Category Archives: Uncategorized

Court Restores Civility To Civil Litigation – Infringer cannot call the plaintiff a “troll.”

With the growing animosity and tension between rights holders and creators and those who are accused of infringing rights (or sometimes accused of outright theft) a Judge has drawn a line and ordered that a rights holder seeking to enforce their rights cannot be called a “troll” in court.

Calling the term “disparaging” and “irrelevant” the Judge has limited petty name calling by defendants and instead demanded they focus the case on what is important: infringement and liability.

The opinion may be read here: IP Ventures v. Symantec

Iggy Pop: The Godfather Of Punk On Music Theft

On Oct. 13, 2014, James Osterberg a/k/a Iggy Pop, the godfather of punk rock and one of the original devout communist in the music scene gave a powerful speech as a part of the John Peel Lecture Series on BBC 6. The BBC 6 link is here.

In short, he rails against the oligarchy of music capitalism that has always exploited and stolen from artists. But he brings a new edge to the argument, namely that technology has given the power to exploit artists to almost everyone and created a culture of theft and moral decay.

But now, everybody’s a bootlegger, but not as cute, and there are people out there just stealing the stuff and saying don’t try to force me to pay. And that act of thieving will become a habit and that’s bad for everything.

 ***

So is the thieving that big a deal? Ethically, yes, and it destroys people because it’s a bad road you take….If I had to depend on what I actually get from sales I’d be tending bars between sets.

 – James Osterberg a/k/a Iggy Pop, BBC Music John Peel Lecture, Oct. 13, 2014.

The godfather has spoken.

 

Defendant Sanctioned For Discovery Tactics

There is a growing tendency of defendants in BitTorrent litigation to demand excessive discovery with the idea they can make cases too expensive for plaintiffs. It is a neat idea, but fails in practice for a number of reasons, not the least of which is you have to pay to play that kind of game. And some defendants are writing checks they can’t cash.

Some things parties need to remember include that a requesting party needs to pay reasonable costs for discovery. It might only be $0.25 per page, but if you ask for 100,000 pages just to force a rights holder to do all that work, at the end of the day there is going to be a $25,000 bill just for the paper.

Another point is that using BitTorrent to copy works is a willful infringement of rights. All the time and expense of producing those 100,000 pages will be added on to the award at the end, making it maybe another $25,000. And those defendants that think they can run up a bill and then have it discharged in bankruptcy may be in for a shock. In Sailor Music v. Walker, No. 14-6012, (8th Cir. 2014) the courts have found that when you willfully infringe you are “maliciously” denying the copyright holder of royalties and thus the infringement is not discharged in bankruptcy.

Back to the initial requests that needlessly drive up these costs, the courts are starting to nip these in the bud. In the case of Malibu Media, LLC v. Michael Harrison, (1:12-cv-01117, S.D. Ind.) the defendant was just ordered to pay $7,000.00 for making such requests.  And while a $7,000 bill half way through the case may be a bitter pill for a defendant, it is probably better than an extra $50,000 added on to what they would pay at the end.  And that case is not yet over.

 

Relevant Order: Malibu Media, LLC v. Michael Harrison, 1:12-cv-01117, Dkt. 262 (S.D. Ind., October 23, 2014)

9th Circuit Misunderstands Observed Public Internet Activity

Oddly it is ok for our military to provide grenade launchers and armored assault vehicles to our public schools, but if they observe the public exchange of child pornography on the Internet, then that somehow crosses the line and causes offense.

In U.S. v. Dryer, a special agent of the Naval Criminal Investigative Service (NCIS) was conducting an investigation into publicly observable BitTorrent criminal activity focused on the state of Washington. The agent found evidence of the exchange of child pornography and when it was determined the party was not in the military, turned the evidence over to civilian law enforcement officials who conducted further investigations and prosecuted the defendant Dryer.

In a case in which the defendant was convicted of possessing and distributing child pornography, the 9th Circuit reversed the district court’s denial of a suppression motion and remanded for further proceedings holding the NCIS investigation into publicly observable conduct was in violation of the Posse Comitatus Act (PCA), 18 U.S.C. § 1385, which “prohibits Army and Air Force military personnel from participating in civilian law enforcement activities.”

Opinion:  US v. Dreyer, 13-30077, (Sept. 12, 2014, 9th Cir.)

WEB SITE LIABILITY – The Breach of CDA Immunity

Jane Doe v. Model Mayhem

A cornerstone supporting the Internet and free publication of information is the Communications Decency Act,(47 U.S.C. § 230) or CDA.  The CDA provides immunity for websites as the publisher or speaker of information posted by users. Thus, whatever may be posted on Facebook, or other public web pages by various parties does not impose liability on that web page.

In this case, Internet Brands operates Model Mayhem, (www.modelmayhem.com) a web site used by models who post information and photos. The plaintiff, Jane Doe No. 14, alleges two rapists used the website to lure her to a fake audition, where they drugged her, raped her, and recorded her for a pornographic video. She also alleges the defendant that owns the website, knew about the rapists but did not warn her or the website’s other users.

California law imposes a duty to warn a potential victim of third party harm when a person has a “special relationship to either the person whose conduct needs to be controlled or. . . to the foreseeable victim of that conduct.” Cal. Civ. Code § 43.92. Jane Doe filed an action against Internet Brands alleging liability for negligence under California law based on that failure to warn.

The 9th Circuit Court of Appeals held that Doe’s negligent failure to warn claim did not seek to hold Internet Brands liable as the “publisher or speaker of any information provided by another information content provider,” and therefore the CDA did not bar the claim. Jane Doe’s failure to warn claim had nothing to do with defendant’s efforts, or lack thereof, to edit or remove user generated content. The theory is that Internet Brands should be held liable, based on its knowledge of the rape scheme and for failing to warn users like Jane Doe. The case will go forward.

Expect this opinion to have ripple effects through the Internet community as many sites that skirt the law and support or even advocate inferentially illegal activity, from drug use to piracy either directly or through message boards, may face liability for their conduct. The liability will not for publishing information or allowing information to be published, but in their failure to warn users of the consequences of using the web page or the information in the web page.

 

Full text of opinion:  Jane Doe No. 14 v. Internet Brands, Inc. DBA Modelmayhem.com, 12-56638, (9th Cir., Sept. 17, 2014)

 

 

 

Recording artist Tim McGraw can still sing his song Everywhere, anytime.

In this action, Martinez claimed the Tim McGraw song Everywhere was a copy of his song Anytime, Anywhere, Amanda. The lower court dismissed his claim, and he appealed. The 6th Circuit upheld the dismissal as Martinez’s claims were based on unsupported “speculation or conjecture.” And while the news media broadcast headlines like, “Tim McGraw sued for $20 million,” and “McGraw’s Stolen Song” the facts of this case reveal the lengths people can go to try and make a claim.

In a copyright action the two things to prove are ownership of the original work, and that the work was copied. This is key, as there is no copying in an independent creation. If two artists write songs that are very similar, yet neither knows of the other’s work, then there is no copyright infringement. As rarely is someone caught outright, copying is generally proven by showing 1) access, and 2) substantial similarity between the two works.

While Martinez lost on multiple points, this case is an interesting relation of the extremes people will go to in trying to connect the dots. The district court found there was no substantial similarity between the works (upheld) but the key discussion relates to Martinez’s attempts to show access. Because McGraw could not have copied something he had never heard, Martinez had to show that somehow his song made it to McGraw (or his writers).

Martinez attempted to do so in a failed version of “seven degrees of separation.”   As a quick summary according to Martinez, he recording the song in July or August 1996. The song was never released, never offered for sale, no one had a print of the lyrics. It was performed only in South Texas. In the fall of 1996 he mailed a tape of the song to his friend Susan Tomac. Tomac says she then gave the tape to David Bartly, who had a photography studio in Tennessee. Bartly died in 2012, before he could be deposed for the case. (Note, the case was filed in 2005, so there was 7 years available to do this.) Martinez claims Bartly’s ex-wife states Bartley “could have” passed the tape on to Karen Phillips or maybe Lee Greenwood, but this is admittedly “guessing.” Martinez then claims both Bartley and Phillips passed the tape to Lee Greenwood, or Lee Greenwood’s attorney Ralph Gordon. Then somehow, since Greenwood and Reid (one of the authors of the Tim McGraw song) had met once 12 years prior, and not seen each other sense, the tape got back to Reid who is credited as an author of the McGraw song.

Disregarding the required element of time travel, the district court politely refers to this as “attenuated chains of hypothetical transmittals.” The 6th Circuit states, “the hypothetical transmittals fail to support a reasonable inference that any Defendant or associate of any Defendant received a copy of Anytime, much less that Wiseman or Reid, the alleged infringers, heard or had a reasonable opportunity to hear Anytime and copied it before they co-wrote Everywhere.”

As the court points out:

“[a]ccess may not be inferred through mere speculation or conjecture.” Blige, 558 F.3d at 493; see also Ellis, 177 F.3d at 506.

A plaintiff cannot rely on unsupported inferences to prove access. See e.g., Raum v. Norwood, 93 F. App’x 693, 696-97 (6th Cir. 2004); Ellis, 177 F.3d at 506.

The songs may be similar (the district court and Court of Appeals held they were not) but that is beside the point. A copyright claim requires someone copying. Two people with independent creation does not give rise to a copyright claim. And access needs to me more than a fanciful game of seven degrees of separation.   Though not discussed, under Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) this case approaches the standards for an award of attorney fees to McGraw.

Of course relevant headlines do not sell, so this all gets dumbed down to “Tim McGraw’s Stolen Song” for the masses.

Full text of 6th Circuit Opinion:   Martinez v. Tim McGraw, et al. 13-5796, 6th Cir., Sept. 15, 2014

 

 

 

In or Out – Trademarks for Recreational Marijuana

Recreational marijuana sales, still illegal under U.S. Federal law, cannot be protected by Federal Trademarks.

The Federal Government, with a blind eye to the legality of recreational marijuana sales and use in many states, refuses to recognize any legal sales or protect the branding of any such sales by registering associated trademarks. (But they will accept the tax revenue.) At the same time those involved in the legal sale of marijuana products, unable to file for trademarks, are also increasingly the subject of trademark infringement suits. Such is the case of the recently filed Trans-High (High Times Magazine) v. Reimers, et al. case of Eastern Washington. 2:14-cv-00279 (E.D. WA. Aug. 25, 2014).

In the complaint, the publishers of High Times Magazine claim the defendants’ operation of a legal marijuana vendor doing business as High Time Station infringes their registered trademarks. Legitimacy of the complaint aside, it needs to be acknowledged that the plaintiff is seeking to enforce rights against defendants that are excluded from the system. This degree of inequality and unfair protection is something that will eventually be acknowledged. With the current “corporations are people” position of the law (right or wrong) an equal protection argument seems ripe. Why should a company (or person) be subject to the protections of a law (trademark) when they are denied access to that same law?
As the economy of legal recreational marijuana sales grows, expect the trademark system to quickly reverse course and allow the registration of associated trademarks. Also expect there to be a growing number of Plant Variety Protection (PVP) filings as people begin to legitimize the protections of their strains such as “Purple Diesel Bus” and “Brazilian Brain Bomb.”

A brave new world to be sure.

Complaint: Trans-High v. Reimers, et al. case of Eastern Washington. 2:14-cv-00279 (E.D. WA. Aug. 25, 2014).

LYING IS STILL BAD – Tesco V. Weatherford

Case: Tesco Corporation
 v.
 Weatherford International, Inc. et al, 4:08-02531 (S.D. Tx. Aug. 8, 2014)

Patent Infringement / Court’s Inherent Authority To Sanction

After a long (6 year) drawn out battle related to patent infringement in the oil drilling industry, it all goes away because of a lie.   In the Southern District of Texas, Judge Ellison has thrown out all claims by plaintiff Tesco in a rare application of the inherent powers of the court.

In short, Tesco claimed it had a patent on a piece of oil drilling equipment and sued Weatherford (and others) for infringement. One of the key issues related to an old brochure. There was some question as to whether or not the document contained an image of the patented invention and therefore invalidated the patent. (Publication of the invention more than one year before filing invalidates a patent.) To get through the point, Tesco’s attorney told the court:

The animators that actually did the brochure and that actually did the rendering are prepared to swear and testify that this is not [the] invention; and in fact, there is no doubt it’s not [the] invention.

. . .

[T]hat is what [the illustrator is] going to say; and he’s going to say unequivocally that this is not it. And so is [the other illustrator] who also worked on the rendering. Two individuals, same rendering, both will say that.

However there were irregularities with the case and even after the jury found in favor of Tesco, at least in part, the judge allowed post-trial discovery to look into certain matters, including some possible misconduct by Tesco’s attorneys. In the post-trial proceedings it was revealed that Tesco’s counsel blatantly misrepresented notable facts related to the brochure and the illustrators had no idea whether or not the invention was depicted in the brochure.

While facing nine (9) separate motions, Judge Ellison cut to the heart of the case and decided that all pending motions were moot and decided that due to the blatant fraud on the court by Tesco’s counsel Tesco’s claims were dismissed with prejudice.  At the time of the court’s ruling, no pending motion on the docket appears to have been seeking this specific relief.

After first acknowledging the Supreme Court has warned that “[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion,” Judge Ellison went on to make clear:

 …the Court has an independent obligation to safeguard its own integrity and those of the proceedings before it…the Court reluctantly concludes that Tesco’s representations amount to an abuse of the judicial system; they are most certainly “acts which degrade the judicial system.” citing Amsted Indus. Inc. v. Buckeye Steel Castings Co., 23 F.3d 374, 379 (Fed. Cir. 1994)

…not every lawyer who lies to a court will be caught, so when such deliberate and advantage-seeking untruthful conduct is uncovered, the penalty must be severe enough to act as a deterrent. Awarding attorney’s fees – even if they were to be paid by Tesco’s counsel alone – is insufficient. citing Hull v. Municipality of San Juan, 356 F.3d 98, 102 (1st Cir. 2004)

Just as with witnesses testifying truthfully under oath, the proper administration of justice depends upon counsel being completely forthright with the Court.

Judge Ellison has invited defendants to submit motions for attorney fees, and as he has already made clear that the sanction of dismissal is warranted because an award of fees would not be enough, it is anticipated that there will be a notable award of fees.

The simple lesson is that if you lie about what you have and how you got it, then odds are you do not have anything. While this case was about patents, similar rules apply to copyrights and trademarks.

In the law, as with most things, lying, cheating and stealing are (still) bad.

For the full text of the opinion: Tesco Corporation 
v.
 Weatherford International, Inc. et al, 4:08-02531 (S.D. Tx. Aug. 8, 2014)

 

Paper Fences / Bad Defenses II – de minimis copying

A part of a series of notes exploring BitTorrent copyright defenses that sound good, but do little more than churn or run up a bill. See Part One: Assumption of Risk

In Chinese they have a phrase zhilaohu (紙老虎) which translates to paper tiger. This phrase stands for something that seems fierce and powerful, but is really no more threatening than a piece of paper. The paper tiger is about imagery and illusion that is only meant to fool the gullible.  In the context of false defenses raised in response to claims, I call such defenses paper fences.

A stock or form paper fence defense that shows up in many of the answers filed both by attorneys and people appearing on their own (pro se) is the de miminis act, or claiming that the amount that was copied was less than the whole or so small that is does not matter and there is no violation.  This sounds good, but on analysis, fails in the realm of BitTorrent copyright claims.  Most significantly, a de minims defense starts off by essentially stating, “I did it but….”

First, a brief review of what constitutes a de minimis act: A de minimis act is one that is so minor as to be inconsequential. This sounds like a good thing to say if you want to argue you only copied a little bit of a movie. But with an understanding of what it means and how it is used in the law the “paper” aspect of this defense becomes apparent. Traditionally de minimis is used for things like in the context of how long a defendant can be detained in a traffic stop, such as to ask one or two more questions, making a short delay a de minimis length of time. United States v. Stepp, 680 F.3d 651, 662 (6th Cir. 2012). Or in the case of a claim of littering when the act involved two matches. People V. Feldman, 342 N.YS.2d 956 (N.Y Crim. Ct. 1973). It is also a standard applied pollution or contamination regulations where the contamination is so minor as to be a non-issue, especially in light of new technology that allows the detection of just a few molecules. Ober v. Whitman, 243 F.3d 1190 (9th Cir., 2001).

But certain matters are often exempt from de minimis exceptions, and these include things like use of excessive force claims or civil rights violations. Wilkins v. Gaddy , 559 U.S. 34, 130 S. Ct. 1175 (2010); Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011).

To the extent de minimis has been applied in the context of copyright, it has generally been in the analysis of similarity, or as a component of fair use. These have been identified as copying that has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity, known as trivial copying, and as might be relevant as a component of a “fair use” defense. Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 74-75 (2d Cir.1997).

In essence, the de minimis defense is applicable when the question is how similar the copy might be from the original, such as how much Song-A sounds like Song-B, or as one part of the “fair use” defense, which had a multi-part analysis that includes the quantitative amount copied as one of the factors. (Fair use is a whole other issue, and for other reasons beyond this note similarly not applicable to BitTorrent copyright infringement.)

In the context of BitTorrent, a de minimis or “partial copy” assertion are simply not valid defenses. As the U.S. Supreme Court held, “[A] taking may not be excused merely because it is insubstantial with respect to the infringing work…. `[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate.'” Harper & Row v. Nation Enters., 471 U.S. 539, 565, 105 S.Ct. at 2233, quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.1936). Thus, there is no de minimis (or the like) defense to BitTorrent infringement.

Granted, a de minimis type argument may be applied to argue for the statutory minimum of $750.00 in damages, but this is not an affirmative defense to liability. And the costs to raise the defense in an answer and deal with the associated motions will likely be thousands of dollars, paid for by the defendant.

As a reminder – The defense to a BitTorrent copyright infringement claim is the defense that the defendant did not do it and was not involved in any way. The rest is often just paper fences and, “a tale told by an idiot, full of sound and fury signifying nothing.” – Macbeth.

 

Paper Fences / Bad Defenses – Assumption of Risk

In Chinese they have a phrase zhilaohu (紙老虎) which translates to paper tiger. This phrase stands for something that seems fierce and powerful, but is really no more threatening than a piece of paper. The paper tiger is about imagery and illusion that is only meant to fool the gullible.

In litigation, there seems to be a growing trend to the use of affirmative defenses which are really just paper tigers, these might be called paper fences. These paper fences are not real defenses, just extra words that someone can throw on a page to justify their bill. Sometimes I wonder if even the people that file them on behalf of their client’s believe the false hope these paper fences represent.

Where these seem to be showing up more frequently are in the BitTorrent copyright cases. There are blogs and message boards where such things get shared and passed around among attorneys, and while everyone likes to share an idea, rarely does anyone share its failure. Someone dreams up an idea that sounds good, then word gets passed around and pretty soon everyone is adding the newest paper fence to his or her filings without paying attention to the rulings of the courts.

Assumption of Risk is one such paper fence that has no place in BitTorrent copyright defense. First, it is good to understand what the defense really means. An assumption of risk defense essentially states the plaintiff is involved in such risky behavior that it is expected that defendant will be reckless, as such the plaintiff accepts a possibility of injury.

Now look at why this does this not belong in a BitTorrent copyright defense or any copyright defense for that matter.

– Assumption of risk first dictates that the defendant injured the plaintiff.   The argument is the plaintiff, whose rights were infringed knew or should have known people would try and copy their work. To its logical conclusion the defendant comes to court and says, “I did it, but they should have expected me to do it.”  To allow an assumption of risk defense in copyright law would negate all copyright law.

– Assumption of risk is only valid against reckless conduct. A defendant will still be liable for any willful conduct. In BitTorrent infringement there is no reckless conduct. A defendant does not accidentally download a torrent file. All BitTorrent copyright infringement is willful.

There are other reasons, but suffice it to say assumption of risk has no place in copyright infringement cases and is nothing more than a paper fence that sounds good enough only to be sold to client to justify a bill. Just a little research reveals that assumption of risk has never prevailed as a copyright defense. As Judge Hegerty recently ruled, “Because an “assumption of risk” defense does not apply to copyright infringement claims, this defense cannot succeed as a matter of law and should be stricken.” Malibu Media, LLC v. John Butler, 1:13-cv-02707, (D. Col. Aug. 13, 2014).

As I review these cases look for future notes on other paper fences that often show up in BitTorrent Copyright cases including: Failure to State a Claim, De Minimis Infringement, and the counter claim of Non-Infringement, all of which seem to be making the rounds and do little more than run up costs and fees.

There really is only one defense to the copyright infringement claim, and that is the defense that the defendant did not do it and was not involved in any way. The rest and often just paper fences and, “a tale told by an idiot, full of sound and fury signifying nothing.” – Macbeth.

For the full opinion of Judge Hegarty cited above: Malibu Media, LLC v. John Butler, 1:13-cv-02707, (D. Col. Aug. 13, 2014).