Jailbirds and the DMCA
Breaking news: SoCal man busted on charges of "jail breaking" videogame consoles in violation of the Digital Millennium Copyright Act (“DMCA”). Not sure this really rises to the level of such extensive law enforcement, but according to Wired News, Homeland Security authorities arrested 27 year old Matthew Crippen this week on charges of having circumvented the copyright encryption technology on a number of videogame consoles including Wii, PlayStation and the Xbox. Crippen, an Anaheim, California resident and Cal State Fullerton liberal arts student, charged customers $30 a pop for this -- uh -- service.
I could make a comment here about Anaheim being the home of Disneyland, and Crippen's age being a little advanced for an undergrad, or the fact that he was doing all this for $30 a pop when a job at Starbucks probably would have paid just as well (and would not have led to his arrest), but I won't. I'll refrain. So, enough of that, and on to the next paragraph, please.
Really, this story makes me feel very, very secure. I mean, what with the Bush administration (and Chenney in particular), I really thought that terrorists were practically at our front door. Turns out, this must not be the case given that Homeland Security has time to bust a guy who's gaming videogame consoles. Wow, what must the strategy sessions that led to that bust have been like? "Guys, we've got a big one." (Tense silence as the team, clad in black, waits . . . .) "Hacker." (Team's thinking: code for Bin Laden, no . . . for . . . who?! They all nod knowingly as their leader continues.) "Bastard's breaking into Xboxes, the Wii and . . . the PlayStation." (Whoa. Sweat starts to form on foreheads . . . .) Cut to the five black vans with blackened windows pulling up outside Crippen's house, firepower in abundance, men taking positions – BAM! the door comes down and the fugitive comes out -- dressed in boxes and holding a screw driver? At least that's how I imagine it.
Anyway, why all the fuss? Because under the DMCA, jailbreaking a video game is a copyright no-no. The DMCA provides, in relevant part, that, “no person shall circumvent a technological measure that affectively controls access to a work protected under this title.” Stated another way, no jailbreaking decrypted copies of videogame unless you're ready to do some hard time . . . and have Homeland Security come knocking at your door. Now don't get me wrong: the DMCA is a great statute and I've used it in some of my own cases, but this really seems like killing a gnat with a sledgehammer when a rolled up newspaper would suffice.
So now the big question now is: where did Crippen get his training? Afghanistan? Pakistan? From the The Big Man? No, according to Wired, Crippen learned his skill on “Google, man.” He was released on Monday on $5,000 bond.
Wednesday, August 5, 2009
Monday, August 3, 2009
Pirate Update
Pirate update: No, not the Somalis, the Dutch.
According to a report in IP360 (and the Associated Press), a Dutch court has given Pirate Bay 10 days to walk the plank – errr, to shut down operations in the Netherlands. And if they don’t? There are sharks waiting for them in the churning sea below, to the tune of up to $42,000 per day. Ouch! It is not clear from either report how the Court proposes to enforce its order or to block Netherlands-based traffic (one envisions a little Dutch boy, with his finger in the Internet dyke), but that’s what the Court has said and they seem to mean business.
The ruling, by the way, follows the copyright infringement suit filed just over a week ago by a number of studios (a baker’s dozen, all of whom have the dough to do so). Pirate Bay has continued to operate notwithstanding a ruling last April from a Swedish court which sent the site's founders to jail (for one year each), and hit them with a hefty $3.6 million fine based on similar charges.
How is it that Pirate Bay gets him with infringement suits (and, ahem, jail time) when YouTube hosts plenty of material that may well be covered by third party copyrights? Because unlike YouTube, Pirate Bay distributes torrent files, linking users to the copyrighted material. It is the users who host the torrents and who are in possession of any infringing material.
Thus, by seeking to circumvent claims of domestic and international copyright infringement, the Pirate walks the plank, while YouTube . . . . walks to the bank.
Jonathan Pink litigates copyright actions around the globe. He is Co-Leader of the Internet and New Media Team at Bryan Cave, LLP. Bryan Cave is an international law firm with more than 1200 attorneys world wide.
According to a report in IP360 (and the Associated Press), a Dutch court has given Pirate Bay 10 days to walk the plank – errr, to shut down operations in the Netherlands. And if they don’t? There are sharks waiting for them in the churning sea below, to the tune of up to $42,000 per day. Ouch! It is not clear from either report how the Court proposes to enforce its order or to block Netherlands-based traffic (one envisions a little Dutch boy, with his finger in the Internet dyke), but that’s what the Court has said and they seem to mean business.
The ruling, by the way, follows the copyright infringement suit filed just over a week ago by a number of studios (a baker’s dozen, all of whom have the dough to do so). Pirate Bay has continued to operate notwithstanding a ruling last April from a Swedish court which sent the site's founders to jail (for one year each), and hit them with a hefty $3.6 million fine based on similar charges.
How is it that Pirate Bay gets him with infringement suits (and, ahem, jail time) when YouTube hosts plenty of material that may well be covered by third party copyrights? Because unlike YouTube, Pirate Bay distributes torrent files, linking users to the copyrighted material. It is the users who host the torrents and who are in possession of any infringing material.
Thus, by seeking to circumvent claims of domestic and international copyright infringement, the Pirate walks the plank, while YouTube . . . . walks to the bank.
Jonathan Pink litigates copyright actions around the globe. He is Co-Leader of the Internet and New Media Team at Bryan Cave, LLP. Bryan Cave is an international law firm with more than 1200 attorneys world wide.
Sunday, August 2, 2009
Facebook, High School Renunions, Patent Infringement and Cable TV
My high school reunion is coming up. Thirty years. No, I won’t make it. I’ll be on vacation with my family. Not that I’d intentionally avoid it; it just worked out that way.
I actually enjoyed the last reunion. It was our 25th, and held at a classmate’s home. This wasn’t like a backyard pool party or a front yard Bar-B-Q. This classmate had purchased the former George C. Scott Estate in Bel Air. He’d done quite well for himself (starting a gay television network; I don’t have a TV, but I’m assuming we’re talking cable here). The fact that he had done quite well is particularly interesting to me because he was not one of the popular kids in high school. (Nor was I.) He was always a bit of an outsider (as – I am somewhat chagrinned to admit – was I).
Which brings me to my point (sort of): I always wonder what happened to the popular kids. Most of the successful ones I can think of were not the popular ones. Most of the popular ones are not now terribly successful. At the last reunion, I remember talking to one of them. He didn’t remember me, but was still more than happy to chat. He was living in a trailer; didn’t drive, but did ride a bike. He spent about 15 minutes recounting for me that time in high school when he saw a UFO. It was a little metallic ball, he told me, looking in at him through a window while he watched TV and his laundry tumbled dry in the next room.
Side note: Now you’ve got to remember the first Star Wars movie which – huh! – came out when this guy and I were in high school. Remember the scene where Luke learns to use the light saber? Remember the little metal ball flying around? I can’t say for certain, but I’m guessing there is a connection here which, I’m sorry to say, I didn’t point out to my old friend. Instead, I said “Huh, you know, I’m going to get another drink,” then hurried away. (I then met up with one of my closest friends – a psychologist -- and encouraged him to go talk to Mr. UFO.)
Back to my point: So, it seems to be that, if you’re popular in high school, you’re likely to be perceived as an underachiever at your high school reunions, at least when compared with the losers in high school who now own estates, or at least practice intellectual property law in Irvine.
Ahem. The point of all this lead up? To compare and contrast what happens when you’re a successful business. What happens? That’s easy: you get sued. Case in point: Facebook. Hugely popular (hey, if you’re reading this, feel free to send me a “friend” request on Facebook), Facebook has had its share of lawsuits of late. A couple of click fraud cases, and at least one patent infringement suit brought against it by Leader Technologies Inc.
The patent infringement case was the subject of an interesting recent ruling, whereby Facebook was ordered to provide the plaintiff with a complete copy of Facebook’s entire computer source code. What does this have to do with the suit itself? Leader Technologies sued alleging Facebook had deliberately infringed Leader’s U.S. Patent Number 7,139,761, titled “Dynamic association of electronically stored information with iterative workflow changes.” As if the title were not clear enough, the patent has to do with the management and storage of electronic information (something most websites – including this one – does). In that case, however, Leader claims that Facebook infringed its patent by marketing services “including but not limited to those related to the Facebook Web site.”
Like any good patent plaintiff, Leader is seeking preliminary and permanent injunctions, treble damages, attorneys' fees and costs. Uh-huh. We’ve all seen this drill before. In fact, I’m in a battle like this one now, except it involves mattresses and memory foam rather than “electronically stored information with interactive workflow changes.” Almost the same, but not quite.
In any event, in the Facebook case, Magistrate Judge Leonard P. Stark (DC Del) ruled that Facebook must provide Leader with a hierarchical map of its source code by the end of this week, and the entire source code by Friday, August 21st. Facebook is not happy. It claims Leader has no need for the entire source code, or at least has failed to articulate such a need.
The Court disagreed. Judge Stark ruled that a protective order would adequately address any of Facebook’s concerns, and founded his decision on the declaration of plaintiff’s expert witness, and a limited review of a portion of the code itself. Maybe so, but the ruling really seems over reaching to me. I’d bet anything that the Judge is not Facebook.
Leader, by the way, bills itself as a “pioneer in Web-based collaboration platforms.” I point this out only because of the further parallel to my case, which involves a bedding platform. And also because, just like a high school reunion – where the once popular are now not so (and those who weren’t now own gay television networks) – it’s all about creating “dynamic associations.”
Jonathan Pink litigates copyright, trademark and patent cases at Bryan Cave, LLP. He is resident in the Irvine office and can be reached at jonathan.pink@bryancave.com.
I actually enjoyed the last reunion. It was our 25th, and held at a classmate’s home. This wasn’t like a backyard pool party or a front yard Bar-B-Q. This classmate had purchased the former George C. Scott Estate in Bel Air. He’d done quite well for himself (starting a gay television network; I don’t have a TV, but I’m assuming we’re talking cable here). The fact that he had done quite well is particularly interesting to me because he was not one of the popular kids in high school. (Nor was I.) He was always a bit of an outsider (as – I am somewhat chagrinned to admit – was I).
Which brings me to my point (sort of): I always wonder what happened to the popular kids. Most of the successful ones I can think of were not the popular ones. Most of the popular ones are not now terribly successful. At the last reunion, I remember talking to one of them. He didn’t remember me, but was still more than happy to chat. He was living in a trailer; didn’t drive, but did ride a bike. He spent about 15 minutes recounting for me that time in high school when he saw a UFO. It was a little metallic ball, he told me, looking in at him through a window while he watched TV and his laundry tumbled dry in the next room.
Side note: Now you’ve got to remember the first Star Wars movie which – huh! – came out when this guy and I were in high school. Remember the scene where Luke learns to use the light saber? Remember the little metal ball flying around? I can’t say for certain, but I’m guessing there is a connection here which, I’m sorry to say, I didn’t point out to my old friend. Instead, I said “Huh, you know, I’m going to get another drink,” then hurried away. (I then met up with one of my closest friends – a psychologist -- and encouraged him to go talk to Mr. UFO.)
Back to my point: So, it seems to be that, if you’re popular in high school, you’re likely to be perceived as an underachiever at your high school reunions, at least when compared with the losers in high school who now own estates, or at least practice intellectual property law in Irvine.
Ahem. The point of all this lead up? To compare and contrast what happens when you’re a successful business. What happens? That’s easy: you get sued. Case in point: Facebook. Hugely popular (hey, if you’re reading this, feel free to send me a “friend” request on Facebook), Facebook has had its share of lawsuits of late. A couple of click fraud cases, and at least one patent infringement suit brought against it by Leader Technologies Inc.
The patent infringement case was the subject of an interesting recent ruling, whereby Facebook was ordered to provide the plaintiff with a complete copy of Facebook’s entire computer source code. What does this have to do with the suit itself? Leader Technologies sued alleging Facebook had deliberately infringed Leader’s U.S. Patent Number 7,139,761, titled “Dynamic association of electronically stored information with iterative workflow changes.” As if the title were not clear enough, the patent has to do with the management and storage of electronic information (something most websites – including this one – does). In that case, however, Leader claims that Facebook infringed its patent by marketing services “including but not limited to those related to the Facebook Web site.”
Like any good patent plaintiff, Leader is seeking preliminary and permanent injunctions, treble damages, attorneys' fees and costs. Uh-huh. We’ve all seen this drill before. In fact, I’m in a battle like this one now, except it involves mattresses and memory foam rather than “electronically stored information with interactive workflow changes.” Almost the same, but not quite.
In any event, in the Facebook case, Magistrate Judge Leonard P. Stark (DC Del) ruled that Facebook must provide Leader with a hierarchical map of its source code by the end of this week, and the entire source code by Friday, August 21st. Facebook is not happy. It claims Leader has no need for the entire source code, or at least has failed to articulate such a need.
The Court disagreed. Judge Stark ruled that a protective order would adequately address any of Facebook’s concerns, and founded his decision on the declaration of plaintiff’s expert witness, and a limited review of a portion of the code itself. Maybe so, but the ruling really seems over reaching to me. I’d bet anything that the Judge is not Facebook.
Leader, by the way, bills itself as a “pioneer in Web-based collaboration platforms.” I point this out only because of the further parallel to my case, which involves a bedding platform. And also because, just like a high school reunion – where the once popular are now not so (and those who weren’t now own gay television networks) – it’s all about creating “dynamic associations.”
Jonathan Pink litigates copyright, trademark and patent cases at Bryan Cave, LLP. He is resident in the Irvine office and can be reached at jonathan.pink@bryancave.com.
Friday, July 24, 2009
No Vacancy at Hotels.com
Such a pity. Hotels.com tried, tried, tried to obtain a trademark in its name "Hotels.com," but alas the Court of Appeals for the Fed Circuit ruled the mark was a too generic. Too generic? Really? So, my hopes of getting a trademark in "milkdelivery.com" for my new business delivering milk might run into problems as well? Generic. Humph.
The Court said that the USPTO's Trial and Appeal Board's refusal of the registration was appropriate, and affirmed the TTAB's rejection of Hotels.com's argument that the “dot-com” suffix showed converted the generic term “hotels” into a brand name.
Really going out on a limb there, TTAB; bold, controversial assertion of the law.
Of course, in some deference to Hotels.com ("some," meaning not a lot, meaning the subtextual "what the hell were you thinking?" still applies), it appears that the website had originally sought to register its mark for the services of “providing information for others about temporary lodging; travel agency services, namely, making reservations and bookings for temporary lodging for others by means of telephone and the global computer network.” So it wasn't, e.g., just giving people access to hotels? Oh, you see that's where I was mistaken.
Seems the TM examiner had the same thought I did, that “Hotels.com” was “merely descriptive” of hotel reservation services. (No, it's for "providing information . . . .") In any event: denied. Possibly without even visiting the site (which looks a lot like a site where you make hotel reservations, folks), the TTAB affirmed the rejection, finding that “hotels” identified “the central focus of the information and reservation services” provided on the site, and concluding that “hotels.com" was therefore simply a term that identified the focus of the service, and was thus "generic for the services themselves.”
Hotels.com appealed, arguing that the mark was not generic because the Web site Hotels.com does not provide lodging and meals for its users and isn't synonymous with the word “hotel.” It further argued that its name had effectively acquired secondary meaning (or acquired distinctiveness), saying that the mark was widely associated with the company itself, and is not viewed as a generic term or common name for hotel services.
The Fed Circuit ruled that "the generic-descriptive-suggestive-arbitrary-fanciful continuum of words and their usage as marks of trade, there is no fixed boundary separating the categories; each word must be considered according to its circumstances.” In other words, while generic terms cannot themselves be registered as trademarks, descriptives may acquire distinctiveness and serve as a trademark.
But, the Court did not side with Hotels.com that that had happened in this instance. It agreed with the TTAB that "hotels" identified the core component of the services at issue, and that “hotels.com” was the functional equivalent of granting a service mark to the unadorned word, “hotels,” which it was not about to do. In short, the Court found that the combination of “hotels” and “.com” did not produce a new meaning when used in combination with one another. It held that “registrability does not depend on the .com combination.”
So, Hotels.com is left without registered mark in the brand it has worked so hard to develop. What does this tell us? Talk to a trademark attorney before selecting a a mark in which you intend to invest mucho money? Now there's an idea!
The Court said that the USPTO's Trial and Appeal Board's refusal of the registration was appropriate, and affirmed the TTAB's rejection of Hotels.com's argument that the “dot-com” suffix showed converted the generic term “hotels” into a brand name.
Really going out on a limb there, TTAB; bold, controversial assertion of the law.
Of course, in some deference to Hotels.com ("some," meaning not a lot, meaning the subtextual "what the hell were you thinking?" still applies), it appears that the website had originally sought to register its mark for the services of “providing information for others about temporary lodging; travel agency services, namely, making reservations and bookings for temporary lodging for others by means of telephone and the global computer network.” So it wasn't, e.g., just giving people access to hotels? Oh, you see that's where I was mistaken.
Seems the TM examiner had the same thought I did, that “Hotels.com” was “merely descriptive” of hotel reservation services. (No, it's for "providing information . . . .") In any event: denied. Possibly without even visiting the site (which looks a lot like a site where you make hotel reservations, folks), the TTAB affirmed the rejection, finding that “hotels” identified “the central focus of the information and reservation services” provided on the site, and concluding that “hotels.com" was therefore simply a term that identified the focus of the service, and was thus "generic for the services themselves.”
Hotels.com appealed, arguing that the mark was not generic because the Web site Hotels.com does not provide lodging and meals for its users and isn't synonymous with the word “hotel.” It further argued that its name had effectively acquired secondary meaning (or acquired distinctiveness), saying that the mark was widely associated with the company itself, and is not viewed as a generic term or common name for hotel services.
The Fed Circuit ruled that "the generic-descriptive-suggestive-arbitrary-fanciful continuum of words and their usage as marks of trade, there is no fixed boundary separating the categories; each word must be considered according to its circumstances.” In other words, while generic terms cannot themselves be registered as trademarks, descriptives may acquire distinctiveness and serve as a trademark.
But, the Court did not side with Hotels.com that that had happened in this instance. It agreed with the TTAB that "hotels" identified the core component of the services at issue, and that “hotels.com” was the functional equivalent of granting a service mark to the unadorned word, “hotels,” which it was not about to do. In short, the Court found that the combination of “hotels” and “.com” did not produce a new meaning when used in combination with one another. It held that “registrability does not depend on the .com combination.”
So, Hotels.com is left without registered mark in the brand it has worked so hard to develop. What does this tell us? Talk to a trademark attorney before selecting a a mark in which you intend to invest mucho money? Now there's an idea!
Friday, July 17, 2009
Twitter: Password Security Breach
Was interviewed by the L.A. Times on this topic. The article is very interesting (my quoted comment just makes for a pithy conclusion). Here is the link http://latimesblogs.latimes.com/technology/2009/07/leaked-twitter-documents-security.html
Wednesday, July 15, 2009
TechCrunch Publishes Confidential, Internal Twitter Documents
Techno/news website TechCrunch today published confidential, internal documents from Twitter, including Twitter’s financial projections (o.k., while it may be unseemly to repeat: Twitter projected it would bring in $400,000 in revenue this quarter and $4 million during the fourth quarter), and a document showing an internal discussion about a proposed reality television show (do we really need another? How about one in which we watch an over-worked lawyer typing out his blog in between sips of coffee and hoping to finish before his wife calls and says “If you’re not billing, come home!”).
Why would TechCrunch do this? Well, it’s fabulous publicity. It’s snarky, it’s quasi-newsworthy, it’s provoking. It will drive up traffic to their site, and thus increase (dramatically) their relevance and their value. Bingo! But, when the dust settles and the news moves to something more relevant (FLASH: Michael Jackson NOT Really Dead; Spotted at Disneyland’s Toontown), I suspect there will be some legal bills to pay.
As I’ve said before, stuffing your site with high quality, original content is an excellent way to increase readership and web traffic. Stuffing it with content poached from another site will only lead to trouble (or, as the case may be, increased readership and web traffic). Copyright protects a wide range of works being reproduced without the permission of the copyright owner. 17 U.S.C. § 102. This would include many of the internal documents TechCrunch decided to republish. Perhaps they’ve forgotten that the owner of the copyright has the sole right to authorize a reproduction of the work, distribute copies, or display it publicly. 17 U.S.C. § 106.
Or maybe they’ve decided to test the limit of a fair use defense. Remember the fair use doctrine? As the U.S. Supreme Court observed in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, “some opportunity for fair use of copyrighted materials [is] necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts. . .’.” I’ll bet my bonus that TechCrunch will argue that the fair use doctrine permits its republication because it was intended to spur discussion and debate (under that doctrine, as codified in 17 U.S.C. § 107, short quotations used “for purposes such as criticism, comment, news reporting, teaching … scholarship or research [are] not an infringement of copyright”).
Uh-huh.
But the analysis doesn’t stop there. Courts evaluate fair use by considering four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of copying, and (4) the market effect. The most significant is the last one. If the copy lessens the demand for the original work, it’s difficult to claim fair use. On the other hand, if the copy is used strictly for purposes of parody, criticism, or news reporting, it’s more likely to be deemed “fair.” So if you happen to receive confidential, internal Twitter documents, and truly believe that they are news worthy, wouldn’t it be best to discuss them generally, quote selectively, and adhere to the principal that “less is more,” rather than “more and more and more”? Well, maybe. I suppose TechCrunch could still argue that what it took had no effect on the market, so taking more (ok, all) of the material didn’t reduce it’s value, but the better approach might have been to exercise some restraint from the get go.
Moreover, even if TechCrunch avoids liability on copyright grounds, it could still face a claim for misappropriation of trade secrets or unfair competition under California Business and Professions Code §17200 (which broadly applies protect against unfair and “unethical” conduct).
And notably, it does not appear that TechCruch would have much of a defense these claims under the Telecommunications Act of 1996, 47 USC § 230(c). As we’ve seen recently, that is a fairly robust Section that makes providers of interactive computer services immune from liability for content created by third parties. That is, the service providers are immune when sued “as the publisher or speaker of any information provided by” someone else. 47 U.S.C. § 230(c). For example, courts have found that this Section shielded the publisher where third party content was posted on a roommate matching site (See Fair Housing Council v. Roommate.Com, 489 F.3d 921 (9th Cir. 2007)); an on line newsletter (Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003)); and a blog entitled “ripoffreport.com” that warned consumers about unscrupulous practices and bad service. Certainly, Section 230(c) has also been used as a defense to claims of negligent misrepresentation, interference with prospective advantage, unfair business practices. But Section 230(c) loses its shielding strength where the service provider itself is deemed the speaker/poster of the content.
By the way, this is what Twitter posted on its blog about this: “We are in touch with our legal counsel about what this theft means for Twitter, the hacker, and anyone who accepts and subsequently shares or publishes these stolen documents. We’re not sure yet exactly what the implications are for folks who choose to get involved at this point but when we learn more and are able to share more, we will.”
Oh, I’m sure of it.
On the horizon (or so I predict): Twitter sends TechCrunch a “take down notice” pursuant to the Digital Millennium Copyright Act (17 U.S.C. §§ 512(c)), and then possibly sues; TechCrunch sees a big up tic in hits, and enjoys its time in the spotlight.
Why would TechCrunch do this? Well, it’s fabulous publicity. It’s snarky, it’s quasi-newsworthy, it’s provoking. It will drive up traffic to their site, and thus increase (dramatically) their relevance and their value. Bingo! But, when the dust settles and the news moves to something more relevant (FLASH: Michael Jackson NOT Really Dead; Spotted at Disneyland’s Toontown), I suspect there will be some legal bills to pay.
As I’ve said before, stuffing your site with high quality, original content is an excellent way to increase readership and web traffic. Stuffing it with content poached from another site will only lead to trouble (or, as the case may be, increased readership and web traffic). Copyright protects a wide range of works being reproduced without the permission of the copyright owner. 17 U.S.C. § 102. This would include many of the internal documents TechCrunch decided to republish. Perhaps they’ve forgotten that the owner of the copyright has the sole right to authorize a reproduction of the work, distribute copies, or display it publicly. 17 U.S.C. § 106.
Or maybe they’ve decided to test the limit of a fair use defense. Remember the fair use doctrine? As the U.S. Supreme Court observed in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, “some opportunity for fair use of copyrighted materials [is] necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts. . .’.” I’ll bet my bonus that TechCrunch will argue that the fair use doctrine permits its republication because it was intended to spur discussion and debate (under that doctrine, as codified in 17 U.S.C. § 107, short quotations used “for purposes such as criticism, comment, news reporting, teaching … scholarship or research [are] not an infringement of copyright”).
Uh-huh.
But the analysis doesn’t stop there. Courts evaluate fair use by considering four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of copying, and (4) the market effect. The most significant is the last one. If the copy lessens the demand for the original work, it’s difficult to claim fair use. On the other hand, if the copy is used strictly for purposes of parody, criticism, or news reporting, it’s more likely to be deemed “fair.” So if you happen to receive confidential, internal Twitter documents, and truly believe that they are news worthy, wouldn’t it be best to discuss them generally, quote selectively, and adhere to the principal that “less is more,” rather than “more and more and more”? Well, maybe. I suppose TechCrunch could still argue that what it took had no effect on the market, so taking more (ok, all) of the material didn’t reduce it’s value, but the better approach might have been to exercise some restraint from the get go.
Moreover, even if TechCrunch avoids liability on copyright grounds, it could still face a claim for misappropriation of trade secrets or unfair competition under California Business and Professions Code §17200 (which broadly applies protect against unfair and “unethical” conduct).
And notably, it does not appear that TechCruch would have much of a defense these claims under the Telecommunications Act of 1996, 47 USC § 230(c). As we’ve seen recently, that is a fairly robust Section that makes providers of interactive computer services immune from liability for content created by third parties. That is, the service providers are immune when sued “as the publisher or speaker of any information provided by” someone else. 47 U.S.C. § 230(c). For example, courts have found that this Section shielded the publisher where third party content was posted on a roommate matching site (See Fair Housing Council v. Roommate.Com, 489 F.3d 921 (9th Cir. 2007)); an on line newsletter (Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003)); and a blog entitled “ripoffreport.com” that warned consumers about unscrupulous practices and bad service. Certainly, Section 230(c) has also been used as a defense to claims of negligent misrepresentation, interference with prospective advantage, unfair business practices. But Section 230(c) loses its shielding strength where the service provider itself is deemed the speaker/poster of the content.
By the way, this is what Twitter posted on its blog about this: “We are in touch with our legal counsel about what this theft means for Twitter, the hacker, and anyone who accepts and subsequently shares or publishes these stolen documents. We’re not sure yet exactly what the implications are for folks who choose to get involved at this point but when we learn more and are able to share more, we will.”
Oh, I’m sure of it.
On the horizon (or so I predict): Twitter sends TechCrunch a “take down notice” pursuant to the Digital Millennium Copyright Act (17 U.S.C. §§ 512(c)), and then possibly sues; TechCrunch sees a big up tic in hits, and enjoys its time in the spotlight.
You're Invited! BC Edge, July 29, 2009, Noon Pacific Time
If you're reading this, you're invited to our next “BC Edge” roundtable on July 29 at noon PST.
This quarter's topic: "The Copyright Alchemists: From 'Happy Birthday' to 'This Land is Your Land,' Making Millions from Songs in the Public Domain."
The purpose of this roundtable is to bring together Bryan Cave attorneys from all practice areas (not just IP), guests and clients who share an interest in cutting edge intellectual property issues.
This quarter's topic will focus on instances where licensors have made money licensing of songs which they may -- on closer inspection -- not actually own.
Our special guests will include the Electronic Frontier Foundation's Fred von Lohmann, George Washington University's Robert Braunies, and music law attorney Michael Perlstein.
As with every BC Edge, the topic I've outlined is just the beginning: where the conversation goes from there is up to all who participate.
I hope that will include you.
Toll Free Dial In Number: 800-300-1596
Passcode: 949-223-7173
This quarter's topic: "The Copyright Alchemists: From 'Happy Birthday' to 'This Land is Your Land,' Making Millions from Songs in the Public Domain."
The purpose of this roundtable is to bring together Bryan Cave attorneys from all practice areas (not just IP), guests and clients who share an interest in cutting edge intellectual property issues.
This quarter's topic will focus on instances where licensors have made money licensing of songs which they may -- on closer inspection -- not actually own.
Our special guests will include the Electronic Frontier Foundation's Fred von Lohmann, George Washington University's Robert Braunies, and music law attorney Michael Perlstein.
As with every BC Edge, the topic I've outlined is just the beginning: where the conversation goes from there is up to all who participate.
I hope that will include you.
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