Archive for the ‘intellectual property’ Category

City of London Police Hijacking Websites Without Court Orders

Thursday, October 10th, 2013

Some scary news out of London. The City of London Police has a new Intellectual Property Crimes Unit, and they are demanding – without a court order – that domain registrars shut down websites and redirect traffic to commercial websites that seem to be affiliated with the companies that made the triggering complaints to the police.

EasyDNS’s Mark Jeftovic – one recipient of these demands – is fighting back. He’s posted Whatever Happened to “Due Process” ? on EasyDNS’s blog.

Among the good points he makes:

Who decides what is illegal? What makes somebody a criminal? Given that the subtext of the request contains a threat to refer the matter to ICANN if we don’t play along, this is a non-trivial question. Correct me if I’m wrong, but I always thought it was something that gets decided in a court of law, as opposed to “some guy on the internet” sending emails. While that’s plenty reason enough for some registrars to take down domain names, it doesn’t fly here.

We have an obligation to our customers and we are bound by our Registrar Accreditation Agreements not to make arbitrary changes to our customers settings without a valid FOA (Form of Authorization). To supersede that we need a legal basis. To get a legal basis something has to happen in court.

(Emphasis and links omitted.) He also makes this point:

What gets me about all of this is that the largest, most egregious perpetrators of online criminal activity right now are our own governments, spying on their own citizens, illegally wiretapping our own private communications and nobody cares, nobody will answer for it, it’s just an out-of-scope conversation that is expected to blend into the overall background malaise of our ever increasing serfdom.

By the way, the City of London Police is the smaller of two police forces in London. The other is the Metropolitan Police. The City police are responsible for the smaller and older portion of London that is referred to as “the City,” which includes the center of the finance/banking industry as well as many of the major law firms. The Houses of Parliament, Buckingham Palace, and most of the rest of what you think of as London is outside the City and under the jurisdiction of the Metropolitan Police.

More:

Some Blog Law for Super Bowl Sunday

Sunday, February 3rd, 2013

NFL logoHappy Super Bowl Sunday!

For some NFL-related blog law, I’ll refer you to a paper I wrote, The NFL, Intellectual Property, and the Conquest of Sports Media, 86 North Dakota Law Review 760 (2010).

It includes mention of the NFL’s extremely aggressive stance toward bloggers that attempt to do play-by-play coverage of games, including it’s ejection of a New York Newsday reporter from Giant Stadium for live blogging.

My conclusion is that the NFL’s press policies and its assertions of intellectual-property ownership represent a threat to press freedoms of the sports and news media.

Intellectual Property and Social Media (Part 1)

Sunday, January 6th, 2013

Right now at the American Association of Law School’s annual conference, the Section on Intellectual Property is about to present a panel called “Intellectual Property and Social Media.” It’s another on-point topic for Blog Law Blog

The abstract/write-up is below. I’ll blog some realtime coverage on Twitter @tweetlawtweets with a follow-up posted here later.

Social media, such as Facebook, Twitter, Pinterest, and 23andMe, have changed the ways we communicate, create, innovate, and advertise. As the components of creation and brand- ing become more social, collaborative, instantaneous, and atomistic, various legal doctrines that have long governed copyright, patent, and trademark law may need to be rethought. Social media are being used to further genetic research, change how content is made, and draw users into the innovative process. This panel considers the challenges raised by social media to traditional intellectual property law, and explores the doctrinal implications of those challenges.

Blogger’s Fair-Use Argument Regarding Copyrighted Photo Questionable

Tuesday, November 20th, 2012

Screengrab of RK Associates blogA blogger’s use of a photo of the target of her posts has prompted a copyright infringement lawsuit from the person she writes about – and leads to some interesting questions about fair use of copyrighted material.

Irina Chevaldina maintains a blog styled “RK Associates” whose sole purpose seems to be criticize the business dealings of Miami-area businessman Ranaan Katz. The blog intro says:

This blog presents publicly available information about RK Centers (former RK Associates), including court records, media publications and opinions. Raanan Katz is the owner of RK Associates (Centers). Raanan Katz is a minor owner of Miami Heat.

The offending picture of Katz is a head shot apparently taken courtside (by someone other than Katz) at a basketball game in Israel. The picture appears in several posts, recently with the message “He ripped off special needs little Jewish girl” superimposed over his chest.

Here’s where it starts to get interesting: Katz apparently bought certain rights to the photo, in the interest of bringing a copyright infringement suit against Chevaldina, which he then did in the U.S. District Court for the Southern District of Florida. Her lawyers have filed a motion to dismiss the case. In it, Chevaldina’s lawyers correctly point out that Katz cannot make any claim of infringement occurring before he bought the rights on May 29, 2012, absent any evidence that he bought the right to sue for past infringement.

The other claims in the trial motion – at Defendant’s Second Motion to Dismiss, Katz v. Chevaldina, No. 1:12-CV-22211-JLK, 2012 WL 4504086 –  lay out the battleground for the brewing legal fight.

The lawyers lead with the argument that Chevaldina can successfully raise a fair-use defense under the Copyright Act:

When determining the fair use of copyrighted materials for purposes such as criticism, comment, news reporting, teaching, scholarship or research, courts look to the following factors:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107. [other citations omitted]

No one factor in the fair use analysis is dispositive, and they must be weighed together.

Now, Chevaldina’s lawyers seem to say that because Chevaldina wants to criticize Katz the businessman, it is OK for her to use a copyrighted picture of Katz the basketball fan to do so. Criticism in the Copyright Act sense more typically references criticism of the copyrighted work itself (think of book or movie reviews, analyses of museum exhibits, and the like).

So it will be interesting to see how that part of the case develops.

Chevaldina’s lawyers also correctly point out that courts value news uses of copyrighted works in the fair-use analysis:

In assessing the components of the four factor test, the Court is mindful that, while § 107 does not accord the statutory factors any particular weight in relation to one another, the characterization of defendant’s use as news related carries great weight in the analysis of fair use.

They further assert that Chevaldina’s use is a news use. Their brief lacks any exposition on this point, though.

Chevaldina’s lawyers also contend that her use of the photo is transformative, another key element in a Copyright Act fair-use defense:

The transformative nature of copyrighted material’s use is determined by whether the use adds something new to the copyrighted work, altering the first with a new expression, meaning or message; the more transformative the work, the less will be the significance of other factors potentially weighing against fair use.

Of course, the use in question does not have to transform the photo itself to be a transformative use.

So, again, it will be interesting to see how this all plays out as the case moves forward.

2012 Election Coverage from a Blog Law Perspective

Wednesday, November 7th, 2012

vote button red white and blue over American flagAs promised, here’s your blog-law-focused election coverage:

Barack Obama, a critic of SOPA, beat Mitt Romney, a foe of net neutrality, for President of the United States.

The main Congressional race of interest from a blog-law perspective is still to call at this hour. But Republican Congresswoman Mary Bono Mack, sponsor of the 1998 Copyright Term Extension Act, is trailing Democratic challenger Raul Ruiz by 48.6% to 51.4% with 66.5% reporting. Mack, widow of entertainer Sonny Bono, for whom the copyright term extension law was named, was also an early proponent of SOPA, those she later said the bill raised “legitimate concerns.”

Other key players in internet law won re-election easily.

Democratic Representative Zoe Lofgren from Silicon Valley, who is one of the strongest members of Congress when it comes to resisting legislation that threatens blogs and the internet, was re-elected with 72.4% of votes cast.

Republican Representative Darrell Issa, a very vocal critic of SOPA, handily won re-election in the California 49th.

Republican Representative Lamar S. Smith, the House Judiciary Committee Chair and chief advocate of SOPA, cruised to re-election in the Texas 21st by a margin of 25 points.

Republican Senator Orrin Hatch, sponsor of the 1998 Copyright Term Extension Act, was re-elected from Utah.

Trademark Infringement in the Presidential Election?

Wednesday, October 17th, 2012

Romney Believe in America - Get the DetailsI don’t want to spoil anything, so click here if you want to find out about the details of the Romney tax plan, including how he will cut $5 trillion in spending without increasing the deficit.

Cute, huh? (At least if you are a Democrat.) Now that you’ve seen that, let’s think about the legal implications. The website, romneytaxplan.com, is a product of the Democratic National Committee. Yet the website conspicuously carries the Romney campaign logo and uses the Romney campaign’s slogan and adopted typestyle. So, is there a trademark problem?

Yes and no.

This is a good example of why it is so important in evaluating intellectual property problems to not only apply the blackletter law, but to also ask the practical question: Would this plaintiff sue?

Trademark law should generously protect parody uses of trademarks. Yet it doesn’t always. Consider this parody ad that appeared in a humor magazine called Snickers:

One taste and you'll drink it oily. Michelob Oily.

The case was Anheuser-Busch, Inc. v. Balducci Publications, 28 F. 3d 769 (8th Cir. 1994). Anheuser-Busch, brewers of Michelob, sued for trademark infringement and trademark dilution. The federal district court dismssed the case, but the Eighth Circuit Court of Appeals reversed, holding that the brewery could continue on with its action. I seriously disagree with that case. And there several cases upholding dismissals in the realm of trademark parody. But the Anheuser-Busch case is still, regrettably, good law.

There’s also the case the U.S. Chamber of Commerce pursued against a prankster group, The Yes Men, who produced a faked Chamber of Commerce press release and website to go along with a fake press conference they held about support for climate change legislation.

The fact is, the Romney campaign can sue the DNC and the case would have some legs.

But will they?

No way.

There’s no way the Romney campaign is going to draw attention to the website and look humorless and loser-y by filing suit. Or even threatening. So it’s a good call by the DNC to ignore precedent that points to a potential for legal liability. Calculated risk-taking is often the right prescription when advising clients about IP liability concerns.

Wanting a Chance to Be Heard in New Trade Negotiations

Friday, May 11th, 2012

The Office of the U.S. Trade Representative is conducting closed-door negotiations for a new trade deal involving intellectual property – the Trans-Pacific Partnership Agreement. Big Hollywood and Big Pharma are involved and are allowed to see negotiation documents. The public is not. Once the deal is concluded, it could bind Congress to change IP law and restrict free-speech, fair-use, and access-to-information rights.

In a brash move snubbing the lobbyist-challenged public, the Office of the U.S. Trade Representative decided to cancel a very limited opportunity for people to voice their concerns at a “stakeholder” meeting.

The following is an abridged version of a letter to the signed by many legal academics to the U.S. Trade Representative, Ambassador Ron Kirk.

The letter was written by law professors David S. Levine of Elon, Christopher Jon Sprigman of UVA, and Sean Flynn of American U.

Dear Ambassador Kirk:

We write as legal academics from the US and current or potential future Trans-Pacific Partnership Agreement (TPP) member countries to express our profound concern and disappointment at the lack of public participation, transparency and open government processes in the negotiation of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP). We are particularly and specifically concerned that the United States Trade Representative (USTR) took the opportunity of its hosting of the latest round of negotiations in Dallas, Texas, to begin this week, to further restrict public involvement in the negotiations by eliminating the full-day stakeholder forums that have been hosted at other rounds. We call on the USTR and all TPP negotiating countries to reverse course and work instead to expand, rather than contract, the opportunities for public engagement in the formation of the TPP’s intellectual property chapter.

At a time when the last international intellectual property law to be negotiated under a similar process, the Anti-Counterfeiting Trade Agreement, teeters on the edge of rejection by the European Parliament in large part because of the loss of faith in its secretive process demonstrated by hundreds of thousands of marchers across Europe, the move to scale back participation in the TPP appears highly unwise and counterproductive. The functional and theoretical impact of the lack of transparency and accountability in the TPP and other trade negotiations institutionalizes the kind of process that the late Senator Daniel Patrick Moynihan criticized as policy making through “ignorant armies clash[ing] by night.” This is no way to build support for a broad reaching new international law that will constrain democratic law making over intellectual property matters in the US and abroad, particularly in an era of massive and rapid technological change that is testing the bounds of our current policy framework.

Our first and most important suggestion is to immediately begin a policy of releasing to the public the kind of reports on US positions and proposals on intellectual property matters that are currently given only to Industry Trade Advisory Committee members under confidentiality agreements. The USTR has previously refused to share its own proposals with its own citizenry claiming that, under the Freedom of Information Act (FOIA), to do so would damage the national security of the United States. …

Our concerns flow from the now-established observation that “trade” agreements no longer focus exclusively, or perhaps even predominantly, on the regulation of trade. Rather, the agreements increasingly propose international law standards that bind the legislative branch to change, or lock in place, domestic regulatory decisions. …

Unfortunately, there is little about the TPP negotiating process that is open to the broad range of inputs that would be reflected in domestic policy making. There has been no publicly released text of what USTR is demanding in these negotiations, as there would be in policy making by regulation, in Congress or in multilateral forums. Reviews of leaked proposals show that the US is pushing numerous standards that are beyond those included in any past (i.e. publicly released) agreement and that could require changes in current US statutory law. Reviews also show that the US proposal is manifestly unbalanced – it predominantly proposes increases in proprietor rights, with no effort to expand the limitations and exceptions to such rights that are needed in the US and abroad to serve the public interest. …

The unbalanced product results from an unbalanced process. The only private individuals in the US who have ongoing access to the US proposals on intellectual property matters are on an Industry Trade Advisory Committee (ITAC) which is dominated by brand name pharmaceutical manufacturers and the Hollywood entertainment industry. There is no representation on this committee for consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property, and minimal representation of other affected businesses, such as generic drug manufacturers or internet service providers. …

All of the above makes the most recent further withdrawal from the TPP negotiation of a limited participation venue particularly disturbing. … While far from ideal for all involved, including the USTR and its ITAC advisors, this mechanism at least allowed for some exchange, even if that exchange was fundamentally flawed and artificially limited in value because of the information-disparity problems discussed above. In the place of these full day open forums in Dallas, USTR has channeled stakeholder input into a 4-hour mid-day (10:30am-2:30pm, i.e. over the lunch hour) exhibit hall for stakeholder tables. There will be no opportunity, as in the past, to speak to assembled negotiators through presentations. …

Likes, Takedowns, and Server Seizures – Great Posts from Goldman’s Blog

Monday, May 7th, 2012

Eric Goldman

Here’s just some of the required reading coming off of Eric Goldman’s Technology and Law Marketing Blog:

Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts

This is a case where a sheriff fired sheriff’s department workers after they Facebook-liked the sheriff’s opponent in an upcoming bid for re-election. Venkat Balasubramani and Eric G. explain why the court’s wrong that liking someone on FB isn’t protected First Amendment speech. I agree, of course. It’s a baffling decision.

512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom

This is exactly the kind of thing your civil procedure professor was talking about when they said “procedure is substance.” Big Hollywood is free to machine-gun takedown notices out there, and despite a substantive legal right to get redress for such bogus takedowns, the procedural requirements make the right nearly worthless, turning §512 of the Digital Millennium Copyright Act into something quite different than what you would think it is just by reading it.

As Eric G. notes, “unless the 512(f) plaintiff has smoking-gun evidence of the copyright owner’s bad intent before filing the complaint, the plaintiff has virtually no chance of getting a 512(f) claim into discovery.”

Comments on the Megaupload Prosecution (a Long-Delayed Linkwrap)

The Megaupload case is one of those things that is extremely troubling, but it can be hard to explain exactly why it’s troubling in a pithy way. But here’s a quote from Eric G. that does a pretty good job:

The government is using its enforcement powers to accomplish what most copyright owners haven’t been willing to do in civil court (i.e., sue Megaupload for infringement); and the government is doing so by using its incredibly powerful discovery and enforcement tools that vastly exceed the tools available in civil enforcement; and the government’s bringing the prosecution in part because of the revolving door between government and the content industry (where some of the decision-makers green-lighting the enforcement action probably worked shoulder-to-shoulder with the copyright owners making the request) plus the Obama administration’s desire to curry continued favor and campaign contributions from well-heeled sources.

The resulting prosecution is a depressing display of abuse of government authority. It’s hard to comprehensively catalog all of the lawless aspects of the US government’s prosecution of Megaupload …

Megaupload’s website is analogous to a printing press that constantly published new content. Under our Constitution, the government can’t simply shut down a printing press, but that’s basically what our government did when it turned Megaupload off and seized all of the assets. Not surprisingly, shutting down a printing press suppresses countless legitimate content publications by legitimate users of Megaupload. Surprisingly (shockingly, even), the government apparently doesn’t care about this “collateral,” entirely foreseeable and deeply unconstitutional effect.

What do these three recent developments all have in common? Big guys win, little guys lose. Sometimes law is very dispiriting.

Righthaven Story by Defendant Eriq Gardner is ABA Journal Cover Story

Thursday, April 26th, 2012

Eriq Gardner, legal-issues journalist for the Hollywood Reporter, has penned the ABA Journal magazine’s new cover story: “The Righthaven Experiment: A Journalist Wonders If a Copyright Troll Was Right to Sue Him.”

As a funny aside, the online version of the story says “Posted May 1, 2012 5:20 AM CDT.”

As I write this, it’s April 26, 2012 7:35AM CDT.

Posted May 1, 2012 5:20 AM CDT By Eriq Gardner

Court in Texas Should Uphold the Full Lousiness of Patent Law

Friday, February 24th, 2012

Over on my Pixelization blog, I’ve explained why I think a ridiculous patent that threatens Silicon Valley should have carried the day in a federal court in Texas:
Court in Texas Should Have Upheld the Full Lousiness of Patent Law

On the Radio Talking About SOPA!

Thursday, January 19th, 2012

Guess what I did today! I was on the radio talking about SOPA! Not an internet radio station, but a real stick-in-the-ground over-the-airwaves AM radio station: KNOX 1310 Grand Forks, a talk program hosted by Brian Michaels and Denny Johnson.

Has the MPAA and RIAA finally overreached when a law professor is on a midday radio show talking about INTELLECTUAL PROPERTY? Yup, I think so.

Thanks to the blackout against SOPA, and mostly Wikipedia’s part in it, Copyright’s suddenly become a mainstream political issue. The blackout against SOPA was even on NBC Nightly News with Brian Williams last night! How about that?

Down Against SOPA

Wednesday, January 18th, 2012

Today, Congress is considering passage of SOPA – the Stop Online Piracy Act – legislation that would destroy the free architecture of the internet and initiate censorship.

I’m blacking out Blog Law Blog for the day to join with many others in showing symbolically what the internet could look like if this bill becomes law.

If you are in the U.S., please take a moment to contact your representative to register your opposition.

Blackouts Tomorrow for SOPA and PIPA

Tuesday, January 17th, 2012

Wikipedia is planning to blackout its whole site tomorrow as a protest to SOPA and PIPA – those internet censorship-in-the-name-of-fighting-intellectual-property-piracy bills on Capitol Hill. I know other websites are planning or contemplating the same.

I think I’ll do the same here on Blog Law Blog. I just have to figure out how to do it in terms of the code on the back end. If you are planning to join in, read up on how to do it the right way so you stay friendly to search engines.

White House Blogs in Response to Anti-SOPA Petitions

Monday, January 16th, 2012

The White House has responded to online petitioning done by opponents of SOPA. In a blog post, IP czar Victoria Espinel, U.S. CTO Aneesh Chopra, and national cybersecurity coordinator Howard Schmidt wrote:

While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.

That’s very good to hear.

Social Media Gotchas in Court – Plus: Professor Goldman’s Innovation Giveaway

Friday, January 6th, 2012

refrigeratorProfessor Eric Goldman has been keeping a list of cases in which a person’s social media has been used as evidence against them, or, as he puts it, when litigants say “one thing in court and another when talking to their friends online.”

In the latest case, a workers comp claimant, who says he is in excruciating pain after a refrigerator fell on him, put pictures on Facebook and MySpace that show him drinking and partying. To try to get the photos excluded from evidence, the claimant attempted to seize the moral high ground, arguing that the use of the pictures in litigation was “a disgrace to the dignity of the workers’ compensation proceedings and the legal system.”

Nice try.

The court allowed the evidence.

Confronted with this case, Goldman offers the following:

Now that Facebook can do facial recognition, it should next develop a tool to automatically detect photos depicting alcoholic drinks and give users a way to automatically opt-out of those photos!

Goldman’s quite a guy, huh? Instead of trying to grab some quick cash by applying for a software/business-method patent on this, he’s offered it up as a public service. Someone note this down so that Goldman’s post can be used as prior art to block patent-hungry Facebook if and when they apply for a patent on “Method of Shielding Workers Comp Claimants from Impeaching Photos of Boozing”.

Here’s the full list of social-media-evidence-gotcha cases Professor Goldman has collected:

Newton’s Third Law of Intellectual Property

Thursday, December 29th, 2011

Test firing of rocket engine with blue flamesIn Monday’s post, I noted that Dutch M.P. Marietje Schaake linked America’s proposed Stop Online Piracy Act (SOPA) with China’s censorship of political expression (a point also picked up by Techdirt’s Glyn Moody.)

So, is it really fair to equate shutting off internet access because of claims of intellectual-property infringement with shutting off internet access because of unapproved political expression? Yes it is. Here’s why.

It’s what I call Newton’s Third Law of Intellectual Property. This is actually my thing, not Isaac Newton’s. But it is analogous to Newton’s Third Law of Motion.

In physics, Newton’s famous Third Law is that for every action there is an equal and opposite reaction.

My law, is that for every intellectual property entitlement, there is an equal and opposite reduction in freedom.

So, if someone has a trademark entitlement with regard to a certain word or phrase, the extent of that right is exactly coextensive with the public’s lost ability to legally use that word or phrase. Same for copyright: A copyright over a musical melody means a loss of freedom of everyone else to play that melody.

I don’t mean for Newton’s Third Law of IP to impugn all intellectual property. Just because something reduces freedom doesn’t mean it’s unjustified. But it does mean that there is an inescapable tradeoff. When one person gains an IP right, everyone else loses a freedom. Perhaps the loss of freedom is worth it for the good that the IP entitlement does, such as encouraging innovation. But it is intellectually dishonest to argue or imply that intellectual property entitlements don’t come without a surrender of some amount of liberty.

Image: NASA

Please Call Right Now to Stop SOPA

Thursday, December 15th, 2011

CALL NOW - Capitol HillThis is it. This is the time to make your voice heard on Capitol Hill before the disastrous Stop Online Piracy Act is passed by the U.S. House of Representatives.

Go to EFF’s action page on SOPA and type in your zip code to instantly get the phone number of your rep. And you can bet I’ve called.

SOPA is a threat to blog freedom and internet freedom in American and abroad.

Make the call, and blog on!

This is a Key Week in the Fight Against SOPA

Tuesday, December 13th, 2011

This is a key week in the fight against SOPA – a sledgehammer law, ostensibly to fight copyright infringement, that would be a disaster for bloggers and for the internet in general. The bill is approaching a vote in the House Judiciary Committee. Please consider taking some time learn about the issue, and if your member of Congress is on the House Judiciary Committee (list below), please write them!

The Stanford Law School Center for Internet and Society (where I am an affiliate scholar), recently hosted a panel discussion called What’s Wrong with SOPA? You can now watch the video of the event.

Julie Ahrens of CIS did a really nice post explaining concisely why SOPA is such a bad idea, broken down into five points:

1. SOPA violates due process.
2. SOPA censors lawful speech.
3. SOPA breaks the Internet’s infrastructure.
4. SOPA blows up the safe harbor.
5. SOPA kills innovation.

She provides an explanation and cites to further reading for each.

Here is the membership of the House Judiciary Committee. If your rep is on here, please call and e-mail!

Adams – (R) Florida, 24th
Amodei – (R) Nevada, 2nd
Berman – (D) California, 28th
Chabot – (R) Ohio, 1st
Chaffetz – (R) Utah, 3rd
Chu – (D) California, 32nd
Coble – (R) North Carolina, 6th
Cohen – (D) Tennessee, 9th
Conyers Jr. – Ranking Member – (D) Michigan, 14th
Deutch – (D) Florida, 19th
Forbes – (R) Virginia, 4th
Franks – (R) Arizona, 2nd
Gallegly – (R) California, 24th
Gohmert – (R) Texas, 1st
Goodlatte – (R) Virginia, 6th
Gowdy – (R) South Carolina, 4th
Griffin – (R) Arkansas, 2nd
Issa – (R) California, 49th
Jackson Lee – (D) Texas, 18th
Johnson – (D) Georgia, 4th
Jordan – (R) Ohio, 4th
King – (R) Iowa, 5th
Lofgren – (D) California, 16th
Lungren – (R) California, 3rd
Marino – (R) Pennsylvania, 10th
Nadler – (D) New York, 8th
Pence – (R) Indiana, 6th
Pierluisi – (D) Puerto Rico, Resident Commissioner
Poe – (R) Texas, 2nd
Polis – (D) Colorado, 2nd
Quayle – (R) Arizona, 3rd
Quigley – (D) Illinois, 5th
Ross – (R) Florida, 12th
S?nchez – (D) California, 39th
Scott – (D) Virginia, 3rd
Sensenbrenner Jr. – (R) Wisconsin, 5th
Smith – Chairman – (R) Texas, 21st
Waters – (D) California, 35th
Watt – (D) North Carolina, 12th

Stanford CIS to Host Panel on SOPA

Monday, December 5th, 2011

Stanford Center for Internet and Society logoThe Stanford Law School Center for Internet and Society, where I am an affiliate scholar, is hosting a panel discussion on SOPA – the Stop Online Piracy Act – and the Protect-IP Act that are making their way through the U.S. Congress.

The discussion – WHAT’S WRONG WITH SOPA? – is open to the public and will take place on Wednesday, December 7, 2011, at 7 p.m. PST in Room 290 of the Law School Building at Stanford. There will also be a 6 p.m. reception on the Neukom Terrace, at the Neukom Building. You’re encouraged to RSVP.

U.S. Chamber of Commerce Backing SOPA Even as Members Back Away from the Chamber

Thursday, December 1st, 2011

Declan McCullagh at CNET has a worthwhile post about one lobbying group’s puzzling and unfortunate support for SOPA:

The Chamber claims SOPA is good for businesses, but the businesses that oppose it include eBay, Google, Yahoo, Twitter, Facebook, AOL, and LinkedIn. Yahoo has quit the Chamber now, and the Consumer Electronics Association and Google may soon do the same.

10,000th Konomarked Photo

Tuesday, November 22nd, 2011

icon of a pineapple in a thick black circleI just uploaded my 10,000th konomarked photo to Flickr.

Konomark is a project I’ve started to help facilitate sharing of photos and other copyrighted content on the internet. My putting a “konomark” on your copyrighted content, you invite strangers to e-mail you and ask for permission for gratis re-use.

You may have noticed this blog is konomarked, and there’s a line of konomarked photos that appears running down the column on the right.

If you’d like to konomark a photo on Flickr, here’s the best way to do it.

First, tag the photo with the word “konomark”.

Second, insert the following into the description for the photo:

This photo is <b><a href=”http://www.konomark.org” rel=”nofollow”>konomarked</a></b> (“Most Rights Sharable”): If you would like to use this image without paying anything, e-mail me and ask. I’m generally willing to share.

Bauble Bobble Estoppel: Why Kane’s Tack Against Forever 21 Worked

Wednesday, November 2nd, 2011

Questions
from
Readers

Blog Law Blog reader Amy e-mailed me with a good question about blogger Rachel Kane’s self-declared victory over Forever 21 in a legal dispute that never ended up in court.

Kane is the author of wtforever21.com, a blog devoted to poking fun at Forever 21, the fast-fashion retailer famous for its dogged pursuit of trendiness with a torrent of bangely baubles and shiny swathery.

While they would seem too busy chasing down fashion ephemera to notice a tongue-in-cheek blogger, the folks at Forever 21 eventually looked up from their lamé long enough to dash of a cease-and-desist letter charging Kane with trademark infringement and demanding she take down her blog.

Now, as I pointed out, Forever 21′s legal position was meritless. But they’re a big company, and Rachel Kane is a solo blogger. So it makes for a problem.

What did Kane do about it? Through legal counsel, she wrote to Forever 21 laying out her legal argument for why the company’s claim was baseless and imposing a deadline by which, if she did not hear back from Forever 21, she would assume that she was free to continue blogging.

Thus the question from reader Amy. She writes:

This is a great strategy for bloggers and an awesome victory. However, can’t she still face legal action from the company even though there was no response past her self-imposed deadline?

The answer is that Forever 21 is not absolutely foreclosed from suing Rachel Kane after her self-imposed deadline passes. But by failing to get back to Kane, Forever 21 has evidenced an intent to abandon its claim. That severely compromises F21′s legal position. At this point, if Forever 21 tried to sue, Kane is now in a position to raise the legal defense of “estoppel.”

The idea of estoppel is that if you don’t deal with things at the opportune time, you can’t bring it up later if doing so would end up screwing over someone else. (Courts, in issuing judicial opinions, usually have some slightly higher-brow language than the phrase “screwing over,” but they can’t explain it any better than I did.)

So, through the estoppel defense, a court could rule that Forever 21 lost whatever rights it may have had to sue Kane when it failed to reasonably pursue its claim.

The law generally favors upholding parties expectations when it is possible to do so. Kane can say that, after hearing nothing by silence from Forever 21, she reasonably expected that the dispute was over and that she was free to continue blogging.

Now, key to making this work is that Kane approached this dispute in a reasonable way. She sent a letter explaining why the law did not support Forever 21′s trademark claim, and she gave them a reasonable amount of time to respond. It also counts for something that Forever 21 was the party that brought this up. Since they started the argument by sending a cease-and-desist letter, it’s certainly reasonable to expect that they will respond to Kane’s arguments if they are going to maintain their claim.

There’s nothing magical about estoppel – it’s all based on reasonableness. So don’t get carried away thinking you can get the drop on someone with estoppel. If you’re being tricky, then a court won’t look favorably your estoppel defense. But if someone sends you a legal threat, Kane’s way of dealing with it is a good one. Send a letter patiently explaining why the threat is baseless, and set a reasonable deadline for their response. It can be a good way to put spurious claims behind you.

Reflections on MediaNews Group’s Split with Righthaven

Friday, September 16th, 2011

Last week, Steve Green, the reporter who has most closely followed the Righthaven story, asked me what I thought of the revelation that MediaNews Group broke off its deal with Righthaven. Here’s what I told him:

The law has long had a special affection for newspapers. That’s reflected in a long line of Supreme Court cases. Given that history, it has been very dispiriting to see newspapers try to game the law in pursuit of a quick-money scheme, especially one that involves suing readers.

The participation of MediaNews Group was especially troubling to me, given that they operate many of the nation’s most important and well-respected newspapers. Thus, it is a great relief to see that MediaNews has parted ways with Righthaven.

A newspaper is sometimes described as a community talking to itself. Can a newspaper uphold that vision while partnering with Righthaven? I don’t think so. And that’s a point that I think most publishers understood as soon as Righthaven pitched them.

MediaNews Group was the only big news organization that put aside the sense of public trust we expect of newspapers to take part in this misadventure. They have shown integrity and good sense by now walking away.

Todd Kincannon Unfazed by Righthaven’s Bankruptcy Talk

Tuesday, September 13th, 2011

Righthaven antagonist J. Todd Kincannon (Photo: The Kincannon Firm)

I asked Todd Kincannon, the lawyer signing up plaintiffs for a Righthaven class action, what he thought of the company’s claim that it was on the verge of bankruptcy.

“I always knew Righthaven would file bankruptcy if things got rough,” Kincannon told me by e-mail. “They
were set up as a limited liability company just so they could do that. Fortunately, Stephens Media, MediaNews Group, Sherman Frederick, Steve Gibson, and Dickinson Wright all seem to have plenty of money.”

I kind of thought he might think that.

The truth is that Righthaven’s bankruptcy, if and when it comes to that, won’t be the end of the Righthaven story. Instead, it will be the beginning of the second half.

Over its first year and a half, Righthaven was on the offense, swooping down on unsuspecting bloggers and holding them up for a few thousand dollars a piece. Then, in June, the Democratic Underground decision came down, and the tide reversed. Things are now swooping down on Righthaven. Not only does Kincannon have his nascent class-action, but there’s the strong possibility of bar discipline against Righthaven attorneys, and you can even see the potential for criminal charges (federal racketeering charges and conspiracy to obstruct justice, for instance).

The Implosion Accelerates: Righthaven Begs for Stay, Warns of Bankruptcy

Monday, September 12th, 2011

Bankrupt monopoly guy with copyright symbol replacing faceThe copyright-lawsuit factory that has sued scores of bloggers appears to be nearing the financial precipice. Steve Green of the Las Vegas Sun and Vegas Inc. reports that Righthaven is pleading with the U.S. District Court in Nevada to stay an order to pay $34,045 in attorneys fees arising from Righthaven’s failed lawsuit against Kentucky resident Wayne Hoehn over a post on a sports-betting message board. Judge Phillip Pro dismissed that lawsuit in June, holding that Righthaven lacked standing to sue Hoehn, and, additionally, that Hoehn’s reposting of an entire column from the Las Vegas Review-Journal was protected as fair use. As a result, Judge Pro ordered Righthaven pay Hoehn’s attorneys fees. On Friday, Righthaven asked Judge Pro to stay his order while it is appealed to the 9th Circuit. Green writes:

Righthaven … said the gridlock over its lawsuits has hurt its finances – and expressed concern that attorneys for prevailing defendants like Hoehn may seize its assets and put it out of business.

Righthaven, begging for mercy. I don’t even have the words to describe the irony here.

When a company breathes the word “bankruptcy” as part of a plea for delaying the payment of some debt, it generally means the implosion is already well underway. That being the case, we can expect anyone who has a judgment against Righthaven to rush to seize assets as fast as possible. That will force Righthaven to run to bankruptcy court to get the protection of the automatic stay available for bankruptcy filers.

I haven’t seen Righthaven’s emergency request to Judge Pro, but I can’t imagine there’s any good reason to grant it unless Righthaven is able to post a bond – which they might not be able to do if they are nearing bankruptcy. This is something that the bankruptcy courts can sort out, and will probably will have to.

And, by the way, yes, this means Righthaven defendants could end up controlling – through a creditors’ committee – the copyrights that were used as the basis for suing them. It also means that a lot more Righthaven documents could be opened up to public scrutiny.