A Legal Blog by Aaron | Sanders, PLLC


Is it Time to Furl the DMCA Red Flag?

Did the Second Circuit Just Kill “Red Flag” Knowledge?

Oh, DMCA caselaw, I can never quit you. Even though you really don’t affect my practice much, you’ve become my hobby, such that I can’t resist commenting on every appellate-level decision involving you.

The Basics of “Red Flag” Knowledge

The basics of the DMCA safe harbor are that, if you are an “internet service provider,” you are immune to claims of (civil) copyright infringement under four different circumstances—there are thus four different flavors of DMCA safe harbor—if you meet qualifications specific to the flavor you seeking protection under, and you have and reasonably implement a repeat-infringer policy. The most popular flavor is that the content you are accused of infringing was placed on your computer system at the “direction” of one of your users. This flavor is known as § 512(c). This covers a wide range of common internet services, from comments, to videos uploaded to YouTube or Vimeo, or even stuff stored in the “Cloud.” Although Congress had in mind the first and last of these scenarios, it’s been user-uploaded content to public sites, like YouTube, where the action has been.

To qualify for protection under § 512(c), you need to prove three…

In Soviet Union, you don't see red flags—red flags see YOU! And deprive you of your safe harbors!

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Google v Oracle (Part 3): Why Copyright Is a Bad Fit for Software

NOTE: This is the third (and final) in a series. Part 1 is here. Part 2 is here. See Part 1 for my sources for information about the trial.

But it’s All We’ve Got

After two trials, one appellate reversal, another appeal on the way, millions on millions of dollars in attorney’s fees, thousands on thousands of attorney hours, thousands on thousands of pages of testimony, and we are no closer to understanding whether, and when, APIs are copyrightable? Wasn’t that the whole point?

Precedent, Bright Lines & Justice

Lawsuits are often disappointing to interested observers, even when their “side” wins. Lawsuits resolve disputes between parties. They only incidentally—and haphazardly—make law. Courts make law through precedent, which means a lower court cannot diverge from a “holding” of the court. By definition, trial courts, like the one that just heard Oracle v. Google fair use trial, cannot make law, since there are no courts below it. Still, decisions rendered by trial courts can still be powerful “persuasive” authority. Another trial court, faced with a lack of precedent, can read how other trial courts handled the question and say, “That looks like the right way to handle it.” They can also say, “No, that’s…

Coding as art? (From Oracle's slides used in its closing arguments.)

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Oracle v Google (Part 2): Was it Fair Use?

Bringing Merger in Through the Side Door

This is part 2 in a series (of at least three posts). Part 1 is here.

Regular readers of the IP Breakdown—both of you—will recall a semi-regular feature called Is it Fair Use?, which is a fast-paced game in which I give you a lot of facts and an analogous (and often binding) case, and let you decide whether the use of the copyrighted work was a fair use or not. This game has been sweeping the nation for about four and a half years, apparently in layer of negligible thickness.

My point in this feature is that close fair use determinations are unpredictable because they are based on—at least—four fact-intensive factors that often end up as a kind of cultural value judgment. While many fair-use determinations are pretty easy, the ones that end up being decided by a court are usually pretty hard.

Juries Are Scary.

The fair use issue in Oracle v. Google represented a kind of triple witching. First, it involved fair use. Second, it went to trial. Third, it went to a jury trial. Twice. Most fair-use determinations seem to be made by judges, on summary judgment or even Rule 12(b)(6)—which…

We are Google. This is the Googleplex. The old rules don't apply to us. Also, these cute Android statutes rise at night and suck the innovation out of small companies. Photo by Runner1928.

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Oracle v Google: The Jury Has Spoken, But What Did it Say?

Note: This post and those following rely on and are indebted to live-tweeting by Sarah Jeong and Mike Swift of the trial. Jeong storified the trial here. You can find Swift’s twitter feed here. I also reference the jury instructions, which you can find here.

Once a Year, Everyone Pays Attention to Copyright (and Finds Something They Don’t Like)

It’s been only a little more than a year since a jury has rendered a controversial verdict in a closely watch-ed copyright case. That case, of course, was the “Blurred Lines” case, which led much furrowing of brows and some gnashing of teeth about whether, if verdicts like this become a trend, songwriting will become too risky to pursue. While there is evidence that “Blurred Lines” really is part of a trend in music cases, songwriting is not doomed, as I explained at the time.

The jury’s recent finding of fair use in Google v. Oracle has led to some wringing of hands, knowing tut-tutting, and even some exuberance:
* All copyright in software is doomed, especially free software.
* It’s nice and all for Google, but everything is already terrible because APIs were found to be copyrightable and fair use is a poor…

The waters of Redwood Shores appear peaceful, but lurking, lurking, lurking... Photo by Hokan Dahlström http://www.dahlstroms.com

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Of Floods, Buses and Copyright Infringement: A Nashville Riddle

Implied “Transition Period” in Software Licenses? Don’t Count on It.

Here in Nashville, we have what might be called a so-so mass transit system. To be fair, Nashville’s layout isn’t very conducive to mass transit. It’s fairly spread out, the roads tend to meander, there are multiple commercial centers, those commercial centers aren’t always very easy to get to, and residential and commercial growth patterns have been in flux.

Still, Nashville has a bus system, the Nashville Metropolitan Transit Authority, which everyone calls the “MTA.” As you might expect, one of MTA’s goals is to make sure the buses run on time, which requires making sure the drivers are there to drive the buses, the correct buses are dispatched on the correct routes. It also involves monitoring how long the buses take between major stops. In 2007, MTA wanted a better system for communications, dispatching and tracking. It contracted with ACS Transport Solutions for this. ACS agreed to sell, install and configure all of the necessary equipment. This equipment required enterprise-level software to run it, and ACS also agreed to license the software to MTA.

For some reason, the software license was in an entirely separate contract called a “License Agreement.”…

May 2, 2010, Nashville, Tennessee. That's downtown in the distance. The MTA depot would actually be fairly close by, probably completely under water.

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Catch Downtown Fever! Why Trademark Ownership Disputes Are the Worst

Who Owns the Jelly Nailed to the Wall?

There are few legal holy messes like a dispute over trademark ownership. Sure, copyright and patent ownership disputes can be messy, but nothing like trademark ownership. And, sure, copyright ownership can be tricky, but it’s a walk in the park compared to trademark ownership. Here are some reasons why:

There can normally be only one owner of a trademark for a given set of products in a given market. Why? That’s because a trademark serves as a link between products and a single source. In contrast, copyrights and patents can have multiple owners.
But there can be multiple legitimate owners of trademarks for the same or similar products, if (a) they are geographically remote from each other AND (b) the later (“junior”) user isn’t on notice about the earlier use (which is often the case). Why? Because the point of a trademark is to prevent confusion, and there’s chance of confusion if different owners are far enough away from each other. Copyrights and patents, by contrast, automatically have national scope.
The owner of a trademark is the one who “actually uses” it for the products in the market. But often many hands are involved in…

WE WANT DOWNTOWN FEVER! WE WANT DOWNTOWN FEVER! (Even if we would have to go to a different club to see them?) By Asroma - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=6746532

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Crying in Your Beer: With Trademarks, Get Clearance Before Falling in Love

Applications to Register a Trademark Can Give Away Your Position

BLACK OPS is a great name for beer. It suggests (and doesn’t merely describe) the beer as dark, secret and elite. It’s as though only you and a select few know about this beer.

The thing about excellent trademarks is that great minds often think alike, and more than one person is likely to independently hit upon the same clever trademark. But, usually, there can only be one—the one used in commerce first. This is known as priority.

There Can Only Be One! (But Where?)

In the old days, it was not unusual for similar trademarks for similar goods to co-exist, provided they were far enough away from each other. But increasing mobility, the development of national markets and distribution systems, the internet and, most of all, federal trademark registration have changed that. Nowadays, it’s actually pretty uncommon for a product’s market to be geographically limited. You can sell nearly any moveable product nationwide, and even services are increasingly available to remote customers.

The way it used to work is like this: Say Xena started selling NOS HABEBIT hummus in Florida in 2000, and Yanni independently started selling NOS HABEBIT hummus in Oregon in…

Plaintiff's BROOKLYN BLACK OPS on the left (only $29.00 a bottle!), Defendant's BLOCK OPS BREWERY on the right.

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Cox Rocked, Part 2: What the Jury Said (and Why)

Broadband Isn’t a “Draw” for Infringement, but What About Substantial Non-infringing Uses?

Back in late 2014, two of Rightscorp’s clients, BMG Music and Round Hill Music, sued the cable operator and internet-service provider, Cox Communications, for copyright infringement on grounds that Cox was liable for its users’ sharing of the plaintiffs’ copyrighted musical compositions using the BitTorrent protocol.

What’s Right for Rightscorp

Although it wasn’t a party, the case was crucial to Rightscorp. Rightscorp is in the business of investigating the sharing of copyrighted work over BitTorrent protocol and obtaining modest settlement from the BitTorrent users. For example, if Rightscorp thought you had shared “Bad Blood” using BitTorrent, it would send you a settlement demand of, say, $500—or some figure that’s low enough for you to afford but not high enough to be worth fighting over. It’s a low-return–high-volume business. And for it to work, Rightscorp needed to get as many settlement demands to users as possible.

But to do that, Rightscorp needed the cooperation of ISPs. That’s because Rightscorp doesn’t actually know who the user is. It just knows the user’s IP address at the time of the alleged file-sharing. Only the user’s ISP knows which of its users was using a…

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The Force Toys Around: Can You Post a Picture of Your Favorite Star Wars Action Figure?

DMCA = Darth’s Malicious Copyright Attack

Warning: careful about clicking some of the links. There may be spoilers. Well, a spoiler.

I have it on good authority that Star Wars fans were surprised to discover an action figure of a major character from the upcoming Star Wars: The Force Awakens movie for sale at their local Walmart. What’s more, said action figure might constitute something of a spoiler because the packaging depicts the character as holding … something that might give away a hitherto unknown secret about the character. Excited, these people took pictures of the toy (with packaging) and uploaded to websites, such as Star Wars Action News and plain-old Facebook and Twitter. Disney and/or LucasFilm then got those images removed by sending DMCA take-down notices to their hosts. TorrentFreak has details. Fortune and Ars Technica have also covered.

If you’re OK learning a possible spoiler, here’s the photograph at issue.

Ah, the delicate balance between fandom and intellectual-property enforcement! This seems a little heavy-handed, no? Maybe an instance of automation gone overboard? Or, perhaps the toy was mistakenly released early and someone wants to stop a certain spoiler from getting out? Relating to the last theory: the DMCA notifications have described…

figures1

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Cox Rocked but DMCA Safe Harbors Remain Unshaken

All We Really Learned Is that Even Big Corporations Don’t Always Run Things by Counsel.

We have learned quite a lot about the contours of the DMCA safe harbors over the last few years, thanks to record labels swinging for the fences, Viacom and Google’s tenacity in fighting over early-days YouTube, and a rare sighting of a certain kind of “red flag.” But these cases haven’t addressed the fuzziest area of the DMCA safe-harbors: the requirement for a “repeat infringer” policy. As I’ve argued before, this requirement is service providers’ greatest point of vulnerability. Because of the law’s fuzziness, service providers can’t be certain they’re in compliance. What’s more, if they’re, they lose all protection from DMCA safe harbors. But, for some reason, the rights holders have been reluctant to attack it.

To get clarity about a law, you need a case that is forced to address the difficult questions. Remember that courts only rule on the issues presented to them, and their findings and reasoning are only precedential to the extent they are necessary for the court’s decision. Courts don’t give advisory opinions, just because it would help clear things up. Thus, if there’s an easy way and a difficult…

Cox runs its graduated response to copyright infringement out of this trailer, far away from any legal counsel

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