Q2 2015 Quick Links, Part 1 (IP, Marketing and More)

Copyright

* The dominant media storyline about the Mayweather-Pacquiao boxing match was the fight’s widespread illicit availability on the livestreaming apps Periscope and Meerkat. But this should have been the dominant storyline instead:

An estimated 4.4 million viewers paid a record price of $89.95 to $99.95 to watch the fight, generating more than $400 million in domestic revenue, Showtime, HBO and the fighters’ promoters said Tuesday. The pace of purchases was so great on fight night that the bout was delayed by about a half-hour to process the flurry of late orders.

* Katz v. Chevaldina, 2015 WL 2337107 (S.D. Fla. May 6, 2015).

it is crystal clear that Plaintiff’s motivations pursuing this lawsuit were improper. Instead of using the law for its intended purposes of fostering ideas and expression, Plaintiff obtained the photograph’s copyright solely for the purpose of suppressing Defendant’s free speech. Unsurprisingly, Plaintiff argues that protecting his rights under the Copyright Act was his sole motivation for filing this suit. That assertion is rather dubious. Plaintiff has characterized this action as “just one battle” in a “malicious war.” While Plaintiff might view it necessary to remove his unflattering picture to “stop this atrocity”, he may not resort to abusive methods to do so.

Plaintiff purchased the photograph taken of himself only after Defendant’s use, then registered the copyright in an effort to prohibit Defendant from using the photograph in her critical blog of Plaintiff. Plaintiff filed this action only to prevent Defendant from using the photograph, and had no intention of marketing the photograph. Essentially, as Judge McAliley found, Plaintiff had no purpose for purchasing or copyrighting the photograph other than this litigation.

In this manner, Plaintiff attempted to use the Copyright Act for purposes wholly unrelated to the law’s purpose of fostering the marketplace of ideas.

Prior blog post.

* In re Subpoena issued to Birch Communications, Inc., 2015 WL 2091735 (N.D. Ga. May 5, 2015):

The plain language of Section 512(h) requires, as a prerequisite to issuances of a subpoena, that a copyright owner must file a notice that complies with Section 512(c)(3)(A), including that identifies the allegedly infringing material to be removed or access to which must be disabled. CBeyond does not store or host on its servers the allegedly infringing material, and thus there is no allegedly infringing material to be removed or access to which must be disabled. Because Rightscorp therefore cannot satisfy the notice requirements of Section 512(c)(3)(A), a subpoena cannot be issued under Section 512(h).

* BWP Media USA, Inc. v. T & S Software Associates, Inc., 2015 WL 3406536 (N.D. Tex. May 27, 2015):

Plaintiffs do not dispute Defendant’s contention that the images at issue were posted by the users of Defendant’s website. Therefore, Plaintiffs failed to demonstrate that it is entitled to summary judgment on its direct copyright infringement claim because the evidence pointed to by Plaintiffs demonstrating that copyrighted material were posted on Defendant’s public forum does not show that Defendant directly infringed on Plaintiffs’ copyrights, especially given Plaintiffs’ concession that the photographs were likely posted by third parties, namely, the users of Defendant’s website.

* In the Beastie Boys v. Monster Energy copyright suit, the judge haircuts the Beastie Boys’ fee request but still awards nearly $700k. Prior blog post.

Patents/Trade Secrets

* Is it a profitable strategy to develop a reputation of refusing to settle patent claims? Maybe

* John Oliver on patent reform

* The PTO kills its secret program to do extra review of potentially embarrassing patents

* Due to Alice and Octane (among other factors), Ray Niro is scaling back on his plaintiff patent work

* AdWeek: Did Starbucks Buy (and Close) La Boulange Just to Get Its Recipes?

Trademarks/Domain Names

* WSJ: Eau de Fracking? Companies Try to Trademark Scents

* LA Times: Celebs play defense as they buy up new .porn Web addresses

* Thomas O’Toole on the efforts to officially shut down .kids.us

Marketing

* NAD tells SquareTrade to stop saying it’s “#1 Rated” with consumers, but it can say it’s highly rated.

* Molly Mercer and Ahmed E. Taha, Unintended Consequences: An Experimental Investigation of the (In)Effectiveness of Mandatory Disclosures, 55 Santa Clara Law Review __ (2015)

* New York State Bar Association Committee on Professional Ethics Opinion 1052 (3/25/15):

A lawyer may give clients a $50 credit on their legal bills if they rate the lawyer on an Internet website such as Avvo that allows clients to evaluate their lawyers, provided the credit against the lawyer’s bill is not contingent on the content of the rating, the client is not coerced or compelled to rate the lawyer, and the ratings and reviews are done by the clients and not by the lawyer.

But the client better disclose the discount or the FTC will be on the lawyer’s ass…

* Reuters: Yelp defeats stockholder derivative suit over fake reviews

* Facebook: Breaking new ground in the fight against fake likes. The New Republic: The Bot Bubble

* Wired: America Needs a Real Definition of What a ‘Natural’ Food Is

* Truth In Advertising: “A class-action lawsuit against Tinder alleges that the online dating app falsely advertises its matching service as “free” when, in reality, users have to pay a monthly fee if they want the freedom to swipe right on their smartphones whenever they see the favorable profile of another user.”

* Network Solutions advertised a 30 day money back guarantee that didn’t actually refund all the money. The FTC was not amused.

* NY Times: Too Risqué for New York City’s Subways? Some Ads Test Limits

* Associated Press: Hollywood rolls out red carpet to ‘influencer’ fans

* Is there a link between multi-level marketing and Mormonism?

* Marketing Land: FAQ: The New Yahoo-Microsoft Deal, Explained

Content

* NY Times on how music streaming services like Spotify are diversifying consumers’ music tastes. More evidence that fears of a filter bubble are overblown.

* Ars Technica: How Google saved YouTube

* Is the battle against clickbait turning? Upworthy pivots to focus more on original content.

* NY Times: How Netflix Keeps Finding Itself on the Same Side as Regulators