Q1 2016 Quick Links, Part 4 (Copyright, Marketing and More)

Q1 2016 Quick Links, Part 4 (Copyright, Marketing and More)

Photo credit: 3D Quick Link Crossword // ShutterStock

Photo credit: 3D Quick Link Crossword // ShutterStock

Copyright

* Naruto v. Slater: “Naruto is not an “author” within the meaning of the Copyright Act.” I heart Naruto!

* Handshoe v. Abel, 1:14-cv-00159-KS-MTP (S.D. Miss. Jan. 8, 2016) (cites omitted):

Given that there is no dispute that the minor child drew the image, and therefore held a copyright in it under 17 U.S.C. § 102(a)(5), nor is there a dispute that Plaintiff posted the image without permission of the copyright owner or his agent, the only avenue through which Plaintiff could have used the image was through the doctrine of fair use. Plaintiff does not plead that his use of the image constituted fair use. More importantly, though, Plaintiff does not allege that Yount and Abel did not in good faith consider any fair use defense he may have had before issuing the DMCA takedown notice. See Lenz v. Universal Music Corp., 801 F.3d 1126, 1132-33 (9th Cir. 2015) (holding that the DMCA requires copyright owners to consider fair use before issuing a takedown notice under § 512). In fact, Plaintiff’s Amended Complaint excerpts the takedown notice, which states that Yount and Abel did “have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” As fair use is an authorized use under copyright law, the Court can only assume, absent any contrary allegations from Plaintiff, that Yount and Abel considered in good faith the applicability of the fair use doctrine in forming this belief. The Court therefore does not find that Plaintiff has sufficiently pleaded a misrepresentation under § 512(f).

* Farouk Systems, Inc. v. AG Global Products, LLC, 2016 WL 1322315 (S.D. Tex. April 5, 2016):

Farouk admits that the two images on its Facebook page were created by copying a quotation and images from Shutterstock, a provider of royalty-free images. In Image No. 1, the Farouk employee combined an unaccredited quotation with images of a comb, scissors, and brush from Shutterstock. In Image No. 2, the Farouk employee combined a quote from Picasso with a banner reading “Snips of Wisdom” and the image of a pair of scissors. Even though the images may be copyrightable as compilations, the copyright extends only to the original material contributed by the Farouk employee, not to the preexisting material borrowed from other sources. See 17 U.S.C. § 103(b). Each of the elements of Image No. 1 was copied from another source. Additionally, although Defendant’s version of Image No. 1 is extremely similar to Plaintiff’s, it is obvious that it is not a copy. In Image No. 2, the original elements added by a Farouk employee are the “Snips of Wisdom” and the image of the scissors. Neither of these elements is included in the allegedly infringing image on AG’s Facebook page. As a result, AG is entitled to summary judgment on the copyright infringement claims regarding Images No. 1 and No. 2.

Plaintiff alleges also that a photograph of Gulamani on his personal LinkedIn profile page constitutes copyright infringement. There is no evidence that, at the time the photograph was presented on Gulamani’s LinkedIn page, Farouk possessed a valid copyright for the photograph. It is undisputed that the photograph was taken of Gulamani by a third-party photographer. There is no evidence that the photographer transferred the rights to the photograph to Farouk in a written assignment as required by 17 U.S.C. § 204(a). Farouk argues that the photograph was taken while Gulamani was employed by Farouk, but the “work for hire” provision of the Copyright Act provides copyright protection under certain circumstances to an employer where the person creating the work is an employee. See 17 U.S.C. § 201(b). There is no similar provision where the subject of the work, not the creator of the work, is the employee. Absent evidence that Farouk had a valid copyright in the photograph, Gulamani is entitled to summary judgment on the copyright infringement claim.

As an additional, yet equal, basis for summary judgment in favor of Defendants on the copyright infringement claims, Plaintiff has conceded that it is seeking only an award of statutory damages and injunctive relief on its copyright claims. It is undisputed that Farouk did not attempt to register its copyrights in the two images and the photograph until April 21, 2015, after the alleged infringement and, indeed, after this lawsuit was filed in February 2015. The timing of the registration applications renders any claim for statutory damages and attorneys’ fees unavailable.

Copyright lawsuits over headshots are stupid!

* i09: Cosplayers threatened with legal action for hotel carpet costume

* Vice Sports: Who Owns Tattoos?

* Eriq Gardner: In Deal With Fox, Dish Agrees to Disable Ad-Skipping for 7 Days After Shows First Air

* CNET: Australia shelves a manual graduated response notification system because it cost too much.

* Malibu Media, LLC v. Weaver, 2016 WL 1394331 (M.D. Fla. April 8, 2016): “the Communication Decency Act is inapplicable to copyright infringement actions”

* New Republic: The Mass-Market Edition of To Kill a Mockingbird Is Dead

* Phantomalert, Inc. v. Google Inc., 2016 WL 879758 (N.D. Cal. March 8, 2016):

To the extent these allegations support an inference that the locations of some of the Points of Interest do not reflect the actual location of the corresponding Driving Condition and also are not purely a function of the need to give drivers notice as they approach a particular Driving Condition, the Court finds that PhantomALERT has sufficiently alleged that these individual Points of Interest reflect a “creative spark” and therefore, like the prices in CDN v. Kapes., are entitled to copyright protection…

PhantomALERT has not alleged that any specific Point of Interest whose location involved the creative process described in the FAC appears in the Waze application at the same location; nor has it alleged any specific facts suggesting that the overall arrangement, selection or categorization of the Points of Interest is preserved in the Waze application such that there is “substantial similarity.”

Prior blog post.

* Priceonomics: How a College Student Used Creative Commons to Dominate Political Photography

* MIT: The Rise of Visual Content Online

Other IP

* Reuters: U.S. to send attachés to foreign markets to boost digital trade. It’s about time the USTR started thinking about foreign trade barriers to our domestic tech community.

* Science: U.S. charges drug researchers with sending trade secrets to China, but will case stand up?

* Looks like a competitor gamed the marshals with respect to the Hoverboard ex parte seizure at CES. Ex parte seizures based on trade secrets are bad news.

* Tyler, TX Brags About Its “Friendliness” to Patent Trolls

Search Engines

* Google, Inc. v. Hood, 2016 WL 1397765 (5th Cir. April 8, 2016). While the court dissolved the injunction against Hood’s overreaching subpoena, the court introduced the issues:

This lawsuit, like others of late, reminds us of the importance of preserving free speech on the internet, even though that medium serves as a conduit for much that is distasteful or unlawful. See Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (holding unconstitutional a sheriff’s threats to credit card companies to stop doing business with a website that hosts classified ads for prostitution). Also like other recent litigation, this case implicates section 230 of the Communications Decency Act—Congress’s grant of “broad immunity” to internet service providers “for all claims stemming from their publication of information created by third parties,” which we and other circuits have consistently given a wide scope. Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); see also Doe v. Backpage.com, LLC, — F.3d —, 2016 WL 963848, at *3–9, 14 (1st Cir. Mar. 14, 2016) (affirming dismissal based on section 230 despite appellants’ “persuasive case” that the defendant “tailored its website to make sex trafficking easier” and stating: “If the evils that the appellants have identified are deemed to outweigh the First Amendment values that drive the CDA, the remedy is through legislation, not through litigation.”).

The court added in a footnote:

we do not suggest that section 230 of the CDA would not apply if Hood were to eventually bring an enforcement action, or cannot be applied at the motion-to-dismiss stage. Indeed, several courts have applied the provision to dismiss claims against Google…

Prior blog post.

* Danny Sullivan: 10 big changes with search engines over my 20 years of covering them

* Washington Post: Google now shows presidential campaign finance data directly in search results. Good example of how deciding what information to present is hardly neutral.

* Ars Technica: Microsoft looks to be retreating from EU antitrust fight against Google. Re/code: Microsoft, Google agree to stop complaining to regulators about each other. A thousand private school headmasters are weeping at the resulting dropoff in their enrollments of lawyers’ kids.

* The Verge: Google is letting celebrities and businesses post directly to search results

* AdWeek: 6 Reactions by Marketers to the End of ‘Free Social’ as the Algorithm Era Unfolds

Marketing/E-Commerce

* Novation Ventures, LLC v. J.G. Wentworth Company, LLC, 2015 WL 9695257 (C.D. Cal. May 15, 2015):

While Plaintiff alleges in the Complaint that Defendants have “driven up the cost of being in the 1st, 2nd, or 3rd position so as to effectively preclude or minimize the competitive impact of other entrants,” Plaintiff does not explain how this forecloses it from competing in the market. Plaintiff does not, for example, allege that it attempted to bid on one of the top AdWords listings but was not permitted to do so. In fact, Plaintiff alleges that “JG Wentworth and Peachtree are able to consistently grab two of the top three or four search listing results,” but it does not suggest that Plaintiff could not bid for and be awarded one of the other remaining one or two available spots. Accordingly, Plaintiff has failed to identify any injury that it has suffered that is of the type that the antitrust laws were designed to prevent.

In a footnote:

Plaintiff essentially claims that it has been injured because Defendants have driven up the cost of obtaining one of the top four AdWords listing spots, which has effectively priced Plaintiff out of the bidding process. Yet as Defendants argue, that is not necessarily an antitrust violation. If Plaintiff has suffered lost profits or a loss of market share because it is unable to keep up with price competition, it is because Defendants have made obtaining these desirable spots more competitive.

* In re Rocket Fuel, Inc. Securities Litigation, 2015 WL 9311921 (N.D. Cal. Dec. 23, 2015). Rocket Fuel may have overclaimed its anti-ad fraud technology

* Search Engine Land: Google to bloggers: Disclose & nofollow links when reviewing gifted products. Following in the footsteps of the FTC’s Endorsement and Testimonials Guidelines.

* Rebecca: seller-incentivized reviews might be misleading (and violate FTC guidelines)

* New York Times: An Online Deal Just for You (Oh, and Everyone Else, Too)

* New York Times: “Clear Channel Outdoor Americas, which has tens of thousands of billboards across the United States…has partnered with several companies, including AT&T, to track people’s travel patterns and behaviors through their mobile phones.”

* Boston Globe: casinos are using online slot machines, paying worthless virtual credits, with better payouts than the machines in the physical casino. Is that false advertising?

* Priceonomics: How Esurance Lost Its Mascot to the Internet

* Recorder: Facebook Settles Suit Over Purchases By Minors

Miscellaneous

* WSJ: Donald Trump’s Long History of Litigation

* Cloudpath Networks, Inc. v. SecureW2 B.V., 2016 WL 153127 (D. Colo. Jan. 13, 2016)

the Court ultimately agrees with Second, Fourth, and Ninth Circuits’ shared conclusion: “exceeds authorized access” in the CFAA does not impose criminal liability on individuals who are authorized to access company data but do so for disloyal purposes; it applies only to individuals who are allowed to access a company computer and use that access to obtain data they are not allowed to see for any purpose. Given this, Cloudpath’s CFAA cause of action (Count One) is dismissed with prejudice to the extent Cloudpath alleges CFAA violations by any Defendant who was authorized to access the relevant information for at least some purpose at the time of the alleged violation. This dismissal also extends to any allegation of conspiracy to commit, or vicarious liability for, such a violation.

* New Yorker: sex offender registries sound like a good idea, but are they being implemented properly?

* Buzzfeed: How High-Flying Zenefits Fell To Earth

* Congressional Research Service: What Does the Gig Economy Mean for Workers?

* Super profile of Mike Masnick. I’ve never understood how Mike achieves his combination of speed, productivity & accuracy. Another great interview with Mike Masnick. He even produces interviews more quickly than I can read them.