Finally A Bit Of Sanity

Some people who have read this blog might know I normally that I really don't like intellectual property laws (short version I think they are protected vested interests rather than helping innovation). With the RIAA suits against down-loaders (real and imagined), and the extension of the copyright act (essentially to protect Disney properties), it was all making me wonder if I was going to get sued at some point for quoting a movie line.

However, a Federal judge in San Jose gave me a little hope that maybe there might be some sanity in the system. U.S. District Judge Jeremy Fogel, issued an order today that stated that prior to sending a take-down letter, a copyright holder must first determine whether the use of the work constitutes "fair use".

So what does this mean? In 1998, Congress passed the Digital Millenium Copyright Act. The basic purpose of the act was to prevent piracy. The unintended consequence has the assault on fair use. When a copyright holder finds out that their work may be used in an infringing matter on the internet, they have the ability to issue a takedown order. What this means is that anytime a copyright holder notices that someone is using any part of their work, they could send a take down order.

Which is what happened in the case before Judge Fogel.

The case started when Stephanie Lenz made a video of her 13-month old son rocking out to Prince's song "Let's Go Crazy". She put it up on YouTube. Universal Music Corp., which holds the rights to song, issued a take down order. Now, the entirety of the song that was used came to 29 seconds. YouTube, complying with the law, took it down. However, they restored it when Ms. Lenz stood up to Universal and responded and had YouTube restore the video based on the "fair use" doctrine.

However Ms. Lenz, fortunately, was not one to take Universal's action lying down. She took the offensive and filed a lawsuit against the corporation in the U.S. District Court for the Northern District of California. In her suit, she seeks declaratory and injunctive relief (meaning she is seeking a declaration of her rights, not seeking monetary damages).

Universal has taken the position that a copyright holder has no duty to consider whether the use if protected by "fair use". Essentially, any time someone uses any of their "intellectual property", they can initiate proceedings against them without first considering whether the use is legal. Or to put it simply: sue first and let the courts sort it out.

Judge Fogel denied this theory. In his order denying Universal's motion to dismiss, he wrote,

[F]air use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright.
...
[I]n the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.
...

A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.

As the EFF noted, essentially the court held that copyright holders "ignore fair use at your peril!" The case continues, but the order is a first.

Hopefully it won't be the last.

YouTube, Viacom and IP Law

In the Southern District of New York, a federal judge ordered Google lost a discovery battle against Viacom. The two corporations have been locked in a battle over YouTube and whether or not the site is infringing on the rights of copyright holders, specifically Viacom.

Apparently in response to a discovery request by Viacom, Google refused to turn over certain information. The discovery request asked for, among other things, the search code data (used by Google to try and find materials which copyright owners claim is being misused/illegally posted) and logging data (i.e. who watches what, when, and how many times).

Despite the fact that there is black letter law which prohibits the court from ordering one party to share data as to who watches what (in the context of what is still called "video tape rental and sale records" 18 USC 2710) and when with another party (unless its the government of course), Judge Stanton did exactly that. As the EFF blog noted,

Google correctly argued that “the data should not be disclosed because of the users’ privacy concerns,” citing the VPPA, 18 U.S.C. § 2710. However, the Court dismissed this argument with no analysis, stating “defendants cite no authority barring them from disclosing such information in civil discovery proceedings, and their privacy concerns are speculative.”...

In any event, the court ordered production of not just IP addresses, but also all the associated information in the Logging database. Whatever might be said about 'an IP address without additional information,' the the AOL search history leak fiasco shows that the material viewed by a user alone can be sufficient to identify the user, even with neither a login nor an IP address.
The Court's erroneous ruling is a set-back to privacy rights, and will allow Viacom to see what you are watching on YouTube. We urge Viacom to back off this overbroad request and Google to take all steps necessary to challenge this order and protect the rights of its users.

The rest of the article can be found here.

However, in the court's order, the judge protect Google's "trade secrets" (i.e. its search and advertising code). Nice to see a judge who values privacy rights hard at work.

But what is more disturbing to me is the whole premise of this case. After reading the complaint, it seems that what Viacom is really complaining about is not that violations of their copyright occur. Its that Google is not doing enough proactively to prevent the copyright.

Now, admittedly, I am an IP idiot. I think that the way we have skewed IP laws in this country and many others, is threatening to quash innovation and the exchange of ideas. Do I think that artists and creators should benefit from their works? Yes. But why should their heirs continue to benefit from the work? Why should we continue to extend the protections of copyrights for individuals to the life of the author plus 70 years or, for corporations, to 95 to 120 years (based on when the work was published or created). Why do we allow drug companies to maintain monopolies on drugs for as long as we do, even though they did not have to pay for the basic research which was the basis for the drug in the first place?

So back to this case. As I mentioned, Viacom is complaining that it is too hard in the modern era to keep up will all those infringers out there. They are saying that since YouTube allows them to post on their site, it is YouTube's responsibility to do the copyright enforcement, not theirs. To me this seems ludicrous.

Part of the idea of copyrights and trademarks and patents, is that it gives the holder a right to enforce their rights. It does not mean that someone else, not affiliated with the copyright/trademark/patent holder has to go through and make sure the holder's rights are being enforced. For that reason, there is a safe-harbor in the DCMA.

It seems to me that Viacom is trying to get the rest of the world to conform with idea of paradise: IP right holders have to do nothing while everyone else scurries around making sure that material being used in whatever format is not violating some IP right's holder's rights.

Yes, there probably is a more elegant way to express that. But I can't come up with it right now. Should Viacom win this case, the potential effect on everyone who uses the internet is more than a little scary.

And people wonder why I despise IP law most days

So in the past, I have mentioned my dislike for IP law. Yes, I understand that it is important for the creator of something to be compensated for its use. However, I think that the way it is being abused lately, among other things, to protect vested interests over public discourse.

And the latest, if you have not heard by now is the AP's new policy. Apparently, if I were to quote from their article, which I am not going to anymore barring a change, it would cost me $12.50 for up to 25 words. Should I go whole hog, and say put in a paragraph or two totaling up to 100 words, I would be hit with a bill for $25.00.

As some people have pointed out, apparently the AP feels that they are exempt from the fair use laws in the U.S. Apparently, the AP feels that fair use is violated if more than 4 words is used from one of their articles.

So That's What Happened In That Red Cross Case...

So if you have been popping in occasionally, there are times when I comment on cases which jump out at me. One of them was the case filed by Johnson and Johnson against the American Red Cross for trademark infringement.


Sometimes I see these cases pop up once on the web and then I never see them again. (Alright, part of it is I am too lazy and cheap to pay the PACER costs that would allow me to get extra access to the online dockets. If you want to do that, fine. If you want me to do that, then someone needs to start sending checks. :)).

Anyways, it appears that the Red Cross has prevailed so far in the opening rounds. The case is being heard before Judge Rakoff of the U.S. District Court for the Southern District of New York. Back on November 6, 2007, Judge Rakoff partially granted the Red Cross' motion to dismiss. Although the case was not entirely dismissed, Judge Rakoff dismissed with prejudice Johnson and Johnson's claims of promissory estoppel (which is a large part of the Johnson and Johnson's claim).

What remains of the Johnson and Johnson case is a claim based upon a criminal statue which restricts the use of the Greek Cross in red on a white field (i.e. the Red Cross that is used by Christian aid organizations). Now while I have not actually read this particular statute, others who have posted on this case have indicated that it exempts the American Red Cross, so things are not looking so good for the plaintiffs in this one.

Another Reason Why IP Law Is Ridiculous... from the makers of Johnson and Johnson

Alright, who out there knew that Johnson and Johnson held the trade mark on the red cross? If someone were to ask me what the Johnson and Johnson trademark is, I would answer that it is the script version of the company's name.



Apparently, I am mistaken. Apparently, in addition to the above type trademark, Johnson and Johnson also claims the exclusive use of the red cross.

The American Red Cross, with whom Johnson and Johnson has an agreement dating back more than a century, which gives the American Red Cross the ability to use the symbol for its non-profit work. However, now that, in trying to raise money for the non-profit work, the Red Cross sells things with the red cross on it. They also license the trademark to others to get royalties, money which goes to fund their disaster relief projects.

Since they have started using the symbol for "commercial" activities, apparently Johnson and Johnson is up in arms trying to protect "its" trademark. In their statement, the company states their justification by complaining,

Johnson & Johnson began using the Red Cross design and "Red Cross" word trademarks in 1887, predating the formation of the American Red Cross. The Company has had exclusive rights to use the Red Cross trademark on commercial products within its longstanding product categories for over 100 years. Since its creation, the American Red Cross has at all times possessed only the rights to use the Red Cross trademark in connection with its non-profit relief services.
After more than a century of strong cooperation in the use of the Red Cross trademark, with both organizations respecting the legal boundaries for each others' unique legal rights, we were very disappointed to find that the American Red Cross started a campaign to license the trademark to several businesses for commercial purposes on all types of products being sold in many different retail and other commercial outlets. These products include baby mitts, nail clippers, combs, toothbrushes and humidifiers. This action is in direct violation of a Federal statute protecting the mark as well as in violation of our longstanding trademark rights.

The American Red Cross on the other hand fired back with their press release. In it, they stated,

The Red Cross has been selling first aid kits commercially in the United States since 1903. Until now, J&J has never challenged this activity. In fact, for over 100 years, J&J and the Red Cross have enjoyed their concurrent right to use the Red Cross emblem.
By offering Red Cross first aid, health, safety and emergency preparedness products at retail locations, the Red Cross is reaching more families and making it easier for Americans to get prepared. The money the Red Cross receives in the sale of these products to consumers is reinvested in its humanitarian programs and services.
The Red Cross, a nonprofit, received only $2 million in revenue from the sale of its products in 2006. J&J, a corporation, received $53.3 billion in annual revenue in 2006.
“We hope that Johnson & Johnson will act as a good corporate citizen and recognize the right of the American Red Cross to our own emblem to carry out our mission—not stand in the way,” Everson said.
“Our legal argument is based on solid substantiated facts,” he continued. “J&J has taken a criminal statute intended by Congress to protect the American Red Cross and is now using it to distort history and the law.”

The rest of the response can be found here.

At first glance, and this is without going into the whole question of who used the symbol first, what the law actually says, or what agreements may not have existed, some jury may be asked to decide between a Pharmaceutical giant who makes $53 billion a year versus a non-profit who makes a couple of million a year and then uses the money to pay for programs which help save lives in the wake of tragedies.

Could Johnson and Johnson have found a more sympathetic defendant to go after?

And remember, that's before we get to the fun questions of who was using the mark first (ARC seems to make the case that they were), of what the agreement said or even if it existed, and what the law says.

Patent Baristas has a much better look at this.

Now Here Is An Interesting Lawsuit

And another reason why I think that IP law has gotten out of control. But I get ahead of myself.

Apparently, in 2000, a documentary was released titled, "Ashes to Glory". It was the product of Deborah Novak and John Witek's work into documenting the aftermath and rebirth of the Marshall University football team after the tragic crash which killed all but five members of its football team in 1970. The following year, the team was rebuilt, essentially from scratch. Amazingly, it managed to win a couple of games, the first of which was apparently a 15-13 nailbiter against Xavier University.

Now, a little bit better known, since it was a studio release last year, was the Warner Bros. movie, We Are Marshall. It covered the same story. The crash. The rebuilding. The young coach trying to ready a team for Division I-A games. The nailbiting win over Xavier on the last second pass to the end-zone.

Big deal? Actually, it apparently is. Sports Illustrated is reporting that Deborah Novak and John Witek have filed suit in the U.S. District Court for the Central District of California. The suit alleges that Warner Bros breached a contract with Novak and Witek to have them be involved in any theatrical movie dealing with the Marshall story. The lawsuit also (the actual complaint can be found here) alleges We Are Marshall "dramatizes the events depicted in Ashes to Glory, in the same chronological order, with the identical tone, sequencing, story emphasis, principal characters, theme, and archival clips[.]"

Let's think about this. Both the documentary and the movie deal with an actual event. So, unless the We Are Marshall filmmakers wanted to take some sort of Faulkner-esque route to telling the story, how else were they going to tell it? They also say that We Are Marshall stole their method of telling the story by having the climax of the film be the Xavier game with a slow mo shot of the football coupled with flashbacks.

Well, lets think about this. How many football films have climatic nail biting games which are decided on the final drive? Off the top of my head, I can think of Friday Night Lights, the Longest Yard (both versions), The Replacements, Any Given Sunday (I think). How many of them have slow motion shots of the decisive pass, intercut with flashbacks? As I recall The Replacements has that one. All I am saying is that the elements are not exactly new in football movies or sports movies in general.

I am not defending what the movie studio did in regard to the contract, if it existed. However, as far as trying to benefit off the other portions of the complaint, specifically First and Sixth Causes of Action (in the case of the Sixth Cause of Action only as it applies to the themes and sports cliche moments), it as if they are saying that they are the exclusive the holders of the right to film anything that incorporates themes and set pieces which have been used repeatedly in sports movies.

That is just ludicrous. Or to put it another way, it would be like local Odessa newspaper suing the makers of Friday Night Lights because they had originally published the accounts of the season. Or HBO suing the makers of Miracle for presenting the story of the 1980 Miracle on Ice in the same chronological way that they presented it in their documentary.

Just another example of IP laws running amok.

Intellectual Property Run Amok

Apparently, it was announced today that McDonald's is seeking to patent sandwich making. And its not a machine they are trying to patent, it is the method of making deli sandwiches.

Is this taking things too far? I can just see it being approved and then out go the cease and desist letters to people for making toasted sandwiches.

Way to Go Mom!

Alright, this was not done by my mother, but I could see my mother doing this and more in similar circumstances.

Apparently, the RIAA decided to target Debbie Foster and her daughter Amanda for illegal copying and downloading of copyrighted music. They filed suit and made an offer to settle the case for $5000.

Debbie Foster, however, did not cave in. Instead, she fought back and demanded (most likely in discovery) that the RIAA show her when and which files were allegedly downloaded through her internet account. When the RIAA failed to produce the evidence, she filed a motion for summary judgment. Realizin that they were in a losing situation, RIAA apparently moved to dismis the case rather than lose at summary judgment.

The Court granted the dismissal, and then went a step further stating that Ms. Foster was the prevailing party. This means that Ms. Foster may now apply for her attorney's fees to be paid by the RIAA.

(Hat tip to Recording Industry v. The People for the order and other background on the case.)


The rule from childhood comes back: don't piss off a mom!

Ruling in CleanFlicks

In case you had not heard, there was a company in Utah that was selling edited versions of movies. Apparently aghast by the sex, drugs, violence, and foul language, this company catered to people who wanted their movies....well.... dull.

Eventually the Director's Guild caught wind of what was happening to their movies and filed suit. The judge hearing the case in the federal district court for Colorado handed down a ruling forcing the company to turn over al their edited movies to the movie studios.

The Rocky Mountain New story quoted the decision, where the judge held that,

"The accused parties make much of their public policy argument and have submitted many communications from viewers expressing their appreciation for the opportunity to view movies in the setting of the family home without concern for any harmful effects on their children," Matsch wrote.
"This argument is inconsequential to copyright law and is addressed in the wrong forum. This court is not free to determine the social value of copyrighted works.
"What is protected are the creator's rights to protect its creation in the form in which it was created."

Now, where was this ruling when Ted Turner went and colorized all those westerns?

IP law

I remember working at one temp job where I made some friends. One in particular (Trixie... I will not explain the origin of her name) was a hardcore IP proponent. Just to be contrary, I took the other side. But the more I think about it, the more I think it was the right side to be on.

However, this is an area I know only a little about. What I know about it is that the RIAA used it to shut down Napster and Grokster and take a bunch of people to court for copying music that is far too expensive in the first place.

I also know, or at least have read, that it is used to protect people's inventions. Though, these days it seems that pharmaceutical companies use it to prevent others from taking away their market share. There is the argument that the company, like a lawyer working on contingency, takes great risks ot produce the medicines and as a result they should reap the benefit of that.

But as I was reading over at Greedy Trial Lawyer, this argument may not be as strong as I once thought. The full article against patents and pharmaceutical patents is found here.