Tag Archives: Copyright Law

Getting the timing right on copyright registrations

Originally posted 2009-09-10 21:42:19. Republished by Blog Post Promoter

Marty Schwimmer:

IDEA v PETA (SDNY August 298 2009): Plaintiff, no doubt aware that statutory damages are only available for post-registration copyright infringements that are not part of a continuing, ongoing series of infringing acts of the same kind as those engaged by defendant prior to the effective date of registration, alleged in its amended complaint that “Upon information and belief, PETA has commenced new infringements, and prepared and exploited new and materially different Infringing Materials since the effective date of registration of copyright in the Work…”

There were no factual allegations to support this conclusory assertion, and thus dismissed plaintiff’s claim for statutory damages and fees. Note that had plaintiff come up with some factual allegations pre-motion, it may have been granted leave to amend, but didn’t, so wasn’t.

My comment:  I had this issue in a case in the SDNY where we did an expedited copyright registration prior to filing… and it was BOUNCED for lack of originality! That doesn’t happen every day. Other side moved to dismiss; we opposed, natch, as set forth here.  Judge Rakoff agreed with us and denied the motion to dismiss.

Originally posted as a comment
by Ron_Coleman
on The Trademark Blog using DISQUS.

Righthaven Agonistes

Originally posted 2011-06-21 14:25:26. Republished by Blog Post Promoter

Rainbow over Lake George

Is all this copyright jurisprudence lollipops and rainbows?

Let us reflect a little on what Righthaven has wrought, so far.  Wired weighs in on the latest Righthaven woes:

A federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven.

It’s not often that republishing an entire work without permission is deemed fair use. Fair use is an infringement defense when the defendant reproduced a copyrighted work for purposes such as criticism, commentary, teaching and research. The defense is analyzed on a case-by-case basis.

Monday’s ruling dismissed a lawsuit brought by Righthaven, a Las Vegas-based copyright litigation factory jointly owned with newspaper publisher Stephens Media. The venture’s litigation tactics and ethics are being questioned by several judges and attorneys, a factor that also weighed in on U.S. District Judge Philip Pro’s decision Monday.

Not really a big surprise.  One of the points I made at this month’s CSUSA panel on this topic was that when you push too hard on enforcement, someone who matters — either legislators, judges or rampaging mobs — will punish you and leave in a place that is outside what you thought defined the range of outcomes.  In a bad way.

Big IP never wants to hear this until it’s too late.  But there is a sort of rough justice in such an outcome, for it is the mirror-image, by alternative (i.e., judicial) means, of a legislative scheme that says, as the Copyright Act does, “Don’t think your damages are limited to what you would have had to pay if you had not infringed.  There is a big penalty, via attorneys’ fees and statutory damages, for doing it this way.  Cross at the green, not in-between.”  I have argued for some time that the one-sidedness of this equation, which does not account for the welfare detriment caused by abusive and overreaching litigation, is unsustainable.  I have expressed hope for a legislative improvement in copyright policy, though, not a judicial one.  That hope may be vain — and now it may be the exact opposite of what happens.

Was it a foreseeable risk that judges might blow past traditional bounds of fair use to make a point in a situation such as this?  There will be plenty of analysis on the question, as there ought to be, considering the following excerpts from the opinion (the link to which Randazza emailed me during the bleary-eyed hours last night).  Just working off the Wired article, here are some … interesting concepts.

One of them is that the court found a lack of standing, yet went ahead and ruled on the fair use issue anyway, writing, “Assuming Righthaven was found to have standing to bring this action, the Court nonetheless finds Hoehn is entitled to summary judgment on the ground of fair use of the Work.” That is rather unusual, and arguably resulted in a holding that is dictum.  It could also be described as an alternative ground for dismissing the complaint, of course, but, again, the court went the extra mile to make not only a point about fair use, but an arguably controversial one.

Moreover, the finding of fair use was based here on (a) a holding that the use was non-commercial, which (b) militated against applying the traditional rule that copying an entire work is prima facie infringement, or at least that the use of the work has a strong presumption against fair use in light of (c) the fact that there was no cognizable impairment of the economic value of the copyright.  The court makes this seem quite straightforward.  This factor certainly is, as the Media Bloggers Association brief filed in another Righthaven case in Nevada argues, certainly a significant one in the fair use analysis (which we could not urge in full, because the procedural posture was one of default judgment) and must be considered with respect to awarding damages, including statutory damages.  Fine, as far as it goes.

But every pendulum has its amplitude, and then it swings back. Read More…

No more free ride

Originally posted 2007-11-06 12:53:29. Republished by Blog Post Promoter

Attributor is a new program that online publishers can and do use to trace their verbal content across the Internet and see who is using how much of their stuff without paying or attributing.

Reading the articles (this one sent to me by my brother, software engineeer Glenn Coleman) it seems clear that most media outlets are interested in getting credit, and links back to their sites, for typical use of their materials, i.e., use that is defensible as “fair use” under the Copyright Act:

CEO Jim Brock gave me a demo of Attributor last week in the lobby of the Waldorf Astoria. Attributor is already indexing 100 million Web pages a day (15 billion total so far), but it is not a keyword index. It looks for bigger blocks of content. Right now, it can handle only text. Images are in beta. And video matching will go into beta early next year. If you are a publisher that is a customer of Attributor, it ingests all your content and comes up with matches. Attributor splits up the world between sites that exhibit extensive copying (more than half of an article, for instance) and just some copying. It shows which sites have linked back to the original source and which have not. “Often, that’s all they want—a link,” says Brock.

That last sentence is key, and tracks the advice I give inquirers in my professional role (including my job as general counsel of the Media Bloggers Association): If you help generate traffic to the media site that produced content that you’ve excerpted, you far more often than not have inoculated yourself against an infringement claim, if only from a business (as opposed to legal) point of view.

Now Attributor is here to enforce that eminently reasonable deal. It would be eminently reasonable, if you’re a blogger or other Internet publisher utilizing other people’s content, to be very aware of it.

Death By Lawyer

Originally posted 2007-06-13 20:42:40. Republished by Blog Post Promoter

They make that sound like a bad thing. Now, I wouldn’t agree with each and every little thing Stan Schroeder, the author of this article on Mashable, says — such as this about MP3.com of blessed memory:

In 2000, the owners started a new service – My.MP3.com – which enabled users to register CDs they legally own and make online copies on MP3.com’s servers. Although this about as legit as you can get, the record industry managed to sue them (!) and win (!?), and MP3.com had to settle the lawsuit, paying 200 million dollars in damages, which turned out to be a blow from which they would never recover.

“About as legit as you can get”? Yes, well, that’s what Cooley Godward thought, too. Judge Jed Rakoff didn’t see it that way, and — in his inimitable matter — he didn’t suggest there was a lot of doubt about the right answer, either. We never got a second opinion (i.e., one that mattered from an appellate court), so just don’t come away from this article with the wrong impression.

Still and all, a good piece, and food for thought. Hat tip to Overlawyered.

Online use of trademarks and copyrights by “unauthorized distributors”

Originally posted 2007-10-06 20:57:56. Republished by Blog Post Promoter

LIKELIHOOD OF CONFUSION does not generally comment about active cases in which we are directly involved. But a very important and detailed (61 pages!) summary judgment decision came down in the U.S. District Court for the Eastern District of New York last week, in the case of S & L Vitamins, Inc. v. Australian Gold, Inc., 2:05-cv-1217 in which I represent the plaintiff. And while we will not comment on the decision, for obvious reasons, any reader of this blog involved in trademarks and the Internet will want to read it. So here it is. Credit to David Nieporent, co-author on the plaintiff’s brief!

UPDATE: Cogent commentary from Eric Goldman and Matthew Sag; now comes Rebecca Tushnet.

Sewage Treatment

Originally posted 2005-05-25 08:17:00. Republished by Blog Post Promoter

The issue of companies that technologically filter the sludge that oozes out of Hollywood in order to preserve a semblance of entertainment or enlightenment in that product line, while perserving other sensibilities, is bubbling up. We addressed it earlier; naturally, it’s now being litigated. This is a fascinating topic and one that is addressed very thoroughly in an article in the New York Law Journal (registration required).

Here’s the heart of the matter:

Making copies of a movie and offering them for sale or rent, of course, is a plain violation of copyright law. To avoid this problem, editing companies buy multiple legal copies of each movie they offer so that they always retain a one-to-one ratio of ‘cleaned-up’ copies to originals. Some editing companies package the original DVD along with the edited copy — sometimes in disabled form –so it is clear that each sanitized copy is backed up by a legitimately purchased original. Under this scheme, the editing companies argue that they cannot be doing harm to content owners. In fact, they assert that, by establishing a new audience for these movies, they are actually increasing revenues to the content owners. This argument ignores the fact that a copyright owner has the exclusive right to create and sell derivative works from its content. If a market exists for cleaned-up movies sold at a premium, the studios argue that it belongs to them, not the editors.

The other solution is the use of a hardware filter. Here, again, is a powerful excerpt on what’s at stake: Read More…

Dead hand of copyright limited in UK

Originally posted 2007-07-25 01:01:52. Republished by Blog Post Promoter

Boing Boing reports that the English have done something impossible in our own country: Turned back an effort to extend copyright for, all practical purposes, ever — 95 years:

This is the first time that I know of, in the history of the world, that any country has given up on extended copyright terms. In the US, the Supreme Court found that 98 percent of the works in copyright were “orphans” with no visible owner and no way to clear them and bring them back into the world. Extending copyright dooms nearly every author’s life’s work to obscurity and disappearance, in order to make a few more pennies for the tiny minority of millionaire artists like Cliff Richards (and billionaires like Paul McCartney).

It gives one hope. (On the other hand… Cliff Richards?)

Other People’s Information Doesn’t Want to be Free

Originally posted 2005-03-12 00:00:00. Republished by Blog Post Promoter

Last night Santa Clara County Superior Court Judge James Kleinberg ruled in the Apple case that “reporters who published ‘stolen property’ weren’t entitled to protections. ”

B-b-b-b-b-b-but even if they’re reporters?!

Yes. Even if they’re reporters. This is not a First Amendment issue. Just ask The Nation.

1600 tweets, and whaddya get?

Originally posted 2010-04-27 13:36:08. Republished by Blog Post Promoter

Fortune
Here’s what I’ve got the last couple of weeks, in terms of tweety things.  This is as good a way to focus on and round up topical developments as any, I say–short of Blawg Review, which, by the way, is hosted by the IP Kat this week and is a must-read.

But here’s my selection, lightly annotated, of my recent 140-character expression via @roncoleman:

That should be plenty for now.  Gotta fly.

Unilateral copyright law

Originally posted 2006-10-23 23:37:37. Republished by Blog Post Promoter

Eugene Volokh joins the pile-on regarding a website that claims to exempt its contents from the liberating effects of the fair use doctrine.  The North Country Gazette, a publication whose editorial fare contains a remarkably high percentage of Terry Schiavo-oriented stories, takes the position that due to this fiat, we cannot excerpt the likes of:

An intoxicated Granville man has been charged with felony criminal mischief for throwing a portable urinal against the wall in a treatment room at the Glens Falls Hospital, destroying sterile equipment.

No, that doesn’t sound right.

But couldn’t the website, if they’d phrased it differently — as a contractual agreement, i.e., a condition precedent to use of the website — theoretically make such a stipulation stick?  Maybe, possibly.  But this heavy-handed approach seems assured to do only one thing:  Generate links to the website.  Which it has.

A back seat for copyright

Originally posted 2008-09-26 12:43:33. Republished by Blog Post Promoter

Let’s get apolitically political here (via Instapundit, Mr. Diversity himself):

An informal national coalition of Internet pioneers and users with widely divergent political views will issue a letter Friday morning calling on John McCain and Barack Obama to open the remaining debates completely to the public domain.

As Lawrence Lessig, a law professor and letter-signer put it, “Copyright, in my view, is essential and important, in some places. This isn’t one.”

Given how pre-programmed candidates are at debates, the issues won’t be as compelling as they are regarding other copyrighted works, but the principle at stake is still an important one.

How many points is INFRINGEMENT?

Originally posted 2008-07-27 16:19:12. Republished by Blog Post Promoter

We had been wondering who had the “Z.” Now the other tile drops, and probably right onto a triple word score — Hasbro, owner of the SCRABBLE trademark, has sued Scrabulous (complaint here; exhibits here):

The general manager for digital media and gaming at Hasbro said yesterday that the company had waited until there was a “legal” version of Scrabble on Facebook before it took action against the Scrabulous creators.

The lawsuit, filed in a US district court in New York, accused Rajat and Jayant Agarwalla – two software developers based in Calcutta – of violating Hasbro’s copyright and trademarks. Facebook was not named as a defendant.

Neither brother nor any representative from their web design company, RJ Softwares, could immediately be reached for comment today.

More here. The complaint is not online yet.* We’ll try to keep you posted.

UPDATE:  For what it’s worth — maybe, someday, my descendants will read this — I just remembered that my first-ever trademark research project as a paid legal professional was as a summer associate at Kaye, Scholer, where I was assigned to research a question involving some aspect of the Scrabble trademarks on behalf of client Selchow & Righter, which had then recently been purchased by Coleco and owned the rights to Scrabble before Hasbro bought them out of bankruptcy.  Of course the nature of the research I did is still confidential… even to me.  But I can say confidently that in the summer of 1987, it did not involve Scrabulous.

UPDATE:  The offending “app” is now gone from Facebook, while a thousand utterly idiotic — but non-infringing — ones live on!

UPDATE:  Victoria Pynchon does the heavy lifting:

If Player 1 opens with “fringe” (double word) for 24 points; Player 2 follows by slapping an “i” on the triple word score followed by an “n” for “infringe” and 33 points; and, Player 1 responds with “ment” for 19 points, the combined score for “infringement” is 75 points. Our readers can do the math and moves on “trademark” and copyright.”

UPDATE:  And… what ever did happen to Scrabulous, you ask?

* Even though, like all District Courts, the Southern District of New York, which describes itself as the Mother of District Courts, has mandatory electronic filing, you have to file the initial pleading or case-opening document in person, then go back, scan the file and mail it back to the clerk. If t They filed on Thursday the 24th;  the complaint should be was online some time Monday or Tuesday.