Copyright

Unpublished

How the Innocence of Muslims Video Exposes an Interesting Split on Copyright "Registration"

By now you may have heard the story of Cindy Lee Garcia, an actress who appeared in the now-infamous Innocence of Muslims video. According to Garcia, she was tricked into believing that the movie was an adventure film called Desert Warrior, but her lines were subsequently overdubbed to include the attacks on Islam and the Prophet Muhammad. According to Garcia, her involvement in the film has subjected her to ostracism by her family and friends, and threats to her personal safety.

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When Your Engagement Photo Becomes a Political Ad: Parody and Right of Publicity

The issue of same-sex unions is hotly debated, and the discussion is heating up this election year with the case on California’s Proposition 8 making its way to the Supreme Court, and with President Obama recently declaring that he is in favor of same-sex marriage.

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Does the DMCA's Safe Harbor Apply to Pre-1972 Sound Recordings?

Some of the most commercially successful and popular music of all time – including the entire catalog of The Beatles – is subject to a degree of uncertainty under current copyright law in the United States due to an anomaly in the federal copyright framework with respect to older sound recordings.

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FunnyJunk, LLC vs. TheOatmeal.com

Date: 

06/02/2012

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

TheOatmeal.com, Matthew Inman

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Legal Counsel: 

Venkat Balasubramani

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On June 2, 2012, attorney Charles Carreon sent a letter on behalf of FunnyJunk, LLC ("FunnyJunk") to Matthew Inman, creator of TheOatmeal.com, which threatened legal action on the basis of a May 2011 blog post by Inman titled "What should I do about FunnyJunk.com?".

In the post, Inman stated that he had discovered a number of his comics displayed without permission or attribution on FunnyJunk, and that he contacted FunnyJunk by email in an attempt to have them removed from the site. He claimed that FunnyJunk took down the images that were identified in the email, but that FunnyJunk had since "practically stolen [his] entire website and mirrored it on FunnyJunk." The post included screen shots of Inman's comics on FunnyJunk.com, and links to FunnyJunk image boards containing his work (as well as that of other artists that Inman alleged had been republished without permission).  

A few days later, Inman posted an update that indicated FunnyJunk had removed some, but not all, of the content at issue.

The June 2 letter from FunnyJunk included a copy of Inman's original post, and alleged that statements made therein constituted a false accusation of willful copyright infringement. Thus, it stated, Inman "exposed [himself] to a lawsuit for defamation per se, in which damages are presumed." The letter also alleged that Inman had engaged in false advertising in violation of the Lanham Act. It concluded by demanding the immediate removal of all mentions of FunnyJunk from TheOatmeal.com and the payment of $20,000.

On June 11, 2012, Inman formally responded to the June 2 letter through his attorney, Venkat Balasubramani. The response letter denied FunnyJunk's claims that the original post was defamatory and constituted a violation of the Lanham Act. The response letter pointed out that FunnyJunk did not appear to have filed a notice of designation naming an agent as required of service providers who seek to rely on the Digital Milennium Copyright Act, placing FunnyJunk in a position where it might be held responsible for third-party infringements. 

On June 12, 2012, Inman issued an informal response to the letter in a post entitled "FunnyJunk is threatening to file a federal lawsuit against me unless I pay $20,000 in damages," published on TheOatmeal.com. Inman included an annotated copy of the June 2 letter, and proposed that he would raise $20,000 in donations and donate the money to two charitable organizations: the National Wildlife Federation, and the American Cancer Society. A link was provided to the fundraising website Indiegogo.com. 

On June 15, 2012, Carreon filed a lawsuit in his own name against Inman, Indiegogo, Inc., the American Cancer Society, the National Wildlife Federation and 100 anonymous Internet users for their role in the fundraising effort. As of July 20, 2012, no further action appears to have been taken by FunnyJunk. 

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    Coming Soon? Graduated Response Measures by Internet Service Providers

    The nation's largest Internet service providers, in an unprecedented partnership with titans of the entertainment industry, have agreed to implement a uniform policy aimed at deterring online copyright infringement known as the Copyright Alert System. An agreement that sets forth extensive details about the program was finalized more than one year ago, but it has yet to take effect.

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    Scott v. WorldStarHipHop, Inc.

    Date: 

    12/16/2010

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    WorldStarHipHop, Inc., Berkeley College

    Type of Party: 

    Individual

    Type of Party: 

    Organization
    School

    Court Type: 

    Federal

    Court Name: 

    Southern District of New York

    Case Number: 

    No. 1:10-cv-09538-PKC-RLE

    Legal Counsel: 

    Jennifer Stisa Granick, Scott Zarin (for Plaintiff WorldStarHipHop, Inc.); David Forbes Bayne, Joseph Louis Francoeur, Steven Mark Corder, Sr. (for Plaintiff Berkeley College)

    Publication Medium: 

    Website

    Relevant Documents: 

    Status: 

    Pending

    Disposition: 

    Dismissed (partial)

    Description: 

    On December 16, 2010, Robert Scott filed a pro se complaint in the Southern District of New York against Berkeley College and WorldStarHipHop, Inc. (hereafter "WorldStar"). Berkeley College is private college in New York; WorldStar, a Nevada corporation, operates and maintains a video website.

    According to Scott's complaint, a fight broke out in a Berkeley College class between Scott's current and former girlfriend in November 2010. During the classroom altercation, Scott got involved and repeatedly hit one of the girls. A classmate (Mr. Seymour) recorded the fight on his cell phone and sent it to WorldStar's website where it was posted as "Disgraceful: College Fight In NYC Breaks Out Between A Guy, His Girl & Another Girl In Class! (Man Strong Arm's(sic) The Student. Hitting Her With Body Shots)."

    Shortly thereafter in December 2010, the classmate assigned his copyright in the video recording to Scott. Scott then sent take-down notices under 17 U.S.C. § 512(c)(3) to WorldStar, claiming the website was displaying the video without his [now copyright-owner's] written consent. WorldStar did not take down the video; this suit followed.

    In his complaint, Scott alleged copyright infringement under the Copyright Act of 1976 and the Digital Millennium Copyright Act. He sought a temporary and permanent injunction, and $28,000 in statutory damages.

    On April 18, 2011, Berkeley filed a Motion to Dismiss pursuant to Rule 12(b)(6) for failure to state a claim. In the motion, Berkeley alleged that Scott did not own a valid copyright, and furthermore that Berkeley was unrelated to co-defendant WorldStar and that Scott failed to show how Berkeley College was responsible for uploading the video. Berkeley argued that it was not accountable for copyright infringement because a "member" of its college posted the video. Berkeley also asked the court to take judicial notice that Scott was involved in two related proceedings with them at the time, both involving a gender discrimination claim filed by Scott with the New York State Human Rights Division against Berkeley due to the disparate discipline that Scott and the two girls involved received as a result of the fight (Scott was expelled, but the girls were allowed to return to school).

    Scott filed a much longer amended complaint on May 24, 2011, with five claims. In it, he included claims against Berkeley College for sex discrimination and retaliation for filing a sex discrimination complaint, both in violation of 20 U.S.C. § 1681. He also included a claim of negligent infliction of emotional distress against Berkeley College. The copyright infringement claim returned, along with allegations of right to privacy violations pursuant to New York's Civil Rights Law.

    Scott alleged that Seymour assigned him the exclusive rights of the copyrighted video for $1 on December 3, 2010. The next day Scott registered the work with the United States Copyright Office (Registration No. PA 1-727-922). He then claimed he contacted WorldStar and Berkeley College and demanded that they both "cease and desist further infringement" of the video. He further alleged that WorldStar "disregarded the statutory requirement of the Digital Millennium Copyright Act" and continued to publish the work. With respect to Berkeley College, he claims that the school infringed his copyright when it submitted the video as evidence in defense of the gender discrimination claim, and  downloaded a copy of the video from WorldStar and distributed it through the school's blackboard network and to its law firm. Scott sought a temporary and permanent injunction, $30,000 in statutory damages and $400,000 damages against Berkeley College for the gender discrimination claims.

    On June 29, 2011, Berkeley filed a Motion to Dismiss Scott's Amended Complaint claiming that Scott's new claims were "patently meritless under well establish[ed] law." Berkeley argued that Scott could not use his alleged copyright to suppress evidence of his own wrongdoing, and that itssubmission of the video into evidence was fair use. Berkeley also discussed the public policy issues of copyright laws being used to "shield primary evidence of wrongful conduct in a judicial or administrative proceeding," and alleged that Scott had bad motives in purchasing the copyright of the video.

    Scott filed an Opposition to the Motion to Dismiss on July 29, 2011. Berkeley replied on August 12, 2011.

    On October 25, 2011, a judge issued an order on Berkeley's Motion to Dismiss, dismissing the case against Berkeley in its entirety with prejudice. The court dismissed the federal claims of copyright infringement, gender discrimination, and retaliation for filing a complaint. In particular, the court held that Berkeley's use of the video in its legal defense was a fair use. The court then declined to exercise jurisdiction over the state claims of invasion of privacy and negligent infliction of emotional distress, in the absence of pending federal claims. Scott has appealed the decision.

    In the midst of the above proceedings, WorldStar had not filed an answer or responded to the lawsuit. A default was entered against WorldStar on October 6, 2011. 

    On November 19, 2011, WorldStar filed a Motion to Set Aside Default claiming that it did not willfully default and that it was not properly served by Scott. In the motion, WorldStar also argued affirmative defenses against Scott's claims. They argued that there was a nonexclusive license from Seymour when he first posted the video and that "any assignment was subject to the exisiting license."  (Note: This language is from the court's order on May 3, 2012, quoting WorldStar's arguments from this motion. The copy of WorldStar's memorandum of law available through PACER is incomplete.)

    The court granted WorldStar's Motion to Set Aside Default on December 12, 2011.

    WorldStar then filed a Motion to Dismiss Scott's Amended Complaint on January 13, 2012. WorldStar argued that they are protected from Scott's copyright infringement claim under the "Safe Harbor" provisions of the Digital Millennium Copyright Act (DMCA), and had no actual knowledge that the video was infringing. WorldStar argued that Scott's letter sent on December 4, 2010, could not be used as evidence of actual knowledge of infringement because it did not comply with the requirements of 17 U.S.C. § 512(3)(b)(i). WorldStar also argued that "plaintiff had non-copyright reasons for wanting to suppress the video, specifically the Berkeley College disciplinary actions." WorldStar also claimed that § 230 of the Communications Decency Act (CDA) protected it from Scott's state right of privacy claims.

    On February 6, 2012, Scott filed an opposition to WorldStar's Motion to Dismiss. In it, Scott alleged that WorldStar was outside of the scope of the DMCA's safe harbor provisions and the scope of § 230 immunity because it was not "doing business as a internet service provider" at the time the video was posted, because it was then in default as a corporation in Nevada. In addition, Scott asserted that WorldStar did not have a designated agent to receive take down notifications or a place on its website with information on where to send take-down notices, and that it did not provide that information to the U.S. Copyright Office, as required by the DMCA.

    WorldStar replied on February 23, 2012, claiming that its corporate parent company's default status is not relevant to the "internet service provider" definition of either the DMCA or the CDA. WorldStar further argued that the DMCA safe habor provisions only allow the copyright owner injunctive relief, and that this is moot because the video has "long since been removed." WorldStar also argued that Scott's amended complaint contained no allegations of a lack of a designated agent.

    Scott filed a Motion for Summary Judgment pursuant to Rule 56(a) on March 1, 2012.

    The district court judge issued an order on WorldStar's Motion to Dismiss on May 3, 2012. The court dismissed the right of privacy claim, but allowed the copyright infringement claim to proceed. The court held that Scott stated a plausible claim for copyright infringement because he alleged that he became a copyright owner on December 3, 2010, and that WorldStar kept a copy of his video on their website without his authorization after that time. The court further held that WorldStar's two affirmative defenses were insufficient. First, the court found there was no evidence that WorldStar's nonexclusive license was in writing, as required by 17 U.S.C. § 205 for  the alleged license to prevail over a later transfer of rights to Scott. Second, in regards to the DMCA "Safe Harbor" provisions, the court held that even though Scott did not comply with statutory requirements of sending take-down notices according to § 512(c), WorldStar waived any objection by failing to request that Scott resubmit the notice or otherwise to take reasonable steps to obtain proper notification.

    The right of publicity claim was dismissed because plaintiff did not allege that WorldStar used the video for advertising purposes, and furthermore it was within the "newsworthiness" exception because it was a recording of actual events that took place in public and was a "matter of valid public interest."

    The court denied plaintiff's motion for summary judgment without prejudice because his motion did not comply with court rules. 

    On June 11, 2012, World Star filed an answer to Scott's Amended Complaint. The complaint raises several affirmative defenses, including lack of personal jurisdiction and Scott's lack of standing due to failure to register the work in question with the Copyright Office pursuant to 17 U.S.C. § 411.

    Update: 

    On June 12, 2012, Scott filed a motion to strike the affirmative defenses raised in World Star's answer, claiming that the affirmative defenses were either waived for failure to raise at the motion to dismiss stage and for World Star's failure to timely file the answer under Fed. R. Civ. P. 12(a)(4)(A). On October 28, 2012, World Star filed an opposition to the motion to strike, acknowledging the untimeliness of the answer but arguing that the delay was not prejudicial to Scott. On November 14, the court denied Scott's motion to strike as to all affirmative defenses except lack of personal jurisdiction, finding that defense precluded by Fed. R. Civ. P. 12(h).

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    Art of Living Foundation v. Does 1-10

    Date: 

    11/05/2010

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    John or Jane Doe ("Skywalker"), John or Jane Doe ("Klim")

    Type of Party: 

    Large Organization

    Type of Party: 

    Individual

    Court Type: 

    Federal

    Court Name: 

    United States District Court, N.D. California, San Jose Division

    Case Number: 

    10–CV–05022–LHK

    Legal Counsel: 

    Joshua Koltun

    Publication Medium: 

    Blog

    Relevant Documents: 

    Status: 

    Pending

    Disposition: 

    Dismissed (partial)
    Settled (partial)

    Description: 

    Substantive Proceedings

    The Art of Living Foundation is an international nonprofit organization that, according to its website, is "engaged in stress-management and service initiatives." Two former followers, Skywalker and Klim, published anonymous blogs (entitled "Leaving the Art of Living" and "Beyond the Art of Living") criticizing the Art of Living's practices and their leader, Sri Sri Ravi Shankar. In addition to their critiques, they also provide excerpts from the Art of Living's teaching manuals and other materials (normally provided to members in courses for a fee).

    On August 14, 2010, Skywalker and Klim received a demand from Art of Living (from its headquarters in India) to take down this material. The branch of Art of Living in the United States (based in California) also filed a complaint on November 5, 2010, in the U.S. District Court for the Northern District of California. Art of Living alleged copyright infringement under federal law for the blogs' publication of portions of the "Breath Water Sound Manual." In addition, Art of Living alleged misappropriation of trade secrets, defamation, and trade libel under California law, based on the aforementioned publication and the Does' critical statements about the organization.

    On January 31, 2011, the Does filed a motion to dismiss the defamation and trade libel claims for failure to state a claim. They also filed a special motion to strike the defamation, trade libel, and trade secrets claims under California's anti-SLAPP statute. Art of Living filed both an opposition to the motion to dismiss and an opposition to the motion to strike on March 17, 2011, to which the Does replied (reply re: motion to dismiss; reply re: motion to strike) on April 6, 2011. After a hearing in May, on June 15, 2011, U.S. District Judge Koh dismissed the defamation and trade libel claims and denied (without prejudice) the motion to strike. Judge Koh found that the statements at issue were opinions rather than assertions of fact, resolving the defamation claim, and that Art of Living did not sufficiently allege harm or damages for the trade libel claim. Judge Koh also held that discovery on the trade secrets claim could not proceed until Art of Living identified the trade secrets with reasonable particularity.

    On July 14, 2011, Art of Living proceeded to amend their complaint in accordance with the June 15th order, removing the dismissed claims from their complaint. Art of Living also provided further detail and content identification in regards to the remaining copyright infringement and trade secrets claims. The Does answered the amended complaint on July 28, 2011.

    The Does then filed a second special motion to strike on September 12, 2011 (with the redacted version entering the docket on January 9, 2012), this time directed at the remaining trade secret claim. This motion was opposed by Art of Living on September 29, 2011. Additionally, on September 27, 2011, the Does filed a motion for summary judgment on the copyright infringement claims. Art of Living filed an opposition to this motion on October 11, 2011, which the Does replied to on October 24, 2011. 

    In an order on May 1, 2012, Judge Koh granted summary judgment on the copyright infringement claim. Judge Koh found that Klim was entitled to summary judgment based on noninfringement, and that Art of Living did not provide enough support for its claim of authorship of the manual to pursue a copyright infringement claim against Skywalker because the copyright registration certificate was obtained after the litigation began). The district court also granted Klim's motion to strike the trade secrets misappropriation claim while denying the motion to strike in regards to Skywalker. While Skywalker conceded that there was at least some overlap between his blog postings and the materials Art of Living designated as trade secrets, Art of Living presented no evidence that Klim misappropriated any of these materials.

    Anonymity in Art of Living v. Does

    Throughout the proceedings described above, there was an ongoing issue with respect to the defendants' ability to proceed anonymously.

    On November 9, 2010, Art of Living filed a motion for leave to take expedited discovery. Pursuant to an ex parte order by Magistrate Judge Beeler, on December 20, 2010, Art of Living subpoenaed Google and Wordpress to reveal the identities of bloggers Skywalker and Klim. Not long after being notified of this by Google, the Does filed a motion to quash the subpoena. In response, Art of Living filed an opposition on March 22, 2011, and the Does replied on April 28, 2011. On August 10, 2011, Magistrate Judge Lloyd denied the motion to quash in regards to Skywalker's claim while granting it for Klim, finding that the copyright claim was a sufficient basis for permitting identification of Skywalker.

    In response, on August 24, 2011, Skywalker filed a motion for relief from the order of the Magistrate Judge regarding the motion to quash. On August 31, 2011, Public Citizen, joined by the Electronic Frontier Foundation and the ACLU, submitted an amicus brief. This brief urged the court to apply the balancing test adopted in Dendrite Int'l v. Does, despite the copyright claim being considered in the case. Art of Living's opposition to the motion for relief was filed on September 16, 2011, and Skywalker replied on September 30, 2011.

    On November 9, 2011, Judge Koh granted the motion, finding that Skywalker's First Amendment right to anonymous speech outweighed Art of Living's need for discovery at this time. Judge Koh applied the Highfields Capital two-part test (which relied heavily on Dendrite) for determining whether to allow discovery seeking the identity of an anonymous defendant: "(1) The plaintiff must produce competent evidence supporting a finding of each fact that is essential to a given cause of action; and (2) if the plaintiff makes a sufficient evidentiary showing, the court must compare the magnitude of the harms that would be caused to the competing interests by a ruling in favor of the plaintiff and by a ruling in favor of the defendant."

    In a case management conference and corresponding minute order on May 9, 2012, Judge Koh again denied all of Art of Living's motions to disclose Skywalker's identity. By also refusing to extend discovery a setting the trial date and length, these rulings potentially allowed Skywalker to defend at trial anonymously.

    Related Case and Settlement

    On June 8, 2012, Judge Koh granted Art of Living's motion to relate Art of Living Foundation v. Eng-An Chou (Docket no. 5:12-CV-02748-LHK) to this case. Chou involves Art of Living's claim that Eng-An Chou breached her contracts with Art of Living by disclosing some of the organization's confidential texts to Skywalker for posting on his blog.

    The next week, the cases were referred to Judge Joseph C. Spero for a Magistrate Judge Settlement Conference. The conference was held on June 12, 2012 and a settlement was reportedly reached. As part of the settlement agreement, Skywalker and Klim published a joint statement informing readers of the settlement and would proceed to freeze their blogs on June 19, 2012. The joint statement noted that there are no restrictions on the Does to create new blogs, and that no identity had or would be disclosed in relation to this litigation and settlement. Art of Living also agreed to drop the lawsuit with prejudice (also dropping the separate suit against Chou) and to pay Skywalker and Klim's attorney's fees.

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    DMLP Amicus Update: Narrow Victory in Massachusetts Anti-Counterfeiting Case

    The DMLP recently appeared as an amicus curiae in Commonwealth v. Busa, a case brought in Boston Municipal Court under Massachusetts's anti-counterfeiting law, M.G.L. ch. 266 § 147 ("Section 147").

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    DMLP files Amicus Brief Against Massachusetts's 'Anti-Counterfeiting' Law

    Earlier this week the CMLP (under its new name, the Digital Media Law Project) sought leave to file an amicus brief in Boston Municipal Court in the case of Commonwealth v. Busa, which concerns a prosecution under Massachusetts's anti-counterfeiting law, M.G.L.

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    Viacom v. YouTube: The Second Circuit Punts on 'Right and Ability to Control'

    I'm not all that worried about YouTube's legal fate as such (I'm pretty sure Google can afford plenty of lawyers), but when the Second Circuit speaks on the DMCA, I listen.

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    White, et al. v. West Publishing Corporation, et al.

    Date: 

    02/22/2012

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    West Publishing Company; Reed Elsevier, Inc. (doing business as LexisNexis)

    Type of Party: 

    Individual
    Organization

    Type of Party: 

    Large Organization

    Court Type: 

    Federal

    Court Name: 

    U.S. District Court, Southern District of New York

    Case Number: 

    1:12-cv-01340-JSR

    Legal Counsel: 

    Weil, Gotshal & Manges LLP (for Defendant West); Morrison & Foerster LLP (for Defendant Lexis)

    Publication Medium: 

    Website

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    On February 22, 2012, two attorneys and an associated law firm filed a class-action lawsuit against legal database companies West Publishing (proprietor of Westlaw) and Reed Elsevier (proprietor of LexisNexis). The plaintiffs allege that by including legal filings—such as motions, briefs, and memoranda—in their databases, the defendants are engaging in copyright infringement.

    The complaint alleges that Westlaw and LexisNexis engage in "unabashed wholesale copying" of attorneys' copyrighted works, and also violate attorneys' distribution and derivative-work rights by maintaining the databases. Plaintiffs also allege that defendants' conduct does not "fall within any of the statutory exceptions to copyright infringement."

    The complaint also argues that the case is properly handled as a class-action. Named plaintiff Edward White represents the subclass of attorneys who have registered copyrights in their legal documents; copies of White's copyright registrations are attached to the complaint. The other named plaintiff, Kenneth Elan, represents attorneys who have not registered their copyrights. The complaint alleges that between the two, the named plaintiffs adequately represent the class, defined as "all attorneys and law firms . . . authorized to practice law in the United States . . . that authored works . . . contained in the Defendants' searchable databases." The plaintiffs do not purport to represent any employees of any level of any government, nor do they represent the defendants' own companies and employees.

    The complaint requests declaratory judgments of the defendants' copyright infringement, permanent injunctions, actual damages for all attorneys in the class, and, for attorneys that have registered their copyrights, statutory damages and disgorgement of defendants' profits.

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    CMLP Notes: 

    3/26/2012: JS creating

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    Will the Fifth Time be the Charm for Britain's IP Policy Reviews?

    The All-Party Intellectual Property Group (APIP) in the United Kingdom recently announced that it is taking on an arduous task: “conduct[ing] an inquiry into the role of government in protecting and promoting intellectual property.”

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    Righthaven is no more! It has ceased to be! It's expired and gone to meet its maker!

    If there is a polar opposite to organizations like ours, it is the intellectual property troll.  And in the IP troll heirarchy, one of the trolliest has long been Righthaven, the self-described "pre-eminent copyright enforcer" that sued hundreds of bloggers and other Internet denizens apparently as part of its business model.  If the DMLP, the EFF, Public Citizen, and the like are the Justice League, Righthaven would be in the Secret Society of Supervillians.

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    Can AP's Copyright Claims Hold (Melt)water?

    By now you might have heard about the lawsuit that the Associated Press filed against on-demand software company Meltwater News.

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    Liberty Media Holdings v. John Does

    Threat Type: 

    Lawsuit

    Date: 

    05/06/2011

    Party Receiving Legal Threat: 

    Michael Rapisarda, Jeremy Marron, Tim Zoller, Philip Pirello, Theodore Warner, Mark Packard, Tim Granger, Tha Chanh, Anant Pavidapha, Kyle Boran, Larry Son, Shannon Lyons, John Doe 2, John Doe 10, John Doe 15, John Does 39-51

    Type of Party: 

    Organization

    Type of Party: 

    Individual

    Court Type: 

    Federal

    Court Name: 

    U.S. District Court, District of Massachusetts

    Case Number: 

    11-cv-10802

    Legal Counsel: 

    Perry, Krumsiek & Jack LLP (for Defendant Doe 10); Booth Sweet LLP (for Defendant Doe 2); Pepper Hamilton LLP (for Defendant Pirello); Dan N. Tran (for Defendant Son); Coughlin Betke LLP (for Defendant Granger); Peter Irvine (for Defendant Menard)

    Publication Medium: 

    Other

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    Liberty Media Holdings, an adult film company, filed suit on May 6, 2011, against approximately 50 Massachusetts residents for copyright infringement of material allegedly shared over a BitTorrent file transfer protocol. The complaint claims that defendants, through the use of a BitTorrent protocol, were allowed to join a "swarm" of hosts and could consequently download and upload content from each other. The complaint details the the process by which this happens, alleging that the practice ends in each defendant (each member of the "swarm") simultaneously stealing and redistributing Liberty Media's copyrighted material.

    Liberty Media asserted two separate copyright infringement claims against defendants: first, that defendants wilfully and intentionally used the BitTorrent protocol to make unauthorized copies of a Liberty Media motion picture and distribute them to others, in violation of 17 U.S.C. § 501; and second, that defendants are responsible for contributory copyright infringement, because they each knew multiple people were involved in the illegal distribution, and because the infringement by other BitTorrent users would not have occured but for each defendant's participation in the infringement. Liberty Media is seeking an injunction preventing defendants from further infringement, as well as $150,000 per defendant in statutory damages plus costs and attorney's fees.

    According to the complaint, Liberty Media identified each defendant by his or her IP address. Liberty Media consequently filed an emergency ex parte motion for early discovery, requesting that the court direct the defendants' Internet service providers (ISPs) to disclose each individual's identity. In its memorandum in support of its motion, Liberty Media claimed that it had adequately asserted a prima facie case for copyright infringement, that the discovery request was reasonably specific, and that the defendants' identities were central to Liberty Media's case. On May 10, 2011, the court granted Liberty Media's motion, allowing Liberty Media to issue subpoenas on the ISPs.

    In response to the court order, three separate defendants filed motion to quash the subpoenas. The motions to quash generally put forth similar legal arguments. The motions by Defendant Doe 2 and Defendant Doe 15 claimed the subpoena should be quashed because the records were located over 100 miles away. Doe 2 and an unidentified Doe claimed that Liberty Media did not provide sufficient information about the nature of the alleged file sharing, including amount of data shared or duration, and therefore failed to make a prima facie case for copyright infringement. The unidentified Doe also alleged improper joinder due to the risk of creating an unfair process and claimed that Liberty Media was attempting to reveal defendants' identities in order to coerce pretrial settlements.

    Liberty Media opposed the motions, arguing that the court should not consider completely anonymous motions to quash. It also supported joinder of all defendants, citing previous John Doe file trading cases that have found joinder "not only proper, but ... the best and most efficient way to administer such lawsuits." Liberty Media finally claimed that the court should not consider arguments on the merits until defendants are named. The court denied each motion to quash on July 22, 2011, and stated that the defendants would not be permitted to proceed further using pseudonyms.

    Between June 2011 and January 2012, Liberty Media voluntarily dismissed 23 defendants with prejudice. None of the notices provided a reason for the dismissal.

    On January 23, 2012, after the voluntary dismissals, Liberty Media filed an amended complaint against the remaining defendants. The amended complaint alleged the same counts of copyright infringement as the complaint, and added claims of civil conspiracy and negligence. Liberty Media claimed that the conspiracy involved a scheme to traffic infringing content, and asserted that defendants knew the BitTorrent client would provide access to infringing content, and that each defendant intended to access the content for the purpose of reproducing and exchanging it in violation of copyright laws. Finally, Liberty Media claimed that if the defendants themselves did not use its copyrighted work, then defendants failed to adequately secure their networks, allowing others to access the Internet through their accounts. Therefore, Liberty Media argued, defendants should be held liable for negligence in "breach of the ordinary care that reasonable persons exercise in using an Internet access account." 

    CMLP Notes: 

    Created by LC, 2/17/12

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    Threat Source: 

    Google News

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    Associated Press v. Meltwater News

    Date: 

    02/14/2012

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    Meltwater News

    Type of Party: 

    Large Organization

    Type of Party: 

    Organization

    Court Type: 

    Federal

    Court Name: 

    U.S. District Court, Southern District of New York

    Case Number: 

    1:12-cv-01087-DLC

    Legal Counsel: 

    Wilson Sonsini Goodrich & Rosati

    Publication Medium: 

    Website

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    On February 14, 2012, the Associated Press (AP) filed a lawsuit in federal court against Meltwater News, Inc. AP alleges multiple counts of copyright infringment, as well as hot news misappropriation and 17 U.S.C. § 1202 (b) removal/alteration of copyright information.

    AP's complaint focuses on Meltwater News Service,  which Meltwater describes as an "online media monitoring" service. AP alleges that Meltwater News infringes AP's rights by storing complete copies of AP stories, circulating "substantial verbatim excerpts" of those stories in newsletters and email reports, allowing Meltwater subscribers to access, save, edit, and distribute the full text of articles, and preparing unauthorized translations of the articles.

    The complaint draws a distinction between Meltwater News and other news aggregators like Google News: Meltwater charges subscribers a "substantial annual fee," and unlike other services that "drive traffic to legitimately licensed sites," Meltwater News's users archive the AP articles directly on Meltwater's site. Thus, AP alleges that Meltwater News is a "directly competing product [built] on the backs of news organizations like the AP."

    Thus, AP alleges:

    • Direct copyright infringement based on Meltwater's use of AP content;
    • contributory copyright infringement based on Meltwater's customers' ability to copy AP content;
    • vicarious copyright infringment based on Meltwater's profiting from, and ability to control, customers' infringement;
    • hot news misappropriation based on Meltwater's competition with AP for subscribers; and
    • 17 U.S.C. § 1202 (b) violations based on Meltwater's customers' ability to remove or edit credit lines and copyright notices included in AP articles.

    AP also seeks a declaratory judgment that Meltwater News constitutes infringment of AP's copyrights.

    AP included with its complaint exhibits documenting the allegedly-infringed content and some of Meltwater's promotional materials describing Meltwater News.

    Update:

    On April 6, 2012, Meltwater answered, denying AP's claims of copyright infringement, hot news misappropriation, and removal of copyright management information. The answer raised a series of defenses, including copyright misuse, fair use, substantial non-infringing use doctrine, implied license, First Amendment defense, DMCA safe harbor, and immunity from a "hot news" claim through copyright preemption and under § 230 of the Communications Decency Act. Meltwater also raised a series of counterclaims, including a declaration of non-infringement and safe-harbor under the DMCA, libel (based on AP's press release following the complaint), and tortious interference with business relations.

     On May 15, 2012, AP answered Meltwater's counterclaims. AP asserted that Meltwater does not qualify for DMCA safe-harbor protection due to failure to register an agent before the complaint was filed, that the tortious interference claim is duplicative of the libel claim, and that all statements made in the press release were protected under the First Amendment and Article 1 § 8 of the New York State Constitution, as well as a "fair report" under § 74 of the New York Civil Rights Law.

    Content Type: 

    CMLP Notes: 

    2/16/2012: Sharkey created, sent to queue

    6/22/2012: AFS edited, added updates

    Jurisdiction: 

    Subject Area: 

    United States v. Megaupload Limited

    Threat Type: 

    Criminal Charge

    Date: 

    01/05/2012

    Party Receiving Legal Threat: 

    Megaupload Limited, Vestor Limited, Kim Dotcom, Finn Batato, Julius Bencko, Sven Echternach, Mathias Ortmann, Andrus Nomm, and Bram van der Kolk

    Type of Party: 

    Government

    Type of Party: 

    Organization

    Court Type: 

    Federal

    Court Name: 

    United States District Court, Eastern District of Virginia

    Legal Counsel: 

    Ira Rothkin (counsel for defendant Megaupload Limited), Paul Davison Q.C. (counsel for defendant Dotcom), Guyon Foley, Barrister (counsel for defendant Dotcom)

    Publication Medium: 

    Website

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    On January 5, 2012, a grand jury convened in the United States District Court for the Eastern District of Virginia issued an indictment against Megaupload Limited, its affiliate Vestor Limited, and principals Kim Dotcom (a resident of New Zealand and Hong Kong, and a citizen of Finland and Germany), Finn Batato (a citizen of Germany), Julius Bencko (a citizen of Slovakia), Sven Echternach (a citizen of Germany), Mathias Ortmann (a citizen of Germany and a resident of Hong Kong), Adrus Nomm (a citizen of Estonia), and Bram van der Kolk (a citizen of the Netherlands and New Zealand).

    The indictment alleges that the organization and its principals were engaged in a systematic conspiracy to commit and profit from copyright infringement, through operation of the megaupload.com domain name and its affiliates, including megavideo.com.  According to the indictment, before its seizure, Megaupload operated as a "cyberlocker" or file hosting service website, where users were able to upload content to Megaupload servers and receive a unique URL which identified where the file could be downloaded later. Megaupload did not charge users for the basic service, and offered a premium subscription that featured faster bandwidth and fewer limitations on accessing the content stored. The website also featured an "Uploader Rewards" program, which gave monetary compensation for users that uploaded especially popular files to the system. Specific allegations are made stating that the defendants directly copied material without permission, helped others commit copyright infringement, received a direct financial benefit from infringement, and induced others to commit copyright infringement.

    The indictment lists five criminal counts, all related to the underlying allegation of criminal copyright infringement. In addition to criminal copyright infringement (17 U.S.C. §506 and 18 U.S.C. § 2319), the indictment alleges conspiracy to commit racketeering (18 U.S.C. § 1962) by being engaged in an enterprise to commit criminal copyright infringement, conspiracy to commit money laundering (18 U.S.C. § 1956) by transferring money that constituted the proceeds of criminal copyright infringement, and aiding and abetting criminal copyright infringement (18 U.S.C. § 2). The indictment alleges that Megaupload did not designate a copyright agent, as is required under the  "safe harbor" of the Digital Millennium Copyright Act (17 U.S.C. § 512), and that Megaupload would deliberately avoid taking down an allegedly infringing file based on a infringement notice, opting instead to only delete the link to the file on which the complaint was based.

    According to the New Zealand Herald, Dotcom, Batato, van der Kolk, and Ortmann were arrested on January 19, 2012. On January 27, 2012, the Department of Justice filed a letter informing the defendants and the court that the DOJ had conducted a search of Megaupload service providers Carpathia Hosting, Inc. and Cogent Communications, Inc. in Virginia and the District of Columbia. The DOJ had copied the files from servers licensed to Megaupload, and informed the court that the hosting companies may begin deleting the contents of those servers beginning on February 2nd. On February 1, 2012, the Electronic Frontier Foundation filed a letter to the parties and the court on behalf of an undisclosed client, asking the court to preserve the material stored by Megaupload at the direction of the website's users, noting that many individuals had relied on the service for innocent, noninfringing storage of content. According to a Twitter post made by Megaupload Limited's attorney, the hosting services have agreed to temporarily preserve the servers until an agreement can be reached on how to preserve the material stored at the direction of innocent users.

    The extradition process is currently underway for defendants arrested in New Zealand. According to BBC News, Mr. Dotcom was denied bail based on flight risk concerns.

    Content Type: 

    Subject Area: 

    CMLP Notes: 

    1/25 AFS began skeleto, filled out 2/6.

    Jurisdiction: 

    Threat Source: 

    Court Filings
    RSS

    Hard Drive Productions v. Does

    Date: 

    09/27/2011

    Threat Type: 

    Lawsuit

    Party Receiving Legal Threat: 

    Does 1-1,495

    Type of Party: 

    Organization

    Type of Party: 

    Individual

    Court Type: 

    Federal

    Court Name: 

    U.S. District Court, District of Columbia

    Case Number: 

    1:11-cv-01741-JDB-JMF

    Legal Counsel: 

    Lewis Brisbois Bisgaard & Smith, LLP (John J. Michels , Jr.); Dunner Law, PLLC (Adam W. Sikich); Kelly Law Firm, LLC (Aaron M. Kelly)

    Publication Medium: 

    Other

    Relevant Documents: 

    Status: 

    Pending

    Description: 

    On September 27, 2011, adult-film company Hard Drive Productions filed a lawsuit in federal court against 1,495 anonymous defendants. The complaint alleged that the defendants were all involved in transferring one of Hard Drive's copyrighted films through the file-sharing protocol BitTorrent. Hard Drive alleged one count of copyright infringement, and included a list of the IP addresses allegedly involved in the BitTorrent transfers.

    Hard Drive then moved for expedited discovery, in order to subpoena the relevant Internet Service Providers for the identities of the parties linked to the IP addresses. The district court granted Hard Drive's motion and allowed the company to subpoena the ISPs.

    Over the following month, the district court received three anonymous motions to quash or modify the subpoenas. On November 2 District Court Judge Bates denied the anonymous motions on the basis of local court rules requiring filings to contain full identifying information. Judge Bates further stated that the anonymous defendants could re-file their motions under their true names, and those motions (and their identities) would be kept under seal from both the plaintiff and the general public, even if the motions eventually failed. Judge Bates also stayed the subpoenas because the anonymous motions raised "substantial issues."

    On November 10, Judge Bates issued an order clarifying the procedure by which the defendants' filings would be placed under seal from the plaintiff.

    On November 16, Judge Bates referred the case to Magistrate Judge Facciola. On November 28, the Magistrate Judge issued to counsel a notice of the case's assignment.

    On November 22 and 23, the court received a pair of motions under seal, accompanied by publicly accessible notices of those filings. One of these notices mentioned that the sealed motion included arguments regarding personal jurisdiction, Rule 45(c)(3)(A), and misjoinder, along with a motion for a protective order. According to one of the notices, the defendants provided Hard Drive with copies of the motions, redacted to remove all personally identifying information.

    On November 30, one of the anonymous defendants was dismissed from the case.

    On December 2, four defendants, using their real names, filed motions to quash and/or to dismiss. It is unclear whether any of these identified defendants had previously filed anonymously. The four motions, three of which were filed pro se, made slightly different arguments: one claimed to have been away from home when the alleged copyright infringement took place; one made an argument based on the availability of the sought-after information; one argued that the infringement must have happened on the defendant's unsecured WiFi network; the last motion described the allegedly-abusive series of lawsuits filed by the plaintiff, and argued that joinder of all 1,495 defendants was improper.

    On December 13, notice of another sealed motion to quash was filed.

    On December 21, the Magistrate Judge Facciola refused to docket any anonymously filed motions to quash. He divided the moving defendants into four categories: 1. Those using their real names; 2. Those remaining totally anonymous; 3. Those using only their IP addresses; and 4. Those filing under seal pursuant to Judge Bates's order. The motions filed by defendants using their real names were docketed. Motions filed by defendants who either remained totally anonymous or used only their IP address as identification were rejected, and those defendants were given a February 1 deadline to re-file under their real names. Finally, motions filed under Judge Bates's order (sealing the motions from the plaintiffs) were also rejected. Magistrate Judge Facciola gave these defendants two choices: they could withdraw their motions to quash, thus remaining anonymous "at this point"; or, they could choose to have their motions filed on the public docket, where the "plaintiff and anyone else who accesses the public docket will [be able to] know who they are." These defendants were given until February 1 to decide which option to choose.

    Magistrate Judge Facciola acknowledged that these defendants had "justifiably" relied on Judge Bates's order permitting the motions to be sealed from the plaintiffs. The Magistrate Judge "concluded, however, that no one will be permitted to proceed any further in this case without identifying himself or herself," and stated that "I will not consider any motion unless it is publically filed." In support of this conclusion, Magistrate Judge Facciola stated that "[i]ndividuals who subscribe to the internet through ISPs simply have no expectation of privacy in their subscriber information." He cited three cases in support of his conclusion: U.S. v. Christie, 624 F.3d 558, 573 (3rd Cir. 2010); Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001); and Achte/Neunte Boll Kino Beteiligungs Gmbh & Co. v. Does 1-4,577, 736 F. Supp. 2d 212, 216 (D.D.C. 2010).

    On January 5, 2012, Hard Drive filed a set of responses to the four defendants who had previously filed motions under their real names. The content of the responses varied depending on the defendant, but all four contained the same standing argument: that only the ISPs, as the parties to which the subpoenas were directed, had standing to challenge the subpoenas. Hard Drive argued that if a party is neither the target of the subpoena, nor possess the sought-after documents, that party lacks standing to challenge the subpoena. Hard Drive noted that all four defendants may be eligible for an exception under Fed. R. Civ. P. 45(c)(3)(A)(iii), which, according to Hard Drive, applies if a party "claims a personal right or privilege" in the information sought by the subpoena. According to Hard Drive, however, each of the four defendants had failed to claim this personal right.

    On January 20, Hard Drive dismissed nine more anonymous defendants.

    CMLP Notes: 

    1-27-2012: Sharkey finished with entry

    Content Type: 

    Jurisdiction: 

    Subject Area: 

    SOPA/PIPA Protest Day is Over, But the Battle is Not

    The day of protest against the now (hopefully) infamous "Stop Online Piracy Act" (SOPA) and "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" (PROTECT IP Act, or PIPA) has ended.  Baffled students can once again access Wikipedia to do their homework; the Google doodle is no longer black

    Jurisdiction: 

    Subject Area: 

    Pages

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