April-May 2010 Quick Links Part 1 (IP Edition)

By Eric Goldman

[Note: I just got back from the Netherlands, where I had extremely limited Internet connectivity, so sorry for my absence in the last week (although you were in good hands with Venkat). I will be posting more material from my Netherlands trip to my personal blog and Twitter. You might want to follow me at those places too. I have a long list of “quick links” to share with you as I get the opportunity. The first installment:]

Copyright

* NYT: Current TV defeats a claim that in-line linking is copyright infringement.

* Google won a copyright challenge against Image Search in Germany, apparently on implied license grounds.

* Smoking Gun reports that ESPN sportscaster Erin Andrews has acquired the copyrights to the peephole videos made of her, which should make it a little easier for her to go after online republishers.

* UMG v. Veoh has been appealed to the Ninth Circuit. Although Veoh declared bankruptcy, its law firm, Winston & Strawn, is still fighting it. Ben Sheffner has posted the amicus briefs on behalf of UMG.

* Ben Sheffner also reports that Scott v. Scribd did not get class certification. My initial blog post.

* Arista Records LLC v. Doe 3 (2d Cir. April 29, 2010). P2P file sharer can’t claim anonymity to resist copyright owner’s subpoena. This ruling also signals that the Second Circuit will take a dim view of fair use claims in P2P file sharing cases and might import the Napster standards for secondary infringement claims.

* Lyrics website hit with preliminary injunction, but not the shutdown requested by the plaintiffs. The court rejects a 17 USC 512 defense because the defendant did not file the required agent designation with the copyright office.

* The RIAA’s campaign to sue file sharers led to a bubble in copyright litigation activity. Ars Technica suggests the bubble may be coming back.

* International Swaps and Derivatives Ass’n, Inc. v. Socratek, L.L.C., 2010 WL 1780999

(S.D.N.Y. 2010). Socratek aggregates agreements from EDGAR and resells them on its website. The plaintiff is upset that Socratek aggregated and resold the plaintiff’s allegedly copyrighted order form for ordering derivatives. The plaintiff sells blank forms, but Socratek grabbed completed versions that had become material agreements for SEC filing purposes. The court denies Socratek’s dismissal motion but also denies a preliminary injunction.

* The Second Circuit upholds the dismissal of Bio-Safe v. Hawks. My initial blog post.

* Zusha Ellison of the Recorder catches up on three copyright First Sale cases pending before the Ninth Circuit. This is a good time to remind you about our November 5 conference on the First Sale doctrine.

* Cosmetic Ideas v IAC InteractiveCorp (9th Cir. May 25, 2010): “receipt by the Copyright Office of a complete application satisfies the registration requirement of § 411(a).”

Trademark

* Google has won the Rosetta Stone case, but we’re waiting to see the written opinion to figure out why (and how good the win is).

* Au-Tomotive Gold v. VW (9th Cir. May 6, 2010). Post-sale trademark confusion trumps the First Sale doctrine. We’ll also be discussing trademark exhaustion at the November 5 conference!

* Boston Marathon sues CafePress and Zazzle for trademark infringement.

* Dan Burk, Cybermarks, Minnesota Law Review. The abstract:

The commercial development of the Internet has been punctuated with legal disputes over the use of trademarks as domain names, as metatags, as search terms, and as advertising keywords. As in previous disputes in copyright over the legal status of software, these Internet trademark disputes arise from the overlap of communicative and functional symbols in information technology. Such “cybermarks” are not merely indicators of product source, but function both as symbolic indicia for human recognition and as strings of computer code in the operation of automated search and indexing mechanisms. Application of trademark law’s functionality doctrine, perhaps with some modest amendment, could begin to resolve disputes over the use of cybermarks.

* Nature’s Footprint, Inc. v. Providnet Co Trust, 2010 WL 1903183 (W.D. Wash. May 11, 2010): “The Court is convinced that plaintiff sought to use its superior position vis-a-vis the trademark to, cause harm to a competitor. Given this Court’s strongly-held belief that a significant part of this litigation was motivated by plaintiff’s desire to quash competition, no fees will be awarded under the Lanham Act’s ‘exceptional case’ authority.”

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