Copyright

NXIVM Corp. v. Ross

Threat Type: 

Lawsuit

Date: 

08/06/2003

Party Issuing Legal Threat: 

NXIVM Corporation

Party Receiving Legal Threat: 

Rick Ross; The Ross Institute; Stephanie Franco; Morris Sutton; Rochelle Sutton; Paul Martin; Wellspring Retreat, Inc.

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of New York; United States District Court for the District of New Jersey

Case Number: 

1:03CV00976 (New York); 06-CV-1051 (New Jersey)

Legal Counsel: 

Peter Skolnik, Thomas Steven Dolan, Michael A. Norwick, Sarah Blaine, Anthony Sylvester

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)
Injunction Denied

Description: 

NXIVM provides a course manual for the paid subscribers of its exclusive and expensive seminar training program, "Executive Success." The course manual contains a copyright notice on almost every page and all seminar participants sign non-disclosure agreements, purporting to bar them from releasing the manual or the proprietary techniques learned in the seminars to others.

Rick Ross runs nonprofit websites, www.rickross.com and www.cultnews.com, in connection with his work as a for-profit "cult de-programmer." The websites provide information to the public about cults and other controversial groups. Ross obtained a copy of NXIVM's course manual from fellow defendant, Stephanie Franco, a one-time NXIVM participant. Ross commissioned two self-styled experts, Paul Martin and John Hochman, to write reports analyzing and critiquing the course manual. The reports quoted sections of the manual in support of their analyses and criticisms and were published on Ross's websites. The reports also made statements that, according to NXIVM, misled readers into believing that the Executive Success program is a "cult." The websites also included Executive Success on a list of organizations designated as "cults."

NXIVM sued Ross and various co-defendants for copyright infringement, trademark disparagement under federal law, interference with contractual relations, and product disparagement. On the basis of the copyright claim, NXIVM moved for a preliminary injunction to require that Ross remove the copyrighted information from his websites. The United States District Court for the Northern District of New York denied the preliminary injunction, finding that NXIVM had no likelihood of success on the merits of its claim because the defendants' use of quotations from the course manual constituted fair use. On appeal, the Second Circuit Court of Appeals affirmed, finding that the websites' use of quotations from the manual to support their critical analyses of the seminars was transformative, and that this outweighed the concurrent commercial purpose of Ross's use (in connection with his for-profit business as a de-programmer of cult victims) and his (assumed) bad faith in obtaining the manuscript in violation of NXIVM's non-disclosure agreement. The court also held that the defendants' use of portions of 17 pages out of a 500-page manual was not unreasonable in light of their purpose, and that any damage to the market for NXIVM's work was a result of criticism (which weighs in favor or fair use), not substitution (which weighs against fair use). NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2nd Cir. 2004) (Second Circuit website version attached). The Supreme Court denied certiorari. NXIVM Corp. v. Ross Institute, 543 U.S. 1000 (2004).

The case was then transferred to New Jersey on 03/07/2006 (Case No. 06-CV-01051). NXIVM amended its complaint, apparently dropping its trademark claim and adding a trade secrets claim. Morris and Rochelle Sutton moved to dismiss the product disparagement, interference with contractual relations, tortious interference with contractual relations, and copyright infringement counts of the amended complaint. The court dismissed the product disparagement claim, holding that the challenged statements were statements of opinion protected by the First Amendment. It dismissed the tortious interference claims on the same grounds, holding that, where a claim for tortious interference with contractual relations or prospective economic advantage implicates constitutionally protected speech, the constitutional privilege for statements of opinions applies. The court also dismissed the vicarious copyright infringement claims against the Suttons, finding that they had no right or ability to control the statements published on the websites. See NXIVM Corp. v. Sutton, No. 06-CV-1051 (D.N.J. June 27, 2007).

Update:

2/13/2008 - A number of defendants moved to strike NXIVM's pleadings and for sanctions as a result of discovery disputes.

2/23/2008 - NXIVM filed a memorandum in opposition to the motions to strike.

5/9/2008 - Court denied the motions to strike, but awarded attorneys' fees to defendants for discovery costs.

4/09/2009 - NXIVM  filed suit with similar claims against the defendants in the Western District Court of New York (2009 WL 1524800). NXIVM also added Lollytogs, a children's clothing supplier, as a defendant. All defendants have moved to dismiss. The Suttons in their motion to dismiss point out that by refiling this complaint in New York, NXIVM is forum-shopping. The court has not yet ruled on these motions.

Content Type: 

CMLP Notes: 

 

Status updated on 6/6/2008 (AAB)

Updated 6/24/09 AVM - I added information about the essentially identical action NXIVM filed in new york. I decided not to make a new entry because I feel it would be redundant. 

Jurisdiction: 

Subject Area: 

Gregerson v. Vilana Financial, Inc.

Date: 

03/27/2006

Threat Type: 

Lawsuit

Party Issuing Legal Threat: 

Chris Gregerson

Party Receiving Legal Threat: 

Andrew Vilenchik; Vilana Financial, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Minnesota

Case Number: 

Civil No. 06-1164

Verdict or Settlement Amount: 

$19,462.00

Legal Counsel: 

Boris Parker

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Verdict (plaintiff)

Description: 

Gregerson is a photographer who maintains a website containing his professional photographs. Vilana Financial, Inc. used two of Gregerson's pictures without permission in phone-book and web advertisements, and print advertisements in a local Russian-language newspaper. Gregerson discovered Vilana's use of his photographs and contacted the company asking for compensation. Vilana refused, claiming that it purchased the photographs from a third party (neither party was able to locate this third party during the subsequent litigation).

Gregerson devoted a portion of his website to a discussion of the disagreement over the photographs. On it, he claimed that Andrew Vilenchik had published two of his photos without permission in a series of ads for Vilana. Along with the text, Gregerson posted a photograph of Vilenchik.

On October 4, 2005, Vilenchik's attorney sent Gregerson a letter demanding that the webpage be removed or he would file a lawsuit for defamation.

Vilana initially sued Gregerson for defamation in Minnesota state court on October 24, 2005. Gregerson then filed suit against Vilana and Vilenchik in the United States District Court for the District of Minnesota on March 27, 2006, claiming copyright infringement. The Vilana state-court action was removed and consolidated with the federal action, and Vilana and Vilenchik counterclaimed for deceptive trade practices, trademark infringement (including cybersquatting), interference with business and contractual relationships, appropriation, and unjust enrichment. The defendants abandoned the defamation claim.

On August 15, 2006, the federal district court denied Vilana and Vilenchik's motion to dismiss the copyright claim and their motion to remand the state-law claims.

On September 18, 2006, Gregerson moved to dismiss the plaintiff's counterclaims against him, arguing that the counterclaims violated Minnesota's anti-SLAPP statute (Minn. Stat. § 554.01-05). The court denied the motion on November 17, 2006. Gregerson v. Vilana Financial, Inc., 446 F.Supp.2d 1053, 1059 (D. Minn. 2006).

On August 31, 2007, the district court granted Vilenchik's motion for summary judgment, holding that he could not be held liable in his personal capacity for Vilana's corporate actions. The federal district court granted partial summary judgment for Gregerson on his copyright claim against Vilana, holding that there was no triable issue of fact regarding Vilana's infringement of Gregerson's exclusive rights in his photographs, but reserving the issue of damages for trial. It also granted summary judgment for Gregerson on Vilana's counterclaim for trademark infringement and cybersquatting, holding that Gregerson's use of Vilana's trademarks as website metatags did not create a likelihood of confusion, and that Vilana failed to establish that Gregerson had a bad faith intent to profit by using its trademarks in a domain name. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

Minnesota law provides a claim for deceptive trade practices when a person, in the course of a business, vocation or occupation, disparages the goods, services, or business of another by false or misleading representations of fact. The federal district court denied summary judgment to Gregerson on Vilana's deceptive trade practices counterclaim, find that there was evidence that Gregerson had posted comments on his website, and allowed others to post comments, indicating that the defendants were thieves, members of the Russian mafia, and actively engaged in fraudulent business practices and predatory lending. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

The court also denied Gregerson's motion for summary judgment on the interference with business and contractual relationship and appropriation of likeness counterclaims. Gregerson v. Vilana Financial, Inc., Civil No. 06-1164, 2007 WL 2509718 (D. Minn. Aug. 31, 2007).

Updates:

8/15/2006 - The federal district court denied Vilana and Vilenchik's motion to dismiss Gregerson's copyright claim.

11/17/2006 -The federal district court denied Gregerson's motion to dismiss Vilana and Vilenchik's counterclaims based on Minnesota's anti-SLAPP statute.

8/31/2007 - The federal district court granted summary judgment for Vilenchik, case dismissed as to him;

8/31/2007 - The federal district court granted partial summary judgment for Gregerson on his copyright claim and on Vilana's counterclaim for trademark infringement, cybersquatting, and unjust enrichment, and denied Gregerson summary judgment on the the deceptive trade practices, interference with business and contractual relationships, and appropriation of likeness counterclaims.

2/15/2008- After a bench trial, the court awarded Gregerson $19,462 on his copyright claim and denied all counterclaims against him.

Jurisdiction: 

Subject Area: 

Content Type: 

Warren Kremer Paino Advertising v. Dutson

Threat Type: 

Lawsuit

Date: 

04/14/2006

Party Issuing Legal Threat: 

Warren Kremer Paino Advertising LLC

Party Receiving Legal Threat: 

Lance Dutson

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Maine

Case Number: 

1:06CV00047

Legal Counsel: 

Gregory W. Herbert, Jon Stanely

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Lance Dutson operates a blog, the "Maine Web Report." Beginning in February 2006, he published a series of posts that were critical of the Maine Department of Tourism and Warren Kremer Paino Advertising LLC ("Warren Kremer"), an advertising agency that had worked on a Maine tourism campaign. In these posts, Dutson allegedly made statements to the effect that (1) Warren Kremer was violating Maine law by using state funds to promote Maine tourism to people inside Maine; (2) Warren Kremer expended state tourism funds for the purpose of returning internet search results for non-tourism activity, such as pornography and pedophilia; (3) Warren Kremer was "pissing away" Maine tax money; and (4) Warren Kremer had hired a subcontractor who had a conflict of interest. Dutson also allegedly posted "copyrighted material" owned by Warren Kremer (the specific material was not identified in Warren Kremer's complaint).

In April 2006, Warren Kremer sued Dutson in federal court in Maine for defamation, copyright infringement, and trade libel. Warren Kremer voluntarily dismissed the suit after a month, after facing extensive criticism on blogs and websites.

Jurisdiction: 

Subject Area: 

Content Type: 

National Conference of Bar Examiners v. Earthlink

Date: 

04/12/2007

Threat Type: 

Subpoena

Party Issuing Legal Threat: 

National Conference of Bar Examiners

Party Receiving Legal Threat: 

Earthlink

Type of Party: 

Organization

Type of Party: 

Large Organization
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Georgia

Case Number: 

1:07MI00097

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Description: 

The National Conference of Bar Examiners (NBCE) obtained an administrative subpoena issued pursuant to section 512(h) of the Digital Millennium Copyright Act, requesting that Earthlink disclose the identity of an Earthlink subscriber who posted comments anonymously to the Tab and Brandy blog. The anonymous comments disclosed 41 questions (and some answers) from the multi-state bar exam, after the exam had been administered.

The blog operator, a Texas lawyer, removed the string containing these comments shortly after they were posted, when the NBCE contacted the Texas Board of Law Examiners, which administered the bar in Texas. It is not clear whether Earthlink had sufficient records to disclose the identity of the poster.

The docket reveals no activity after April 12, 2007.

Content Type: 

Subject Area: 

CMLP Notes: 

SB Reviewed; to-do: get court documents, if any, from PACER

Jurisdiction: 

X17 Inc. v. Lavandeira

Threat Type: 

Lawsuit

Date: 

11/30/2006

Party Issuing Legal Threat: 

X17 Inc.

Party Receiving Legal Threat: 

Mario Lavandeira

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California

Case Number: 

2:06CV07608

Legal Counsel: 

Bryan Freedman (Freedman & Taitelman); Gregory Doll, Michael Amir (Doll Amir and Eley)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Denied
Material Removed
Settled (total)

Description: 

Paparazzi photo agency, X17, sued celebrity gossip blogger Mario Lavandeira (aka Perez Hilton) for allegedly posting its photographic images without permission. The complaint included claims for copyright infringement and unfair competition under the "hot news" misappropriation theory recognized by the Supreme Court in Int'l News Serv. v. Assoc. Press, 248 U.S. 215 (1918).

In its complaint filed on NOvembe 30, 2007, X17 claims that Hilton unlawfully used at least fifty-one of the agency's photos.  Among the photos at issue were shots labeled "Pregnant Katie Holmes," "Kevin Federline Pumping Gas," and "Britney Spears Exposes Her Derriere."  According to X17, Hilton displayed the photos on his advertising-supported blog without paying the agency, providing credit, or seeking its permission.

Hilton responded that he copied the photographs from public sources on the Internet and that his use of the photos was a "fair use" under copyright law.  The photos were a fair use, he contended, because he only used portions of the photos to report celebrity news and routinely added his own commentary and sometimes even handwrote comments on the photos themselves.  

He moved to dismiss the "hot news" claim, but the court denied his motion in February 2007, holding that claims for hot news misappropriation may apply to photographs as well as text, and that the hot news claim was not preempted by federal copyright law.

X17 moved for a preliminary injunction barring Lavandeira from copying, reproducing, displaying, or distributing its photographic works. In March 20o7, the court denied the motion because of evidentiary deficiencies in X17's submissions to the court. X17, Inc. v. Lavandeira, No. CV06-7608-VBF(JCX), 2007 WL 790061 (C.D. Cal. March 08, 2007).

On December 17, 2007, Hilton filed a motion for summary judgment, arguing that X17 was not the owner of the copyrights to the photos at issue and had not registered the copyrights prior to filing the lawsuit.

In January 2008, the parties reached a settlement and on April 21, 2008, the court dismissed the case without prejudice. The photos appear to have been removed because they are no longer available on Hilton's site. The terms of the settlement are not known.

Jurisdiction: 

Subject Area: 

Content Type: 

Universal City Studios v. Lavandeira

Threat Type: 

Lawsuit

Date: 

02/20/2007

Party Issuing Legal Threat: 

Universal City Studios Productions LLP

Party Receiving Legal Threat: 

Mario Lavandeira; John Does 1-10

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California

Case Number: 

2:07CV01114

Legal Counsel: 

Bryan Freedman

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Celebrity gossip blogger, Mario Lavandeira (aka Perez Hilton), posted topless photo of Jennifer Aniston on his blog. Universal City Studios claims that the photo was part of the production or post-production footage for the movie "The Break-Up."

Universal filed a copyright infringement lawsuit in the United States District Court for the Central District of California on February 20, 2007. Lavandeira filed an answer on March 23, 2007 without moving to dismiss the complaint. The parties appear to be starting discovery.

Update:

11/01/2007 - The parties settled but no information regarding the settlement has been disclosed. 

Content Type: 

CMLP Notes: 

Updated 6/9/2008 - No complaint document available on Pacer; case settled, but no information disclosed about the details of the settlement. (JMC)

Jurisdiction: 

Subject Area: 

Splash News & Picture Agency v. Lavandeira

Threat Type: 

Lawsuit

Date: 

04/23/2007

Party Issuing Legal Threat: 

Splash News & Picture Agency, Inc.; Bauer-Griffin, LLC; Flynet Pictures, LLC; Insight News & Features, Inc.; London Entertainment, Inc.

Party Receiving Legal Threat: 

Mario Lavandeira

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California

Case Number: 

2:07CV02668

Legal Counsel: 

Bryan Freedman

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

In April 2007, five paparazzi photography agencies sued Mario Lavandeira, operator of popular celebrity gossip blog, perezhilton.com, in federal district court in California for allegedly posting their photographic images on his blog without permission. The complaint alleges copyright infringement, unfair competition under the "hot news" misappropriation theory recognized by the Supreme Court in International News Service v. Associated Press, 248 U.S. 215 (1918), and civil conpsiracy under California law. In May 2007, Lavandeira filed an answer without moving to dismiss.

Update:

4/24/2008 - Court granted Lavandeira's motion to amend answer.

12/12/2008 - Action appears to have settled.  Parties filed a stipulation of dismissal.

Content Type: 

CMLP Notes: 

to-do: monitor case on PACER

see para. 44 of the complaint - it appears that threatening letters were sent to Lavandeira. to-do: research the threatening letters and see if database entry for letter(s) can be created

Status updated on 6/9/2008 (AAB) 

Jurisdiction: 

Subject Area: 

News America, Inc. v. Google Inc. (Subpoena)

Date: 

08/04/2005

Threat Type: 

Subpoena

Party Issuing Legal Threat: 

News America, Inc.

Party Receiving Legal Threat: 

Google, Inc. (Blogger)

Type of Party: 

Large Organization

Type of Party: 

Large Organization
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California

Case Number: 

3:05MC80179

Publication Medium: 

Blog

Status: 

Concluded

Description: 

An anonymous blogger posted the entire contents of the New York Post's Page Six column on a blog without advertisements. On July 8, 2005, counsel for News America (the parent company of the Post) sent Google (the parent company of Blogger) a takedown notice pursuant to the Digital Millennium Copyright Act (DMCA). In the letter, counsel for News America asserted that the blog's use of Page Six content constituted copyright infringement and requested that Google remove or disable access to the blog. Counsel also requested that Google disclose contact information for the blogger. Google disabled access to the blog, but did not respond to the informal request to disclose identity of the Page Six blogger.

On August 4, 2005, News America sought a subpoena in the United States District Court for the Northern District of California to compel disclosure of the blogger's identity. The docket indicates that News America served the subpoena on Google on September 14, 2005. The docket reflects no further action after that date, and it is unclear whether Google was able to disclose the identity of the blogger.

Content Type: 

Subject Area: 

Jurisdiction: 

CMLP Notes: 

SB Reviewed

News America, Inc. v. Google Inc. (Letter)

Date: 

07/08/2005

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

News America, Inc.

Party Receiving Legal Threat: 

Google, Inc. (Blogger)

Type of Party: 

Organization

Type of Party: 

Organization
Intermediary

Publication Medium: 

Blog

Status: 

Concluded

Description: 

An anonymous blogger posted the entire contents of the New York Post's Page Six column on a blog without advertisements. On July 8, 2005, counsel for News America (the parent company of the Post) sent Google (the parent company of Blogger) a takedown notice pursuant to the Digital Millennium Copyright Act (DMCA). In the letter, counsel for News America asserted that the blog's use of Page Six content constituted copyright infringement and requested that Google remove or disable access to the blog. Counsel also requested that Google disclose contact information for the blogger. Google disabled access to the blog, but did not respond to the informal request to disclose identity of the Page Six blogger.

On August 4, 2005, News America sought a subpoena in the United States District Court for the Northern District of California to compel disclosure of the blogger's identity. Please see the CMLP's database entry on the related subpoena.

Content Type: 

Jurisdiction: 

Subject Area: 

DMCA Truth Can Be Stranger than Science Fiction

Author Denise McCune posts a great account of the workings and failings of the DMCA's notice-and-takedown procedures.

As Cory Doctorow has also reported on BoingBoing, the VP of the Science Fiction and Fantasy Writers of America sent an error-filled takedown complaint to text-sharing site Scribd, causing removal of many non-infringing postings including reading lists suggesting great science fiction, and Cory's own novels, which he's CC-licensed for free redistribution.

The DMCA safe-harbor is most charitably described as an intricate dance for all parties involved: the copyright claimant, the ISP, and the poster. When the dancers are synchronized, its notice, takedown, and counternotice steps give each party a prescribed sequence by which to notify the others of claims and invite their responses. That's why the DMCA requires the claimant to identify the copyrighted works, specify alleged infringements with "information reasonably sufficient to permit the service provider to locate the material," and state good faith belief that the uses are unauthorized. When a copyright claimant misses one of those key elements, he starts stepping on toes.

The service provider isn't obliged to respond to deficient notices, but if a notice contains all the right formal elements -- even if it's factually wrong about copyright ownership or copying -- the service provider must choose between taking down the material or losing its DMCA safe-harbor and facing potential lawsuits. Posters who believe their material is non-infringing or fairly posted can counter-notify and even file their own lawsuits for misuse of copyright claims, under sec. 512(f). I share McCune's hope that the brouhaha will help the SFWA to help authors express all their copyright interests, including that of free sharing:

I hope the SFWA's lawyers are sitting down with Andrew Burt and explaining how the DMCA actually works, so that actual, legitimate violations of copyright (on Scribd and on other sites) can get dealt with swiftly and promptly and the people who have asked SFWA to be their copyright representative can get infringing uses of their material removed. I'm also glad to see that the SFWA ePiracy Committee has suspended operations until they can investigate further -- and, hopefully, come up with an effective process and procedure that benefits both fair and/or transformative use while also protecting the rights of copyright holders to have control over where and how their material is posted -- whether that control is a more traditional "nobody gets to use this, period" or a Creative Commons-style authorization of transformative work.

Jurisdiction: 

Subject Area: 

Content Type: 

Legal Blogger Threatened by Big Law Firm Over Posting of Ridiculously Bad Song

David Lat runs a legal tabloid blog called Above the Law, which provides "news and gossip about the profession's most colorful personalities and powerful institutions, as well as original commentary on breaking legal developments." No stranger to notoriety in the past, he's recently become the center of attention in a humorous episode involving a leaked "celebratory anthem" created by the law firm, Nixon Peabody, when the firm made Fortune magazine's 2007 list of the best companies to work for. The song is embarrassingly bad -- As Frank Pasquale of Concurring Opinions puts it, "think 'Up With People' meets Sheena Easton meets B of A's version of U2's One." Lat himself writes:

On the musical merits, the song itself is just as horrific as the idea of a law firm theme song. Yes, we miss the eighties, but not this much. The lyrics include such gems as "Everyone's a winner at Nixon Peabody" (the chorus) and "It's all about the team, it's all about respect, it all revolves around integri-tee yeah." . . . Check it out for yourself below. But we're warning you: even though the Nixon Peabody anthem is dreadful, it's as catchy as HPV. If that "everyone's a winner" chorus gets stuck in your head for the rest of today, don't blame us.

Subject Area: 

Activist Takes on West Publishing Seeking Unfettered Public Access to Court Decisions

The New York Times reports that Carl Malamud and his non-profit organization, Public.Resource.Org, have begun an ambitious campaign to make US court decisions available to the public for free online. According to its website, Public.Resource.Org seeks to create an "unencumbered public repository of federal and state case law and codes." To do this, Malamud will be scanning West Publishing's federal and state case reporters,"extracting the public domain content and republishing it on the Internet for use by anyone." Malamud has already started with West's Federal Supplement, Federal Reporter, and Federal Appendix. So far, only cases from the 1880s are up on the website.

Interestingly, Malamud has a successful history of challenging publishers and getting government information released to the public. In the 1990s, he spearheaded a campaign that led to the US government making records from the Securities and Exchange Commission (EDGAR) and the Patent and Trademark Office available to the public for free.

Lawyers have long anticipated a move of this kind because court decisions and statutes are not copyrightable. West Publishing and its primary competitor, LexisNexis, do not own the copyrights to the decisions that they publish in print or post to their subscription-based online services. Rather, the publishers own the copyrights only to the content that they add to the published opinions, such as syllabi (which summarize the general holding of each opinion), head notes (which summarize specific points of law discussed in each opinion), and "key numbers" (which categorize points of law into different legal topics and subtopics for research purposes). They also own the copyrights to the particular selection and arrangement of the opinions in their case reporter volumes. This is a relatively thin layer of copyrightable material -- it is fairly clear that a competitor or interested citizen could copy and distribute cases found in West's reporters, so long as the syllabi, head notes, and "key numbers" were redacted, and so long as the reproductions did not duplicate the West reporters' original selection and arrangement of cases. See, e.g., Matthew Bender & Co. v. West Publishing, 158 F.3d 674 (2d Cir. 1998), cert. denied, 526 U.S. 1154 (1999).

Subject Area: 

Bill Proposes to Criminalize Copyright Infringement

The Electronic Frontier Foundation reports that the U.S. House of Representatives is considering criminalizing copyright infringement, again:

Two months ago, the Justice Department floated draft legislation to expand the scope of, and stiffen the penalties for, criminal copyright infringement, and now a related bill has been introduced in the House. This isn't the first time that Congress has taken up the DoJ's copycrime wishlist, and, for all the reasons we listed in a blog post about a proposal offered up last year, H.R. 3155 is an awful idea.

This bill goes even further than the prior bill in that it would ratchet up statutory damages in certain instances. Under copyright law, copyright owners don't need to prove that they have been harmed in order to get damages and can instead elect to get statutory damages, which a court can set between $750 and $30,000 per work infringed. Such disproportionate penalties can be especially dangerous when it comes to lawsuits against mass-market products like the iPod or TiVo that enable the making of thousands of copies.

Among other things, the proposed legislation, entitled "Intellectual Property Enhanced Criminal Enforcement Act of 2007," would make it a crime to attempt to engage in copyright infringement, which would be punishable by imprisonment of up to 20 years.

The bill was introduced on July 24, 2007 by Rep. Steven Chabot, and is currently sitting in the House Judiciary Committee. You can track its status at Govtrack.us and at OpenCongress.org.

To find out what you can do to derail this dangerous bill, visit the EFF's Fight The Justice Department's Copycrime Proposal!

Subject Area: 

Embedded Video and Copyright Infringement

Citizen journalists commonly embed video clips to illustrate a story or other posting. Sometimes, the posting itself (and its dissemination on YouTube) is the story. Have you ever wondered whether embedding that video clip might lead to copyright woes? If so, apparently you're not alone. There's been a good deal of discussion relating to this issue on various blogs and websites recently. The discussion took a humorous turn this week when a Seventh Circuit Court of Appeals judge inserted a link in an opinion directing readers to a YouTube video about George Brett's famous "pine-tar incident," only to find that the link was removed from YouTube due to a notice of infringement by Major League Baseball. (For more details see Eric Goldman's blog.)

The Blog Herald recently ran a story suggesting that, indeed, bloggers could be held liable for embedding an infringing video on their sites. The story quoted an IP attorney to the effect that "[a]ny time you incorporate a copyrighted work into a site without the rightsholders' consent, you're potentially liable. . . It doesn't matter where it's hosted." The story further indicated (on the opinion of the same attorney) that it does not matter if the person doing the embedding is aware of the infringing nature of the work because innocent infringement is just as actionable as intentional infringement.

Fred von Lohmann's informative post on EFF's Deep Links makes some good points that go a along way toward lightening up this rather gloomy picture. The post points out that an embedded YouTube video is just a link. So, there is "no copy of the YouTube video being stored on your server (only the HTML code for the embed)." A post on Techdirt last week made a similar observation, noting that "[a]ll you've done is put a single line of HTML on your page."

As von Lohmann writes, this makes embedded video just like any other in-line image links found on the web, including Google Image's search functionality. This is significant because an important recent case from the Ninth Circuit Court of Appeals, Perfect 10 v. Google Inc., held that Google Image's in-line linking of copyrighted photographic images posted on third-party websites did not constitute direct copyright infringement of the plaintiff's display or distribution rights because no copies of the plaintiff's photographic images were stored on Google's computers. The court wrote:

Subject Area: 

Creative Commons Announces Canadian Podcasting Legal Guide

Creative Commons of Canada recently announced that it has published a Canadian version of the well written and highly recommended Podcasting Legal Guide. As Colette Vogele, who helped author the original Podcasting Legal Guide, notes:

[T]he authors did nearly a complete re-write of the guide because copyright, trademark and publicity rights receive different treatment in Canada. One example, is that Canada has many collecting societies that need to be understood if licensing music from Canadian artists (see page 15). This adapted guide for Canada also includes a "copyright matrix" (page 16) and a "rights clearance flow chart" (page 19), both of which will help explain the various rights and who get's paid for what in the world of music licensing.

The Canadian version, with the intriguing subtitle "Northern Rules For The Revolution," is available in both html format and pdf format.

 

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Chilling Effects and PerezHilton.com

As David posted, celebrity gossip site PerezHilton.com has battled ISP takedown over claimed copyright infringement. A key problem, the Houston Chronicle reports, is that site-owner Mario Lavanderia is already disputing those claims in federal court, where a judge refused to grant an injunction. Instead, as the judicial process properly works, Lavanderia must be proven a likely infringer before his speech is silenced.

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Gossip Site Perezhilton.com Temporarily Shutdown Due to Copyright Claims

CNN is reporting (via the Associated Press) that Internet gossip columnist Perez Hilton's site was shut down for several hours after his hosting company received complaints that the site contained copyrighted photos of celebrities. According to CNN:

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Content Fingerprinting and Citizen Journalism

Editor & Publisher details a new venture between the Associated Press and Attributor, a service provider that will fingerprint and track the use of AP content on the web.

The Associated Press is moving to protect its content by partnering with the technology company Attributor, which will track AP material across the Internet. The arrangement will allow Attributor to "fingerprint" AP copy down to a level where it can be identified anywhere on the Web.

"Our goal is to get a feeling for some of the useful ways to monitor content," said Srinandan Kasi, vice president, general counsel and secretary at the AP. "We are looking at it not just to protect our rights but to derive some intelligence."

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