July 2010 Quick Links, Part 1 (IP Edition)
By Eric Goldman
* Rebelution, LLC v. Perez, 2010 WL 3036217 (N.D. Cal. July 30, 2010). The plaintiff is a band named Rebelution. The defendant is a music performer named Pitbull who released an album “Pitbull Starring in Rebelution” without intending to reference plaintiff. No summary judgment to defendant. Wikipedia has a disambiguation page for “Rebelution.”
* Southeastern Pennsylvania Transportation Authority v. Mednick Mezyk & Credo (E.D. Pa. complaint filed June 21, 2010). Interesting trademark lawsuit. A government transit authority, SEPTA, has sued personal injury lawyers for the ways they advertise that they represent plaintiffs against SEPTA. I think SEPTA has a tough argument, and they sure look thin-skinned.
* Can Chevrolet get people to stop calling it “Chevy”? Not likely.
* The latest article addressing the Trademark Use in Commerce debate: Lee Ann W. Lockridge, When Is a Use In Commerce a Noncommercial Use?, 37 Florida State University Law Review 337 (2010)
* MGE UPS Systems v. GE Consumer and Industrial Inc., 08-10521 (5th Cir. July 20, 2010). A significant (and possibly incorrect) ruling on 1201: “Because the dongle does not protect against copyright violations, the mere fact that the dongle itself is circumvented does not give rise to a circumvention violation within the meaning of the DMCA.”
* Mattel Inc. v. MGA Entertainment Inc., 09-55673 (9th Cir July 22, 2010). Another Kozinski bull-in-the-china-shop opinion, it is studded with important legal statements. Among the most interesting: an employee agreement purporting to assign copyrights from the employee failed when the language read more like a patent assignment. But read the whole thing.
* Teter v. Glass Onion, Inc., 5:08-cv-06097-FJG (W.D. Mo. July 12, 2010). Troubling ruling. An art gallery selling an artist’s painting does not make a fair use when making and then publishing thumbnail images of the paintings on the gallery’s website. No first sale defense for making the thumbnail images, either, although I’m not sure how the gallery can advertise the paintings for sale online without the thumbnails. The trademark infringement claim for referencing the artist’s name also survives because of the possibility the gallery looked like an authorized dealer when it wasn’t.
* We learned how much the Viacom v. YouTube ruling cost Google: $100M. Can you imagine what good things might have come if YouTube and Viacom had poured their legal fees into innovation rather than litigation? Also, this is a prime example of just how much it costs when a well-funded company (Google) decides to treat a lawsuit as bet-your-business. No way that most start-ups could have coughed up $100M for the lawyers.
* Cable v. Agence France Presse, 2010 U.S. Dist. LEXIS 73893 (N.D. Ill. July 20, 2010), A professional photographer’s claim for 17 USC 1202 for removal of copyright management information survives a motion to dismiss.
* Las Vegas Sun does a thorough expose on alleged copyright troll Righthaven (look at the “related stories” too).
* Copyright enforcement mill gets caught red-handed committing copyright infringement on its website. Whoops!
* SAP has stopped contesting liability in the Oracle/TomorrowNow lawsuit.
* Miller v. Facebook, 2010 U.S. Dist. LEXIS 75204 (N.D. Cal. July 23, 2010). A software copyright registration for a literary work (i.e., the source code) was sufficient to uphold a pleading that the defense infringed the software’s look and feel (i.e., an audio-visual work). My most recent post on this case.
* Bimbo Bakeries v. Botticelli: Bimbo Bakeries [great TM!], makers of Thomas English Muffins, gets an inevitable disclosure injunction against a departed employee who knows how to make their “nooks and crannies” and went to a rival baker. See also this post from Trading Secrets.
* Agora Financial LLC v. Samler, WDQ-09-1200 (D. Md. June 17, 2010). This case is similar to the more high-profile Barclays v. theflyonthewall case. The newsletter publisher plaintiff provides stock recommendations to its readers; the defendant republishes the tips on TipsTraders.com. The magistrate rejects a default judgment against the defendant because (1) the hot news doctrine is preempted by copyright law, and (2) even if it isn’t, the “plaintiffs’ writers’ investment recommendations are copyrightable” and therefore ineligible for hot news protection. Ruh-roh. The judge should have stopped at #1. Even the plaintiff admitted that the recommendations were uncopyrightable facts. So now what? Does this now mean everyone who republishes the recommendations is a copyright infringer?