Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘copyright’

Imperfect Lawsuits: Perfect 10 v. Google (and Visa and …)

“Perfect 10” is an unsuccessful California pornography business that has branched out into the litigation business with the same results. The company is justifiably upset that disreputable pornographers are stealing their copyrighted photos for their web sites. (We know you’re shocked to hear that some pornographers are disreputable, but we call ’em like we see ’em here at Overlawyered.) But unsatisfied with the results of suing fly-by-night operators, they tried to sue the billing services these sites used. These suits were mostly shut down; a federal court held that billing services that aren’t responsible for web site content are not, well, responsible for web site content. (A billing service that did regulate content did not fare so well. Perfect 10 Inc. v. Cybernet Ventures Inc., 213 F. Supp. 2d 1146.)

Then Perfect 10 took on credit card companies Visa and MasterCard. The credit card companies noted that they processed millions of transactions a day, and could not do so economically if they had to be responsible for enforcing property rights of third parties, and compared it to a company “send[ing] a notice to the electric company supplying power to people infringing its rights and say ‘shut them off.'” The Northern District of California threw those cases out.

With this track record, you’d think the media would be more skeptical now that the company has sued Google for providing a search engine with which someone can find web sites that infringe Perfect 10’s copyright, instead of giving company president Norman Zada an unrebutted platform, but the idea of a lawsuit over pictures of naked women is apparently too titillating to resist. Because, of course, a search engine shouldn’t just index the web, but should have intelligent spiders that test the propriety of the web sites indexed. Perfect 10 seems to be trying to get around this problem with their lawsuit by alleging that Google prioritizes search engine results for participants in its Ad Sense program and is lying to the public when it says its search engine results are objective. One wonders why Google doesn’t more prominently feature this benefit of sending them money, as well as about the Rule 11 basis for this allegation. Meanwhile, I guess we should be happy that Bo Derek never sued Perfect 10. (Wendy Davis, “Adult Publisher Sues Google For Copyright Infringement”, MediaDailyNews, Nov. 23; AP, Nov. 23; Lisa Baertlein, Reuters, Nov. 22; Chris Gaither, “Porn Firm Sues Google Over Photos”, LA Times, Nov. 20; Brenda Sandburg, “Strange Bedfellows”, The Recorder, June 7; Gretchen Gallen, “Perfect 10 Sues Visa/MasterCard”, XBiz, Jan. 29). Other Google lawsuits: Nov. 9, Aug. 9, Mar. 28.

Filed under: , ,

Update: SCO and its lawyers

The SCO Group is famous for its business strategy, which in large measure consists of filing a barrage of suits against IBM, Novell and other makers and users of Linux-based and other software products based on purported infringements of its intellectual property rights in Unix (see Nov. 6, 2003). On Oct. 31 SCO signed an agreement with Boies, Schiller & Flexner and a second law firm that will cap (at $31 million) the legal bill it will owe over and above a generous contingency share of any recoveries. (Stephen Shankland, “SCO seals deal for legal expense cap”, CNET News, Nov. 5). For more on the controversy, see Jim Kerstetter, “The Most Hated Company In Tech”, Business Week, Feb. 2; “SCO’s Suit: A Match Made in Redmond?”, Mar. 11. While to date it seems SCO has been unable to produce much hard evidence of IBM’s having infringed, SCO says that’s because the larger company has been unwilling to provide a helpful “road map” to its code to help in identifying violations (Nick Farrell, “IBM says SCO has no evidence”, The Inquirer, Sept. 17). SCO’s side of the controversy may be found at its website, while GrokLaw provides a wealth of items and links from a standpoint critical of the SCO claims.

Filed under: ,

Google News: forever a beta?

Though a smash success with readers, Google News is still in “beta” status three years after its launch and has not attempted to become economically self-sufficient through the sale of advertising. “The reason: The minute Google News runs paid advertising of any sort it could face a torrent of cease-and-desist letters from the legal departments of newspapers, which would argue that ‘fair use’ doesn’t cover lifting headlines and lead paragraphs verbatim from their articles.” (Adam Penenberg, “Google News: Beta Not Make Money”, Wired News, Sept. 29). Update Mar. 21: Agence France-Presse sues Google.

Filed under: , ,

Criticizing copyright

“Copyright is a trial lawyer’s dream — a regulatory program enforced by private lawsuits where the plaintiffs have all the advantages, from injury-free damages awards to liability doctrines that extract damages from anyone who was in the neighborhood when an infringement occurred. …Recently, David Boies, famous for his representation of Al Gore, signed a rich contingent-fee deal to pursue a claim that Linux open-source software violates his client’s copyright. Last month, he launched test cases against DaimlerChrysler and AutoZone. If he prevails, businesses all across the country could find themselves paying big damages simply for having purchased Linux servers. It’s asbestos litigation for the Internet age.” (Stewart Baker, “Exclusionary Rules” (review of Lawrence Lessig’s Free Culture), Wall Street Journal, Mar. 26, reprinted at Steptoe & Johnson site)(more on technology and IP law). P.S.: David G. Post of Temple reviews Lessig’s book in the November Reason, and is in turn reviewed (before the fact) by Frank Gilbert at Slinkard Review.

Filed under: , , ,

Copyright litigation for trolls

“‘The trolls have made amazing comebacks. They just keep coming back from the dead,’ said IP attorney Parker Bagley, a partner at New York’s Milbank, Tweed, Hadley & McCloy who in the past has helped the Hummel figurine company protect its copyright status.” (Tresa Baldas, “Trolling for Copyrights”, National Law Journal, Sept. 21).

Filed under:

This Land is Our Land, but the Song Isn’t

JibJab, creator of that popular This Land Is Your Land political parody has been warned that they are infringing on Woody Guthrie’s copyright (see letter here.) As the Wired story notes, this action is the antithesis of the spirit of Woody Guthrie, who had this to say about copyrights:

This song is copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.

UPDATE: Much discussion of the issue can be found at The Volokh Conspiracy. Just keep scrolling.

Filed under: , ,

Induce alarm

“When the lawyers at EFF [Electronic Frontier Foundation] first sat down and asked ‘Whom could we sue under the Induce Act [the Inducing Infringements of Copyright Act (PDF), proposed by Sens. Hatch, Daschle, Leahy, Boxer and others] if we were an abusive copyright holder?’ the answer was clear: pretty much everybody. Playing the devil’s advocates, we knew we could draft a legal complaint against any number of the major computer or electronics manufacturers for selling everyday devices we all know and love — CD burners, MP3 players, cell phones — and that with that complaint, we could file a lawsuit that would survive any attempt to dismiss it before trial, costing the targeted company up to $1,000,000 per month in legal fees alone. The Induce Act is a nasty, brutish stick in the hands of the wrong plaintiff.” (“Prelude to a Fake Complaint”, EFF website, Jun. 24). See Bryan Chaffin, “EFF Demonstrates How To Use New Law Against Apple, iPod”, Mac Observer, Jun. 25. For more on the bill, see Legal Reader, Jun. 10.

Filed under: , ,

“Judge Says Artist Can Make Fun of Barbie”

Merits of loser-pays: Five years ago, the Mattel toy company sued artist/photographer Tom Forsythe for copyright and trademark infringement over “a series of 78 photographic images of the wildly famous doll showing her nude, and sometimes posed provocatively, in or around various household appliances. … After a lengthy legal tussle, which included a series of appeals, a federal judge late last week instructed Mattel to pay Mr. Forsythe legal fees of more than $1.8 million.” (Bill Werde, New York Times, Jun. 28).

Filed under: , , , ,

Inmates’ fraudulent liens

Across the country, reports Court TV, prison inmates are harassing lawyers and court personnel by filing liens against them for supposed violations of the inmates’ copyright in their own names. The copyright-in-one’s-name premise may be supremely absurd — an egregious example of the homespun legal reasoning I once described, in the context of tax protests, as “folk law” — but it works surprisingly well as a means of harassment: the target’s credit standing may be frozen until he manages to get the lien on his house removed, which can be an expensive and time-consuming undertaking (Emanuella Grinberg, “What’s in a name? A fortune, some inmates say”, Court TV, Mar. 17). Curmudgeonly Clerk (Mar. 30) cites several federal cases that have arisen from this abuse (complete with an opinion by Judge Easterbrook) and points out that despite the Prison Litigation Reform Act of 1995, the system clearly has a way to go in curbing unfounded inmate litigation.

Filed under: , , ,

Pooh heirs v. Disney: now we are dismissed

“The Walt Disney Company prevailed on Monday in a 13-year legal dispute over royalties related to its Winnie the Pooh franchise when a judge dismissed the case, contending the plaintiff altered confidential memorandums and covered up the theft of documents obtained by a private investigator who sifted through the company’s trash. Judge Charles W. McCoy of Los Angeles Superior Court wrote in his decision that the misconduct of the Slesinger family, which sued Disney in 1991 after contending the company cheated it out of royalty fees, was ‘so egregious that no remedy short of terminating sanctions’ would adequately protect Disney and the justice system from further abuse.” The family is vowing to appeal (Laura Holson, “After 13 Years, Judge Dismisses Case on Pooh Bear Royalties”, New York Times, Mar. 30). Earlier in the case, Disney had drawn sanctions “for deliberately destroying 40 boxes of documents that could have been relevant to the case, including a file marked ‘Winnie the Pooh-legal problems'”; see “The Document-Shredding Facility at Pooh Corner”, Aug. 24-26, 2001. For more on the propensity of some investigators retained in litigation to rifle adversaries’ garbage and commit other invasions of privacy, see Nov. 11, 2003 (FBI probe of Hollywood lawyers); Jul. 28-30, 2000 (Terry Lenzner, Oracle). More: Southern California Law Blog has followed the case.

Filed under: , , , , ,