’ll be damned if I’m going to stand by while my rights, or those of my clients, are sold down the river to protect the franchises of Sony, Coach and Universal.  And that’s what makes this more than an “IP” issue, and why it’s news, and why it matters.

Overlawyered Knocks Off Our White Hats

Originally posted 2005-10-24 11:21:11. Republished by Blog Post Promoter

ROY ROGERS
A few years ago I was a partner at Gibney, Anthony & Flaherty, LLP, in New York, a firm that does a lot of intellectual property enforcement both in the streets (literally) and on the Internet. During that period I had an associate named Matt Carlin, a very bright and talented guy. One of his jobs was sending out cease and desist letters in connection with various clients’ needs; one of those clients was a purple dinosaur and, regrettably, one of those letters — of which I was a primary author, though poor Matt had signed it — became a little bit famous.

Recently, Matt’s Barney advocacy (please, the guy is just doing his job!) has gotten him a few pixils once again. At this point I can take no credit, because I left the Barney beat a while ago. Give Matt points for un-dinosaur-like tenacity!

I am guessing, however, that this (and Google) is the reason for the sudden blip of renewed interest in an article Matt and I published inMealey’s Litigation Report — Cyber Tech & E-Commerce, back when publishing your ideas on paper made some sense, in May of 2001. The article, “Hacker with a White Hat” (I named the article, and actually stumbled on what we later learned was a well-known bit of techie imagery) suggests that it may be appropriate to ask a judge for permission to hack the website of a defaulting, non-cooperating defendant in a trademark infringement case when it has refused repeated court orders to stop selling infringing merchandise on its website. My guess is that someone was Googling Matt’s name looking for more ways to cause him agita, and it rang a few bells…

One of those bells is Overlawyerer Walter Olson, who attributes “fame” to this blog and who queried whether our heretofore ignored four-and-a-half-year-old article constitutes a declaration of “open season to hack trademark infringers”. Walter, whom I met when he came to speak to the Federalist Society in New Jersey a few years back, links to two other sites that discuss this article. One is Declan McCullough’s site; he opens it up to lively discussion on his Politech mailing list. I’ve contributed a response . The commentors raise some good points, if not always with good manners.

The other one is Jonathan B. Wilson. He notes, in opposing our suggestion: Read More…

Best of 2005: Overlawyered Knocks Off Our White Hats

Originally posted 2015-01-16 12:15:34. Republished by Blog Post Promoter

Originally published on October 24, 2005.

White Hat and Pretty Face
A few years ago I was a partner at Gibney, Anthony & Flaherty, LLP in New York, a firm that does a lot of intellectual property enforcement both in the streets (literally) and on the Internet. During that period I had a colleague named Matt Carlin, a very bright and talented guy.
One of his jobs was sending out cease and desist letters in connection with various clients’ needs; one of those clients was a purple dinosaur and, regrettably, one of those letters — of which I was a primary author, though poor Matt had signed it — became a little bit famous.Recently, Matt’s Barney advocacy (please, the guy is just doing his job!) has gotten him a few pixils once again. At this point I can take no credit, because I left the Barney beat a while ago. Give Matt points for un-dinosaur-like tenacity!I am guessing, however, that this (and Google) is the reason for the sudden blip of renewed interest in an article Matt and I published in Mealey’s Litigation Report — Cyber Tech & E-Commerce, back when publishing your ideas on paper made some sense, in May of 2001.The article, “Hacker with a White Hat” (I named the article, and actually stumbled on what we later learned was a well-known bit of techie imagery) suggests that it may be appropriate to ask a judge for permission to hack the website of a defaulting, non-cooperating defendant in a trademark infringement case when it has refused repeated court orders to stop selling infringing merchandise on its website. My guess is that someone was Googling Matt’s name looking for more ways to cause him agita, and it rang a few bells…

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

One of those bells is Overlawyerer Walter Olson, who attributes “fame” to this blog and who queried whether our heretofore ignored four-and-a-half-year-old article constitutes a declaration of “open season to hack trademark infringers”. Walter, whom I met when he came to speak to the Federalist Society in New Jersey a few years back, links to two other sites that discuss this article. One is Declan McCullough’s site; he opens it up to lively discussion on his Politech mailing list. I’ve contributed a response.   The commentors raise some good points, if not always with good manners. Read More…

Hard Time for the Lyrical

Originally posted 2005-12-13 17:18:37. Republished by Blog Post Promoter

Mark Schultz writes, in an article called We Hate You, Buy Our Stuff:

It must be a badge of honor for entertainment industry trade association executives to become known for extreme statements. Lauren Keiser is president of the Music Publisher’s Association. Apparently, he hopes to make “Lauren Keiser” and “MPA” terms of obloquy and horror among bloggers and Free Culture types just like “Hillary Rosen,” “RIAA,” “Jack Valenti,” and “MPAA.” Well, why not? Rosen and Valenti have both retired, so the position of Public Domain Enemy Number One is vacant. As the BBC reports, Keiser makes his case as follows:

MPA president Lauren Keiser said he wanted site owners to be jailed.

He said unlicensed guitar tabs and song scores were widely available on the internet but were “completely illegal”.

Mr. Keiser said he did not just want to shut websites and impose fines, saying if authorities can “throw in some jail time I think we’ll be a little more effective.”

Jail? Does he know something we don’t? Are lyrics sites fronts for terrorist activities? Sarcasm aside, I’m sure Keiser as an industry insider knows some things we don’t about lyrics sites and certainly has stronger feelings than most. He should keep those differences in perspective in mind. Most people don’t get where he’s coming from. He sounds a little unhinged, which is a bad thing for one of the public faces of the music industry. Unhinged is a fine thing for a political talk radio show host, but should it be part of the job description of a trade industry executive? Unfortunately, it probably kind of is part of his job. The industry pays his salary, they’re worried, so he needs to show them he is fighting for them.

The music industry would do well to consider whether such actions and rhetoric really serve its interests.

I’ve always said these RIAA types seem mighty desperate.

IP rights in China: Still inscrutable

Originally posted 2011-11-22 11:19:58. Republished by Blog Post Promoter

Michael Atkins has some highlights from a presentation given last week on enforcing intellectual property rights in China by Professor Zhang Guangliang at the King County (Washington) Bar Association over on the left coast.

The premise of the talk, and Michael’s post, is — quite reasonably — understanding the best way to go into China and utilize their system. There’s no question the People’s Republic wants to spread the word that it has a system, and that it can work; clearly a charm offensive is under way on just that point.

Is my long-standing skepticism, and that of many others, still justified?  I don’t know if there’s any way to tell yet.  But a 2010 post from Michael Masnick should remind big IP:  Be careful what you wish for!  The deference big companies and big law firms get from U.S. courts doesn’t translate so well over there.  While, as usual, I wouldn’t track Michael’s thinking word for word in this passage, his point, as usual, is still well taken:

Various studies have shown that greater copyright, patent and trademark protections tend to follow a period of great innovation, when the companies that did that innovation look to protect their position from upstarts elsewhere. In other words, it acts in the exact opposite manner as it’s supposed to. It’s not an incentive to innovate, but a tool used to stop competition and innovation from others. The situation in China is playing out exactly according to that formula. The country is growing into a bigger believer in intellectual property laws — but only for the sake of using it to protect against foreigners — which, we assume, is not what US companies wanted, but which they should have expected if they ever bothered to look at the actual history of stronger intellectual property laws.

Looking at history is not something “companies” or their lawyers tend to do at all.  Anyway, I’m sure it’s a great learning experience, on the clock and all — a point Stan Abrams nails here.

UPDATE:  Perhaps it is not the intellectual kind of property that is the biggest concern in China right now…

How Gizmodo escaped indictment in iPhone prototype deal | Apple – CNET News

Originally posted 2011-10-12 13:13:29. Republished by Blog Post Promoter

Did you ever wonder how Gizmodo escaped indictment in iPhone prototype deal?  I did, because after all that was my most recent (and not so recent) 15 minutes (see above):

The great iPhone prototype caper of 2010 has finally ended, with the two men accused of shopping the device to gadget blogs sentenced to probation yesterday.Last years investigation began with a raid on Gizmodo editor Jason Chens Fremont, Calif., home, followed by a painstaking examination of Chens electronic files. Investigators suggested at the time that Chen could face criminal charges, and he soon hired a criminal defense attorney.

But San Mateo County District Attorney Steven Wagstaffe told CNET yesterday that there was not enough evidence to indict Chen or anyone else affiliated with Gizmodo.Gizmodo editor Jason Chen holding the prototype iPhone the gadget blog acquired for $5,000.

“What we were looking at was possession of stolen property and whether the evidence supported extortion,” Wagstaffe said. “You can say we were looking at whether their actions supported that they participated in the theft of the phone. We didnt think it supported either.”

Wagstaffe said, however, that his offices review of the computers seized from Chens home showed the correspondence between Gizmodo editors was “juvenile.”

The “juvenile” defense, eh?  I hadn’t thought of that one.  Though, really, it sounds about right.

 

Best of 2009: They always get their man

Posted November 24, 2009.

Dudley and SnidelyYes, people do have some funny ideas of what kinds of things to protect with copyright, don’t they?   A few years ago, criminal enterprise Milberg Weiss (in its pre-conviction days) tried to assert copyright in its own specie — the legal papers it filed to generate kazillions in crooked class-action fees — and not so unreasonably (hmm…).

Anyway, it seems that certain countries, though not as wealthy as Milberg Weiss, nor nearly as scurrilous (indeed, arguably cordial to a fault!), have figured, if an American law firm can try to claim copyright in its own money, why can’t we?   Why not indeed?

And so we read of a vacation. “To experience the full excitement of traveling abroad,” writes Eric E. Johnson,

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

you’ve got to have a pocket full of unfamiliar money. Never mind that their pennies, dimes, nickels, and quarters look almost identical to U.S. coins. And put aside the fact that the exchange rate right now between the U.S. and Canada is almost exactly one-to-one. I was still excited to use different cash.

Inspecting the colorful bills, I got a delightful surprise: a copyright notice!

Read More…

Best of 2014: The (Lang) Van guards of the proletariat

First published January 14, 2014.Lang Van

Remember when Vietnam was communist and stuff?

Probably not.  Well, I do.  And yes, I look it.  And yes, GET OFF MY LAWN!

Anyway, even if it was, it probably mostly isn’t any more.  (UPDATE:  Funny you should mention it!)  And even if it were, though, still pretty much everyone, except maybe the Grateful Dead, is particular about that most running-doggy institution of capitalism — royalties!

Lang Van, the leaders in Vietnamese entertainment, aren’t going to take it any more!  Here’s the press release they sent me about their big copyright lawsuit:

Lang Van, owners of the world’s largest Vietnamese music catalog . . . filed suit last week . . . as plaintiff against [various] defendants [including] Vietnam-based VNG Corporation (VNG) in a case of copyright infringement.

As stated in the complaint, Zing.vn (Zing), a VNG-owned and operated website and one of Vietnam’s largest entertainment portals, illegally makes more than 3,000 Lang Van-owned recordings and 600 albums available for streaming or download around the globe.

Lang Van has never received any financial compensation for the use and distribution of this copyrighted material, while the defendants continue to profit. Lang Van has records of their copyrighted content being viewed more than 250 million times on the Zing portal at this time.

According to the complaint, the U.S.-based fund IDG Ventures directly contributed to the exponential growth of Zing.vn’s website as well as the launch of the Zing Music website, bringing expertise, guidance and financial backing to help VNG grow its business. The investment granted the IDG defendants control over VNG and its operations, also allowing for the installment of Nguyen Bao Hoang, the managing general partner of IDG Ventures Vietnam, to the VNG Board of Directors.

“Lang Van has operated for nearly three decades to bring quality entertainment to Vietnamese people throughout the world,” said Chief Operating Officer Mimi Nguyen, Lang Van. “We’re enthusiastic at the overwhelming talent available today and look forward to growing Vietnamese Music within the world music market, and remain steadfast in our support of organizations and communities who consume music in a responsible way.”

Zing is recognized as one of the largest IP-infringing websites within Asia by several worldwide trade organizations. Currently, there are 590 infringement cases against Zing, with 1,081 cease and desist notices distributed. Brand giants Coca-Cola and Samsung pulled their advertising from Zing in 2012 after learning of the site’s practices. The Recording Industry Association of America (RIAA), the International Intellectual Property Alliance (IIPA), the International Federation of the Phonographic Industry (IFPI) and other organizations have denounced Zing’s practices, and the United States Trade Representative added the website to its “Notorious Markets List.” 

Kind of interesting, right?   Read More…