Q2 2020 Quick Links (Everything)


* Sony Music Entertainment v. Cox Communications, Inc., 2020 WL 3121306 (E.D. Va. June 2, 2020). Each downloaded song file generally can support its own statutory damage, but “compilations” only get one statutory damages award, and no double-counting of statutory damages for overlapping copyrights in the same file.

* Mourabit v. Klein,  19-2142-c (2d Cir. June 8, 2020). Makeup artistry is within copyright’s scope for preemption purposes “because it is essentially a painting that is displayed on a person’s face.” The makeup artist challenged the fixation of the makeup design when on someone’s skin. The court sidesteps this issue, saying “regardless whether the Makeup Artistry was ‘fixed’ in Lewis’s face for copyright purposes, it was clearly ‘fixed’ in the Photograph.”

* LMNOPI v. XYZ Films,  18-CV-5610 (LDH) (VMS)  (E.D.N.Y. March 30, 2020). Depiction of a mural in a documentary film was de minimis:

Plaintiffs’ description of the Mural as it appears in the Film is grossly overstated. According to the complaint, the Mural is “presented in a full-screen shot, in perfect focus, and unobstructed to the viewer for several seconds.” A review of the opening scene, however, reveals a work that is far less observable than Plaintiffs contend.4 During its brief cameo, the Mural appears one time for a total of approximately three-and-a-half seconds of a film that runs 93 minutes. The Mural is at all times in the background. Obscuring the view of at least one-third of the Mural rests a red pickup truck. In addition, throughout the entirety of the three-and-a-half-second scene, an actress prominently positioned in the foreground runs about further obscuring the Mural. And, contrary to Plaintiffs’ allegation that Defendants’ intentionally avoided depicting other murals in the neighborhood, the Mural appears among several other murals during the Film’s opening sequence. In addition, the focus of the scene in which the Mural appears is undeniably a female actress — not the Mural. The Mural is never referenced in the Film and is completely irrelevant to the Film’s plot.

* Wall Street Journal: “Google Hides News, Tricked by Fake Claims.” In our Copyright’s Memory Hole article, Jessica & I explain how & why copyright has been improperly weaponized for privacy & reputation management purposes.

* NY Times: “the Omegaverse case reveals how easily intellectual property law can be weaponized by authors seeking to take down their rivals.” As Mitch Stoltz says, “There’s not much accountability.” You mean, the accountability that 512(f) was supposed to provide?

Other IP

* Seguros R. Vasquez, Inc. v. Aguirre (D. Md. 2020): “Vasquez alleges that the trademark infringement arises from the use of that term in the text of the Google advertisement that appears in response to a search based on that keyword. The use of a trademark in a Google advertisement, not just as a keyword search term, plainly can support a Lanham Act trademark infringement claim.”

Re false advertising: “Where Vasquez alleges, with the benefit of confirmatory screen shots, that the Aguirres have misidentified their own business, passing themselves off as Vasquez, a leading insurance provider in the Spanish-speaking community, the Court finds no merit in the argument that the alleged misrepresentations are not material and thus not likely to influence consumers.”

* Sexual MD Solutions, LLC v. Wolff, 2020 WL 2197868 (S.D. Fla. May 6, 2020):

Similarly, the defendants’ purchase of keywords, such as “GAINSWave” to drive internet traffic to the Rocket’s website is not a misappropriation of the plaintiff’s trade secrets because anyone can purchase keywords. At the evidentiary hearing, Mr. White acknowledged that any medical provider seeking to treat ED would purchase PPC keywords such as “Viagra” or “Cialis.” The purchase of PPC keywords — including the purchase of the keyword “GAINSWave” — is not a trade secret. It is commonly known that businesses purchase keywords on search engines to become more visible on internet search results. Dustin Wolff testified that he “ha[d] been doing PPC for over ten years.” The plaintiff has not identified any PPC keywords which the defendants would not have known, but for their relationship with the plaintiff.

In a FN, the court added: “the plaintiff has not cited to any cases where a defendant’s use of PPC keywords commonly known in the industry was a misappropriation of trade secrets.”

* Bedi, Suneal and Reibstein, David (2020) “Measuring Trademark Dilution by Tarnishment,” Indiana Law Journal: Vol. 95 : Iss. 3 , Article 2: “tarnishment is not resulting from a one-time exposure. Rather, it takes several exposures to have a significant effect on the target trademark/brand.”

* Search Engine Land: Google to allow removal of counterfeit goods from search results

Content Issues

* In the Matter of Seizure of: Any and all funds held in Republic Bank of Arizona Accounts, 2019 WL 8892585 (D. Ariz. Dec. 20, 2019). This is a Backpage-related prosecutions of Larkin and Lacey and, in particular, whether it was legitimate for the government to make a civil asset forfeiture of proceeds from Backpage. The court questions whether Backpage could qualify for Section 230 protection:

The affidavit asserts, rather, that Backpage employees, with Claimants’ knowledge and as a matter of policy, actively worked to facilitate prostitution by concealing it from law enforcement through Backpage’s “moderation” policy. As an example, the affidavit asserts that Ferrer received an email from law enforcement expressing concern about ads containing the term “amber alert.”  Ferrer acknowledged that the term might be “some kind of bizarre new code word for an under aged person.” He then instructed Backpage employees to remove the term “amber alert” from subsequent ads, but he did not instinct them to block the ads themselves or to report them. Id. In so doing, Backpage is alleged to have willfully assisted in concealing child prostitution from law enforcement. Had Backpage done nothing, law enforcement could have monitored its site for ads using the term “amber alert.” Had it deleted ads containing the term, it would have denied sex traffickers a forum for their operations. What it is accused of doing instead, however, is editing the ads with the purpose of concealing the illegal activity. This activity is illegal in itself, and therefore it is outside the CDA’s grant of immunity. Claimants, through their control of Backpage, are accused of being “directly involved in the alleged illegality, and thus is not immune.”

* In re Bitconnect Securities Litigation, 2019 WL 9104318 (S.D. Fla. Aug. 23, 2019)

Defendant YouTube is alleged to have profited significantly from the exposure of its users to videos advertising Defendants’ purported Ponzi scheme. While YouTube may have had a moral or ethical responsibility to protect its users from Defendants’ allegedly fraudulent schemes, Plaintiffs’ claim that it had a legal duty to do so is preempted by the CDA.

* Smith v. Lackey, 2020 WL 2306317 (NV. Sup. Ct. May 7, 2020). Facebook comment from third party can qualify for anti-SLAPP protection.

* Perlman v. Vox Media, Inc.,2020 WL 3474143 (Del. Sup. Ct. June 24, 2020): “These other speakers include commenters on Vox websites. Federal law “protects websites from liability under state or local law for material posted on their websites by someone else”—website comments sections are the prototypical example.

* Wolfgang Schulz and Matthias C. Kettemann, Setting Rules for 2.7 Billion: A (First Look) Into Facebook’s Norm-Making System (Jan. 2020)

– “US courts make use of the strong protection provided by Sec. 230 CDA, which largely immunizes intermediaries. To this day, no US court has managed to rule that an online communication platform should be liable to a ‘must-carry’ claim.”
– “The stated frames of reference are enriched in our observation by a shared understanding that the company is creating a new normative order for more than two billion users, which had never been attempted before.”
– “Facebook Public Policy team members confidently participate in creating a separate and unique private normative order for public communication and regulate ‘novel’ questions. They do not directly link this order to any national or international legal order or refer to international human rights commitments”

* Technology Review: Covid hoaxes are using a loophole to stay alive—even after content is deleted

* Olson v. Sardi, 2020 WL 2079150 (Cal. App. Ct. April 30, 2020). Yelp review protected by California’s anti-SLAPP law.

* Christopher Cox: Policing the Internet: A Bad Idea in 1996 — and Today

* Daniel A. Horwitz, The Need for a Federal Anti-SLAPP Law, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2020).

* Wall Street Journal: News Outlets Are Liable for Others’ Facebook Comments, Australian Court Rules

* OneZero: Inside Twitter’s Decision to Fact-Check Trump’s Tweets

* Wall Street Journal: Facebook Executives Shut Down Efforts to Make the Site Less Divisive

* Marketing Land: Google to prohibit demographic, zip code targeting for housing, employment, credit ads


* Financial Times: Virtual rate cut forces Nintendo gamers into riskier assets

* Lauren Scholz on why you should stop using the analogy that data is like the new oil.

* Balderas v. Tiny Lab Productions, 2020 WL 2065275 (D.N.M. April 29, 2020): in a COPPA case, “the fact that the Ad Networks were able to send child-directed ads does not allow the reasonable inference that they ‘knew’ that the app users were children.” However, Google may have had the requisite knowledge based on these allegations: “Google reviews the content of apps submitted to its Designed for Families program with a particular eye toward whether the apps are relevant for children; Tiny Lab’s apps, replete with characteristics revealing their child-directed content, were submitted to and accepted by Google into that program; and, after being contacted by concerned researchers, Google reviewed the content of Tiny Lab’s apps with the specific goal of determining whether they were primarily directed to children.” An apparent example of the Moderator’s Dilemma.

* EBIN New York, Inc. v. Ham, 2020 WL 2790427 (N.J. App. Div. May 29, 2020): “Coco’s use of a “NY” hashtag on its social media advertising, which appears to promote Coco sales to its own customers in New York, has no relevance to whether there is specific jurisdiction over Coco in New Jersey. The proximity of the two states is beside the point. There is no proof that Coco has used a New Jersey hashtag in its marketing.”

* Miller v. 4Internet, 2:18-cv-02097-JAD-VCF (D. Nev. July 10, 2020)

4Internet does not allege that the information that Higbee and H&A accessed is the kind for which “authorization” is required and either has been given, has not been given, or has been exceeded. 4Internet does not allege that its website was username and password protected or otherwise secured to limit and control who could access the information Higbee and H&A accessed. Rather, just like the LinkedIn profiles at issue in hiQ Labs, 4Internet alleges that the information on its website is accessible and used by visitors from across the country. The Ninth Circuit held in hiQ Labs that, “[w]ith regard to such information, the ‘breaking and entering’ analogue invoked so frequently during congressional consideration [of the CFAA] has no application, and the concept of ‘without authorization’ is inapt.”45 4Internet’s counterclaim amounts not to breaking and entering, but to a violation of its website’s terms of use, which the Ninth Circuit has repeatedly stated “cannot [alone] establish liability under the CFAA.”

* Motherboard: Facebook Helped the FBI Hack a Child Predator

* Commonwealth v. Bonia, 97 Mass. App. Ct. 1122 (June 8, 2020): “The defendant argues that the short length, ephemeral nature, and other characteristics of the Snapchat videos render testimony about the videos so unreliable that it cannot support a conviction as a matter of law. We disagree.”