Spotify, SoundCloud and Deezer Music Apps Sued for Infringing Music Organizer and Entertainment Center Patent

31 05 2018

IP Watchdog

Steve Brachmann
April 13, 2018

Patent owner MOAEC Technologies filed suits alleging claims of patent infringement in the District of Delaware against a series of music entertainment app providers including Spotify, SoundCloud and Deezer. The suits claim that music services offered by all three defendants infringe upon a patent covering a music library collection technology invented by the founder of MOAEC… MOAEC’s suits also include language in an apparent attempt to preempt any patent validity challenges under 35 U.S.C. § 101, the basic statute governing the patentability of inventions, under the Alice/Mayo framework.

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Yet Another Case Highlights Yet Another Constitutional Infirmity With The DMCA

31 05 2018

Tech Dirt

Cathy Gellis

Once again, the Constitutional exceptionalism of the DMCA has reared its ugly head. Thanks to the way it has been interpreted we have already enabled it to become an unchecked system of prior restraint, which is anathema to the First Amendment. And now yet another court has allowed this federal law to supersede states’ ability to right the wrongs that misuse of the DMCA’s censorship tools inevitably causes, even though doing so arguably gives this federal law more power than the Constitution allows.

The two problems are of course related. Prior restraint is what happens when speech is censored without ever having being adjudicated to be wrongful. That’s what a takedown demand system does: force the removal of speech first, and sort out whether that was the right result later. But because the Ninth Circuit has taken the teeth out of the part of the DMCA that is supposed to punish bogus takedowns, that second part very rarely happens. Section 512(f) was supposed to provide a remedy for those who have been harmed by their content being removed. But in the wake of key rulings, most recently Lenz v. Universal, that remedy is rarely available, leaving online speakers everywhere vulnerable to the censoring whims of anyone inclined to send a takedown demand targeting their speech, no matter how unjustifiably, since there is little ability to ever hold this wrongdoer liable for the harm their censorship causes.

And censorship does cause harm. Sometimes the harm that it causes can even be to one’s business or livelihood, which can suffer from the interruption of the removed content’s availability. Of course, normally when people have had their business or livelihoods messed with, they can sue whomever messed with them. We have lots of laws that address wrongful meddling, including torts like intentional interference with contract or prospective economic advantage, because normally we don’t like people having free reign to mess with other people’s business.

But most of those tort claims are creatures of state law, and the DMCA is federal law. And the question that was raised by a recent case, Stevens v. Vodka & Milk, LLC, is how state law and federal law interrelate. Per the court: they don’t. According to the Southern District of New York court, federal law completely pre-empts state law, leaving the only recourse available for someone who has been hurt by wrongful DMCA takedown notices Section 512(f), the remedy that the DMCA ostensibly enables. Even though that remedy is utterly useless.

Sadly, this court was not the first to reach this conclusion. But that fact does not make the conclusion any less terrible, or any less questionable. It’s predicated on the notion of “field pre-emption,” “where Congress occupies an entire field.” In this case, Congress is the exclusive authority establishing copyright, and so federal law pre-empts state laws on copyright. This pre-emption makes sense, because state law addressing copyright would likely interfere with the federal policy. Yet that’s not what these state laws are doing. They aren’t trying to establish copyrights or address their scope; they are attempting to speak to what happens in situations where a harm has resulted and no copyright was involved at all.

The court essentially ignores this distinction, asserting that because the DMCA addresses what happens when takedown notices are sent without there being a valid copyright claim, it is the final word on remediating the harm the wrongful takedown notices caused. But this reasoning doesn’t make sense.

First, the Constitution narrowly prescribes what federal law can do. It can, for instance, create copyrights (pursuant to the Progress Clause), but it doesn’t follow that federal law can necessarily operate, much less exclusively operate, where there is no copyright present. Without that copyright there may be no constitutional basis for that federal law to operate at all. But if the court were right, that once the DMCA is merely cited as a basis for a censorship demand, even if invalidly, it is the only law that can address the resulting harm, then that’s what the federal law would be doing: operating in a domain where it may no longer have any constitutional entitlement to act. Particularly given that people aren’t even supposed to be able to engage the DMCA without that federally-created copyright in the first place, it really doesn’t make sense that the DMCA can remain engaged, trumping state law, when it wasn’t supposed to be engaged in the first place.

Granted, it might make sense for the DMCA to pre-empt state law when the takedown notice sender has a valid copyright but nonetheless has sent wrongful takedown notices where the targeted use was fair. If state law could punish those takedown notices, it might interfere with the parameters of that federally-created copyright and encroach the “field” of copyright law left exclusively to federal law. But in the absence of a valid copyright, federal law should not be able to extinguish a state-based claim that has nothing to do with the contours of a right that isn’t even present.

And the reason federal law should be so limited is because of the abuse we see, where anyone can get away with tortious behavior simply by fraudulently claiming a fictional federal right. A takedown notice sent by someone without a valid copyright is not any more about the “field” of copyright than it is about Santa Claus. Rather, it’s about tortiously wrongful behavior. And vindicating injuries caused by such behavior is not something that federal law generally gets to do. That is a power generally left to the states, and the Constitution should not permit a bad actor to escape state law designed to punish this sort of behavior simply because he’s fraudulently packaged up his bad acts with a meaningless copyright label federal law does not allow him to use.

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Lindsay Lohan Loses Publicity Rights Case Over Grand Theft Auto–Lohan v. Take-Two

31 05 2018

Technology & Marketing Law Blog

March 31, 2018 · by

Lindsay Lohan is the new spokesperson for Lawyer.com, and boy is she qualified to talk about that subject! Her litigiousness should have earned her a street JD. Sadly, though, her voluminous experience with the law hasn’t adequately sharpened her legal acumen, and she racked up another loss in her litigation oeuvre.

This time, it’s her publicity rights claim against Grand Theft Auto V for the character “Lacey Jonas,” which Grand Theft Auto’s maker featured in some advertising. Two screenshots discussed by the court:

If you’re curious, you can watch a video including a scene with “Jonas” from Grand Theft Auto V. I guess the video is mostly safe for work, but it has some cusswords and lots of sexism.

 

Case citationLohan v Take-Two Interactive Software, Inc., 2018 NY Slip Op 02208, 2018 WL 1524714 (N.Y. App. Ct. March 29, 2018)

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Zazzle And Other Print-On-Demand Websites Can Breathe A Sigh Of Relief . . . For Now

31 05 2018

Global IP and Technology Law Blog

Allyson Madrid and Audrey Nicolson on March 27, 2018

Last month, in a February 8, 2018 Order, the Central District of California vacated its injunction in Greg Young Publishing, Inc. v. Zazzle, Inc., 2:16-cv-04587-SVW-KS, in which Zazzle was “permanently enjoined from infringing any of the exclusive rights in 17 U.S.C. § 106 with respect to Plaintiff’s copyrighted works…”  See Permanent Injunction and Order, October 27, 2017.  The court’s February 8th decision acknowledged the practical challenges a platform such as Zazzle would face in complying with the injunction and found that damages were an adequate remedy in the circumstances.

Zazzle is a website that allows users to upload and print images on a wide variety of household items.  In 2016, Zazzle was sued for copyright infringement by a licensing company alleging that Zazzle allowed users to upload the licensing company’s copyrighted artwork.  Following a trial last fall, the judge ordered Zazzle to cease infringing the copyright in artists’ works owned by the plaintiff.

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Google’s use of Java API packages in Android OS not a fair use

31 05 2018

IP Watchdog

Gene Quinn
March 27, 2018The Federal Circuit found Google’s use of Java API packages in it’s Android operating system was not a fair use as a matter of law, resurrecting a multi-billion dollar copyright case brought by Oracle Corp against Google. With copyrightability and fair use now decided, unless the Supreme Court intervenes (which seems unlikely) this case will head back to the district court for a damages trial with the sole question being how much money Google owes Oracle America. “This is a hugely important development in the law of copyright and fair use. If it stands, there are numerous implications,” said J. Michael Keyes is a partner at the international law firm Dorsey & Whitney.

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Case to Watch: Goldman v. Breitbart, involving embedded Tweets of Tom Brady recruiting Kevin Durant in the Hamptons

31 05 2018

IP Litigation Current

KIMBERLY DODD AND JOEL DIAMOND ON 27 MARCH 2018

The Southern District of New York has teed up an important copyright issue for interlocutory appeal, which could create a circuit split with the Ninth Circuit’s 2006 decision Perfect 10, Inc. v. Amazon.com, Inc.  On March 19, Judge Katherine Forrest certified for interlocutory appeal her February 15 summary judgment decision favoring the copyright owner, Justin Goldman.  In her summary judgment decision, she rejected the publishers’ argument that “embedding” Tweets with the allegedly infringing photo was not copyright infringement, expressing skepticism with the Ninth Circuit’s “Server Test” set forth in Perfect 10 v. Amazon.

This copyright action stems from a photo that Goldman took of Tom Brady with Danny Ainge (the GM of the Boston Celtics) and others in the Hamptons in 2016 when the Celtics were attempting (unsuccessfully) to recruit Kevin Durant. Three days later, Durant announced he would sign with the Golden State Warriors.

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France seizes France.com from man who’s had it since ‘94, so he sues

30 04 2018

Ars Technica

– 4/29/2018,

A French-born American has now sued his home country because, he claims, the Ministry of Foreign Affairs has illegally seized a domain that he’s owned since 1994: France.com.

In the mid-1990s, Jean-Noël Frydman bought France.com from Web.com and set up a website to serve as a “digital kiosk” for Francophiles and Francophones in the United States.

For over 20 years, Frydman built up a business (also known as France.com), often collaborating with numerous official French agencies, including the Consulate General in Los Angeles and the Ministry of Foreign Affairs.

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Competitive Keyword Advertising Doesn’t Show Bad Intent–ONEpul v. BagSpot

30 04 2018

Technology and Marketing Law Blog

Eric Goldman

April 28, 2018

This case involves dispensers of plastic bags for picking up dogshit. The plaintiff has a registered trademark in the brand “ONEpul.” The defendant describes its bags as “one-pull” (and yet, the term “descriptive fair use” doesn’t appear in the opinion once…). It also buys Adwords on another trademark of the plaintiff, “zerowaste,” but the appellate court doesn’t discuss a trademark infringement claim over the zerowaste mark. My prior blog post on the district court ruling.

The court analyzes the ONEpul trademark claim.

The court concludes: “Taken as a whole, the evidence that ZW submitted at summary judgment showed only that ZW and PWD were in competition with one another.” Summary judgment affirmed.

Case citation: ZW USA, Inc. v. PWD Systems, LLC, 2018 WL 1956417 (8th Cir. April 26, 2018)

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House of Representatives Passes Music Modernization Act – Looking for Clarity on Mechanical Royalties, Pre-1972 Sound Recordings and Other Music Rights Issues

30 04 2018

This week, the US House of Representatives passed the Music Modernization Act. While widely supported among many digital media companies providing on-demand subscription music services as well as by many in the music industry, the bill seemingly has not received the publicity that has been afforded to past music royalty legislation. That may be, in part, because there were few who adamantly opposed the provisions of the bill, as evidenced by a unanimous House vote – something that never would have happened had any significant portion of the music industry opposed the bill. But this moment of togetherness may be, in part, due to the somewhat limited (though nevertheless very important) issues that it addresses.

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‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration

15 04 2018

Technology & Marketing  Law Blog

Eric Goldman

April 11, 2018

This morning, President Trump signed H.R. 1865, the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), into law. The bill signing was anticipated, but that doesn’t make the outcome any less terrible. Today, Washington DC regulators made a major error, one that we’ll likely regret for decades.

Eventually, I plan to write an explainer about the law. In this post, I’ll highlight three developments from the past 2+ weeks since the Senate approved the bill, plus some open questions.

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