2H 2019 and Q1 2020 Quick Links, Part 1 (Copyright, E-Commerce, Advertising)
* In re DMCA Subpoena to Reddit, Inc., 2020 WL 999788 (N.D. Cal. March 2, 2020). Court quashes 512(h) subpoena because the underlying publications were protected by fair use. This is your reminder that 512(h) subpoenas routinely unmask individuals engaged in lawful activity–without any material court oversight unless the alleged infringer challenges the subpoena. 512(h)’s fast-track to unmasking has not aged well; it’s now a troubling historical anachronism.
* Williams v. 3DExport, 2020 WL 532418 (E.D. Mich. Feb. 3, 2020):
it is entirely implausible that Williams owns a copyright in the anime art style for two reasons. First, his factual allegations defy logic. To believe Williams would be to believe that he invented an animation style that was first introduced at least as early as 1917,3 and that was wildly popular worldwide by the time that he alleges that he—as a 10-year-old—first created it. Second, because copyright protection is “given only to the expression of [an] idea—not the idea itself,” Mazer v. Stein, 347 U.S. 201, 217 (1954), even if Williams was the first to think up the anime, he could only have a protectible copyright interest in his specific expression of that idea; he could not lay claim to all anime that ever was or will be produced. He has failed to point to any specific creative expression that would merit copyright protection.
* Mango v. Democracy Now, 1:18-cv-10588-DLC (SDNY July 24, 2019): “A copyright defendant is entitled to seek an award of costs, including attorney’s fees, incurred following a Rule 68 offer where the plaintiff’s recovery fails to exceed the offer.”
* Blue Book Services v Farm Journal, Inc., No. 1:18-cv-07155 (N.D. Ill. Jan. 27, 2020): “Blue Book’s copyright registration extends to the compilation of its Blue Book Ratings, but not in the text of the individual Ratings.”
* Stardock Systems, Inc. v. Reiche, 2019 WL 8333514 (N.D. Cal. May 14, 2019): “the DMCA preempts state law claims predicated on the submission of false infringement notices.”
* Eileen Grays LLC v. Remix Lighting Inc., 2019 WL 6609834 (N.D.N.Y. Dec. 5, 2019). 512(f) win over bogus counter-notices in a default judgment:
there is no dispute that Defendant engaged in the unauthorized copying of constituent elements of the Copyrighted Works by creating derivative versions of them on the Houzz and the Remix Lighting online stores. Defendant continued to sell these products and sent false counter-notices in response to Plaintiff’s efforts to protect its copyrights, which demonstrates willfulness….It is undisputed that Defendant “knowingly submitted DMCA takedown notices and counter-notices with false claims that it owned and was authorized to use the Copyrighted Works and that Plaintiff was the actual infringer, which led Houzz to take down Plaintiff’s content causing harm from lost sales and required initiation of this lawsuit in order to keep Houzz from reposting Defendant’s infringing photos and products based on its false statements in its counter-notice.”
* FurnitureDealer,net v. Amazon.com, Inc., 2019 WL 3738622 (D. Minn. Aug. 8, 2019): “the Court finds that Amazon is a service provider, that Coaster has a cause of action under § 512(f), and that Coaster’s tortious interference counterclaims are preempted by the Copyright Act”
* Columbia Trading Corp. v. Green Electronics, LLC, 2018 WL 10150930 (D.N.J. July 27, 2018):
Defendants allege that Plaintiffs knowingly made a false legal claim of copyright infringement, which led Amazon to block Defendants’ sales of the soymilk machines. Plaintiffs argue that because Defendants have failed to show that a predicate takedown notice was made under the DMCA, Defendants cannot sufficiently state a claim for a violation of Section 512(f). To be potentially liable, Plaintiffs must have notified a service provider (such as Amazon) in writing that Defendants were violating their copyright. See 17 U.S.C. § 512(c)(3)(A) (stating “[t]o be effective under this subsection, a notification of a claimed infringement must be a written communication provided to the designated agent of a service provider”). Defendants have failed to make such a claim. Instead, they state, as they did in counterclaim two, that Mr. Kao “demanded Amazon remove the soymilk machines from its website on the grounds that they were allegedly counterfeit and infringed their copyright.” First, Defendants fail to allege that the alleged communication was in writing. Second, like the second counterclaim, the allegation is based on “information and belief,” and Defendants do not adequately state the basis for their information or belief. As a result, the third counterclaim is dismissed.
* Dallas Buyers Club LLC v. Huszar, 2019 WL 5856460 (D. Ore. Sept. 3, 2019). Operator of Tor exit node doesn’t qualify for DMCA online safe harbor.
* Ars Technica: Man agrees to pay $25,000 for abusing YouTube’s takedown system
* Fortune: Spotify Saved the Music Industry. Now What?
* NYU Law: How Explaining Copyright Broke the YouTube Copyright System
* Techdirt: Our FOIA Lawsuit Gets Results: ICE Admits It Didn’t Really Seize A Million ‘Copyright Infringing’ Domains
* Rolling Stone: Why All Your Favorite Songs Are Suddenly Being Sued
* Rolling Stone: How Music Copyright Lawsuits Are Scaring Away New Hits
* Wall Street Journal: Amazon Has Ceded Control of Its Site. The Result: Thousands of Banned, Unsafe or Mislabeled Products
* If Merch. v. Kangaroo Mfg., 2019 U.S. Dist. LEXIS 154841 (D. Conn. Sept. 11, 2019). Litigation battles over the “Assortmart Emoji Beach Ball Product Page” on Amazon.com
* Wired: How Auschwitz Christmas Ornaments Ended Up for Sale on Amazon
* Rosenblatt v. Santa Monica, No. 17-55879 (9th Cir. Oct. 3, 2019): Santa Monica’s ordinance does not directly regulate interstate commerce by prohibiting vacation rentals for Santa Monica homes….The ordinance penalizes only conduct in Santa Monica, regardless of whether the visitors are in-state or out-of-state.
* WSJ: Amazon Ready to Pour Billions Into Policing Products on Its Site
* Vice: I Accidentally Uncovered a Nationwide Scam on Airbnb
* MediaPost: Consumers Making More Informed Purchase Decisions Based On Improved Information In Ads: Study
* Strauss v. Angie’s List, No. 19-3025 (10th Cir. March 9, 2020): “Angie’s List stated that his business (1) had no consumer ratings or reviews; (2) had not met the criteria set by Angie’s List for inclusion on its website; and (3) had no local offers to extend to consumers.” The court concludes that these statements weren’t advertising governed by the Lanham Act. Prior blog post.
* New NAD Decision Addresses Incentivized Reviews
* AdWeek: Why It Took Lay’s 2 Years to Redesign a Bag of Potato Chips
* BuzzFeed: How A Massive Facebook Scam Siphoned Millions Of Dollars From Unsuspecting Boomers
* Newsday finds pervasive discrimination across Long Island against black, Hispanic and Asian homebuyers in 3-year investigation.