H1 2012 Quick Links, Part 2 (Copyright)
By Eric Goldman
* The scandal continues: Techdirt reports the Dajaz1 seizure was held up for months because the government was waiting for the RIAA to provide supporting evidence that never materialized. Wait, ICE seized an asset (that is used for free expression) based on unverified assertions…and then held onto it for A YEAR? Techdirt then reports: RIAA Tries To Downplay Its Role In The Feds’ Unjustifiable Censorship Of Dajaz1. I cannot believe that no one has lost their job over this scandal yet. Shame on the Obama administration.
* Techdirt: Feds Tie Themselves In Legal Knots Arguing For Domain Forfeiture In Rojadirecta Case.
* The Supreme Court granted certiorari in Kirtsaeng v. John Wiley & Sons, Inc. Prior blog post.
* Brownmark Films v. Comedy Partners (7th Cir. June 7, 2012). Fair use parody supported early dismissal of copyright infringement claim. A case that never should have been brought.
* Some pro se appeals: Ouellette to the Ninth Circuit (prior blog post) and Obodai to the Second Circuit (prior blog post). I suspect we’ll see not-for-publication memorandum opinions dismissing the appeals in both cases.
Relatedly, the Center for Copyright Information has launched its website. It probably would be more accurate to call it “The Center for Biased Copyright Maximalist Information.” Gigi Sohn explains why she joined the board. The EFF says we should “press reset” on the whole project. News.com coverage.
* Rebecca on the Big Brother/Glass Houses “reality” TV copyright lawsuit, CBS Broadcasting, Inc. v. American Broadcasting Companies, Inc., 2:12-cv-04073-GAF-JEM (C.D. Cal. June 21, 2012).
1. That Counterclaimants Democratic Underground and David Allen have committed no volitional act giving rise to a claim for direct copyright infringement. Counterclaimants neither posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting until after this suit was filed. See Religious Tech. Ctr. v. Netcom On-line Commnc’n Servs., 907F. Supp. 1361 (N.D. Cal. 1995) (direct copyright infringement requires “some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party”); see also CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004) and Cartoon Network LP v. CSC Holdings, Inc, 536 F.3d 121 (2d Cir. 2008).
2. That the act of posting this five-sentence excerpt of a fifty sentence news article on a political discussion forum is a fair use pursuant to 17 U.S.C. § 107, and that the fair use doctrine provides a complete defense to the claim of copyright infringement from which this suit arose. Judgment on the Counterclaim is accordingly entered in favor of Democratic Underground and against Counter Defendant Stephens Media, LLC.
* More Righthaven:
– a judge transferred all of Righthaven’s copyright interests to a receiver for auction
– two more Righthaven appeals dismissed.
– Righthaven v. Allec. Righthaven’s copyright assignment agreement with Stevo Designs also failed to give Righthaven standing to sue.
– Steve Gibson of Righthaven threw outside counsel Mangano under the bus and claimed he can’t act as Righthaven’s lawyer in court (even though Gibson has made appearances as a lawyer for Righthaven before). Let the mocking of Gibson continue. It would be shocking if all of the Righthaven-associated attorneys emerge with their licenses unscathed.
* Bell v Steele. (No 3)  FCA 246 (16 March 2012). A successful threats action over a copyright demand letter in Australia.
* Maximized Living, Inc. v. Google, Inc., 2012 WL 1439034 (N.D. Cal. March 30, 2012). Defeating a 17 USC 512(h) subpoena doesn’t warrant a 17 USC 505 fee shift. The judge adopted the magistrate report, 2012 WL 1438988 (N.D. Cal. April 25, 2012). Prior blog post.
* James Grimmelmann recaps Teller’s copyright lawsuit over a magic illusion.
* LA Times on “mockbusters”—quickly and cheaply produced knockoff movies that “draft” off Hollywood blockbusters.
* NYT on rampant copying of gameplay among apps.
* If you buy a DVD that includes a code to download the movie, can the download code be sold separately? eBay says no. I don’t see how the First Sale doctrine helps buyers here. But then again, I don’t think copyright law lets people resell “used” CDs/DVDs if they’ve ripped the files to their computers.
* Raw Films, Ltd. v. John Does 1-15, 2012 WL 1019067 (E.D. Pa. March 26, 2012). Participating in a BitTorrent swarm means the lawsuit “arise out of the same series of transactions or occurrences and because common questions of law or fact seem to be raised with respect to all Doe defendants by virtue of the use of BitTorrent to transmit the same copy of the plaintiff’s Work.”
* Ars Technica: A debrief of Paramount executive Alfred Perry’s law school speaking tour about online copyright.
* Overlaps between MPAA and the US government.
* NYT: Documentary Filmmaker Wins Against I.R.S., Which Saw Her as a Hobbyist. See Storey v. C.I.R., T.C. Memo. 2012-115 (U.S. Tax Ct. April 19, 2012).
* After creating a key online copyright precedent in their litigation against each other, CoStar and LoopNet are merging.