Perez Hilton Wins IP Lawsuit–Silver v. Lavandeira

By Eric Goldman

Silver v. Lavandeira, 2009 WL 513031 (S.D.N.Y. Feb. 26, 2009). The CMLP page.

I’ve lost track of Perez Hilton’s multitudinous lawsuits, but in this case he gets a nice win. Silver is a rival blogger at “Perezrevenge.com.” I’m not exactly sure how this site improves upon other celebrity gossip sites, but it claims to be different. Silver brought a pro se lawsuit against Perez for copyright infringement and related claims. (Perez fired back with Lavandeira v. Infuse, LLC, a cybersquatting and trademark lawsuit). In the most recent ruling, the district court accepts the magistrate report rejecting all of Silver’s claims.

It’s a little unclear why Silver thinks Perez committed copyright infringement, but it appears that Silver is claiming that Perez picked up facts from her blog and wrote those facts up for his blog. Applying very basic copyright law, the court says that republishing facts isn’t copyright infringement. Further, even if Silver had a compilation copyright in the facts presented on her blog, Perez didn’t infringe because his blog had a different arrangement, plus “his distinctive sarcastic and ironic tone constitutes a significantly different expression of the underlying facts.”

The court also rejects Silver’s hot news misappropriation claim. Because Silver was republishing facts that had been widely published before her posts, the court questions whether she had invested substantial costs in gathering the facts; and indeed questions whether she can have any proprietary interest in such extensively disseminated facts.

BTW, for those of you keeping score, this is the third time in the past month that I have blogged on hot news claims. See the AP and Scranton Times case. There must be something in the water.

Finally, the court rejects two DMCA claims. Silver claimed a 1201 violation, but not did allege a circumvention of a technological protection measure. Silver also claimed a 1202 violation because her name was in her posts but not referenced in Perez’s posts, but (citing/misciting the goofy IQ case from 2006) the court dismisses the claim because she inserted her name into her posts manually and not on an automated basis. I think there are plenty of good reasons to dismiss the 1202 claim (such as the lack of copying), but the manual insertion of copyright management information is not one of them.

Although this case hardly breaks any important new ground, it does represent a nice validation that standard blogging practices of building upon someone else’s newsy blog post does not give rise to legal claims.

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