Tag Archives: Copyright Law

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!

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Best of 2009: The DMCA and the search engine

DMCA 1998Posted on August 6, 2009.

Traverse Legal:

Mary Roach has a great post at CircleID on an area that we have talked about extensively, namely, copyright takedowns under the Digital Millennium Copyright Act.  Mary’s post covers the more specific strategy of sending takedown notices to search engine providers, such as Google, Yahoo, and MSN, to effectively reduce access to stolen creative materials.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

That’s worth checking out.  How does it work?  As Mary writes,

[R]ather than identifying the infringing copyrighted material itself, rights owners must instead identify the search result or directory page which links to a webpage containing the infringing material. For example, this would require providing the keyword or keyword phrase used in a search or directory query, plus the URL(s) which point to the infringing websites in the DMCA complaint.

You can just imagine the bells going off in my head when I read that formulation.

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Best of 2009: “Infinity Dollars” — IP damages and the jury, Part 1

Originally posted 2009-06-19 12:07:08. Republished by Blog Post Promoter

JuryA lot of people, including judges, lawyers and civilians, don’t seem to really understand what statutory damages are all about.  They are not supposed to be a windfall (discussed more here).  But just tell that to the jury that awarded “infinity dollars” — practically — to the Lords of Music for what was indeed knowing copyright infringement of two dozen songs, and to the person on whose head the jury just laid that award.

I’m not an “information wants to be free” nutter, and musical compositions aren’t “information” anyway except to the most heartless utilitarian, but Stan Schroeder (presumably no nutter either, but probably to my left on this issue) hits it right on the head:

Ten Years of LIKELIHOOD OF CONFUSION®

In one of the most ridiculous verdicts I’ve seen, the jury decided that Jammie Thomas-Rasset, the first woman who was charged with copyright infringement and offered to settle but decided to fight the RIAA, is guilty and owes the recording industry 1.92 million dollars, or $80,000 per song.

As we mentioned in our original article, Jammie’s case was full of holes, and she probably would have done better if she had just settled with the RIAA. But what’s striking here is the amount of money awarded to the recording industry for infringing the copyright for just one song.

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Best of 2009: Properly classified — there’s no “significant doubt”

Originally posted 2009-03-14 23:59:47. Republished by Blog Post Promoter

US President Barack Obama gestures for the crowd to keep quiet about his visit to the O&H Danish Bakery to buy kringle pastries so that First Lady Michelle Obama wouldn't find out about the visit, during a town hall event on the economy at Racine Memorial Hall in Racine, Wisconsin, June 30, 2010. AFP PHOTO / Saul LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)

Photo: SAUL LOEB/AFP/Getty Images

CORY DOCTOROW: Obama administration: releasing details of secret copyright treaty endangers”national security.” Er, what?

Good question, Instapundit.  Click through — the original story is here, at Wired.  The reference is to the so-called Anti-Counterfeiting Trade Agreement, or ACTA.

But you can really see all you need to see by reading the letter from the Administration responding to a Freedom of Information Act request for disclosure of this information about a copyright treaty by stating that the documents the documents you seek are being withheld in full pursuant to 5 U.S.C. sec. 552(b)(1), which pertains to information that is properly classified in the interest of national security pursuant to Executive Order 12958.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Well, good to know they’re being properly withheld!

But can this truly be the case?

Here’s what that Clinton-era Executive Order says (in part) about what shall and shall not be deemed classified (emphases added): Read More…

Best of 2008: Someone dropped in an extra zero, right? RIGHT?

Posted on October 16, 2008.

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.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

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: Read More…

Best of 2006: Who owns the copyright in scans of public domain works?

Originally posted 2006-05-07 11:39:56. Republished by Blog Post Promoter

First posted on May 7, 2006.

I love Plan59.com. If you’re my age or a little older, almost any click on this smartly designed and comprehensive website can recreate a certain feeling that comes with recalling a much more secure, confident and simple America — kind of like the grown up version of Dick and Jane.

Rockwell copy copy copy

Great metaphor. Probably not great fair use.

I would use the graphics from Plan59.com every day if I could, but I don’t have their permission. On the other hand… whose graphics are they, really? They put it this way:

PLEASE NOTE: The images on this site are embedded with an invisible digital watermark and IPTC metadata. Are you free to scan and market images out of that nifty 1936 Hupmobile brochure you got at the flea market? Yes, if it was published without a copyright, or if the copyright has expired. Is it okay to use the images we’ve made from the same catalog? Ahem, cough. We own the scans we’ve made—they represent a considerable investment in equipment, source materials and labor over the past five years. Every jpeg and gif on this site is copyrighted and marked as belonging to us. Please, no borrowing without getting permission.

10 Years of Bloggy Ok-Ness

10 Years of Bloggy Ok-Ness

Hmm. What they’re saying is that the Hupmobile image is in the public domain, but that they have made a new, derivative work from it by virtue of their “considerable investment in equipment, source materials and labor.” Well, that sounds fair. If they thought they couldn’t protect their work, they probably wouldn’t have gone through the trouble. But does it comport with copyright law?

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Copyright belongs to the ages

Originally posted 2008-03-23 17:14:32. Republished by Blog Post Promoter

US-CopyrightOffice-Seal.svgMedia Wonk:

No wonder they call Economics the Dismal Science. At the Internet Video Policy Symposium in Washington yesterday (co-sponsored by Content Agenda), a chorus line of academic economists postulated that content owners face a far more difficult challenge than they know in monetizing their content on the Internet, and that the odds that we can build our way out of the current debate over how to manage scarce online capacity are virtually nil.The most enthusiastically glum was Gerry Faulhaber, a professor at the Wharton School of Business at the University of Pennsylvania and the former chief economist for the FCC. According to Faulhaber, copyright is a dead letter.

“Copyright is a very big issue in the legal world today, but in the business world, when you talk to consumers about protecting copyrights, it’s a dead issue,” he said. “It’s gone. If you have a business model based on copyright, forget it.”

Provocative, I suppose, though it sounds like an overstatement, and not necessarily all that logical. The copyright regime has never depended on the opinions of non-stakeholders, merely the ability to penalize them for infringement. The technological / legal dance is far from over. I would say that the Microsoft business model, to give one example of one that is “based on copyright” at least in part, is not exactly in “forget it” mode, and will not be all that fast.

But that’s not to say it looks good for copyright as a linchpin of monopoly-type business models in the future. No, no, no.

War Is Peace; Freedom is Slavery; Ignorance is Strength

Originally posted 2007-03-28 19:08:24. 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.

Madden ’nuff

Originally posted 2011-10-04 18:42:58. Republished by Blog Post Promoter

Here’s a guy who just may be in for some serious money!

So, what magic words can resurrect a potentially multi-million-dollar copyright lawsuit from a statute of limitations bar?  “They lied!”

Daniel Davidson explains regarding a suit against gaming giant Electronic Arts over the IP powering its famous Madden NFL franchise:

The iconic game that has caused millions of men to disregard the women in their life and convince them that they could replace the likes of Bill Belichick and Rex Ryan due to their skills, has been sued by the “original” designer.

Robin Antonick, the guy credited with creating the first version of the game has filed a lawsuit against Electronic Arts over their use of his intellectual property.  He alleges that his software, released in 1988, is still being used by the Madden NFL franchise and that he has not been compensated appropriately.

The story begins when EA split ties with Antonick and told him that they would not be using any of his intellectual property because the game was going to be transformed into more of an “arcade” game.  This was told to him in the early 90s.  Upon this representation by EA, Antonick went silent until recently when he heard the founder of EA make a reference to how they still utilize the original software.

It has probably come to your attention now that there must be some sort of statute of limitations against Antonick’s claim.  It has been almost twenty years.  This is a valid assumption.  The statute of limitations for copyright claims is three years and the clock starts when the infringement stops.  With almost two decades down, EA could have [defended on the ground] that their infringement stopped and that his time has come and gone, but then there is a little thing called “tolling.”  Tolling is a defense to statute of limitations in which the time does not start until the copyright owner has actual knowledge of the infringement.

In the present case, Antonick alleged just that.  That he was kept in the dark about any infringement.  The judge agreed and his first step toward millions of dollars in compensation has been made successful. Cheers.

That is one neat little blog post!  (“[A]nd then there is a little thing called ‘tolling.'”) And a neat little legal claim too.  What’s the line on an early settlement?

Smocking it out

Originally posted 2007-05-21 18:21:57. Republished by Blog Post Promoter

Sabrina alleged knockoffBen Manevitz updates us on the Diane van Furstenburg “you stole my smock” litigation.

Ben’s take: “As a litigator, I’m going to give everyone involved in any litigation the secret! the best piece of advice ever! Ready? Here: Shut Up!”

Easy advice to give, but darn it, I like to say “smock”!  Smock, smock, smock, smock, smock, smock.

Mourning Sonny

Originally posted 2009-01-01 16:58:41. Republished by Blog Post Promoter

Posted on November 17th, 2008:

No, not that Sonny. No, rather this: If America’s most famous variety-show-star-turned-congressman hadn’t slammed into that tree on that fatal day of downhill skiing, we’d probably never have the Sonny Bono Copyright Term Extension Act of 1998. That’s reason to mourn him right there.

Fair enough — if he’d sat in the lodge and drank cocoa instead we would probably still have the law, but at least its embarrassing content would not be matched with a preposterous name. But given that it is what it is, ten years later, what is it? Gigi Sohn says well:

How can you measure the number of new works and new wealth that were not created because of the extended terms? Or the number of new orphan works created? But since it has been shown that about 98% of copyrighted works lose their value between year 55 and year 75 of protection, we know who has profited from the law – large, multinational media companies like Disney, Fox and NBC-Universal, who maintain a vise-like grip on works that should have belonged to the public years ago. Suffice it to say that the Sonny Bono Act was nothing more than corporate welfare for big copyright holders. . . .

Ok, I got that off my chest. Now let me say something positive about both the DMCA and the Sonny Bono Act. The simultaneous passage of these two copyright strengthening bills, despite the strenuous objections of libraries, arts and cultural organizations, consumer electronics companies, and cyberliberties groups clearly hit a nerve, and became the impetus behind the copyright reform movement. . .

[W]hile we’ve stopped many bad things from happening, we have not yet been able to get any law or policy adopted that would bring some balance (or sanity) back to copyright law.

Read it! Hat tip to Denise Howell, via Twitter.

Comment here.

Oy vey

Originally posted 2009-03-09 12:11:57. Republished by Blog Post Promoter

Consider the other side of the aggrieved vandalism promoter Shepard Fairey, of HOPE poster fame:

Obey the "Hypocrite"'s Lawyers!

Obey the "Hypocrite"'s Lawyers!

Gawker: “Obey” Trademark Law:

Some guy in Pittsburgh sells little baby Steeler mascots with the phrase “Obey Steeler Baby.” Shepard Fairey demands that he stop infringing on his trademark, which he originally made famous by ripping off the image of Andre the Giant!

Well, if that‘s who he ripped off, then he really does have guts, I guess!

UPDATE:  Fairey’s got even bigger trouble than that.