Copyright

U.S. Chamber of Commerce v. Yes Men

Date: 

10/26/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Jacques Servin aka Andy Bichlbaum; Igor Vamos aka Mike Bonanno; Support and Commitment, Inc.; David Sievers; Morgan Goodwin; John and Jane Does 1-20

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the District of Columbia

Case Number: 

1:09-cv-02014-RWR

Legal Counsel: 

Robert Corn-Revere, Lisa B. Zycherman, Bruce E. H. Johnson, Ambika Doran, Thomas R. Burke - Davis Wright Tremaine, LLP; Matthew Zimmerman, Corynne McSherry - EFF

Publication Medium: 

Verbal
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

In October 2009, the U.S. Chamber of Commerce sued a group of political activists including members of the Yes Men and the Action Factory for trademark infringement and other claims in federal district court in the District of Columbia.

The dispute arose when the Yes Men issued a fake press release and held a fake press conference at the National Press Club in which the Chamber of Commerce ostensibly reversed its position and promised to stop lobbying against strong climate change legislation. After the fake press conference began, a real representative of the Chamber of Commerce interrupted and revealed that the Chamber had not in fact reversed its position.  As part of the hoax, the Yes Men published a parody website designed to look like the Chamber's, which featured a fake statement by CEO Thomas J. Donahue about the supposed change of policy.

The Chamber first sent a DMCA takedown notice to the Yes Men's upstream service provider demanding that the parody website be taken down.  According to EFF, this resulted in the temporary shutdown of not only the spoof site but of hundreds of other sites hosted by May First/People Link.  The Yes Men retained EFF as counsel, and EFF responded to the Chamber on their behalf, disputing the validity of the copyright claim, requesting that the Chamber withdraw its letter, and threatening a DMCA action for knowing, material misrepresentation of a copyright claim under 17 U.S.C. § 512(f).  Despite the takedown notice, the parody site remained available for a time, but now no longer appears to be online.

The Chamber then filed its lawsuit in federal court, abandoning the copyright claim but asserting trademark infringement, trademark dilution, cybersquatting, false advertising and other claims.  On January 5, 2010, the Yes Men and Action Factory defendants filed a motion to dismiss the complaint and a motion to stay discovery. The motion to dismiss argues that the Chamber's lawsuit is designed to punish core political speech, rather than to vindicate any actual trademark harm, and should therefore be dismissed.

Content Type: 

Priority: 

1-High

Jurisdiction: 

Subject Area: 

Avast! The Pirate Bay's Intellectual Property's Been Boarded!

If you haven't heard of The Pirate Bay by now, you may want to emerge from that cave, wipe the sleepies from your eyes, and start getting caught up on your backed up WIRED magazines in the bathroom. The Pirate Bay (TPB) is a website run by a few Swedish intellectual property anarchists. TPB provides a comprehensive indexing service for BitTorrent files.

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Subject Area: 

Former Rep Ted Klaudt claims "common law copyright" in his name to try and suppress news stories about him raping his kids

We sure do see a lot of intellectual property abuse around here. This has to be the best one yet. Former South Dakota State Representative Ted Klaudt claims that he has a "common law copyright" in his name, and thus any news organization or other publication that uses his name must pay him a licensing fee of $500,000. (source)

It gets better.

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Subject Area: 

International Olympic Committee v. Giles

Date: 

10/06/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Richard Giles

Type of Party: 

Organization

Type of Party: 

Individual

Legal Counsel: 

Pro Se

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

The International Olympic Committee (IOC) sent an email to a Flickr user Richard Giles  asking him to cease and desist from distributing and/or licensing photographs of the 2008 Beijing Olympic events that he had photographed while at the games and posted on Flickr.

Giles originally put the photographs online under a CC Attribution-Share Alike License (CC BY-SA), but then relicensed them under a CC Attribution-No-Derivatives License (CC BY-ND) upon the request of a Wikipedia user, so that they could be used in a Wikimedia project. Later on, a British bookstore used one of Giles' pictures for promoting a book. When this came to IOC's attention, they sent the cease and desist letter to Giles. 

IOC invoked contractual limitations found on the back of tickets:

As you know, when entering any Olympic venue, you are subject to the terms and conditions mentioned on the back of entry tickets, under which images of the Games taken by you may not be used for any purpose other than private, which does not include licensing of the pictures to third parties.

The letter also suggested a trademark-oriented claim:

Olympic identifications such as the Olympic rings, the emblems and mascots of the Olympic games, the word 'Olympic' and images of the Olympic games belong to the IOC and cannot be used without its prior written consent.

Giles reports that it was not clear to him what exactly the IOC wanted him to do, so a chain of mutual emails followed, in which IOC clarified its position that the only acceptable copyright notice for pictures from Olympic events would be "all rights reserved." In an effort to keep the CC licensing regime, Giles counter-suggested licensing the pictures under a noncommercial CC license, but IOC declined:

IOC's current policy is to restrict the use of pictures taken at the venues to private, domestic and non-commercial use and does not allow licensing of pictures to third parties, even for free non-commercial use, for the reasons I explained in my previous email.

Therefore, for the time being the IOC considers full copyright as the only suitable credit and asks that you change the license of the photos taken inside of the Olympic venues to 'all rights reserved'.

Throughout the course of these events Giles was in touch with the Electronic Frontiers Australia, a nonprofit organisation supporting online freedoms and rights,  and Creative Commons Australia, both of which advised him that as a first step he should comply with the IOC's demand. Eventually Giles reverted all pictures to full copyright protection, adding a note under every picture: "The license on this photo has been changed from Creative Commons to Copyright [sic] due to a request from the IOC."

Content Type: 

Subject Area: 

Priority: 

1-High

Jurisdiction: 

United States v. Weaver

Date: 

06/11/2009

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Jeffrey Lynn Weaver

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Virginia

Case Number: 

7:09-cr-00032

Legal Counsel: 

Fay Francis Spence (Federal Public Defender's Office WDVA); LLoyd Bradford Bradford (L. Brad Bradford P.C.)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Convicted

Description: 

On June 11, 2009, Jeffrey Weaver was criminally indicted for statements he posted to InfoWars.com that threatened a California transit police officer and threatened the officer's family.  InfoWars.com is a website run by talk radio host Alex Jones.

According to the affidavit by the FBI officer who investigated the case, on January 7, 2009, an anonymous poster using the name "FuckThePIGS" posted a comment on InfoWars.com that identified Officer Johannes Mehserle by name and address, and made threatening statements about killing officer Mehserle and his wife and baby.  Officer Mehserle is a former Bay Area Transit Authority (BART) officer who has been criminally charged for a controversial shooting in January, 2009, that was caught on video.

Using IP records provided by an InfoWars administrator, the FBI was able to identify the poster as Jeffery Weaver, of Roanoke, Virginia.  Weaver was indicted in the United States District Court for the Western District of Virginia.

On August 14, 2009, Weaver pleaded guilty to one count of transmitting in interstate commerce a threat to injure a person, as well as one count of willful copyright infringement.  His sentencing hearing is set for December 14, 2009.

CMLP Notes: 

RB 11/12/09- No info available in docket about the copyright infrigement charge.  Likely arose out of something found on his computer which was confiscated in the search.  

Priority: 

1-High

Subject Area: 

Jurisdiction: 

Content Type: 

One of the Classic Blunders: Microsoft’s De-Listing Campaign Makes No Sense

Before the Thanksgiving holiday, Microsoft held talks with News Corp. in an attempt to convince the titan of information to de-list its content from Google.

Subject Area: 

The MPAA Lottery: Town of Coshocton Draws the Black Spot

“’It isn’t fair, it isn’t right,' Mrs. Hutchinson screamed, and then they were upon her.”
- The Lottery, Shirley Jackson

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Subject Area: 

Content Type: 

Fox News DMCA-Bombs News1News on YouTube

Like many former newspaper employees, I hate the 24-hour "news" networks.  Be it Fox News, MSNBC, or CNN, I think they're just across-the-board awful.  The only time I'll pay any attention to them is in the midst of some event that demands real-time attention, say a presidential election or a terrorist attack (and even then, I may just switch to BBC coverage instead).  Other than in those situations, the news channels are just echo chambers for the dreck spewed by your Becks, O'Rei

Content Type: 

Subject Area: 

Jones v. Above The Law

Date: 

10/27/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

David Minkin; David Lat; Dead Horse Media, Inc.

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of Florida

Case Number: 

09-23256

Legal Counsel: 

Marc John Randazza

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

In October 2009, Donald Marvin Jones, a law professor at the University of Miami School of Law, sued David Lat and David Minkin, editor and publisher of the popular law gossip blog Above the Law (ATL), as well as ATL's parent company, Dead Horse Media. The complaint seeks $22 million in damages and an injunction "enjoining Abovethelaw to remove all articles and posts concerning Professor Jones."

The lawsuit revolves around a series of posts ATL published after Jones was arrested in 2007 on suspicion of trying to solicit sex from a prostitute. In these posts, ATL made fun of Jones—calling him "The Nutty Professor"—and posted a screenshot of the "incident report" for his arrest.  In one post, Lat published a photo/graphic mash-up collage forwarded to him by a reader that—according to the complaint—"depict[ed] Professor Jones as a drug dealer and a pimp or both."  The graphic featured one photograph of Jones superimposed on a $20 bill and another talking up a group of prostitutes. 

According to the National Law Journal, Jones pleaded not guilty to the solicitation charge, and the authorities later dismissed the charge and expunged it from Jones' record.

Jones' complaint alleges that ATL infringed his copyright by publishing the mash-up collage because a photo in it was "stolen from the UM website without permission." There is no allegation that Jones, as opposed to the University, owns the copyright in the photo or that the photo is registered with the copyright office. Jones also alleges that publication of the collage casts him in a false light by portraying him as a "dope dealer, pimp, and criminal."

Finally, the complaint alleges that ATL invaded his privacy and cast him in a false light by publishing the "incident report" despite dismissal and expungement of the solicitation charges.  Jones' claim that ATL made "private records public" is complicated by Fla. Stat. § 119.105, which provides that "[p]olice reports are public records except as otherwise made exempt or confidential," and says that, even in the case of exempt or confidential police reports, "[t]his section does not prohibit the publication of such information to the general public by any news media legally entitled to possess that information."

On November 4, 2009, after much criticism of the lawsuit in the legal blogosphere, Professor Jones voluntarily dismissed the action.

Jurisdiction: 

Subject Area: 

Content Type: 

Unpublished

A Cruel Mistress: Streisand Effect about to Turn Another Trick

I find myself writing about ill-considered lawsuits and the Streisand Effect once a month. I continue to write these posts for several reasons:
- The lurid or humorous stories behind the lawsuits make for an interesting read.

Jurisdiction: 

Subject Area: 

Content Type: 

A New Leistungsschutzrecht? Say It's Nicht So!

It's tough being a publisher these days.  Of course, no one is having much fun in the current economic downturn, but publishers were up against it even before the slowdown.  Circulations have been down across the board for years now, which in turn has slashed the advertising revenues that print publications have always relied upon to survive.  It's just a bad time to be publishing newspapers and magazines, at least while using the classical publishing business model.

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Subject Area: 

The Online Odyssey: Internet Use in the Age of HADOPI's Scylla and Holder's Charybdis

Last week was a tough one for Internet users worldwide.

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Subject Area: 

Platinum Equity v. San Diego Reader

Threat Type: 

Correspondence

Date: 

06/26/2009

Party Receiving Legal Threat: 

San Diego Reader; Jim Holman; Matt Potter; Don Bauder

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Pending

Description: 

Platinum Equity, LLC, the parent company of the Union-Tribune newspaper, sent a letter to the San Diego Reader, another local newspaper with a website edition, cautioning them against publishing a story on two lawsuits charging Platinum with workplace sexual harassment.

In June 2009, when a CNBC report publicized the two lawsuits, the Reader asked Platinum’s public relations executive, Mark Barnhill, for a comment. Platinum responded with a six-page letter sent to the editor and publisher of the Reader and two of its reporters, warning them that Platinum would file a defamation suit if the newspaper published a story suggesting that Platinum engaged in wrongdoing as alleged in the lawsuits. 

Platinum's lawyers also marked the letter "Confidential Legal Notice" and threatened legal action for "breach of such confidence and a violation of the Copyright Act" if the Reader published the letter in whole or in part. 

The Reader published no in-depth coverage of the two lawsuits, but mentioned the lawsuit in two articles. In one, the Reader commented specifically on Platinum's threat letter and its assertion of confidentiality and copyright.  The article included a copy of the letter for download

As of the time of writing, neither Platinum nor its lawyers have pursued any legal claims against the newspaper or individuals involved.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Stylianou, Oct/09

Jurisdiction: 

Miami Herald v. Bill Cooke d.b.a. Random Pixels

Threat Type: 

Correspondence

Date: 

08/20/2009

Party Receiving Legal Threat: 

Random Pixels Blog, Bill Cooke (owner)

Type of Party: 

Media Company

Type of Party: 

Individual

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On August 20, 2009, counsel for the Miami Herald sent a cease and desist letter to Bill Cooke, the blogger behind Random Pixels, accusing him of copyright infringement.  The Herald alleged that Random Pixels was reproducing entire articles and large size pictures from the newspaper on the blog. The cease and desist letter requested that Cooke remove any full-length articles, and limit all photo reproductions to smaller thumbnail sizes.

The blogger responded to the Herald's claims by asserting that the articles he copied are about 20 years old and hence "historic artifacts." He also noted that the pictures he used have been reduced substantially from their original size, although not to a thumbnail size.  Cooke has so far refused to comply with the Herald's demands.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Stylianou, Oct/09

Jurisdiction: 

Subject Area: 

Polo Ralph Lauren v. Boing Boing

Date: 

10/02/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Boing Boing; Priority Colo; Photoshop Disasters; Blogger

Type of Party: 

Large Organization

Type of Party: 

Organization
Intermediary

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

In October 2009, Ralph Lauren sent a DMCA takedown notice to Boing Boing's webhost, Priority Colo, alleging that Boing Boing's posting of a Ralph Lauren advertisement violated its copyright. The Ralph Lauren advertisement featured a photograph of an improbably skinny model that appeared to have been photoshopped, and Xeni Jardin's post on Boing Boing reproduced the advertisement with a critical caption: "Dude, her head's bigger than her pelvis." Priority Colo and Boing Boing refused to remove the post, citing fair use.

The advertisement originally came to Jardin's attention via another blog, Photoshop Disasters. Photoshop Disasters published the advertisement with its own critical caption: "Make her head bigger than her pelvis! Do it!" Ralph Lauren also sent a DMCA takedown notice to Blogger, Photoshop Disasters' blog host, which removed the image.  (The original post is still available through Google's cache.)  It is not clear whether Photoshop Disasters submitted a counter-notification and whether the post will be restored.

After a great deal of media attention stemming from the takedown notices, Ralph Lauren acknowledged responsibility for photoshopping the image in a statement saying, "[f]or over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body."

Content Type: 

Priority: 

1-High

Jurisdiction: 

CMLP Notes: 

-mw reviewing 10/12

Subject Area: 

RSA v. Scott Jarkoff

Threat Type: 

Correspondence

Date: 

07/19/2009

Party Receiving Legal Threat: 

Scott Jarkoff

Type of Party: 

Organization
Government

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

After Jarkoff posted an entry about the security risks he sees with the login mechanism of the Navy Federal Credit Union (NFCU) website on his blog, TechMiso, he received an e-mail from the RSA Anti Fraud Command Centre.  RSA Security Inc. is  an encryption and network security company, and the RSA Anti Fraud Command Centre helps the NFCU with online fraud prevention.

The RSA email claimed that Jarkoff's post infringed on NFCU's copyright and trademark rights, and it expressed concern that Jarkoff's site could become a host of phishing attacks against NFCU's clients. The email then proceeded to ask for various kinds of information from Jarkoff, including the tar/zip file of the site's source code. After Jarkoff replied to the email, clarifying the purpose of his post and maintaining that there was no fraudulent activity involved, RSA replied that Jarkoff's post may confuse NFCU's customers and stating that NFCU had asked RSA to take down Jarkoff's blog.

A month later, Jarkoff received an email from Rackspace, his web host, regarding a trademark infringement complaint it received from RSA. Jarkoff replied to the email from Rackspace, explaining that there was no trademark infringement. Soon afterwards, Jarkoff received another email from Rackspace letting him know that RSA had requested that Rackspace disregard the shut down request.

Content Type: 

CMLP Notes: 

EK editing (10/07/2009)

Priority: 

1-High

Subject Area: 

Jurisdiction: 

Think Twice Before You Dust Off Those Mix Tapes

Digital technologies have allowed people to share music in unprecedented ways, and earlier this week recording artists, music industry leaders, and policymakers gathered at George Washington University in Washington, D.C. for the Future of Music Policy Summit sponsored by the Future of Music Coalition to talk about their impact on the music community.

Subject Area: 

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