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Tech Dirt
Mike Masnick
Apr 27th 2020

The long saga of Georgia locking up its laws under copyright is (hopefully) officially over, with a Supreme Court ruling that says pretty explicitly that the law must be in the public domain.

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Earlier today, the Supreme Court ruled mostly in favor of Carl Malamud and free access to our laws, though there is a bit of weirdness in the overall ruling. The key part is the most important though. You just can’t copyright the law.

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The content in this post was found at https://www.techdirt.com/articles/20200427/11531544387/supreme-court-says-georgias-official-code-is-public-domain-including-annotations.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

LexBlog
Paul Bost
April 21, 2020

On April 8, 2020, in In re: Forney Industries, Inc.,[1] the Federal Circuit reversed the Trademark Trial and Appeal Board’s finding that a color mark can never be inherently distinctive.  By so holding, the Federal Circuit controverts what had become conventional wisdom since the Supreme Court’s decisions in Qualitex Co. v. Jacobson Prod. Co., 514 U.S. 159 (1995) and Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205 (2000).

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Based on its reading of the above precedent, the panel held that color marks on product packaging can be inherently distinctive.  In the instant case, Forney’s mark – a black bar followed by a yellow-to-red gradient – could be considered inherently distinctive.  Accordingly, the panel held that the Board erred by not assessing whether Forney’s mark was inherently distinctive.

The panel’s precedential decision is significant.  Persons interested in protecting color marks used on product packaging may now be able to obtain registration without showing secondary meaning.  Likewise, the holding may be adopted by other courts to allow plaintiffs asserting common law rights in color marks to do so without proof of secondary meaning.

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The content in this post was found at https://www.lexblog.com/2020/04/21/color-marks/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Technology & Marketing Law Blog
Eric Goldman
April 21, 2020

Whitepages compiles and generates “background reports” on people, remixing content from a database of public and private records that allegedly incorporates 2B+ records/month. In response to searches on people’s names, Whitepages provides free previews, such as this one included in the court opinion (this is a truncated view–it goes on for 3 pages):

Much of the free preview provides links indicating that more information about the person may be available behind Whitepages’ “premium” paywall. Thus, the plaintiffs assert that the free preview acts as advertising for the premium service.

Instant Checkmate runs a similar service to Whitepages. The interface is different, but the plaintiffs still characterize the free preview as advertising for the paywalled database.

The plaintiffs claim that the free preview violate Illinois’ publicity rights statute by displaying people’s personal data in the “ads.” The defendants moved to dismiss. This case reminded me a little of the uncited Facebook Sponsored Stories case (Fraley v. Facebook)….

Section 230. The court might have said that Section 230 doesn’t apply to publicity rights claims as IP claims (which is probably true everywhere except the 9th Circuit), and the court doesn’t address the closely analogous FTC v. Accusearch case denying Section 230 protection for the sale of telephone call records. Instead, citing the terrible 7th Circuit Huon decision, the court says “Whitepages did not act as a mere passive transmitter or publisher of information that was ‘provided by another information content provider.’ Rather, it is alleged to have actively compiled and collated, from several sources, information regarding Lukis. The CDA therefore does not shield Whitepages from liability.”

Case citation: Lukis v. Whitepages Inc., 2020 WL 1888916 (N.D. Ill. April 16, 2020)

Technology & Marketing Law Blog
Eric Goldman
April 17, 2020

This is a copyright infringement lawsuit against Charter, an Internet access provider, for users’ copyright infringements by file-sharing. I comprehensively blogged the magistrate report in this case back in October. In that blog post, I described the magistrate’s report as “a major win for copyright owners in their irrepressible quest to deputize IAPs as their copyright sheriffs.” Charter objected to the magistrate report’s analysis of vicarious copyright infringement. The district court judge’s response opinion is…UGH.

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Conclusion

In my prior post, I wrote: “copyright owners aren’t going to stop until they turn IAPs into their copyright cops. This has their dream for decades, and this ruling moves one step closer to it.”

In particular, the opinion highlights how we desperately need a well-functioning 512(a) safe harbor for Internet access providers. Over and over again, the court cites facts that just show Charter offered Internet access, which the court treats as enough to establish a prima facie case of vicarious copyright infringement. That can’t be right.

The damage in this case can be traced to prior rulings requiring that IAPs “terminate repeat infringers” based on notices of claimed infringement rather than judicial findings of actual user infringement. By creating that bypass, copyright owners can work around 512(a), which opens up a Pandora’s box of liability that does not bode well for the future of Internet access.

The Senate is currently undertaking a 20 year review of the DMCA. It would be wise for Congress to figure out why 512(a) failed to achieve its purported purpose–and how it might be rehabilitated.

Finally, this ruling shows how far the vicarious copyright infringement doctrine has strayed from its roots. Vicarious copyright infringement started as a branchoff of agency law. The IAP-subscriber relationship bears absolutely no resemblance to a principal-agent relationship, yet here we are. We need better limiting principles to the vicarious copyright infringement doctrine so that it does not extend, illogically, to typical vendor-customer relationships.

Case citation: Warner Records Inc. v. Charter Communications, Inc., No. 19-cv-00874-RBJ-MEH (D. Colo. April 15, 2020)

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The content in this post was found at https://blog.ericgoldman.org/archives/2020/04/another-terrible-copyright-ruling-on-iaps-liability-for-users-file-sharing-warner-v-charter.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Technology & Marketing Law Blog
Eric Goldman
April 16, 2020

… today’s pro se lawsuit, like numerous lawsuits preceding it, goes nowhere and gets a quick dismissal.

The plaintiff says that TheDirty hosts a service that it knows “libels” people. This sets up an easy Section 230 defense. The court’s analysis of Section 230:

federal law forbids defamation claims against host or platform website operators such as Dirty World, such as those alleged here, under the Communications Decency Act, 47 U.S.C. § 230 (the “CDA”). Dirty World cites multiple cases explaining the reasons underlying CDA’s prohibition. Conclusory and speculative allegations that the host or platform website operator must have created the speech is not sufficient to state a claim. [Kimzey v. Yelp!] Plaintiff has not plead facts here that “tend to demonstrate that the” post “was not, as is usual, authored by a user.” Further, the possibility that the posts were created by the website owner is not sufficient for a defamation claim to proceed against a host or platform website operator. [Nemet Chevrolet, Ltd. v. Consumeraffairs.com]

The First Amended Complaint’s allegation that “it is evident” that Dirty World “itself places comments on the webpages that are posted on their website www.thedirtyarmy.com” because the phrase “The Dirty Army” is present on Dirty World’s website and also its Facebook page is not sufficient to defeat CDA immunity

A parallel copyright claim fails because the complaint didn’t allege a copyright registration. ..

Case citation: Laake v. Dirty World LLC, 2020 WL 1866124 (D. Ariz. April 14, 2020). The complaint. See also the court’s refusal to add GoDaddy as a defendant (magistrate report; district judge’s approval).

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The content in this post was found at https://blog.ericgoldman.org/archives/2020/04/thedirty-easily-defeats-another-defamation-lawsuit-laake-v-dirty-world.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

\Technology & Marketing Law Blog
Eric Goldman
April 1, 2020
Pellegrino is a saxophone player with “externally rotatable feet,” which has helped him develop a nifty “signature” dance move while playing. The videogame Fortnite sells “emotes,” optional customizations for players’ digital avatars. Pellegrino alleges that the “Phone It In” emote depicts his signature dance move. Pellegrino sued Fortnite for a variety of claims. The court dismisses all of them, with prejudice, except for the false endorsement claim (which will fail later).

Case citation: Pellegrino v. Epic Games, Inc., 2:19-cv-01806-JP (E.D. Pa. March 31, 2020). The complaint.

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The content in this post was found at https://blog.ericgoldman.org/archives/2020/04/videogame-can-replicate-musicians-signature-move-unless-its-a-false-endorsement-which-it-isnt-pellegrino-v-epic-games.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

It’s been said many times over that if libraries did not currently exist, there’s no way that publishers would allow them to come into existence today. Libraries are, in fact, a lovely and important artifact of a pre-copyright time when we actually valued knowledge sharing, rather than locking up knowledge behind a paywall. Last week, the Internet Archive announced what it’s calling a National Emergency Library — a very useful and sensible offering, as we’ll explain below. However, publishers and their various organizations freaked out (leading some authors to freak out as well). The freak out is not intellectually honest or consistent, but we’ll get there.

As you may or may not know, for a while now, the Internet Archive and many other libraries have been using a system called Controlled Digital Lending, which was put together to enable digital checkouts of books for which there may not be any ebooks available. Basically, the Archive helped a bunch of libraries scan a ton of books, and the libraries lend them out just as if they were lending out regular books. They keep the physical copy on the shelf and will not lend out more copies of the digital book than the physical copies they hold — basically doing exactly what a library does. There are strong arguments for why this is clearly legal. Scanning a book you own is legal. Lending out books is legal.
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The content in this post was found at https://arstechnica.com/tech-policy/2020/03/court-violating-a-sites-terms-of-service-isnt-criminal-hacking/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

LexBlog
Sarah Bro
April 15, 2020

Reviewing a decision from the United States Patent and Trademark Office (“USPTO”) Trademark Trial and Appeal Board, the Federal Circuit vacated and remanded the Board’s refusal to register a trademark consisting of a gradient of multiple colors applied to product packaging, and relied on Supreme Court precedent in concluding that color marks can be inherently distinctive when used on product packaging “depending upon the character of the color design.” In re Forney Industries, Inc., Case No. 2019-1073 (Fed. Cir. Apr. 8, 2020) (O’Malley, J.)[precedential].

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The content in this post was found at https://www.lexblog.com/2020/04/15/federal-circuit-confirms-color-marks-of-certain-character-can-be-inherently-distinctive-for-product-packaging Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com