November-December 2009 Quick Links, Part 2

By Eric Goldman


* Want Ad Digest Inc. v. Display Advertising Inc. (N.D.N.Y. Sept. 3, 2009). A classified ads publisher wants to stop a competitor from republishing its classified ads. The court said that advertisers, not the publisher, generally own the copyrights to each individual ad, but the publisher claimed it had edited those ads sufficient to claim a copyright interest in them as well. This factual allegation prevented summary judgment. The publisher also claimed a compilation copyright based on the organization of individual ads into various headings and subheadings. The court said that the placement of ads within headings and the headings themselves weren’t protectable. The organization of subheadings might support a compilation copyright, but the republisher didn’t use the same organization and therefore didn’t violate any compilation copyright. A little known fact: one of my key summer associate projects in 1993 was to analyze republication of classified ads. Note to my assigning attorney: it may be 16 years later, but I think I got my analysis right!

* Moberg v. 33T LLC, 08-625(NLH) (D. Del. Oct. 6, 2009). Publication of a photo on a German website does not constitute “publication” in the United States sufficient to require the copyright owner to register the photo before suing for copyright infringement in a US court.

* Sony v. Tenenbaum. Downloading copyrighted works via peer to peer software isn’t fair use (something we already knew from BMG v. Gonzalez), but it might have been a closer call with a better litigation strategy by the defense.

* Rebecca on EsNtion Records v. TritonTM, an impressive copyright infringement and 1202 defense win.

Virtual Worlds

* The FTC thinks virtual worlds should clean up their act to keep kids away from online porn.

* GameSpot: Estavillo has appealed his loss in the Sony case and expanded his litigation to Microsoft and Nintendo.

* Prof. Miriam Cherry on employment law issues in virtual worlds.


* Marine Pile Drivers, LLC v. East Coast Marine Pile Drivers, LLC, 2009 WL 3753526 (W.D. La. Nov. 9, 2009). Allegedly defamatory blog post gives rise to jurisdiction in the plaintiff’s home court.

* Salyer v. The Southern Poverty Law Center, Inc., 2009 WL 4758736 (W.D. Ky. Dec. 7, 2009). The CMLP page. Subsequently linking to and referencing an allegedly defamatory online article does not reset the statute of limitations under the single publication rule.

* Colette Vogele put together an excellent presentation discussing plaintiff-side considerations when pursuing anonymous posters.


* The Feds dropped their appeal in the Lori Drew case, finally bringing to an end a case that never should have been brought.

* The FTC and other agencies have promulgated model Gramm-Leach-Bliley privacy policies. Five years in the making and battled tested by consumers. The instructions are pretty specific about font size, font color, page orientation, etc. Although the tabular format should make scanning the notices easier, it will be interesting to see if these notices actually do a better job than the current notices on any dimension that matters.

* LA Times: An in-depth look at Facebook’s “judicial system.”