by Lee Gesmer | Mar 14, 2014 | DMCA/CDA
According to Massachusetts U.S. District Court Judge O’Toole the defendants in Moving and Storage, Inc. v. Payanatov are in the moving business and operate a web site at MyMovingReviews.com which, they claim, reflects neutral consumer reviews of moving companies.
Not true, assert some of their competitors and the plaintiffs in this case. The plaintiffs allege that MyMovingReviews manipulates the reviews, deleting positive reviews of the plaintiffs and deleting negative reviews of their own company.
Web sites that allow consumer reviews are protected from copyright infringement under the DMCA, and from tort (e.g. defamation) claims under the Communications Decency Act (CDA) assuming, in each instance, that they meet the often strict requirements of the statutes. The defendants claimed the protection of the CDA, and moved to dismiss under that law. Not so, held Judge O’Toole –
The plaintiffs’ claims do not arise from the content of the reviews, whether they be disparaging, laudatory, or neither, but instead, the defendants’ alleged ill-intentioned deletion of positive reviews of the plaintiffs’ moving companies and deletion of negative reviews of their own company, coupled with various representations – that the website offers “accurate” data, that it is “serious about reviews quality,” and that readers “see the most accurate and up to date rating information to base your decision on.” The manner in which the information is presented, or withheld, is the conduct at issue, as well as the allegedly misleading ratings which result from such alleged manipulations. Such conduct provides substantial basis to find that the defendants were developers of the alleged misinformation.
The defendants argued that they were allowed to delete reviews under Section 230(c)(2) of the CDA, which provides that no operator of a website shall be liable for restricting access to material it deems (among other things) objectionable. However, the CDA requires that the website owner show good faith, and the plaintiffs had alleged bad faith.
The court also refused to dismiss a claim of copyright infringement based on the allegation that MyMovingReviews had copied text from a website belonging to one of the plaintiffs.
The court did, however, dismiss claims based on false advertising, unfair competition, tortious interference and trademark infringement. As to the last of these claims, the court rejected an argument in support of trademark infringement based on the controversial (and largely discredited) “initial interest confusion” doctrine, finding that plaintiffs had failed to adequately allege “confusion.”
by Lee Gesmer | Mar 14, 2014 | Weekly Updates
by Lee Gesmer | Mar 6, 2014 | Miscellaneous
The Boston Bar Association has done a nice interview and profile of me on its blog, “Tipping the Scales.”
Lee Gesmer is a founder and partner of Gesmer Updegrove LLP, a Boston-based firm formed in 1986 that focuses on the representation of technology companies and emerging businesses. Lee’s practice focuses on litigation in the areas of business and intellectual property law. He is a former Council member and former Co-Chair of the BBA Intellectual Property Section, as well as the Computer and Internet Law and Business Litigation Committees.
1. What inspired you to take the leap and start your own firm?
My father owned his own business, and I worked for him summers in my teens. He taught me how important it is to work for yourself. He really believed America was the land of opportunity for people willing to take the risk of starting their own businesses. He embedded that idea in me at an impressionable age. When I graduated from law school, my plan was to work for a couple of good firms and get enough experience that I could start my own firm.
Continue reading . . ..
by Lee Gesmer | Feb 28, 2014 | Weekly Updates
The week ending February 21, 2014 was a light week, so this week’s Update covers the two weeks ending February 28, 2014
- 9th Circuit holds actress owns copyright in her individual performance, reverses lower court’s denial of preliminary injunction. Garcia v. Google (link). See blog post on this case here.
- Utah federal district court issues preliminary injunction order against Aereo, limited to Tenth Circuit. Aereo’s first loss in court, although courts in California and the District of Columbia had enjoined FilmOn X, which provides retransmission of over-the-air broadcasting using the same technology. Communityy Television of Utah v. Aereo.
- Southern District of Florida grants motion to dismiss in case alleging copyright infringement of architectural works. Sieger Suarez v Arquitectonica
- The USPTO has published more material relating to the Green Paper on Copyright Policy, Creativity and Innovation in the Digital Economy (link). A transcript of the December 12, 2013 public hearing is available here. Post-hearing public comments are available here.
- The Copyright Office’s announcement requesting comments and announcing a roundtable on the “making available” right for copyright holders has been published in Federal Register (link)
- The U.S. District Court for the District of Minnesota has issued an injunction, under the authority of the Computer Fraud and Abuse Act (CFAA), against a defendant that allegedly broke into a company’s computer system and took confidential information. Reliable Property Services v. Capital Growth Partners.
- The broadcasters have filed their initial Supreme Court brief in American Broadcasting v. Aereo (link)
- Motion to dismiss action based on a DMCA takedown notice targeting a trademark (as opposed to a copyright, which is the only appropriate subject of a DMCA takedown notice), denied by N.D. Cal. court. Crossfit v. Alvies (link)
- Ninth Circuit finds no trademark infringement based on “trademark fair use.” Webceleb v. Proctor & Gamble (link).
- Billboard reports on “Songwriter Equity Act,” which would update the factors considered by the Copyright Royalty Board when determining compulsory licenses for songwriters, composers and publishers (link)
by Lee Gesmer | Feb 26, 2014 | Copyright
An old legal saw warns that “hard cases make bad law.” The Ninth Circuit Court of Appeals decision in Garcia v. Google may be a good example of this maxim.
The issue facing the Ninth Circuit was whether an actress can claim a copyright interest in her performance in a film and, if so, under the unusual circumstances in this case, whether the actress could use that copyright to compel Google to remove the film from Youtube.
The facts in this case were very hard. The plaintiff, Cindy Garcia (pictured on left) was paid $500 to act in an independent film for a few days. She was told she was acting in an adventure film set in ancient Arabia. However, the film turned out to be an anti-Islamic movie, and her voice was overdubbed so that she appeared to be asking, “is your Mohammed a child molester?” The movie, titled “Innocence of Muslims,” let to a fatwa, and Garcia received death threats.
After Youtube (owned by Google) refused Garcia’s request to takedown the film (rejecting multiple DMCA notices from Ms. Garia), she brought suit for copyright infringement, make a novel legal argument. Rather than arguing that the film was a joint work under copyright law (which might have entitled her to a share of profits, but wouldn’t have achieved her goal of forcing Youtube to remove the film), she argued that she retained a copyright interest in her contribution. Calling this “a rarely litigated question,” Chief Judge Alex Kosinski, writing for a divided 3-judge panel, avoided the question whether Garcia qualified as a joint author of the film (it seems clear that, under Ninth Circuit precedent such as the Aalmuhammed case, she would not). Instead, he wrote that “nothing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author of the entire work.”
The opinion concludes that Ms. Garcia may claim a copyright interest in “the portion of the film that represents her individual creativity.”
The court rejected Google’s argument that Ms. Garcia’s performance was a work made for hire (she was not an employee), or that she had granted the filmmaker an implied license (her participation had been induced by fraud, precluding that argument). And, Ms. Garcia had never assigned her rights to the filmmaker in a written document.
Lastly, the court found that Ms. Garcia had suffered irreparable harm (“death is an irremediable harm, and bodily injury is not far behind”), and that she had satisfied the causation requirement. The court “rejected Google’s preposterous argument that any harm to Garcia is traceable to her filing of this lawsuit.”
The district court had denied an injunction, which the Ninth Circuit reversed, ordering Youtube to take down all copies of “Innocence of Muslims.”
It’s difficult to predict whether this case will be a significant legal precedent. The idiosyncratic facts were sympathetic to Ms. Garcia, who appears to have been the victim of a fraudulent filmmaker, and who suffered unusual harm as a consequence. However, independent of these facts, the Ninth Circuit has held that an actor or actress owns an independent copyright interest in a film performance, reminding every non-fraudulent film producer to obtain a written copyright assignment from every performer.
Garcia v. Google, Inc. (9th Cir., February 26, 2014)
