Tag Archives: Fair Use

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.

Let the games begin

Originally posted 2009-09-29 23:36:13. Republished by Blog Post Promoter

Yahoo! News reports:

Media conglomerate Viacom Inc. sued Google Inc. and its Internet video-sharing site YouTube for more than $1 billion on Tuesday in the biggest challenge yet to the Web search leader’s strategy to dominate the online video market.

The lawsuit accuses Google and its popular online video unit of “massive intentional copyright infringement,” threatening its ambitions to turn YouTube into a major distributor of entertainment and outlet for advertising.

This is going to come down to the old question that we wrestled with — without resolution — in the online auction context: Whether or not “trying really hard” to avoid copyright (or in the case of auctions, typically trademark) infringement is enough to get website such as YouTube (or eBay) off the hook.

Ironclads battle

In the case of eBay, where the issue is trademark, they have replicated the notice-and-takedown provisions of the copyright law and were tested on whether this helps — there is no safe harbor provision for trademark infringement — only by Tiffany, in a case that evidently never went anywhere.

Here there really is a legislative safe harbor under the Copyright Act. But why should an entire business model premised, at least in part, on profiting from copyright infringement get the benefit of a safe harbor? Viacom will argue that it shouldn’t.

UPDATE: Good analysis by Allahpundit and Google Watch. Meanwhile, when you’re a carpenter, every damned thing looks like a nail, doesn’t it!  Also, Evan has the complaint and a sharp rundown on it.

UPDATE BUT GOOD:  Settled in March 2014:

The settlement ends seven years of litigation that drew wide attention from Hollywood, the music industry and Internet companies, and which tested the reach of a federal law designed to thwart piracy while letting people find entertainment online.

“This settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together,” Google and Viacom said in a joint statement.

Terms were not disclosed. No money changed hands, a person close to the matter said. The person was not authorized to discuss the settlement’s terms.

Grey and not so good

Originally posted 2009-10-14 13:17:22. Republished by Blog Post Promoter

Yesterday’s Wall Street Journal had an extensive article on about companies that “borrow” trademark equity, or purported equity, from others to build their brands, pushing the edges of fair use and perhaps then some.  Marty Schwimmer has some multimedia backup (ok, well, talking heads) on this case, too.

Trademark: The tort of choice for censors

Originally posted 2009-10-20 23:46:20. Republished by Blog Post Promoter

Same old, same old we’ve been talking about since forever (via Glenn):

A posting over on the Big Government blog details recent attempts by the American Federation of Teachers (AFT) to shut down the website at AFTExposed.com (which, as you might guess from the name, doesn’t have very nice things to say about the AFT). The AFT’s General Counsel has sent the operators of the offending website a cease-and-desist letter, demanding “immediate cessation of use of the domain AFTexposed.com or any other variant that includes the acronym AFT.” The asserted grounds: (a) trademark infringement (that use of the AFT acronym is “likely to cause confusion, or to cause mistake, or to deceive”), and (b) violation of ICANN’s Uniform Dispute Resolution Policy (on the grounds that the AFTexposed.com name is “confusingly similar” to AFT’s trademark and was “registered in bad faith.”).

It’s pretty much pure unadulterated nonsense, little more than an attempt by the AFT to silence a critical voice, and I hope that the AFTExposed.com folks don’t cave in to the pressure. The trademark claim is very, very weak; consumers are pretty stupid sometimes, but they are not nearly stupid enough to be confused into thinking that a site called “AFTexposed,” which has as [its] tagline prominently displayed at the top of the site “The website the AFT doesn’t want you to see,” is somehow affiliated with the AFT.

Boomerang_(PSF)Well forget about the tagline; it’s too late once you get to the site — there’s already been an incidence of the dreaded “initial interest confusion” by then!  But David Post is right:  In this case, the domain name itself negates any possibility of that, and you’ve got nothing but fair, fair use for a defense.

That won’t stop a wealthy plaintiff, though — and who’s wealthier these days than public employee unions? — from suing, however.  After all, there’s pretty much never fee-shifting in defendants’ direction under the Lanham Act, although the statute does provide for it (or for that matter for frivolous copyright claims)  But good luck on that.

So trademark infringement remains the legal claim of choice for those seeking to shut down smaller, poorer message opponents.  File yours today!

UPDATE:  Johnny may not be able to read, but the AFT knows how to interpret blog traffic logs.  They’ve backed down.

S&L v. Australian Gold: You, the Jury

Originally posted 2009-01-08 21:34:29. Republished by Blog Post Promoter

Its all about the coin.

It’s all about the coin.

Here’s S&L Vitamin’s Trial Brief for the trial scheduled for next week in the above-entitled cause.  (Or you can read it at the bottom of the post).  We pick a jury on Monday, and after a day “off” for stuff I don’t even want to mention, opening statements are Wednesday morning.

Oh, all right.  Here’s Australian Gold’s trial brief.  I’m sure our distinguished adversaries are at least as proud of this work product as we are of ours.

I will not comment on the prospect of this trial, of course, at least not at this juncture.

But others have, more or less. And now, you can too!

Oscarwatch.com a trademark infringement?

Originally posted 2010-03-23 15:38:08. Republished by Blog Post Promoter

The Academy of Motion Pictures is suing a website called Oscarwatch.com. Fair use anybody? The site’s owner, Sasha Stone, has been doing his homework:

I used to watch Oscar all the time

“I am not trying to exploit the Academy’s trademark to offer competing goods and services,” Oscarwatch.com’s Stone told [The Hollywood Reporter].
“Rather, I am offering commentary that directly addresses the Oscars awards, a topic of great interest to the general public, thanks largely to the efforts of the Academy itself. I believe that the use of (Oscarwatch) to describe commentary about the Oscars is that of fair use.”

I believe he’s right. But this may be one of those close cases in which the mark holder still has to act. And in California, the Academy’s chances aren’t terrible, because many of their judges are.

UPDATE:  More of the same, and a case that Oscar Madison would certainly appreciate!

UPDATE: From the Citizen Media Law Project:

The parties settled soon after the lawsuit was filed, and Stone changed the name of his site to “Awards Daily” and his domain name to “http://www.awardsdaily.com.”

Ninth Circuit. Keywords. Trademarks. Hike!

Originally posted 2011-03-11 17:23:32. Republished by Blog Post Promoter

Here’s a roundup of what other people are saying about the decision in Network Automation, Inc. v. Advanced System Concepts, Inc. involving keyword advertising using other folks’ trademarks (a form of the dreaded “diversion“!) and perhaps implicating secondary liability for trademark infringement:

Well, that’s almost all the roundup you need!  In fact, here’s the “takeaway” of Eric’s post:

9th Circuit court building with sign

We’ve had surprisingly few appellate decisions involving keyword advertising generally, and almost none involving trademark owners’ lawsuits against keyword advertisers (as opposed to suing keyword sellers like search engines). On that basis alone, this ruling is important. The case is also remarkable because the opinion, written by highly regarded Judge Wardlaw, gets so many things right.
Perhaps that sounds like damning with faint praise, but the reality is that the Ninth Circuit’s Internet trademark law has become horribly tortured due to deeply flawed opinions like the 1999 Brookfield case. This opinion deftly cuts through the accumulated doctrinal cruft and lays a nice foundation for future Internet trademark jurisprudence.
The only sour note is that the opinion makes some unnecessary and empirically shaky “presumptions”–exactly the kind of unfortunate appellate court fact-finding that got the Ninth Circuit into trouble into the first place. Still, given how this opinion could have turned out, I still give this opinion very high marks.
Yeah, Eric is great on that “presumption” stuff — and how badly judges wing them when it comes to trademark.  And Rebecca?

Read More…

SUPER BOWL® trademark post XI: Consumer Reports and the super-duper exemption

Originally posted 2012-01-30 15:50:19. Republished by Blog Post Promoter

Yes, it is that time of year again — the SUPER BOWL® trademark overreaching (dare I say bullying?) time of year.  This January I’m focusing on this article from, of all places, Consumer Reports, which focuses on the BIG GAME non-trademark aspect of the NFL’s X’s and O’s on this:

[I]f you’ve been searching the Web for an amazing Super Bowl deal on an HDTV only to find the pickings slimmer than a runway model after a three-day fast, we have another suggestion: Try substituting the term “Big Game” for “Super Bowl” in your search engine.

Get a bit more action? That’s because retail ads and promotions can’t legally use the phrase “Super Bowl”—or even “Super Sunday”—unless the companies have paid big bucks (really big bucks) to the NFL, which owns the trademarks to the two terms. Fortunately, exceptions are made for news organizations like Consumer Reports, or this article would have a different headline.

Good idea on the search strategy. But not quite sure I get that last line.  Yes, they’re right about the application of the fair use doctrine to news and commentary, but mistaken (and surprisingly, given Consumer Reports‘ supposed mission) in suggesting that non-profit organizations are per se entitled to assert the defense without regard to the nature of the use in question.  They are not.


Non-profit use of a trademark is indeed a factor courts consider when analyzing fair use.  Now, the fact is there is no way on earth this article (but wait, there’s more!) constitutes a prima facie copyright or trademark infringement such that fair use would have to be asserted in an action by the NFL.  But even if it did, there is no bright-line “exception for news organizations.”

I sure hate to think that, laboring under such a misapprehension, Consumer Reports is actually refraining from giving accurate, descriptive names to its publications that happen to be someone’s copyright or trademarks.

In fact, Consumer Reports’ misunderstanding of the fair use doctrine is so profound, from how I understand it, anyway, that this next part is not too surprising, though it is pretty amusing (sorry, it just is) — and it clearly does not look at all like fair use!:

Find all of our Super Bowl coverage in one place on ConsumerReports.org: Super Bowl XLVI game plan helps you pick out the best TVs for watching the game, how to find those TVs, apps that’ll augment your fun, the tastiest TV-watching treats, and lots more.

Really?!  Maybe there is a super-duper blanket exception for Consumer Reports!  We’ll see.

I do like this from the piece:

But just as it’s done in years past, regional retailer H.H. Gregg is once again pushing up against the NFL’s Super Bowl advertising restrictions—this year with a website that sports a very Super Bowl-looking logo, complete with the words “Super Sale” and the Roman numerals “XLVI.” I guess some retailers figure “Big Game” promotions call for some big-time gambles, and not just on the outcome of the game.

Perhaps other retailers will also adopt more creative end-arounds to help promote football-oriented TV sales without violating the NFL’s trademarks. As we get closer to game day, let us know if you see any local ads that tie in to a “Big Game” promotion, or if you notice any especially creative ways a dealer is finding to promote “super” sales without getting flagged by the NFL for trademark encroachment.

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Worth a thousand words

Originally posted 2012-10-23 19:15:22. Republished by Blog Post Promoter

Special Civil Part courtroom, Essex County Hall of Records, Newark NJ
How much use is fair use — i.e., permissible use — when it comes to graphics and photographs you “find” on the Internet?

Not too much.  As I said a while back in a chat with friend John Hawkins:

What’s the most common mistake you see bloggers making? What are you seeing people do that could get them sued?

Well, it’s fair to say that well over 90% of bloggers are not risking any legal trouble. Most people write their original thoughts, they make legitimate links, and even things like hotlinking graphics, even aside from the copyright issue, are probably not actionable. It’s interesting to think about whether if you knocked out someone’s website with a hotlink to a graphic, he could come after you on a trespassing theory…

But if there is any single problem that seems to consistently be out there, it’s copyright infringement regarding the use of photographs from news services.
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The ugly side of branding

Originally posted 2013-02-06 13:58:13. Republished by Blog Post Promoter

Who but the ultimate trademark pig the NFL would make unwilling third parties endorse their sponsors?

Makes me want to throw a SUPER BOWL PARTY!