Video

Here Comes Another Takedown

Earlier this month, comedy group The Richter Scales released a funny music video, "Here Comes Another Bubble." The video showed a montage of Silicon Valley images over a sound-track adapted from Billy Joel's "We Didn't Start the Fire," lampooning the Web 2.0 bubble that seems near bursting again.

Jurisdiction: 

Content Type: 

Subject Area: 

Massachusetts v. Lowney

Date: 

12/01/2007

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Peter Lowney

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Brighton District Court, Massachusetts

Verdict or Settlement Amount: 

$500.00

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Verdict (plaintiff)

Description: 

Peter Lowney, a political activist from Newton, Massachusetts, was convicted in December 2007 of violating the Massachusetts wiretapping statute (Mass. Gen. Laws ch. 272, § 99) and sentenced to six months probation and fined $500. The criminal case arose out of Lowney's concealed videotaping of a Boston University police sergeant during a political protest in 2006. Apparently Lowney was shooting footage of the protest when police ordered him to stop and then arrested him for continuing to operate the camera while hiding it in his coat. According to a press release from the Suffolk County District Attorney's Office, the footage appears to have been posted on a "video-sharing website." As part of the sentencing, the court ordered Lowney to remove the footage from the Internet.

Jurisdiction: 

CMLP Notes: 

to-do: monitor to see if there is an appeal; if not, switch to "concluded"

Content Type: 

Subject Area: 

Massachusetts Wiretapping Law Strikes Again

Boston Now reports that Peter Lowney, a political activist from Newton, Massachusetts, was convicted last week of violating the Massachusetts wiretapping statute (Mass. Gen. Laws ch. 272, § 99) and sentenced to six months probation and fined $500. The criminal case arose out of Lowney's concealed videotaping of a Boston University police sergeant during a political protest in 2006.

Jurisdiction: 

Content Type: 

Subject Area: 

Massachusetts State Police v. Jean

Date: 

02/14/2006

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Mary T. Jean

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts, Central Division; United States Court of Appeals for the First Circuit

Case Number: 

4:06CV40031 (District); No. 06-1775 (Appeals)

Legal Counsel: 

John Reinstein, Daniel Shea

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

Mary Jean is the operator of Conte2006.com, which describes itself as being "designed for the sole purpose of stopping the re-election of [Worchester, MA] District Attorney John J. Conte." Jean posted a video to the site that showed state police engaging in a warrantless and possibly unconstitutional search of Paul Pechonis' home. The police depicted in the video allegedly were from a unit that reported to Conte and acted under his supervision. The video was recorded by Pechonis' child-security system (or "nanny cam"), and Pechonis himself gave the video to Jean.

On Feb. 14, 2006, the Massuchetts state police sent a cease-and-desist letter demanding that Jean remove the video within 24 hours or face criminal action. The letter cited a Massachusetts law regarding unauthorized recording and wiretapping as the basis for the takedown request (the police later clarified by stating that only the audio portion of the recording was at issue). Rather than removing the video, Jean filed a lawsuit in federal court requesting an injunction to prevent the Massachusetts police from pursuing legal action. The complaint named the state police, Massachusetts State Police superintendent Thomas G. Robbins, and Massachusetts attorney general Thomas Reilly as defendants.

Jean's complaint sought both an immediate temporary restraining order and a permant injunction that would prevent the police from taking action against her related to the video. The court granted the restraining order on the day the complaint was filed.

The district court ultimately granted the injunction as well. The court assumed for the sake of argument that Jean had reason to know that the recording might have been illegal when she posted it. Finding a public interest in Jean's publication of the information contained in the video, the court decided that the police's duty to restrain illegal recording could not counterbalance Jean's free speech rights. Key to this decision was the fact that Jean did not engage in recording herself, and thus punishing her would not serve the same deterrence goals as would punishing the recorder.

On appeal, the First Circuit upheld the injunction, echoing the lower court's comments regarding the balancing of free speech versus the police's law-enforcing goals.

Jurisdiction: 

CMLP Notes: 

The Conte2006.com site is a good place to check for updates, in case the suit is appealed further. {MCS}

 

sam reviewing

Content Type: 

Subject Area: 

YouTube Suspends Account of Prominent Egyptian Blogger and Anti-Torture Activist

I've blogged before about Wael Abbas, an Egyptian blogger and political activist who has gained renown by, among other things, posting videos on YouTube revealing brutal scenes of torture from inside Egypt's police stations.

Jurisdiction: 

Content Type: 

Subject Area: 

Universal Music v. Lenz

Date: 

06/04/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Stephanie Lenz

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California

Case Number: 

C 07-03783-MEJ

Legal Counsel: 

Kelly Max Klaus, Amy C. Tovar

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

In July 2007, Stephanie Lenz sued Universal Music in federal district court in California for claims arising out Universal's sending a DMCA takedown notice to YouTube regarding a video posted by Lenz.

According to Lenz's complaint, she posted a video of her toddler son to YouTube in February 2007. In the 29-second video, Lenz's son dances to Prince's "Let's Go Crazy," which is playing in the background. In June 2007, counsel for Universal Music sent YouTube a DMCA takedown notice pursuant to 17 U.S.C. § 512(c), claiming that the video infringed its copyright in the Prince song and requested that YouTube remove it from the website. YouTube complied and notified Lenz about the takedown. Lenz sent a counter-notification pursuant to 17 U.S.C. § 512(g), and the site put the video back up about six weeks later.

Lenz claims that her video does not infringe Universal's copyright because it is fair use. Her federal complaint against Universal alleges that the company violated 17 U.S.C. § 512(f) by knowingly materially misrepresenting its copyright claim in the DMCA takedown notice and requests damages and attorneys fees. The complaint also requests a declaratory judgment that her video did not constitute copyright infringement and injunctive relief to prevent Universal from bringing further copyright claims in connection with the video.

On April 8, 2008, the federal district court granted Universal Music's motion to dismiss the complaint, but granted Lenz permission to amend. She filed her second amended complaint on April 18. 

Update: 

05/23/2008- Universal moved to dismiss Lenz's second amended complaint.

08/20/2008 - The district court denied Universal's motion to dismiss the second amended complaint, holding that copyright owners must consider fair use before sending a DMCA takedown notice.

02/25/2010- The district court granted Lenz's motion for partial summary judgment on various defenses asserted by Universal, but did not resolve the merits. 

Jurisdiction: 

CMLP Notes: 

Updated 08/17/2008. {MCS}

Content Type: 

Subject Area: 

Report Recommends Fair Use Principles for User Generated Video Content

Yesterday, the Electronic Frontier Foundation and a group of public interest groups dedicated to protecting free speech, including the Center for Social Media at American University and the Berkman Center for Internet & Society, published a report entitled "Fair Use Principles for User Generated Video

Content Type: 

Subject Area: 

Fox News v. McCain

Date: 

10/25/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

John McCain 2008 (Senator John McCain's presidential campaign)

Type of Party: 

Large Organization
Media Company

Type of Party: 

Organization

Publication Medium: 

Broadcast
Website

Status: 

Pending

Description: 

Senator John McCain's presidential campaign broadcast an advertisement on television and on McCain's website featuring an eighteen-second video clip excerpted from the GOP presidential debate that had been broadcast on the Fox News Channel the week before.

In the clip, McCain derides democratic rival Senator Hillary Clinton for attempting to earmark $1 million for a Woodstock Museum, commenting that he was "tied up at the time" (referring to the fact that the 1969 festival occurred during his detention in Hanoi as a prisoner of war). The Fox News logo is visible at the bottom left hand corner of the screen in the McCain advertisement.

The advertisement was posted on McCain's website, and was broadcast on television in New Hampshire and during a pre-game show before the World Series baseball game between the Red Sox and the Rockies on October 25, 2007.

Fox News faxed a letter to McCain's campaign on October 25 2007, alleging that the use of the footage infringed Fox News' exclusive rights under section 106 of the Copyright Act. The letter demanded that the McCain campaign stop using the footage in any media, including on the Senator's website.

McCain's campaign has responded with a statement that the use of the short piece of footage constituted fair use and has refused to take the ad down from the Senator's website. Fox News has responded publicly that the use of the footage was not fair use because it was used for a "commercial purpose," namely fundraising.

The repurcussions of this dispute have been widely felt. Fox News sent letters to other Republican presidential hopefuls spelling out its policy that debate footage cannot be used in political advertisements. This has drawn sharp criticism from both ends of the political spectrum, including left-leaning blog Moveon.org and right-leaning blog Redstate.com. Critics point out that NBC, CNN and ABC have agreed to make their debate footage available for re-publication.

Content Type: 

Subject Area: 

CMLP Notes: 

jill button edited

Status checked on 6/4/2008, no new information.  The offending ad is still on the McCain site, though. (AAB) 

Cosby v. Channel101

Date: 

06/01/2005

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Channel101; Justin Roiland; Dan Harmon

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Publication Medium: 

Website

Status: 

Concluded

Description: 

Justin Roiland created four episodes of a video series called "House of Cosbys." The series tells the story of a Bill Cosby fan who clones multiple Cosbys, each of whom has a special power. The series aired on the online TV website, Channel101.

Sometime in June 2005, Cosby's lawyers sent a cease-and-desist letter to Channel101. (The details are not entirely clear, but it appears that the letter was addressed to Justin Roiland and Dan Harmon). The letter asserted that the House of Cosbys series violated Cosby's right of publicity in his voice, name, and likeness. It demanded that Channel101 stop the development and distribution of the House of Cosbys series.

Upon receipt of the letter, Dan Harmon initially pulled down the videos, but later he reconsidered and re-posted them. According to a statement by Harmon, Cosby's lawyers then contacted Channel101's hosting service, which told Channel101 to take down the videos "under threat of pulling the plug." Channel 101 complied with the request.

A fifth episode surfaced on the Internet. This episode, apparently not created by Roiland, contained a still image of the cease-and-desist letter, and a voice reads from the letter during the video.

In March 2006, blogger Andrew Baio received a cease-and-desist letter for mirroring copies of the House of Cosbys series. He did not remove the files. (For more information, please see the CMLP Database entry for the Cosby v. Baio Letter.)

Jurisdiction: 

Content Type: 

Subject Area: 

Subway v. Quiznos (Letters)

Date: 

11/01/2006

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

QIP Holders LLC (Quiznos); iFilm Corp.

Type of Party: 

Large Organization

Type of Party: 

Organization
Large Organization

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

In late 2006, restaurant franchisor Quiznos and video-sharing site iFilm co-sponsored a nationwide contest, “Quiznos v. Subway TV Ad Challenge,” inviting members of the public to submit videos comparing a Quiznos sandwich to a Subway sandwich using the theme "meat, no meat." Contestants submitted their videos to www.meatnomeat.com, and iFilm published entries on its website, where they remained following the end of the contest and selection of the winner.

According to paragraph 23 of Subway's second amended complaint, later filed in federal court in Connecticut, on November 1, 2006 Subway sent Quiznos and/or iFilm cease-and-desist letters, demanding that they stop making "false and misleading derogatory statements" about Subway's product via the user-submitted videos, and that they "remove from [their] websites the commercials and advertisements." Two of the commercial were apparently relocated, but, according to Subway's second amended complaint, Quiznos and iFilm refused to remove the commercials, which remained viewable online.

Subway filed a lawsuit against Quiznos and iFilm in federal court within days of the letters being sent. (Please see the CMLP's Database entry for the related Subway v. Quiznos lawsuit.)

Jurisdiction: 

CMLP Notes: 

Jill Button edited -- not sure what 'subject area' if any is appropriate given that the CDA 230 defense has not been raised at the letter stage.

Content Type: 

Subject Area: 

ONI Releases Bulletin on Internet Shutdown in Burma

Yesterday, the OpenNet Initiative released an excellent report on the recent Internet shutdown in Burma, entitled "Pulling the Plug: A Technical Review of the Internet Shutdown in Burma." Besides the eye-popping technical analysis ONI was able to carry out in a matter of weeks, the report contains a great overview of the dramatic events of late September and early October 2007, including the role that citizen journalists and

Jurisdiction: 

Content Type: 

Subject Area: 

Bloggers Expose Torture in Egypt

The San Francisco Chronicle has an interesting article today about Egyptian bloggers posting cell phone videos to document endemic police torture in their country (thanks to 3arabawy for the tip). The most recent iteration of this phenomenon is a clip of a thirteen-year-old boy from Mansoura who died from injuries inflicted in police custody after he was arrested for stealing a few bags of tea a week earlier:

The explicit 13-minute clip is the latest of some dozen amateur videos - mostly from cell phone cameras - that have surfaced on blogs within the past year, showing systematic torture in Egyptian police stations. The videos have thrust a once rarely mentioned subject onto the front pages of Cairo newspapers.

Some activists hope the incriminating videos will spur a wave of reforms within the justice system.

"Activists that have worked to end torture have told me: 'You've done more in a few days what we were not able to do in 10 years,'" said Wael Abbas, a 32-year-old Egyptian blogger, who recently received the 2007 Knight International Journalism Award by the International Center for Journalists in Washington for posting police torture videos on his Web site.

It's encouraging to see the continued influence of bloggers on the mainstream press in Egypt, but it's been rough couple of month for journalists and activists of every stripe. If you're interested, the Christian Science Monitor has some informative reports on the recent crackdown (here and here).

Jurisdiction: 

Content Type: 

Subject Area: 

Hudson High School v. Bowler

Date: 

05/17/2005

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

Christopher Bowler; Hudson High School Conservative Club

Type of Party: 

Individual
School

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts

Case Number: 

1:05-cv-11007-PBS

Legal Counsel: 

Gregory A. Hession

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (total)

Description: 

In the fall of 2004, two students at Hudson High School ("HHS") in Hudson, Massachusetts formed a Conservative Club in an effort to provide a forum for pro-conservative views on campus. The HHS Conservative Club was affiliated with a national organization, the High School Conservative Clubs of America, whose slogan is "Protecting American Freedom, Faith, and Morality." Among other things, the group endorses Second Amendment rights, the "restoration" of Christian values to schools and government, and the closing of the nation's borders to all immigrants; the group is opposed to gay marriage, affirmative action, and abortion.

When the HHS Conservative Club put up posters advertising its first organizational meeting, included on these posters was a link to the club's national organization's website. At the time this case arose, this website contained a banner entitled "Islam: A Religion of Peace?" Underneath the banner was a still shot from a video depicting a beheading (the still depicted the scene immediately before the actual beheading) as well as a link to five beheading videos. The links to these videos were accompanied by a warning that the videos were extremely graphic but that the group feels "it is necessary to provide them so you can see the true doctrines of Islam put into action."

Alerted to the HSCCA website by a faculty member, the HHS Technology Director reviewed it and decided to block access to it from all the school computers. When she told the assistant principal about the website, he ordered all of the group's posters removed. The school principal later permitted the group to put up posters as long as the HSCCA website was blacked out. The school officials contend that the graphic content available on the HSCCA website would disturb some of the students at the school, some of whom were under 12, and that the posters threatened to disrupt the operation of the school by requiring teachers to take time away from their lessons to discuss the videos with psychologically scarred students. The leaders of the HHS Conservative Group sued the school district as well as school administrators for violating their First Amendment rights; the defendants later moved for summary judgment to dismiss the plaintiffs' claims.

On October 4, 2007, the Massachusetts district court largely rejected the defendants' motion for summary judgment. In the first part of the court's opinion, U.S. District Court Judge Saris noted how far removed the posters were from actually presenting violent images:

To access the videos, a student would need (1) to view the posters and then, later, (2) access the website (and he could not do so at school because the website was blocked by the time the posters were removed), (3) discover the beheading videos among the other content, (4) navigate past an express warning, and (5) affirmatively click a link to the videos. There is no allegation that plaintiffs were publicizing the graphic content of the website. Thus, students at HHS were not a "captive audience" for the videos; rather, the videos were only available to the students, outside of school, as a matter of conscious choice.

The court also noted that the Technology Director's decision to block the website was akin to censoring a book in the school's library and might also be a separate constitutional violation; however, the plaintiffs in this case had not made that argument.

The district court then went on to grant the individual school officials qualified immunity, explaining that "[t]he First Amendment jurisprudence governing a school's regulation of student access to violent speech on the internet with the benign intent to protect students from images which may be upsetting and psychologically damaging is not settled . . . ." The court confused the issue of whether blocking access to the HSCCA website on its computers would be constitutional-certainly an open issue-with the issue of whether it was constitutional to force the group to eliminate any reference to the website on its posters.

Update:

April 2008 - The parties settled the case and filed a stipulation of dismissal

Jurisdiction: 

Content Type: 

Subject Area: 

Volkswagen Subpoenas YouTube for Identity of User Who Posted Nazi-Themed Video

In late August, Volkswagen obtained a subpoena from the United States District Court for the Northern District of California (Case No.3:07-MC-80213) requiring YouTube to disclose the identity of an anonymous YouTube user who posted a Nazi-themed parody of a Volkswagen commercial. The video has apparently been removed from YouTube and is no longer available.

Content Type: 

Subject Area: 

Viacom v. YouTube

Date: 

03/13/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Viacom International, Inc.; Comedy Partners; Country Music Television, Inc.; Paramount Pictures Corporation; Black Entertainment Television, LLC

Party Receiving Legal Threat: 

Youtube, Inc.; Youtube, LLC; Google, Inc.

Type of Party: 

Large Organization
Media Company

Type of Party: 

Large Organization

Court Type: 

Federal

Court Name: 

Southern District of New York

Case Number: 

1:07-cv-02103

Legal Counsel: 

Bart E. Volkmer, James Joseph Hartnett, IV, Alison G. Wheeler, Mark Shawn Ouweleen, Maura Lea Rees, David H. Kramer, Tonia Maria Ouellette Klausner, Jonathan M. Jacobson, Caroline Wilson, Shayna Susanne Cook, Philip S. Beck, Rebecca Weinstein Bacon,

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On March 13, 2007, Viacom International, which owns, among other properties, Comedy Central, MTV, BET, and Paramount Pictures, sued YouTube and its parent Google for copyright infringement seeking $1 billion in damages. Viacom asserts a number of copyright related claims, including direct copyright infringment for public performance, public display, and reproduction, as well as several indirect claims for inducement of copyright infringment, contributory copyright infringment, and vicarious copyright infringement.

Update:

04/28/08 - Viacom filed a first amended complaint.

05/23/08 - YouTube filed an answer to the first amended complaint.

07/02/08 - Court ordered Google to produce to Viacom "all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website."

Update 2:

06/23/2010 - The District Court granted YouTube's motion for summary judgment. The court ruled that YouTube was eligible for the safe-harbor provisions of Section 512(c) of the DMCA, meaning that YouTube was immune from copyright liability stemming from user-posted content. According to the court, even if YouTube "not only [was] generally aware of, but welcomed, copyright-infringing material being placed on their website," YouTube lacked specific knowledge of particular infringing clips. Viacom had argued that YouTube's "general awareness" of "widespread and common" infringement was enough to disqualify YouTube from the safe harbor, but the court disagreed with that interpretation of § 512(c)(1)(A).

The District Court also ruled in YouTube's favor with respect to § 512(c)(1)(B), which disqualifies a service provider from safe-harbor protections if it receives "a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity." The court ruled that a service provider "must know of the particular case [of infringement] before he can control it," and that YouTube lacked the necessary knowledge to have the “right and ability to control” the infringement.

The court also ruled for YouTube on a number of related issues, including whether certain technical processes (like encoding) that take place automatically on YouTube are not eligible for protection as they are not done at the direction of a user.

04/05/2012 - On appeal, the Second Circuit Court of Appeals reversed the grant of summary judgment and remanded. First, the Second Circuit ruled that the district court was correct in deciding that § 512(c)(1)(A) "requires knowledge or awareness of specific infringing activity"; the Second Circuit ruled, however, that there was evidence (mainly, some internal email exchanges between YouTube employees) to suggest that YouTube may have had such specific knowledge of some infringing clips. The Court of Appeals remanded on this issue, to determine if YouTube in fact had specific knowledge of any of the clips at issue in this lawsuit.

In addressing Viacom’s argument that YouTube’s actions constituted willful blindness, the court ruled that the common-law "willful blindness" doctrine could still apply in some circumstances, even though the DMCA, at § 512(m), states that a service provider does not need to affirmatively monitor its service for infringing content.

The Second Circuit disagreed with the District Court’s interpretation of the "control and benefit" provisions of § 512(c)(1)(B). The Court of Appeals agreed with the District Court’s holding that a service provider does not have the “right and ability to control” the infringement based on the bare ability to remove or block user-posted materials. Unlike the District Court, though, the Second Circuit did not rule that (c)(1)(B) required particular knowledge of specific cases of infringement. If a service provider was "exerting substantial influence on the activities of users, without necessarily—or even frequently—acquiring knowledge of specific infringing activity," a service provider would have a “right and ability to control” under § 512(c)(1)(B). (The second element of this safe harbor exception, financial benefit directly attributable to the infringing activity, was not before the court.) The Court of Appeals thus remanded this issue as well.

Finally, the Second Circuit agreed with the District Court that three of YouTube's automated processes were protected by the safe harbor: transcoding user-uploaded clips into different video formats, playing the clips at the request of users, and finding "related videos." A fourth function—syndication of a limited number of clips to third-party companies—drew more suspicion from the Court of Appeals, but it was unclear whether any of clips at issue in this lawsuit were actually syndicated. The Second Circuit thus remanded for more fact-finding.

Jurisdiction: 

CMLP Notes: 

Updated 6/6/2008 (JMC)

TO DO: finish description

Updated 4/11/2012 - JS 

 

Content Type: 

Subject Area: 

Creationist-Atheist Brouhaha Over DMCA Takedown Notices

Ars Technica reports that Creation Science Evangelism (CSE), a creationist group founded by Kent Hovind (who is currently in prison for violations of federal tax law), recently sent a raft of questionable DMCA takedown notices to YouTube complaining that various user-posted videos infringed its copyrights in videos of its seminars.

Among those users whose videos were taken down was the Rational Response Squad (RRS), a group of atheists dedicated to "fighting to free humanity from the mind disorder known as theism." Apparently, the videos flagged for removal were all critical of CSE, and some consisted of expression entirely original to the YouTube poster. Other videos used portions of CSE's own videos to make critical commentary about the organization. When its videos were removed, RRS unleashed a firestorm of criticism, threatening to sue CSE for abusing the DMCA's notice-and-takedown provisions and even contacting the prosecuting attorney in Hovind's tax case to inform her of CSE's conduct. Others have joined in the mix (here, here, and here). It appears that YouTube canceled RRS's entire account for a time (the rationale for doing so is not clear), but later reinstated it.

Content Type: 

Subject Area: 

Cosby v. Baio

Date: 

03/02/2006

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Bill Cosby

Party Receiving Legal Threat: 

Andrew Baio

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Blog

Relevant Documents: 

Description: 

Andrew Baio, a blogger, posted a Bill Cosby comedy album in full as a tribute to Cosby. He also mirrored a video series, "House of Cosbys," which had appeared on online TV site Channel101, but was taken offline after Cosby's lawyers threatened Channel101 with litigation. (For more information, please see the CMLP Database entry for the Cosby v. Channel101 Letter.) The video series tells the story of a Cosby fan who clones multiple Cosbys, each of whom has a special power.

In March 2006, an attorney for Cosby sent a cease-and-desist letter to Baio, indicating that the album was copyrighted and that the video series infringed Cosby's right of publicity in his voice, name, and likeness.

In a blog post about the cease-and-desist letter, Baio agreed that asking for removal of the comedy album was "within [Cosby's] rights," and he did so. He refused to remove the video series, however, asserting that it was "satire and parody" protected by the First Amendment. He also argued that there was no misappropriation of Cosby's name or likeness because that tort "only applies to unauthorized commercial use, and not a work of art or entertainment." Baio continues to host "House of Cosbys" and to link to several other locations on the Internet where it is available.

Jurisdiction: 

CMLP Notes: 

Status checked on 6/3/2008, no new information (AAB)

status checked on 6/17/09; no new information - CMF

Content Type: 

Subject Area: 

Subway v. Quiznos

Date: 

10/27/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Doctor's Associates Inc. (Subway)

Party Receiving Legal Threat: 

QIP Holders LLC (Quiznos); iFilm Corp.

Type of Party: 

Large Organization

Type of Party: 

Organization
Large Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Connecticut

Case Number: 

3:06CV01710

Legal Counsel: 

James Riley, Marlon Lutfiyya, Ronald Rothstein

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

In late 2006, restaurant franchisor Quiznos and video-sharing site iFilm co-sponsored a nationwide contest, “Quiznos v. Subway TV Ad Challenge,” inviting members of the public to submit videos comparing a Quiznos sandwich to a Subway sandwich using the theme "meat, no meat." Contestants submitted their videos to www.meatnomeat.com, and iFilm published entries on its website, where they remained following the end of the contest and selection of the winner.

Subway sued Quiznos in federal court in Connecticut, and it subsequently amended its complaint to include a claim against iFilm. Only one count of the complaint related to the Ad Challenge, and that count alleged false and misleading advertising in violation of the Lanham Act.

Quiznos moved to dismiss this count of the complaint based on the immunity for publication of user-generated content found in the Communications Decency Act (47 U.S.C. § 230(c), "CDA 230"). The court denied the motion, holding that CDA 230 provides defendants an affirmative defense, which can be raised on a motion for summary judgment, but not on a motion to dismiss. Doctor's Assocs. Inc. v. QIP Holders, LLP, No. 06-cv-1710, slip op. at 4-5 (D. Conn. Apr. 19, 2007).

This case is significant in that it departs from the majority of cases holding that CDA 230 provides a valid ground for granting a motion to dismiss. Another interesting issue that is sure to arise is whether a claim of false advertising under the Lanham Act fits within CDA 230 immunity. By its terms, CDA 230 does not apply to "any law pertaining to intellectual property." 47 U.S.C. § 230(e)(2). False advertsing law is not usually thought of as an aspect of intellectual property law, but the federal false advertising provision is found in the Lanham Act, side-by-side with federal trademark laws.

Update:

2/4/2008 - Subway filed a seventh amended complaint.   

2/19/2010 - The court denied Quiznos' motion for summary judgment.  The case subsequently settled. 

Jurisdiction: 

CMLP Notes: 

Jill Button edited

 

to-do: need to create entry for the related threat (see para 23 of the Second Amended Complaint (attached)

Status updated on 6/9/2008.  Nothing of note on the docket other than the seventh complaint, which the court noted it hopes will be the last. (AAB) 

Content Type: 

Subject Area: 

A&P v. D'Avella

Date: 

08/24/2007

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Great Atlantic & Pacific Tea Company, Inc.

Party Receiving Legal Threat: 

Mark A. D'Avella; Matthew D'Avella

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of New Jersey Law Division, Hunterdon County

Case Number: 

L-515-07

Legal Counsel: 

Patrick Farmer - McElroy, Deutsch, Mulvaney & Carpenter

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Two brothers from New Jersey, Mark and Matthew D'Avella, spent the summer working for the A&P supermarket in Califon, New Jersey. They made the best of what could have been a boring situation by creating parodic rap songs with supermarket themes under the name "Fresh Beets" (here's their myspace page). Their songs including gems like "Always Low Prices" and (their masterpiece) "Produce Paradise," which is a nod to Coolio's 1995 "Gangsta's Paradise," which in turn drew on Stevie Wonder's venerable "Pastime Paradise." Mark and Matthew made a video of "Produce Paradise" in the A&P store (after hours) and posted it to YouTube and their website, fakelaugh.com, along with some blog commentary.

A&P's parent company, The Great Atlantic and Pacific Tea Company, Inc., filed a lawsuit against the brothers in New Jersey Superior Court seeking $1 million in damages. The complaint, filed August 24, 2007, included counts for defamation, business and product disparagement, and federal trademark infringement and dilution. It alleged that "Produce Paradise" depicted the brothers "performing their rap song in various recognizable areas of the Califon A&P, including the fresh produce department, the corner bakery, the stock room and the employee bathroom," and that "at least one defendant is wearing a hat with a recognizable A&P logo [during the video]."

The complaint cited the brothers' "disparaging and disgusting lyrics pertaining to produce and groceries, and the store in general" and their "doing various disparaging and disgusting things to produce and groceries, and [sic] in and around the produce and grocery areas." None of the statements identified in the complaint, however, mention A&P. To support its claim that the video has injured its reputation, A&P alleged that "at least one customer," having recognized the store and Mark and Matthew as employees, complained to A&P about the video, stating that she was "disgusted and distressed by the scenes depicted in the video," and that she "would not be shopping in [A&P's] stores in the future owing to the repulsive acts depicted and performed by defendants in the Rap Video."

A&P also raised a trademark infringement and dilution claim, alleging (remarkably) that Mark and Matthew are "using the A&P logo in commerce, in connection with the promotion of their Rap Video" and that this use of its mark "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of defendants with A&P, such that a viewer of the Rap Video would surmise that A&P condoned, or sponsored or approved the use of the A&P Logo and/or the Califon A&P premises in the Rap Video." Somewhat (but only marginally) more realistically, the complaint claims that the defendants' use of the A&P logo dilutes the value of the mark.

Update: In May 2008, the Courier News reported that the parties had settled. The precise terms of the settlement are confidential, but it looks like the brothers have removed the video from the Internet.

Jurisdiction: 

CMLP Notes: 

TO DO: monitor status

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Subject Area: 

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