Christopher Fitzgerald, a freelance photographer who was working on assignment for the Boston Globe, photographed well-known mobster Stephen Flemmi on January 6, 1995 while Flemmi was being transferred shortly after his arrest. Fitzgerald was the only photographer at the scene, and thus his are the only known publicly-available photographs of Flemmi’s arrest. In June 2004, two CBS affiliate stations in Boston, CBS-4 and UPN-38, broadcast one of Fitzgerald's photographs without permission and CBS-4 put the photo on its website.

On October 12, 2004, Fitzgerald sued CBS for copyright infringement. Fitzgerald also filed a second, nearly identical copyright action (06-11302) against CBS based on the same set of facts, seeking to collect double statutory damages because the broadcast at issue went out over two of CBS’s Boston affiliate stations.

Several years prior to this action, Fitzgerald had sued CBS over the use of the same photographs in its show "60 Minutes." That lawsuit ended in a settlement, and CBS took steps to ensure that the photographs were not accidentally broadcast again. However, at least one copy of a photograph was not destroyed, and it was used in 2004 by the CBS affiliate stations.

On September 1 and 20, 2006, the parties filed cross motions for summary judgment, with CBS asserting that its use of the photograph constituted fair use under copyright law. The district court granted partial summary judgment for Fitzgerald as to CBS's liability, but denied Fitzgerald's claim for summary judgment as to willfullness. The court also consolidated the two lawsuits because they were based on the same set of facts.

Two final determinations are left to the jury: (1) whether CBS's use of the photograph was willful copyright infringment and (2) the extent of Fitzgerald's damages.

Update:

4/14/2008 - Judge dismissed the case after parties reached a settlement.

On October 31, 2007, Doug Clark of the Greensboro News-Record wrote a blog post about a campaign speech made by Douglas McCullough, a North Carolina Court of Appeals judge, to a group of Republican supporters. During the speech, McCullough made statements implying that voting for a fellow Republican candiate, N.C. Supreme Court Justice Bob Edmunds, would help Republicans fair better in redistricting litigation that would come before the N.C. Supreme Court in the future. In the post, Clark originally linked to a video of the speech posted on McCullough's campaign website. When the video was removed from the campaign website, he provided a link to the video on YouTube.

Blogger and law professor Eugene Volokh noticed that Clark's YouTube link led to a notice that the video had been removed due to a third-party copyright claim. Volokh surmised that McCullough or someone connected with him had filed a DMCA takedown claim to remove the video. Volokh commented on the potential fair use defense available to whomever actually posted the video:

This takedown strikes me as quite troublesome: The posting of the video seems very likely to be fair use, because it was for purposes of news reporting and political commentary, and because it was highly unlikely to at all affect the market for the video (since the market likely didn't exist). More broadly, the judge is hiding important information from the public, information that he shouldn't be trying to conceal even if copyright law allowed such concealment. If anyone has a copy of the video and can point me to it, or e-mail it to me, I'd love to see it, and post it if it strikes me as newsworthy.

The page with the takedown notice still exists, but the video has been re-posted to YouTube and remains available at the new URL.

J.K. Rowling, the author of the successful Harry Potter books and films, and Warner Brothers, which produces and markets Harry Potter movies and products, filed a copyright infringement lawsuit against book publisher RDR Books in the United States District Court for the Southern District of New York. Rowlings and Warner Brothers seek an injunction barring RDR Books from publishing The Harry Potter Lexicon, the print counterpart of the Harry Potter fan website, www.hp-lexicon.com. The website contains information on "the series’ characters, places, animals, magic spells, and potions along with atlases, timelines, and analyses of magical theory," according to a press release issued by Stanford Law School's Fair Use Project, which is acting a co-counsel to RDR Books in the case.

Rowling and Warner Brothers argue that the book, which had been scheduled to be released November 28, 2007, misappropriates elements of Rowling's imaginary world and otherwise violates the plaintiffs' copyright and trademark rights in the books, movies, and related products. RDR argues that it has the right to publish the Lexicon under the fair use doctrine, which is a defense to copyright infringement that permits the use of a copyrighted work without the copyright owner's permission for limited and "transformative" uses that do not damage the market for the original work.

On November 8, 2007, the court issued a temporary restraining order delaying RDR's publication of the book. Both parties agreed to the entry of this order, pending a hearing on a preliminary injunction scheduled for February 6, 2008.

Update:

The court decided to combine the preliminary injunction hearing with a trial on the merits, which is scheduled to begin April 14, 2008.

4/16/2008 - The trial ended, and the court took the matter under advisement.

9/8/2008 - Judge Patterson issued a decision finding the defendants liable for copyright infringement; judge issued permanent injunction and $6,750 in statutory damages.

12/4/08 - RDR Books dismissed its appeal and announced that it will publish a revised version of The Lexicon on on January 12, 2009.  Mr. Vander Ark substantially rewrote the book in an effort to bring it in line with Judge Patterson's decision.  J.K. Rowling's agents issued the following statement:

We are delighted that this matter is finally and favourably resolved and that J.K. Rowling's rights  -- and indeed the rights of all authors of creative works -- have been protected.  We are also pleased to hear that rather than continue to litigate, RDR have themselves decided to publish a different book prepared with reference to Judge Patterson's decision.

Conservative talk show host Michael Savage sued the Council on American-Islamic Relations (CAIR) in federal district court in California on December 3, 2007 for copyright infringement. He claims that CAIR violated his copyrights in the October 29, 2007 program of the "Michael Savage Show" by excerpting a four-plus minute portion of the show and posting it on CAIR's website. The excerpt was (and remains) attached as an audio file to an article on the website, entitled "National Radio Host Goes On Anti-Muslim Tirade." The article criticizes Savage's comments on the show and calls on "radio listeners of all faiths to contact companies that advertise on Michael Savage's nationally-syndicated radio program to express their concerns about the host's recent anti-Muslim tirade."

The complaint made a number of claims that don't have any immediate relevance to Savage's copyright claim, including that CAIR is a political organization, rather than a charitable or civil rights organization; that CAIR has ties to organizations like Hamas and Hezbollah; and that CAIR used the excerpt from Savage's show out of context, thereby distorting his message and squelching his freedom of speech. The complaint also named 100 anonymous defendants, but it did not make clear what role these defendants had in the alleged copyright infringement.

In his amended complaint and then second amended complaint, Savage also raised a claim under the Racketeer Influenced and Corrupt Organizations (RICO) Act, relating to CAIR's alleged connections to radical Islamic terrorism.

On January 30, 2008, CAIR filed its answer and moved for judgment on the pleadings, asking the court to dismiss the lawsuit because it was "simply a camouflaged defamation or disparagement claim dressed as bogus copyright and RICO claims...Savage's legal broadside specifically targets CAIR as a civil rights organization and its core political speech responding to and criticizing Savage's inflammatory political rhetoric." (from EFF).

Update:

7/25/08 - The court dismissed the copyright and RICO claims, giving Savage permission to amend the RICO portion of his complaint, but not the copyright portion. 

Gordon Parker sued Google in federal court in Pennsylvania in August 2004. According to court documents, Parker claimed that he published a website, "29 Reasons Not to be a Nice Guy." He alleged that an unknown Internet user copied Reason #6 and posted it on USENET, which Google then made accessible via its Google Groups service. Parker also alleged that Google defamed him by enabling users to access links to websites disparaging him using its search engine function and invaded his privacy by creating an unauthorized biography of him whenever someone "googled" his name.

The district court dismissed all of Parker's claims. It held that Parker's claim of direct copyright infringement failed because he did not allege volitional conduct on the part of Google in making the USENET posts available. The claim of contributory copyright infringement failed, according to the court, because Parker failed to show that Google had knowledge of the offending posts, and the vicarious infringement claim failed because Google did not have a direct financial interest in its user's posting of allegedly copyrighted material.

The court held that Parker's defamation, invasion of privacy, and negligence claims were defeated by CDA 230, which protects providers of interactive computer services from tort liability for publishing the statements or content of third parties, because he did not allege that Google was the "information content provider" of the offending material. His other claims were also dismissed as "futile" because the plaintiff failed to set out the basic elements of each of these claims.

The Third Circuit affirmed the decision.

Sometime in early 2003, an unknown person or persons obtained and reproduced on the Internet copies of an archive of email messages exchanged between employees of Diebold, a manufacturer of electronic voting machines. According to court documents, some emails in the archive acknowledged problems associated with Diebold's machines. Two Swarthmore students obtained copies of the leaked email messages and posted them on their server at Swarthmore. An anonymous poster described these documents on IndyMedia, an independent news site, and linked to their location at Swarthmore. Subsequently, commenters and other posters on IndyMedia linked to other places where the documents were hosted as well.

On October 10, 2003, Diebold sent a DMCA takedown notice to Online Policy Group (OPG), a nonprofit web hosting company providing services to IndyMedia. The letter asserted that IndyMedia was infringing Diebold's copyrights by providing links to webpages containing the leaked email correspondence and demanded that OPG remove or disable access to the links in question. OPG refused, responding in an October 22 letter that neither OPG or IndyMedia was hosting the alleged infringing material, that linking was not among the exclusive rights granted by copyright law, and that the postings on IndyMedia were fair use.

OPG and the two college students then sued Diebold in federal court in November 2004, claiming that the company had violated section 512(f) of the DMCA, which creates a cause of action for damages, including costs and attorneys fees, for "knowingly materially misrepresent[ing]" in a takedown notice "that material or activity is infringing." The court granted summary judgment to OPG on its section 512(f) claim, finding that portions of the email archive were so clearly subject to the fair use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." According to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit.

(Note: the "Verdict/Settlement Amount" field refers to amount that the party receiving the legal threat (in this case, the original DMCA takedown notice) paid to resolve the threat. Because Diebold, not OPG, paid to settle the lawsuit, we are not including the $125,000 in that field.)