"Hideous Company Sends Boing-Boing Pre-Emptive Nastygram"

August 7, 2006

One of the risks of sending a legal demand letter to someone in the Internet age is that they will post it on the web and ridicule you. That’s what happened when the Baker & McKenzie law firm sent the very popular web site Boing Boing a letter warning it not to broadcast the World Cup competition, and containing the ominous threat that it would have its “agents actively monitor your website and others to identify unlawful activity.” Boing Boing published the letter here. (The letter is an image, so you may have to print it to read it). Is a preemptive strike like this legally effective? Almost certainly it is not, except as a warning to the web site owner itself not to publish video or audio from the Cup. However, no sane, established web site owner would do so even without such a warning, since the site owner would risk significant damages (and particularly “statutory” damages – aka punitive damages) of up to $150,000 per infringement ). The far greater likelihood is that a third party will publish the audio or video (on a video site such as, for example, where videos of the Cup continue to be rampant), and that it was publications of this nature that Baker & McKenzie was targeting. However, the owners of the World Cup broadcast rights must give notice after the…

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100 Million Videos, Daily

August 4, 2006

An interesting article in Business Week on the copyright issues raised by YouTube’s tremendous success. When YouTube Inc. was sued on July 14 for copyright infringement, the shock wasn’t that the video-sharing service was being yanked into court. Questions had been swirling for months about whether the upstart, which now dishes up 100 million daily videos, was crossing copyright boundaries by letting its members upload videos with little oversight. continue . . YouTube has a strong answer to this complaint based on the Digital Millennium Copyright Act (pdf file), which allows publishers like YouTube to avoid copyright liability for infringements posted by third parties, so long as an infringement is taken down after notice to the publisher.

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Google And The Digitization of The Planet's Books

November 27, 2005

Copyright. “Imagine the cultural impact of putting tens of millions of previously inaccessible [books] into one vast index, every word of which is search able by anyone, rich and poor, urban and rural, First World and Third, en tout langue — and all, of course, entirely for free.” Eric Schmidt, Google CEO “Mr Schmidt fails to mention that Google’s intent . . . is to make even more money. . . . Can it be so greedy that it seeks to bolster it profits by freely exploiting the rights of publishers and authors?” Patricia Schroeder, President, American Association of Publishers The legal controversy over Google’s plan to use a proprietary high speed scanning process to copy (to start with) the entire book collections in the libraries at Michigan, Stanford, Oxford, the New York Public Library and Harvard, whether or not a particular book is under copyright, and to require copyright owners to notify Google if they wish to “opt out” of this program, has reached fever pitch. Indeed, its easy to see why. In almost every case until now, copyright litigation has implicated the legal rights of one copyright owner and one alleged infringer. In the few cases to involve broader rights, such as the Napster/Grokster line of file sharing cases, it was easy for anyone with a moral compass to conclude that wholesale copying and distribution of copyrighted music…

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Copyright Law and The Da Vinci Code

November 9, 2005

Copyright. Copyright law is often called the “metaphysics of the law,” as judges labor to decide whether one work is enough like another to constitute copyright infringement. Often this involves arcane legal tests that few people, beyond copyright lawyers, care to think about. But, most of us read novels, and when one writer says, “your novel is so similar to my novel that it infringes my copyright,” we think, “that’s not so hard, I can decide that!” And, when one of the books is The Da Vinci Code (ranked 44th in books at two and one-half years after publication), the chances are good that you, patient reader, have read one of the books that was the subject of just such a case. To see how a New York federal district judge decided the case in which Lewis Purdue, the author of Daughter of God and the Da Vinci Legacy, accused Dan Brown, the author of The Da Vinci Code, of copyright infringement, click here.

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Blizzard Entertainment v. Jung – Gamers Enjoined From Creating a Compatible Internet Environment

September 9, 2005

Copyright, DMCA. My partner Joe Laferrera has written a Client Advisory discussing the 8th Circuit’s decision in Blizzard Entertainment v. Jung, where the court held that the defendant’s efforts to reverse engineer Blizzard’s Internet gaming network in order to provide a competing, alternative network had (a) violated Blizzard’s shrink-wrap agreement, which prohibited reverse engineering, and (b) violated the Digital Millennium Copyright Act (DMCA). This is an important case in the rapidly developing jurisprudence of the DMCA. As well, it demonstrates once again the courts’ apparent willingness to enforce shrink-wrap licenses, and to permit copyright owners to use those licenses to override rights otherwise permitted by the Copyright Act. Read the case here. Read the Advisory here.

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Copyright Law and Parts Numbering Systems (yawn…)

July 21, 2005

Copyright. Sexy: Internet file sharing systems, Grokster, sampling, The Wind Done Gone, fair use, the legal standard for non literal infringement of computer source code. Not sexy: copyright protection for parts numbering systems. Yet, believe it or not, from time to time clients do ask whether parts numbering systems are protected. Lewis Clayton at Paul Weiss has written an article (published in the July 8, 2005 issue of the National Law Journal), discussing several recent cases dealing with parts-numbering systems and the “merger doctrine” under U.S. copyright law. Read the article here

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The Wayback Machine and the DMCA

July 14, 2005

Copyright, Digital Millennium Copyright Act. Quick now, what’s a good legal strategy when you’re involved in a bitterly contested trade secret, copyright and trademark case? Sue the lawyers on the other side, accusing them of hacking, of course. At worst, you’ll distract them and knock them off their game; at best, you’ll force their disqualification, pushing them out of the case and making your opponent go to the expense and inconvenience (not to be underestimated) of hiring new counsel and and getting them up to speed on the case. And, it doesn’t matter that your suit may be borderline or even frivolous. Every experienced lawyer knows that in the American legal system the risks of being sanctioned for bringing a frivolous suit are only slightly higher than finding a hundred dollar bill on a Times Square sidewalk during lunch hour. So, what happened here? First, there is an underlying trademark and trade secret suit between the similarly named “Healthcare Advocates” and “Health Advocate” that is of no particular interest to anyone except the parties. One of the issues is whether Healthcare published its alleged trade secrets on the Internet in the late 1990’s. Health Advocate, the defendant, is represented by the Harding Earley law firm, the lawyers who are at the receiving end of the lawsuit in question. Seeking to investigate Healthcare’s publications on its Internet site in the late…

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The Supreme Court’s Grokster Decision – A Conversation With a Client

July 12, 2005

Following the Supreme Court’s June 27, 2005 decision in MGM v. Grokster I wrote a short article about the case, in the style of a client consulting a lawyer about a file-sharing system. Attorney: Judy, what brings you to my office today? Client: John, I have an exciting idea, and I want to run it by you to make sure it passes legal muster. I’ve been involved in indie music and film for years; I have hundreds of contacts in the entertainment industry. People don’t realize what a huge body of uncommercialized work is out there! I’ve developed the most radical peer-to-peer file-sharing software you can imagine. It makes Napster, Grokster, Morpheus and all of the others look medieval by comparison. I think that musicians and video producers will contribute their works to this network to get publicity. My revenue model will be based on banner advertising. It’s perfect! I have no cost of inventory – my only costs are computers, networking, and sales commissions for my ad reps. The best thing is that although anyone can put their files on my network, the technology creates proprietary file structures, so that people can’t grab my files, convert them into MP3s, and publish them on a competing system. Attorney: Judy, this sounds very promising. However, there are some legal issues that we should discuss. You know that on June 27th the Supreme…

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