The NY Times Against SOPA

  “Rather than encouraging credit card companies and advertising networks to pre-emptively cut off business to Web sites accused of wrongdoing, a court order should be required before they take action.” The New York Times rightly identifies the bypassing of normal judicial proceedings as the core problem of SOPA.

Trademark Overreaching: Chicken v. Kale

Bo Muller-Moore prints t-shirts with the phrase “Eat more kale.” The food giant Chick-fil-A, which owns a trademark in “eat more chikin” wants Muller-Moore to stop making the t-shirts because, it says, consumers will be confused into thinking that Chick-fil A produces the kale-promoting apparel.

This is not a chicken.

European Court of Justice Against Filtering

From today’s judgment in the Scarlet Extended case, holding that European Union law prohibits national courts from imposing an injunction that requires an internet service provider to install a filtering system to prevent the illegal downloading of files:

            The protection of the right to intellectual property is . . . enshrined in . . . the Charter of Fundamental Rights of the European Union . . . . There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected. . . . [T]he protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights. More specifically, . . . in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.”



DMCA Abuse: Wildlife Version

Carolyn Wright operates a website featuring photographs she has taken of wildlife. The website’s host recently suspended the site after it received a DMCA notice containing phony copyright infringement claims. Ms. Wright is herself a copyright lawyer. The problem seems to have been resolved and the website is back up.

The Color Purple

       Trademarked in the U.K. by Cadbury. 

Copy Culture Survey: Sneak Preview

Preliminary results from the Copy Culture Survey are out. The survey examines the online activities of Americans (and Germans) and their attitudes about copyright. Lots of interesting findings. Among other things:

  • 46% of Americans have bought, copied, or downloaded without authorization music, TV shows or movies
  • 2% of Americans have more than 1,000 unlawfully downloaded music files
  • 52% of Americans favor penalties for unlawfully downloading copyrighted music and movies
  • Among Americans who support fines for unlawfully downloading music or movie files, 75% say the maximum penalty should be $100




Disappearing e-books

Penguin yanks titles from Kindle/OverDrive.

Apple v. Amazon: Round 3

Apple has filed a second amended complaint in its trademark lawsuit to stop Amazon from using “Appstore.” According to Apple’s complaint:

“Apple has extensively advertised, marketed and promoted the APP STORE service and the APP STORE mark, spending millions of dollars on print, television, and internet advertising. News outlets have also commented extensively and repeatedly on the operations of the APP STORE service in the months and years following its launch. The enormous public attention given the APP STORE service, and the success of the service, have cemented the public’s identification of APP STORE as a trademark for Apple’s service.”

Amazon says “Appstore” is a generic term (for a store that sells apps) and does not qualify for trademark protection.


Omega v. Costco: Copyright Misuse

In a surprising development, Omega v. Costco, a case that went to the Supreme Court last year, has ended in Costco’s favor on the ground that Omega engaged in copyright misuse. In its lawsuit, Omega sought to prevent Costco from reselling Omega Seamaster watches that Costco had imported from abroad but that were not authorized by Omega for sale in the United States. The district court held that the first sale doctrine protected Costco. The U.S. Court of Appeals for the Ninth Circuit reversed that decision and the U.S. Supreme Court affirmed (by a divided court) the circuit court’s ruling. But that was not the end of the matter. For the watches themselves were not copyrightable. So in order to control importation (and gather evidence against Costco) Omega engraved on the back of the Seamaster watches a tiny copyrighted design, known as the Omega Globe Design. The copyright infringement claim against Costco was based on the infringement of that design. On November 9, Judge Terry J. Hatter of the United States District Court for the Eastern District of California,held that Omega’s use of the copyright in the engraving to stop trade in the watches constituted copyright misuse. Judge Hatter explained: “Omega misused its copyright of the Omega Global Design by leveraging its limited monopoly in being able to control the importation of that design to control the importation of its Seamaster watches.” An appeal seems certain.

First Sale & Digital Music Files

The New York Times reports on ReDigi, which operates a service for people to buy and sell “used” digital music files. Section 109 of the Copyright Act protects a right of first sale: if you are the owner of a lawful copy of a work (e.g. a book or a CD) you can sell that copy to somebody else once you are done with it. Content providers don’t like section 109 because secondhand markets cut into their sales. Suppliers of works in digital form deny that section 109 even applies to their works because, they say, their customers are not owners of anything, merely subscribers or licensees. And, as the RIAA’s response to ReDigi shows, digital suppliers contend that because transferring a digital file to somebody else’s computer requires making an unauthorized copy of it, such a transfer cannot be accomplished without copyright infringement. Protecting first sale in the digital world requires rejecting this argument and recognizing that the only real interest that copyright owners have is in making sure a copy of the file is not retained by the person who transferred it. ReDigi says it has designed a system to ensure that no copy of the transferred file remains behind. But content providers need not rely on ReDigi’s assurances. They can develop technological measures to protect against multiple copies existing after a transfer. If a court tomorrow deems the transfer of a digital file a lawful first sale (and the copying involved in making the transfer incidentally lawful), content providers will do just that. In the near future, however, the question of whether it is lawful to transfer a digital file might have little importance. Works are increasingly delivered to customers via streaming–in which there is no file obtained and therefore no file to transfer.