A Legal Blog by Aaron | Sanders, PLLC


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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Copyright and Music Explainer: Why Spotify Isn’t Really the Poster Child for Everything That’s Wrong with the Music Business

Maybe Spotify Isn’t Cannibalizing Music Sales, But Artists Still Aren’t Getting Paid

Spotify has become something of a punching bag for Everything That’s Wrong with the Music Business Nowadays. I once held out tremendous hope that Spotify would Fix Everything. It didn’t. Well, that’s not quite true. It did deliver on the consumer end. But as the years went by, the initial, hopeful trickle of new revenue for musicians never really increased. Millions of streams, but only a few bucks in royalties. What the heck was going on? Did Spotify somehow pull the wool over everyone’s eyes, including the eyes of the savvy giant music labels? Given how long the major labels held out before licensing their music to Spotify, that seemed unlikely. It was more likely that the labels got the better of the deal. But there was no one else to punch. And, where, precisely, was all the money going?

Some Light Shed, but Not Where We’d Like It.

FiveThirtyEight’s much-discussed article, “Maybe Spotify Isn’t Killing the Music Industry After All”, doesn’t really get into this, unfortunately. Keep that in mind when you see people citing the article to show that Everything Is Fine.

The FiveThirtyEight article is about the “music industry”…

original

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What a week it’s been

Yoga poses are not copyrightable.  Monkeys can maybe have copyright, if people who really care about them can take the case to court.  We’ve got a termination decision from the Second Circuit, and oh, yeah, the Google Books project is fair use.

TGIF!

Bikram Choudhury, after extensive research about the best yoga poses for optimizing all the parts of the body, published a book in 1979 called Bikram’s Beginning Yoga Class, describing 26 very specific yoga poses to be done in sequence, in a room set at 105 degrees Fahrenheit, and two breathing exercises.  Bikram marketed his yoga all over Hollywood (the birthplace of yoga), and in 1994 started offering “train the trainer workshops.” His students (rather unsurprisingly, it seems), began opening studios to teach his method. In 2011 Bikram filed suit claiming infringement of his copyright interest in the 26 pose “Sequence.”  And last week, the Ninth Circuit Court of Appeals rather succinctly put an end to Bikram’s claims that had been interfering with the zen of hot yoga teachers across the country. “Simply put,” said the Court,  “[Bikram’s] attempt is precluded by the idea/dichotomy expression, codified by Section 102(b) [of the U.S. Copyright Act].”  Writing a book about medicine doesn’t give…

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Lenz, the DMCA and Dancing Babies: Don’t Go Crazy, OK?

tl;dr Summary

Although the DMCA’s procedure for taking down allegedly infringing material is (ahem) nearly universally disliked. Rights holders can’t figure out why it’s so hard to take infringing material down, and consumers and service providers can’t figure out why it’s so easy to take obviously non-infringing down. Lenz v. Universal thus appeared a perfect test case for those who wished to clip the wings of the DMCA’s takedown procedure. When Universal saw Ms. Lenz’s video of her toddler dancing to “Let’s Go Crazy” in the background, it got the video removed. Although Ms. Lenz was able to get it put back up, she was angry enough to sue Universal under §512(f), which forbids knowingly representing that a work subject of a takedown notice is infringing. Her theory was that her video was so obviously a fair use, Universal’s takedown notice constituted a knowing misrepresentation. She knew, however, that she had a tough road, because at most all Universal had to prove was that it had a subjective belief that her video wasn’t fair use, a very low standard indeed.

At trial, she successfully fended off a motion to dismiss and a motion for summary judgment, in which Universal argued that…

This seismometer measures changes to copyright law, starting in 1909. The big disturbance is either the 1976 Act or possibly the Sony Betamax case. Note that it's been a while since the needle has moved significantly.

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The Silly Dispute Between Georgia and Public.Resource.Org: Are Statutory Annotations Even Copyrightable?

I Fought (for) the Law; Who Wins?

When I started law school, I had only the vaguest idea of what lawyers did. I figured it had something to do with arguing in front of juries and judges, writing legal briefs and contracts. That’s what I expected to learn in law school. I was in for something of a surprise.

One of the first classes I took was “Legal Research and Writing.” I assumed it would be about 90% writing and 10% research. This was because I thought “research” basically consisted of “looking stuff up.” Anyone could look up the law, I thought, but lawyers are just really good at it. I imagined the aisles and aisles of books in the law library consisted of reams and reams of “laws.” You just had to find the right one. Sure, I had heard of “cases,” because I had heard of things like Plessy v. Ferguson and Marbury v. Madison. I knew that somehow these “cases” helped determine the law, but surely either they were rare or they were codified somehow into something you could look up.

Oh, my sweet Lord, was I mistaken. The “law” wasn’t something you “looked up” at all. It was…

These "reporters" collect "published" judicial opinions in roughly chronological order. Photo by "Coolcaesar".

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