Tag Archives: Copyright Infringement

Online Copyright Showdown: The Google MPAA Feud

Google MPAA feud explained
The Google v. MPAA feud is like Hatfields v. McCoys, 21st Century.

The fit-filled Google MPAA feud mirrors that of the Hatfields and McCoys. And thanks to the now infamous “Sony hack,” stakes have been raised in the Online Copyright War.

Concerned about information revealed in the leaked Sony emails, Google decided to sue the already beleaguered state of Mississippi. Huh? What does Mississippi have to do with the MPAA-Google beef? Keep reading.

Round 734 of the Google MPAA Feud: The “Get Tough On Online Copyright” Email

A pesky little email, from of the inbox of MPAA general counsel Steven Fabrizio, sparked Google’s lawsuit against Mississippi. In the email, Fabrizio mentions the studio’s “get tough” plan to strong arm Google on the issue of online piracy – or as the MPAA calls the search company, “Goliath.”

An excerpt, from the email, for your gawking pleasure:

“Creating an environment to potentially increase the impact of the AG effort requires additional resources devoted to investigation and analysis of Goliath. This investigation and analysis would give the AGs a greater understanding of the problems created by Goliath (ammunition/evidence against Goliath), and the technical solutions for those problems.”

Google MPAA Feud: The Kernel of Animosity

What is the kernel of animosity between Google and the MPAA?

The discord boils down to this: the movie studios and their lobbyists want tech companies to do everything in their power to curtail online copyright infringement (i.e., piracy).

Google executives, on the other hand, don’t think it’s the company’s responsibility to thwart piracy. Plus, there’s a sentiment in the tech community that the MPAA’s requests amount to censorship. In fact, a Google attorney mentioned the big “C”:

“One disappointing part of this story is what this all means for the MPAA itself, an organization founded in part ‘to promote and defend the First Amendment and artists’ right to free expression. Why, then, is it trying to secretly censor the Internet?”

MPAA Spin Masters

Skilled in the ways of Hollywood public relations, an MPAA spokesperson dodged Google’s “censorship” slight with a tried-and-tested, deflect-then-blame maneuver, countering:

“Google’s effort to position itself as a defender of free speech is shameful. Freedom of speech should never be used as a shield for unlawful activities and the Internet is not a licence to steal. We will seek the assistance of any and all government agencies, whether federal, state or local, to protect the rights of all involved in creative activities.”

The Google MPAA feud won’t end until studio staffers cipher a new revenue model. Until then, the online piracy tug-of-war will continue.

Contact an Online Copyright Lawyer

Do you have an online copyright legal issue? Are you ready to speak with an Internet lawyer? If yes, get in touch with Kelly / Warner Law. A pioneer in the field of Internet law, we’ve successfully managed hundreds of copyright challenges for businesses and entrepreneurs. To learn more about our firm, start here.

Sure, your online copyright issues may not be as dramatic as the Google MPAA feud, but wouldn’t it be nice to get it resolved? Let’s start fixing today.

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Online Copyright Case Study: Experian Information Solutions v. Nationwide Marketing Services

Online Copyright
An Arizona judge tossed an online copyright lawsuit between two Internet marketing firms.

An Arizona Federal District Court tossed an online copyright infringement case. One marketing research company sued another marketing research company for allegedly encroaching on a proprietary database. In the end, the judge sided with the defense, reasoning that no actual copyright had been violated. It’s a noteworthy case that every data compilation company and online marketing outlet should take a minute to consider.

Facts of the online copyright infringement case:

  1. Experian Information Solutions, Inc. runs an information database called InSource.
  2. InSource is an analytical compilation of “data related to consumer socio-demographic, lifestyle, culture and behavior” that employs “a proprietor analytical system to accurately and comprehensively categorize millions of consumers into a compilation of datasets.”
  3. InSource claims to purchase some data from “original sources” and cull other information from customers via exclusive methods.
  4. Solutions Inc. has a registered copyright for the way it collects and manages its data, not for the data itself.
  5. Nationwide Marketing Services can fairly, if not simply, be described as a lead list company.
  6. Solutions Inc. believes Nationwide Marketing Services violated Solution’s InSource copyright by taking “data elements from other sources and commingled […] elements with data from the InSource Database to create a database of children’s birth data from the ages of 2 through 17.”

Judge Susan R. Bolton waded through the arguments. In the end she dismissed the case on the grounds that Solutions Inc. failed to state an actionable item. In other words, since Solutions’ copyright had nothing to do with the data, the judge saw no possible way to wave a lawsuit through since the claimants failed to show how the defendants violated the process-centric copyright. In the judge’s own words: “[The] Plaintiff has alleged only that [the defense] copied non-copyrightable data.”

 

Case Study: Online Defamation and Copyright Infringement In One Lawsuit

California lawyer Dionne Choyce wants a community watchdog group to pay for allegedly defaming him and his practice – but the court isn’t making things easy for him. In a recent ruling, Judge Jon Tigar shot-down several of Choyce’s motions – but not all. A suit dealing with both online copyright infringement and defamation, Dionne Choyce v. SF Bay Area Independent Media Center [SFBAIMC], et al. is a textbook case study on the importance of small details when pursuing civil actions.

Lawyer Is Trashed On San Francisco Forum

Layer42 hosts Indybay.org, a website of the San Francisco Bay Area Independent Media Center, a “non-commercial, democratic collective of bay area independent media makers and media outlets.” In April 2012. A posting appeared on Indybay.org titled, “Attorney Dionne Choyce, who embezzled from homeless, may serve prison time.” A month later, another negative Choyce post donning the title, “The Choyce Law Firm Evicted From Building” appeared on the same site. Both posts featured a picture of Dionne Choyce – a picture lifted from his website.

Lawyer Files Lawsuit Claiming Defamation and Online Copyright Infringement

Outraged by the articles, Choyce submitted a civil claim against SFBAIMC, Layer42 and Cernio Technology, another ISP tangentially involved in the hosting of Indybay.org. In the filing, he alleged intellectual property infringement and defamation. Judge Jon Tigar caught the case.

ISP Shoots Back A Response, Claiming DMCA and CDA Immunity, Plus anti-SLAPP Motion

Soon after Choyce’s filing, Layer42 submitted a response. In it, the company argued three main points:

  1. Choyce never stated a claim on which action could be took;
  2. As an ISP, it was protected from being held liable for defamation under section 230 of the Communications Decency Act; in addition, the company was protected from copyright infringement under Digital Millennium Copyright Act provisions.
  3. The case should be dropped pursuant to California’s anti-SLAPP statute.

Ultimately, the judge did not agree with all of Layer42’s conclusions, but Choyce’s claims didn’t pass muster with Tigar either.

Judge Says “Not Quite” To Both Parties

Judge Tigar did not agree with layer42’s DMCA safe harbor argument, but dismissed the copyright claim because Choyce did not register his copyright, nor did he have an in-process application. More than that, Choyce had not applied for registration within the 3 months after the alleged infringement occurred. Due to his lack of registered copyright, Tigar explained that the claim “must be dismissed,” but that Choyce can choose to amend the complaint if he applies for copyrights. That said, the judge also reminded Choyse that if he does resubmit the claim, he can’t ask for statutory damages or attorney’s fees related to the infringement action because he didn’t apply for copyright within 3 months of the original publication. He can amend the complaint to show that he has since applied for a copyright, but he can only seek redress appropriate for unregistered copyrights.

Choyce tried to subvert Section 230 of the CDA by alleging the ISPs had a hand in creating the works in question. The judge, however, wasn’t buying what Choyce was selling, concluding that the beleaguered lawyer’s claim itself made the case for Layer42’s immunity.

“The only factual allegations in the entire complaint that relate specifically to Layer42 is the allegation that it provides Internet hosting, connectivity and infrastructure,” wrote the judge. “That allegation does nothing to establish Layer42’s liability; in fact, all it does is establish its presumptive immunity. The facts alleged in the complaint fail to state a claim for defamation or libel against defendant Layer42.net,” he concluded.

Judge Tigar granted in part and denied in part the defense’s anti-SLAPP motions; he agreed with the defense that the embezzlement statements were fair game as they were a matter of public interest; he disagreed with the defense about the eviction statements and waved Choyce through to pursue argue for a defamation remedy relating to those statements only.

The last day Choyce can file his amend complaint is December 22.

Domains By Proxy Lawsuits: Uncovering A DBP Customer

Domains By Proxy Lawsuits
Arizona-based company, Domains By Proxy, hides user information from public view. Can you subpoena them for information and get it?

Domains By Proxy Lawsuits

Have you ever tried to uncover a website owner using ‘Whois’ information, only to find ‘Domains By Proxy’ is the registrant? The discovery can be frustrating – especially if someone defamed you online and you want to go legal on their butt. After all, it’s tough to sue a person for defamation, infringement or dilution if you don’t know who they are.

It is possible, however, to uncover anonymous defamers who use privacy intermediaries, like Domains By Proxy.

Domains By Proxy 101

Domains By Proxy is a Delaware corporation, headquartered in Arizona and owned by hosting/domain giant, GoDaddy. DBP offers domain registration privacy services that shield customers’ names from public view. When a person uses Domains By Proxy, DBP’s information populates the “Whois” database, thus making it difficult to uncover the registrant’s true identity.

Domain By Proxy’s Definition Of Privacy

Domains By Proxy is not loved by all. Some folks feel the company talks a good game, but ultimately is a double dealer. Accusations of “malicious business activities including inducements to join their service,” have plagued the company for years. In addition, many detractors think DBP does a bad job of keeping customers’ data private.

Domains By Proxy’s policies, however, are clearly delineated in their terms. Section 4 of the DBP user agreement states the company has the “absolute right and power…without any liability to you whatsoever,” to either: (1) close your account and (2) reveal your name and personal information.

While Domain By Proxy’s less-than-private policies may be kryptonite to dastardly ne’er-do-wells, the company’s willingness to cooperate when a law is broken is beneficial to people who’ve been anonymously defamed online.

Domains By Proxy Lawsuit: Powermark Homes v. John Doe

Perhaps the most well-known Domains By Proxy lawsuit is Powermark Homes v. John Doe.

Mark and Lisa Powers owned and operated a real estate company called Powermark Homes, Inc. Like all companies, Powermark had an unsatisfied customer – an unsatisfied customer that decided to create a couple of “suck sites” about the Power’s venture.

When the Powers learned of the disparaging websites, they filed a complaint against John Doe and Domains By Proxy citing defamation, disparagement and invasion of privacy. In addition to the suit, the plaintiffs also sent DBP a DMCA takedown request and sought a temporary restraining order requiring the “defendants to remove the false and defamatory website.”  The Powers averred “the statements, allegations, pictures and other representations contained in the false Internet site are in many or most instances false and misleading against some of…the plaintiffs, and assert false allegations of fact which directly harm the reputation and public appearance of some or all of the plaintiffs.”

As is the DMCA process, DBP notified Doe of the DMCA takedown request. Doe then engaged in some pro se lawyering. Eventually a public citizen litigation group came to Doe’s legal rescue. Litigation ensued.

Ultimately, a judge granted Doe’s and DBP’s motion to dismiss the defamation case, because the Powers, according to the court, didn’t clearly delineate the nature of the defamation. That said, the Powers did succeed in getting the “suck sites” down via the DMCA. So, while they didn’t get any money out of Doe or DBP, they got the site removed from the Internet – which, in many cases, is all a defamation victim wants.

Powermark Homes v. Doe and Domains By Proxy was not a popular ruling. Many saw it as a clear cut example of how the DMCA can be used unfairly to silence critics. And, from a purely objective legal standpoint, that’s a fair assessment. But for someone looking to rid the ether of unflattering or disparaging comments, the DMCA can be a handy tool. Basically, it’s a problematic loophole-filled law, with good intentions.

Domains By Proxy Privacy Policy Explained (Last Revised 3/22/2013)

The beginning of Domain By Proxy’s privacy policy states the company “will not give any information about you to others without your express permission,” language in the middle, however, qualifies that statement. Further down the Domains By Proxy privacy policy, it states that they will provide “information about you to third parties to provide various services on [their] behalf.” These services include:

  1. Processing credit card payments;
  2. Serving advertisements;
  3. Conducting contests or surveys;
  4. Product and customer demo analysis;
  5. Shipping; and
  6. Customer relation management.

They also reserve the right to:

  1. Allow third party ad servers to “employ cookies and action tags to measure advertising effectiveness.”
  2. Supplement “the personally identifiable information you submit” to them “with information from third party sources.”

Domains By Proxy’s Stance On Giving Information When Subpoenaed Or Approached About A Lawsuit

Domains By Proxy clearly states that they may share information with attorneys, law enforcement officials or other legal bodies to “resolve any and all third party claims, whether threatened or made arising out of your use of a domain name registered by DBP on Your behalf.”

Other times when DBP says they will reveal your information:

  1. If you breech any provisions of the TOS or DBP anti-spam policy.
  2. Protect the integrity and stability of the applicable domain name registry.
  3. Comply with any subpoenas, court orders or requests from law enforcement.
  4. Comply with UDRP.
  5. “To avoid any financial loss or legal liability (civil or criminal) on the part of DBP, its parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees.”
  6. Domain name infringes on another’s intellectual property or “other legal rights.”

If DBP catches wind that you are engaged in any “illegal or morally objectionable activities including, but not limited to, activities which are designed to:”

  1. Appeal to prurient interests;
  2. Defame, embarrass, harm, abuse threaten or harass third parties;
  3. Violate laws;
  4. Promote hate crimes, terrorism and child pornography;
  5. Promote vulgar, obscene, invasive, privacy, racially, ethically or otherwise objectionable;
  6. Impersonate;
  7. Harm minors in any way;
  8. Spread an e-virus.

What If I Defamed Someone, And Canceled My Domains By Proxy Account Before The Person I Defamed Figures Out It Was Me?

Canceling your Domains By Proxy domain won’t help much if a potential plaintiff is on the hunt. The company privacy policy states, “when your Domain By Proxy account is canceled” (either voluntarily or involuntarily) all of your personally identifiable information is placed in “deactivated status on our relevant Domains By Proxy databases. However, deactivation of your account does not mean your personally identifiable information has been deleted from our database entirely. We will retain and use your personally identifiable information as necessary in order to comply with legal obligations, resolve disputes, or enforce our agreements.”

If A Plaintiff Gets The Government or Lawyers Involved, And You Genuinely Did Something Wrong, Expect Domains By Proxy To Give Up The Goods On You

Under Domain By Proxy’s “Compliance with Laws and Law Enforcement Section” it states:

“We will disclose any information about you to Government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including without limitation subpoenas), to protect our property and rights of a third party, to protect the safety of the public or any person, or to prevent or stop activity we consider to be illegal or unethical. We will also share your information to the extent necessary to comply with ICANN’s rules, regulations and policies.”

In other words, if you genuinely defamed someone, ripped off intellectual property, or in some other way broke a state of federal law, Domains By Proxy may have no qualms about giving up the goods on you. That said, they’re known to follow DMCA standards, so if you file a nebulous – or flat out false – DMCA takedown request, don’t expect cooperation. More than that, if you do pursue a false DMCA takedown, you may be the one who ends up under a pile of debt, because false DMCA request laws exist.

In order for a claimant to open a dialog with DBP about seeking identifying information in service of a civil legal matter, a valid subpoena must be faxed, mailed or served to DBP at their Scottsdale, AZ headquarters.

If the issue is not an emergency, DBP won’t immediately hand over user data. They will alert the affected customer, giving them an opportunity to quash the subpoena.

Domains By Proxy also retains the right to “change an administrative fee” to the person or entity submitting the request, for costs associated with subpoena compliance.

If you need to unearth the identity of a Domains By Proxy customer, contact Kelly Warner Law. We’ve dealt with Domains By Proxy lawsuits and litigation before and understand the best way to work with the company. We’ll review your circumstances and advise you on the best way to move forward. If you’re serious about suing – or getting online material removed quickly – don’t dilly-dally, because defamation statutes of limitations, in most jurisdictions, aren’t long.

AP v. Meltwater News: Summary & Questions

online copyright case MeltwaterMeltwater News – a San Francisco “commercial media-monitoring service” – hasn’t had much luck in the court room lately. First, they tussled with the UK’s National Licensing Agency and came out bruised. Then, a New York District Court judge ruled against the news clipping service in favor of the Associated Press. While not as widely discussed as other Internet law cases currently making headlines, Associated Press v. Meltwater is significant because the ruling could stifle the growing “niche information” industry. Moreover — and only tangentially related — the case brings into question whether or not we need to redefine the “sweat of the brow” doctrine, as it relates to copyright infringement, when a case involves a digital information company.

These days, search technology almost qualifies as an inalienable right. And if current trends continue, the next generation may consider print newspapers a novelty in the same way Millennials consider record players to be retro quaint.  That’s why cases like Associated Press v. Meltwater matter; they shape the boundaries of digital communication and define the rules regarding the commodification of electronically distributed information.

So, let’s review the Associated Press v. Meltwater News lawsuit. Why did the AP sue Meltwater? Why did the Electronic Frontier Foundation publicly support Meltwater? What did the AP argue? What did Meltwater argue? Perhaps most importantly, how did the judge rule and why?  Finally, we’ll touch on how this case could affect online business moving forward.

Why Did the AP Sue Meltwater News?

The Associated Press brought a copyright infringement lawsuit against Meltwater News in February 2012. The former alleges the latter was taking unfair advantage of their intellectual property via an online news clipping service.  Specifically, the AP argued that Meltwater’s use of AP headlines and ledes in their e-mailings infringed on copyrights , thus damaging the AP financially. In laymen’s terms, the AP felt Meltwater was simply copying, re-packaging, profiting, and not compensating the AP for their reporting and analytical efforts – not to mention the overhead the AP incurs to produce said reporting and commentary.

Associated Press v. Meltwater News: Plaintiff’s Argument

The Associated Press’ argument was straightforward: don’t use our content in your press clippings because it’s the online equivalent of selling stereos that just happened to fall off the back of a truck.

Now you may be thinking, “What about fair use? Can’t anybody reference another work so long as it passes the fair use test? Doesn’t the fair use test allow for the use of excerpts?” And perhaps most germane to this case, “Didn’t Kelly v. Arriba Soft Corporation establish that search engines are operating within the bounds of fair use?”

An attorney for the AP, Elizabeth A. McNamara, explained that fair use rights kick in when a given mark is used for comparison or critique. In this case, Meltwater was using the material despite a lack of commentary, analysis and context, and therefore should be held accountable.

Associated Press v. Meltwater News: Defendant’s Argument

In their defense, Meltwater argued fair use. They averred that their service is, essentially, a specialized search engine that should not be held liable for copyright infringement. The media-monitoring service highlighted the structure of other search engines, like Google, and pointed out that standard search result pages include content snippets.

Both The electronic Frontier Foundation and Public Knowledge wrote amicus briefs in support of Meltwater. Their support stemmed from a shared belied that the AP’s claim trumpeted a “dangerously narrow view of what is ‘transformative’ in a copyright court battle over a news-tracking service.”

Associated Press v. Meltwater News: Judge’s Ruling

After considering both arguments, U.S. District Judge Denise L. Cote ruled that “Meltwater copies AP content in order to make money directly from the undiluted use of the copyrighted material; this is a central feature of its business model and not an incidental consequence of the use to which it puts the copyrighted material…Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work. Permitting Meltwater to take the fruit of the AP’s labor for its own profit, without compensating AP, injures AP’s ability to perform this essential function of democracy.”

In other words, AP wins and Meltwater loses.

Does The Judge’s AP v. Meltwater Decision Inadvertently Make Newsletters Illegal?

Millions of companies and freelancers send out regular newsletters to people who voluntarily add their address to mailing lists. Most mailing lists are essentially a marketing tool, and therefore free, but many are only sent to individuals who pay money to belong to a group or club.

Let’s pretend that Company A, which is in the business of installing pools, maintains a backyard landscaping newsletter for their customers. In it, they highlight pool trinkets and deck building services. Occasionally, Company A’s newsletter includes links to articles about pool maintenance and backyard lifestyle ideas from a variety of online publications. One day, Magazine Y decides that Company A is infringing on their copyrights by including links to Magazine Y articles in their monthly e-mailing. So, Magazine Y decides to file a copyright infringement lawsuit against Company A.

Under the legal precedence set in AP v. Meltwater, Magazine Y would win and Company A would have to comply with any damages and injunctions ordered by the court, in addition to their own attorney fees. While it may seem like an easy thing to simply exclude any media outlet that doesn’t want to be involved in a newsletter, the costs of being sued could be enough to put some small business out of business. More than that, it opens the door for a new type of copyright troll.

Do We Need To Re-Examine Sweat of the Brow Copyright Standards?

Though not related to the central questions of AP v. Meltwater , the case raises another legal question: since information is now a hot commodity, and since the Internet has created a new industry which deals solely in data-collection, analysis and distribution, is the old standard that “sweat of the brow” efforts cannot be copyrightable? It’s a stretch – but it’s something to consider since information brokering is emerging into a multi-billion-dollar industry.

Under U.S. law, the “sweat of the brow” doctrine dictates that labor alone does not constitute a “new work” and therefore any works that only have sweat of the brow labor as a distinguishing factor cannot be granted federal copyright protections. For example, a phone book is not copyrightable. To wit, it’s understandable how a judge could consider Meltwater’s services, determine that it’s a sweat of the brow creation, and therefore declare it unworthy of intellectual property protection.

But data and content creation and content distribution companies, like Meltwater, are the hot new thing. As such, it may be time to start re-examining how current legal precedence could butt proverbial heads with the rising cloud-based content industry.

What This Case Could Mean For The Future Of Online Copyright Lawsuits?

AP v. Meltwater could have significant effect on future online copyright cases. The courts have definitively spoken and their message is clear: It’s not cool to simply re-package another party’s content and sell it for profit without compensating the work’s originator in some manner. It’s a ruling that inadvertently muddies already established online intellectual property case law – like Kelly v. Arriba Soft.

Meltwater intends to appeal the decision, as they contend it “misapplies fair use doctrine and is at odds with a variety of prior decisions that have paved the way for today’s Internet.” To keep up with our perspective on the case, join our mailing list.

Do you have an online copyright legal issue? If yes, and you want to consult an attorney, contact Kelly Warner Law. We have a dedicated team of lawyers well-versed in Internet intellectual property law. Get in touch today.

Judge Rules To Protect Internet Trade Secret

Internet trade secret attorney and lawsuits
Google has won another trade secret legal battle.

Google has won another Internet trade secret legal battle. The online giant was embroiled in a legal tussle with both GoDaddy and The Academy of Motion Picture Arts and Sciences (a.k.a., the “Oscars” people). To be clear, neither GoDaddy nor AMPAS sued Google; instead, AMPAS filed a claim against GoDaddy over a cybersquatting/online intellectual property issue. Unexpectedly, the case ended up having a significant impact on Internet trade secret law.

Internet Trade Secret Showdown: The Academy of Motion Picture Arts and Sciences v. GoDaddy

You’ve probably seen GoDaddy “parked” sites before; they feature the infamous logo and ads. What you may not know, though, is that domain owners, who are enrolled in GoDaddy’s “CashParking” program, earn revenues off those ads. As such, domain parking has become a popular residual income stream for online marketers. Here’s the story of one.

The Story Of The Online Marketer Who Bought An “Oscar-Baity” URL?

To capitalize on online searches related to the annual Academy of Motion Picture Arts and Sciences Award Gala (a.k.a., “The Oscars”), one enterprising online marketer bought “oscarlist.com” and “oscarliveblogging.com.” During the Academy Awards seasons, owning those domains translated to significant residual revenues, via parked domain profits.

The Academy Doesn’t Like That Go Daddy “Profits” Off Their Name

When The Academy found out about the system, it wasn’t thrilled. The Oscar folks felt that the hosting company unfairly infringed on their online intellectual property rights by profiting off “parked” sites.

Enter Google

So how did Google get involved? Both GoDaddy and AMPAS were pointing fingers, saying that Google’s AdSense program is the real issue. AMPAS said it need to examine Google’s program to see if the company took precautions against intellectual property infringement, in addition to the revenue share calculations. GoDaddy, on the other hand, is tried to build an Anti-Cybersquatting Protection Act defense, arguing that Google is “solely responsible” for any inappropriate domain profit gain.

Judge’s Ruling

Despite the wishes of AMPAS and GoDaddy, Paul Grewal – a U.S. magistrate judge – ruled the Google discovery requests would be “burdensome” since the company routinely has to deal with third-party discovery demands. Specifically, the judge reasoned:

“AMPAS has not shown that the 4,000 pages of documents Google already produced does not provide the information it needs or why at least some of the additional discovery it wants was not obtained from GoDaddy or public sources.”

Bad Faith Intent To Profit In Cybersquatting Lawsuit

The crux of the AMPAS v. GoDaddy lawsuit is whether or not GoDaddy engaged in a program with a “bad faith intent to profit.” In online intellectual property cases, it’s usually not enough to say that someone is inappropriately using a questionable domain (though, there are exceptions). Plaintiffs in such cases need to prove that the defendant is somehow profiting off the alleged infringement.

There are many ways an attorney can argue profit loss, or potential profit loss, so it’s important to find a lawyer who has experience with Internet copyright litigation and Internet trade secret law.

Grooveshark’s Artist-Friendly Move Is Sure To Enrage Labels

streaming music onlineYou know the old saying: If you can’t beat ‘em, join ‘em – and online music site, Grooveshark, seems to be taking that sage advice to heart. Instead of getting into bed with the labels, they’re reaching out to artists – a definite sign the company is looking to the future, not miring themselves in the label-model. But will this new move anger the RIAA gods? You better believe it. Why? Because Grooveshark is going to allow users to pay artists directly.

Click Here To Read More About The Legalities Of Streaming Music On The Web

Why Is Grooveshark Hard To Kill?

If you follow file sharing news, then you know that Grooveshark is one of the more bothersome thorns in the RIAA’s side. The platform’s user-sharing format is set up in such a way that it evades certain intellectual property laws. The simple reason Grooveshark has managed to stick around, while others failed, can be succinctly explained in the company’s unofficial motto: Grooveshark does not violate the Digital Millennium Copyright Act.

Over the years, lobbyists and associations have tried to concoct ways to bury Grooveshark. But nothing has stuck. Since Grooveshark ostensibly follows DMCA takedown notice procedures, it’s tough to nail the music streaming service. Yes, there have been accusations that employees are the ones uploading infringing material, but as far as I know, that has yet to be proved.

The New Grooveshark Updates – What It Means

So, on November 1, not only is Grooveshark going to have a snazzy new design, but it will also feature a new service called Flattr. Perhaps the next big thing in crowdsourcing and crowdsupporting, Flattr allows users to deposit money into an account; then, similar to a Facebook “like,” users can choose to “flattr” an artist. At the end of each month, a given user’s account is split between all the people they flattr’d that month. So, let’s say you have $10 in your account for October, and you “flattr” two artists during the month, they would each get $5 from you at the end of the month.

Pretty ingenious if you ask me; the labels are going to despise it and there’s a good chance the “kids” will be all over it – further widening the divide between politics, traditional business models and Internet innovation.

Interested in cyberlaw news, views and information? Sign up for Kelly/Warner Law’s newsletter.

Google to Consider DMCA Takedown Notices when Ranking Websites

If you’re 100% sure that the content on your website is unique and does not violate copyright laws, give yourself a pat on the back and breathe a sigh a relief. If you’re on the other side of the fence and wondering whether or not your content violates someone else’s copyright, keep reading — because it looks like DMCA takedown notices will play an even bigger role in your business pretty soon.

DMCA Takedown Notices Matter More Now

Google recently announced they will factor the number of valid DMCA takedowns associated with your site when ranking it. Meaning, your website ranking will take a hit for having valid DMCA complaints of copyright infringement against you in your website.

Google is doing this to reward websites whose content is unique and legitimate, and punish sites with content that infringes on someone else’s copyright.

How Many DMCA Takedown Notices Does Google Get?

Google says they now have enough data to factor in the number of legitimate DMCA takedowns they receive every day. As a matter of fact, Google says they are now receiving more DMCA takedown notices each day than they did for all of 2009, stating they received over 4.3 million URL takedown requests in just the past 30 days.

Recently, Google posted a list of over 30,000 domains for which they received takedown notices within the last 30 days. The total number of domains on Google’s list exceeds 5 million.

Is Your Domain One of Them?

Has your URL been blocked by your ISP because of a DMCA takedown notice? Did the person or company accusing you of copyright infringement have a legitimate reason to send your ISP a takedown notice? Or are you skeptical about the takedown notice being the work of a copyright troll looking to cause people grief?

No matter the situation, an attorney experienced in online copyright law and DMCA takedown notices can help you get your website back on its way to a higher ranking. A lawyer specializing in Internet law can assist you and your Internet business to formulate a strategy in order to keep copyright infringing content from making its way onto your site and what to do when another party files a DMCA takedown notice against you.

Six Strike Illegal Downloading Warning System

illegal downloading
Six Strike Piracy Alert System Is In Effect In The US

Update Feb 2013: Welp, it’s a go! The six strike illegal downloading system went into effect at the end of February 2013.

Update Nov 2012: Due to issues associated with Hurricane Sandy, implementation of the “six strike” anti-piracy program, which is intended to thwart illegal downloading, is delayed until 2013.

European countries love illegal downloading laws. Most use a three-strike system, meaning users get two piracy warnings before being slapped with sanctions. In Europe, if a person is caught in the act after two warnings, the punishment is usually suspension of Internet service for up to a year.

Since the US justice system is based on the ‘innocent until proven guilty’ premise, laws like the EU’s three-strike method are considered unconstitutional by many. The argument being that people are stripped of rights without first being found guilty of an actual crime.

But the times, they are a’changing.

Several American ISPs announced that they will employ measures that help copyright holders hang on to their intellectual property. Similar to their European cousins, the Americans are going with a ‘six strike’ policy. This means American Internet users will be given five progressively severe warnings before suffering more serious consequences. These measures are strictly optional for Internet providers, but it is estimated that around seventy-five percent of American citizens will be affected by the new rules.

How Will The Six Strike Illegal Downloading Warning System Work?

Most people know the consequences for pirating content on the Internet. The warning at the beginning of movies makes clear the punishment: Up to Ten Years in “The Clink” and Hundreds of Thousands in Fines. Unfortunately for copyright holders, the strike system has done little to stymie the flow of piracy in Europe.

It isn’t yet known what will happen to a person after their fifth ‘strike’ for downloading pirated content. In fact, there isn’t even a standardized approach for the five warnings before the dooms-day sixth strike.

The Center for Copyright Information (CCI), an organization created by the movie and recording industries, is working in conjunction with the nation’s ISPs. They haven’t, however, been able to provide many details on the potential consequences.

The Executive Director of the CCI said the five warnings leading up to the sixth strike would be educational tools. Meaning someone surfing the web may have to read a warning about possible consequences or watch a video related to online piracy, before continuing Internet use. It’s not yet known what punishments a sixth strike would trigger, but many ISPs are hesitant to cut off a person’s service — let’s face it, who wants to lose customers?

Is Illegal Downloading Really That Big Of A Problem?

The new measures will do little to thwart online piracy. Heck, it’s barely made a difference in France and other EU nations. Regardless, the important question to keep asking should be: is piracy really that big of a problem? Sure, the entertainment industry wants their potential lost revenue, but is it really potential lost revenue or just a 21st century way of entertainment consumption – screen first and buy what you like? And if so, is the latter a successful business model? If you believe this piracy math, then your answer is probably “yes, piracy is good for the entertainment economy.”

Nevertheless, according to the law, illegal downloading is against the law. There ain’t no getting around that solid fact. So, who knows, maybe this new system won’t do much to stop the hard-core pirates, but it could dissuade a curious teen from getting into the habit in the first place. Only time and test lawsuits will tell.

Need a lawyer to consult on a piracy related legal matter? Get in touch with Kelly / Warner Law. We’re and Internet law firm that focuses on all legal things associated with doing businesses and living on the Web. Our rates are extremely reasonable and our success rate impressive. Get in touch.

Meet The Pirates Of Germany

At turns, they’ve been called the “protest party of the moment” and members have been known to make questionable haberdashery choices. For all intent and purpose they’re like a political band of gypisies – independent and prone to eccentricities. Nope, I’m not talking about the Tea Party, but instead the Pirates of Germany.

A political party numbering approximately 30,000,  the Pirates of Germany hold 20 seats in one state and 45 seats across the country. While the popular history of the party usually begins in 2009, the seeds of their union actually date back to around 2006. It was that year that the Mannheim court ruled that citizens are responsible for their WiFi routers and all the traffic that passed through it. When the decision hit, a group of Internet activists in Germany started conversing on a, what could be described as, a fan-boy/fan-girl wiki for the Swedish Pirate Party. The administrator of the wiki was “Mor Roguen” or “Dark Knight” and on September 1, 2006, the group moved their meeting offline and held their first in-person gathering. What emerged from that gathering was the beginnings of a new German political party called “The Pirates.”

In 2009 members mobilized to protest a national telecommunications law that was enacted to combat online pornography, but the Pirates argued that the law could be easily used against anyone. In 2010 the Federal Court of Justice ruled that citizens could be fined one-hundred euros or more for an open WiFi connection – and the Pirates grew in numbers.

The German Pirates are not the only online copyright “outlaws” who’ve made tremendous gains thanks to government interference. Notorious BitTorrent search engine, The Pirate Bay, saw their traffic more than double after it was shut down by officials. Plus, the Swedish Pirate Party also saw their numbers increase significantly after the highly publicized event.

So what do the Pirates in Germany stand for? Well, their manifesto is a little bit hyper-intelligent, sci-fi idealism, coupled with a healthy dose of ultra-socialistic principals (another point that separates the Pirates from Tea Partiers). Their main goal seems to be compiling “all human knowledge and culture and to store it for the present and future.” They also firmly believe that “the digital revolution brings humanity the opportunity of advancing democracy.” Which, hey, are noble ideals. However, the Pirates also have a more radical agenda than just advancing knowledge and culture via technology, they also believe that every individual should be guaranteed a regular check from the government to pursue learning and culture – every person.  As X put it, it could be argued that technology is to The Pirates as industry was to the Communists.

Germany is not the only country with an active Pirate party. As mentioned earlier, the Swiss pioneered the movement, and today, Pirates are a registered party in nearly 15 countries; representatives hold seats in Spain, Switzerland and Czech Republic. In 2009, the Swiss even elected a Pirate Party member to the European Union Parliament.

And yep, in case you were wondering, there are Pirate movements in Canada, Mexico and the United States.

Han Han Makes Headlines With Another Internet Law Claim

Chinese Blogger Han Han
Popular Chinese Blogger, Han Han, is involved in another Internet law case. Image Source: http://www.flickr.com/photos/laihiu/48177854

Well what do we have here!? Looks like everybody’s favorite race car driver/poet/ Internet-sensation is once again making international Internet law headlines. That’s right ladies and gentlemen, we’ve got some more news from the Han Han files.

Don’t remember Han Han? He’s the insanely popular Chinese blogger who recently made news after filing a very high profile defamation lawsuit against his arch nemesis, Fang Zhouzi. Now, Han Han is once again making headlines as part of an author cabal who were awarded damages for online copyright violations. Specifically, the authors were upset about Wenku, an online literary database which has been posting works that can be downloaded for free.

Even though he was awarded moola, Han Han may not be rejoicing, as the prolific netizens didn’t get a fraction of what he asked for in the lawsuit.

You see, Han is part of an author association called the Copyright Protection Alliance. Recently, an attorney for the members filed a copyright infringement lawsuit against Baidu, a popular search engine in China. Out of the claims brought via the CPA filing, 7 of the suits were dropped and 7 claimants were awarded damages. Han was one of the lucky seven – he got about 40,000 yuen.

But as I mentioned above, Han Han had asked for much more than a mesley 40, 000 yuen. Homeboy  wanted 760,000 (about $120,635). But perhaps most importantly, our man Han formally requested that the Baidu executives issue a prominent apology to Han Han and co. on their homepage. But the judge in the case could not be convinced that an apology was in order.

In true media-aware style, Wang Guohua, Han’s lawyer, announced that he and his client are considering an appeal in the copyright infringement lawsuit against Baidu.

Now, I couldn’t pass up this opportunity to get my Han Han on and promote myself. So, if you need to consult with an online copyright infringement lawyer, give us a call. We’re Internet law attorneys who know a whole lot about online intellectual property law.

Copyright Trolls Lose Another Tool From Their Arsenal

copyright trolls
A California judge ruled that having an unsecured WiFi connection does not equal negligence in illegal downloading lawsuits.

A California Judge recently set a precedent that shields Internet subscribers from being sued due to their “negligence” in locking down their Wi-Fi security.

In the case of AF Holdings vs. Josh Hatfield and John Doe, AF Holdings sued Josh Hatfield for failing to secure his WiFi connection, which they said was negligence on his part and led to piracy of some of their adult movie content.

Hatfield filed a motion to dismiss the charges, arguing there was no way the adult entertainment company could say he had an obligation to secure his Wi-Fi Internet connection to protect their company from piracy. Judge Phyllis Hamilton agreed with Hatfield.

According to the court documents, “AF Holdings argues that it seeks to hold Hatfield liable for ‘negligent maintenance of his residential network,’ which it asserts allowed a third-party to commit large-scale infringement of AF Holdings’ copyrighted works.

“Specifically, AF Holdings alleges in the complaint that Hatfield owed it a duty to secure his Internet connection to prevent infringement of AF Holdings’ copyrighted works. Thus, the entirety of this claim involves the allegation that Hatfield failed to take certain steps – in other words, allegations of non-feasance (as opposed to misfeasance).”

Because Hatfield did not have a special relationship with AF Holdings, he had no obligation to try to secure his network to protect their copyrighted material. This ruling should have long lasting effects on a tactic that copyright trolls use, claiming “negligence” in the case of defendants who did not secure their personal computer networks – namely WiFi connections.

The Problem with the Negligence Strategy

The “negligence” tactic was used to circumvent previous court rulings that said “IP addresses do not equal people.” The main problem is that federal copyright laws would trump any claim of negligence by media companies. Additionally, Section 230 of the federal Communications Decency Act might also be used before a local personal injury claim.

This means that media companies will likely go back to the drawing board in order to come up with new ways to try to hunt down illegal downloaders. Most of the time, companies find a list of offending IP addresses and attempt to attach those IP numbers to specific people so they can take them to court. However, these methods have not been too successful in all areas of the country. And this recent case involving “negligence” is sure to slow down efforts.

Copyright Infringement and Fighting Piracy Online

While copyright protection is very important to the modern business world, the methods used to fight piracy need to be solution-based, not intimidation-based. For now, partly thanks to this ruling, private citizens don’t have to worry as much about “negligence” claims in illegal downloading lawsuits; but this does not mean media companies aren’t staying up late, trying to come up with ways to keep the copyright troll game alive.

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