A Legal Blog by Aaron | Sanders, PLLC


Despite Cox-up, Cox Gets Half a Chance

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

Dim Light Shed on Our Understanding of DMCA Repeat-Infringer Requirement

This post is about BMG Rights Management v. Cox Communications, a case about which I’ve posted at least four times: here, here, here and indirectly here. Note my evolving take on the “Sony-Betamax” rule (which will now require further refinement). The Fourth Circuit has now issued its appellate ruling and opinion, which held mostly for the plaintiff copyright owner but nevertheless sent the case back for another trial. This post is an overview of that opinion and doesn’t really assume you’ve read my previous posts or know that much about the case. I’ll try to write another post about what this opinion does to the Sony-Betamax rule.

From now on, any time an ISP fails to implement its own repeat-infringer policy, it’s going to be called a “Cox-up.” A somewhat broader definition (based on this) might be: “a situation that is complicated, unpleasant, or difficult to deal with because someone in authority decided not to consult with his company’s own in-house lawyers.”

Super Quick Introduction to DMCA Safe Harbors and Attacks Against Them

Copyright owners more or less hate the DMCA’s safe harbors. These are defenses against copyright claims for “service providers,” if…

Read More»

Is it Fair Use? Photography and Creative Commons Edition

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

Does Distributing a Work Under Creative Commons Mean That Your Work Has No Economic Value?

A professional photographer finds a political website has used his photographs of celebrities in concert to show that the celebrities agree with the website’s viewpoint. He licensed the photographs under Creative Commons, but the website violated the terms. Can the website escape under fair use?

The plaintiff is a photographer. He took this photograph of Kenny Chesney performing in concert:

And this photograph of Kid Rock performing in concert:

Although the plaintiff is a professional (which is evident from the quality of the photography), he decided to upload these photographs to Wikimedia under the Creative Commons attribution license (the “CCL”). Anyone may use the photographs for any purpose, without payment of any kind, so long as the photographer gets credit for it. The photographer says he uses CCL for marketing purposes and is, thus, valuable to him.

The defendant is non-profit that promotes a certain religious-political belief. I’m not going to tell you what it is because it’s irrelevant. The non-profit wanted to tell the world, through its website, that Kenny Chesney and Kid Rock also share this belief. To make the webpage look better (or perhaps more…

Read More»

If Goliath Goes After David in a Copyright Case, Does it Matter that David Is a Cheater?

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

How Far Should a Publisher Go to Stop Cheating in a Massively Multiplayer Game?

How I wish I had time to play computer games. Heck, how I wish my children had time to play them (other than Minecraft, of course, which remains very popular with my younger child), because then I could play computer games with them. The other day, I wondered out loud to my elder child whether she’d like a Nintendo “Switch,” and she sort of shrugged. Between homework, orchestras, role-playing games, horror films, bad movies and death metal, who had time for computer games, Dad? I was a little crushed, but I take her point.

But, hey, there’s always the law of computer games. And, hey, this case involves the Digital Millennium Copyright Act (DMCA), one of my favorite laws. And, hey, this case also involves a David slinging back at Goliath, which looks like about 90% of my practice.

But first, some sympathy for Goliath. The computer game in question is Fortnite by Epic Games (that’s your plaintiff). It’s a massive, multiplayer shoot-em-up. Imagine dozens of players dropped in a terrain, each trying to pick each other off with interesting guns, explosives, etc., with the last one standing…

Read More»

Startups, Keep Your Trademark Registrations Fresh

Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.

How Some Crummy T-Shirts & a College You Probably Never Heard of Might Inform Your Trademark Strategy

Let’s say you started your company up several years ago. You called it BLERGLE. Back then, your company was a software development shop. Because you’re you, you worked with a lawyer to apply for and obtain a federal registration of BLERGLE for “software development services.” Later, your company expanded naturally into web design, handling both front-end and back-end design and development. The thing is, you and your fellow founders aren’t really software folks. Deep down, you’re all hardware folks. And you all discover that, thanks to all the software development you’ve been doing, you can make a mobile game controller made specifically to play online browser games that don’t work well on smart phones.

You start making and selling these BLERGLE mobile browser game controllers, and they’re a hit. Parents like them because they’re cheap, they can control what games their children can play, and their children will stop begging to play games on the parents’ smart phones. Also, the controllers are excellent for playing “slither.io.”

Alas, with success come competitors—almost immediately. Within a couple of months, one starts to sell a FLARGLE mobile browser…

Read More»

Tara Aaron will be participating in a webinar on Drafting Clickwrap and Browsewrap Agreements on October 17th

Tara is an experienced Nashville intellectual property lawyer with particular interests in managing international IP portfolios and helping start-ups develop IP assets.

Hello all – I will be participating in a ClearLaw Institute webinar at 3 p.m. Eastern Standard Time on Tuesday, October 17th, 2017. The webinar is entitled “Drafting Clickwrap and Browsewrap Agreements: Enforceability Pitfalls.” If you are interested in attending, ClearLaw has been kind enough to offer a 35% discount to friends and colleagues of mine who use this link to register. Feel free to share this link with other colleagues who have clients who are operating online businesses of any kind.

This webinar will cover the background of these court cases, recent updates on legislation, and best practices for drafting “clickwrap” or “browsewrap” agreements. Specifically, the presentation will focus on provisions affecting contract authentication, mutual assent, notice, indemnification, and unilateral modification. The course will also emphasize the need to ensure that website terms and conditions are posted in a conspicuous place. It will also explain strategies for avoiding enforceability pitfalls and resolving contract disputes. During the webinar, you will learn about:

How recent court cases and legislation have affected the enforceability of online agreements
The enforceability risks surrounding clickwrap and browsewrap agreements
How corporate counsel can effectively mitigate these risks and avoid enforceability pitfalls
What terms should be included in…

Read More»

Netflix sends hilarious cease and desist letter. But should it have?

Tara is an experienced Nashville intellectual property lawyer with particular interests in managing international IP portfolios and helping start-ups develop IP assets.

 

It has been a welcome development in the art of cease-and-desist and demand-letter writing lately: Rather than a stern warning with paragraphs of statutory citations and threats of “treble” and punitive damages to the moon, companies have had their counsel user a lighter touch, cajoling with charm rather than terrorizing with money damages. Recall the lovely letter received by the author of the book “Broken Piano For President,”** which used a Western saloon-style scroll that Jack Daniels thought was remarkably reminiscent of the scrolls on the label of a bottle of its whiskey.  “We have to be diligent,” said Jack Daniels, as if the letter was a chore that had to be carried out by whichever lawyer drew the short straw. “We’re sure you didn’t mean it,” and all we’re asking is that you “change the cover design when the book is re-printed” (because we’re SURE you’ll make it to re-print, buddy….) The letter went viral, a beacon of a new day in C&D letter writing style. I’ve even written a few of my own cheeky letters since then.

The latest of these is a letter from Netflix to the owners of a bar in Chicago who, in honor of…

Read More»