Supreme Court declines to hear “podcasting patent” case, handing win to EFF

13 08 2018

Ars Technica

5/15/2018, 

Podcasters, you can now engage in your lengthy Maron opens without the feeling of being legally targeted by a Texas company that many would consider to be a patent troll.

On Monday, the Supreme Court of the United States declined to hear the case of Personal Audio v. Electronic Frontier Foundation. In short, the case is all said and done.

As Ars reported in August 2017, the US Court of Appeals for the Federal Circuit affirmed the April 2015 inter partes review (IPR) ruling—a process that allows anyone to challenge a patent’s validity at the US Patent and Trademark Office.

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Minnesota Judges Refuse To Unmask Defendants For Copyright Troll Strike 3

13 08 2018

Tech Dirt

Timothy Geigner

With copyright trolling a business model in full force across the world, we’ve noted that there has finally started to be some pushback against these tactics. In Europe, both courts and ISPs have begun wising up to the notion that IP addresses are an incomplete and faulty piece of “evidence” at best, with both government and industry also finally beginning to question just where user privacy should fit into all of this. In America, unfortunately, copyright trolls have all too often been able to unmask customers through ISPs based on court orders pretty much at will. Strike 3 Holdings is one such troll, with the company being partially responsible for a number of piracy lawsuits shooting out of the gate in 2018 at record speed.

And, yet, it appears that there might finally be some pushback coming to the US too, as two judges in Minnesota have now refused to order ISPs to give up customer information to Strike 3.

Late last month, Magistrate Judge Franklin Noel denied such a discovery motion.

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The Ninth Circuit STILL Thinks Keyword Metatags Matter in 2018–Adidas v. Skechers

13 08 2018

Technology & Marketing Law Blog

May 11, 2018

[ed’s note: Eric always argues that metatags are old school, irrelevant, and don’t mislead. He does so, even when a Circuit court case rules that THEY DO STILL MATTER].

Yesterday, the Ninth Circuit ruled about trademarked stripes on tennis shoes. To me, legally weaponizing dots in three lines on a shoe predictably leads to wasteful and possibly anti-consumer litigation. However, instead of critiquing the opinion generally, I’ll isolate just one aspect.

The court says:

Skechers placed metadata tags on its website that directed consumers who searched for “adidas Stan Smith” to the page for the Onix shoe. “Using another’s trademark in one’s metatags is much like posting a sign with another’s trademark in front of one’s store.” Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1064 (9th Cir. 1999). We agree with the district court that “the only reason ‘adidas Stan Smith’ is a useful search term is that consumers associate the term with a distinctive and recognizable shoe made by adidas.” Therefore, the district court did not clearly err by finding that the Stan Smith had acquired secondary meaning.

Instead of the multitude (dozens?) of Ninth Circuit cases interpreting online trademark law in the past two decades, this court in 2018 actually reaches back to the Brookfield billboard analogy from 1999? FFS. As I explained in 2005, Brookfield’s billboard analogy is irreparably flawed. Even in keyword metatag’s halcyon days when they had minor technical relevance, keyword metatags that are processed only by automated bots bear zero resemblance to a physical space sign that consumers see.

Case citation: Adidas America, Inc. v. Skechers USA, Inc., No. 16-35204 (9th Cir. May 10, 2018)

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Lanham Act Injunction Floored Where Social Media Criticisms Were Not “Commercial Advertising”

13 08 2018

Proskaueh on Advertising Law

Lawrence Weinstein, Alexander Kaplan and Evelyn Pang

May 21, 2018

[ed’s note: this is not an IP law case per se. However, it applies the Lantham Act in a social media context, or more to the point, it shows that the Lanthan Act cannot be used merely to constrain criticism on social media]

A judge in the Western District of Wisconsin recently denied a motion for a preliminary injunction that sought to prevent a customer from criticizing the plaintiff’s products over social media.  Buckeye Int’l v. Schmidt Custom Floors, 2018 WL 1960115 (W.D. Wis. Apr. 26, 2018).  Plaintiff Buckeye sells floor finishing products, and defendant Schmidt is a flooring installer and refinisher.  Schmidt purchased Gym Bond, Buckeye’s floor finishing product, to facilitate the bonding of a clear topcoat to finished hardwood sports courts.  When the topcoat peeled off, Buckeye blamed Schmidt and refused to pay for repairs and refinishing.  Schmidt then complained about Gym Bond and Buckeye on social media, which caused Buckeye to sue Schmidt for false advertising under the Lanham Act and seek a preliminary injunction barring Schmidt’s social media postings about Buckeye and its product.

 

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Copyright Royalty Board Announces Proposed New SoundExchange Royalties for Business Establishment Services

13 08 2018

Broadcast Law Blog

David Oxenford

May 22, 2018

While Copyright Royalty Board decisions on royalties for webcasters, Sirius XM and mechanical royalties get most of the attention, the CRB also sets rates paid by “business establishment services” for the “ephemeral copies” made in their music businesses. Business establishment services are the companies that provide music to businesses to play in retail stores, restaurants and other commercial establishments. These services have come a long way from the elevator music that once was so derided – and now set the mood in all sorts of businesses with formats as varied as the commercial businesses themselves.  While the rates paid by these services pay for music rights is a little off-topic for this blog, these rates are a bit unusual, so they are worth mentioning.  The Copyright Royalty Board just announced a proposed settlement between the services that were participating in the CRB case and SoundExchange which will raise the rates gradually from the current 12.5% of revenue to 13.5% over the next 5 years, with a minimum annual fee of $20,000, up from $10,000. These rates, which apply to any company that does not negotiate direct royalties with the sound recording copyright holders, go into effect in 2019 and will be in place through 2023. Comments on these proposed rates are due June 18, though CRB rules limit the consideration of comments from those who were not participants in the proceeding.more

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Copyright Being Used To Prevent Actress From Showing Her Own Demo Reel

13 08 2018

Tech Dirt

Mike Masnick

Lawyer Stephen Doniger seems to be going out of his way to file lawsuits that involve creative interpretations of copyright (and by “creative” I mean “wrong.”) You may recall that Doniger was the lawyer behind Playboy suing Boing Boing for copyright infringement for linking to an Imgur collection of Playboy centerfolds. That case went so poorly that the judge tossed it out in just two months. Before that, Doniger made a name for himself (I kid you not) being a fabric copyright troll, filing loads of lawsuits against companies offering similar designs on fabric. He’s also jumped in on the whole situation created by the “Blurred Lines” mess by filing a bunch of “sounds alike” copyright cases.

It’s almost as if he’s filing all sorts of nutty copyright cases just to demonstrate for us just how ridiculous modern copyright law has become, and how far from its purpose it has strayed. Indeed, that’s about the only explanation I can find for a new filing by Doniger, as noted by the Hollywood Reporter, in which Doniger, representing director Robin Bain is suing actress Jessica Haid for using a clip of the film, Nowhereland in her own demo reel.

In short, Bain claims that Haid asked for permission to use clips in her demo reel and Bain refused (nice of him).

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Copyright and Fair Use in the Age of YouTube

13 08 2018

IP Watchdog

Katie Scholz
May 24, 2018

The opinion acknowledges, in a footnote on page 3, that videos of the type that the Klein’s created, is not unique. Instead, it is part of a growing genre of “reaction videos” in which portions of an original video are interspersed with commentary to create a new creative work… Luckily for the Kleins, their fans were ready and willing to create a legal fund for their use. YouTube has also taken action to protect some content creators subject to false DMCA notices. However, with over 800 unique users, and over 100 hours of new videos being uploaded every minute, clearly YouTube cannot be required to protect all of its content creators from false copyright infringement allegations. In light of this decision, perhaps we are approaching a time where reconsideration, and revision, of the DMCA, is warranted.

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CJEU: Re-posting content is a “communication to the public”

13 08 2018
Lex Blog
AUGUST 9, 2018
[ed’s note: EU copyright ruling]
Copying an image from a website and using it for one’s own purposes, e.g. the illustration of a memo which eventually happens to be uploaded to another website – this happens a hundred times every day. However, such conduct is a copyright infringement. This is the clear answer the Court of Justice of the European Union (CJEU) has just given in a truly remarkable judgement (judgement of 7 August 2018, C-161/17 – Córdoba)….
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Update: Ninth Circuit Holds That CRRA Is Preempted by “First Sale Doctrine”

13 08 2018
Lex Blog
AUGUST 9, 2018
The Ninth Circuit recently issued its decision regarding the validity of the California Resale Royalty Act (“CRRA”) in three consolidated appeals: Close v. Sotheby’s, Inc., No. 16-56234, The Sam Francis Foundation v. Christie’s, Inc., No. 16-56235 and The Sam Francis Foundation v. eBay Inc., No. 16-56252. 2018 WL 3322222 (9th Cir. July 6, 2018).

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Sign-in-Wrap Did Not Create Personal Jurisdiction

9 08 2018

Chicago IP Litigation

R. David Donoghue

May 25, 2018TopstepTrader, LLC v. OneUp Trader, LLC, No. 17 C 4412, Slip Op. (N.D. Ill. Apr. 18, 2018) (Leinenweber, J.).

Judge Leinenweber granted in part defendant OneUp Trader’s Fed. R. Civ. P. 12(b)(6) motion to dismiss and defendant Alsabah’s Fed. R. Civ. P. 12(b)(2) & (6) motion to dismiss for lack of personal jurisdiction and failure to state a claim in this copyright dispute involving electronic trading systems.

Personal Jurisdiction

Alsabah had to enter an agreement to use TopstepTrader’s software in which he allegedly consented to jurisdiction in Illinois. The Court held that the contract was on a spectrum between a clickwrap and a browsewrap agreement, in a type of agreement referred to as sign-in-wrap. Alsabah did not take an affirmative action to explicitly agree to the site terms, but there was affirmative action in that Asabah had to sign up for an account. During the sign up process, Alsabah would have been informed that by creating an account, he accepted the terms of service, along with a hyperlink to those terms. In fact, Alsabah clicked a “sign up” button next to a hyperlink for the terms. Without doing so, he could not have activated an account and gotten access to TopstepTrader’s website. But the “sign up” button did not clearly state that by clicking on it Alsabah was accepting the terms. So, while it was a close call, the terms and their forum selection clause were not enforceable against Alsabah.

Regarding specific jurisdiction, TopstepTrader’s location in Illinois and harm in Illinois was not sufficient to create personal jurisdiction. But Alsabah specifically sought out TopstepTrader’s website, created an account and then received multiple communications which identified TopstepTrader as an Illinois-based company. While walking into a brick and mortar store in Illinois would have been better evidence of specific jurisdiction, signing up with an Illinois business under the particular circumstances that Alsabah did was sufficient to create specific jurisdiction.

Failure to State a Claim

While OneUp Trader is correct that short, common phrases may not be copyright-protectable, OneUp Trader failed to address Topstep Trader’s argument that it is the combination of elements such as text, graphic size screen layouts, colors, charts, unique terms, etc. that is protectable. And even if the alleged copying identified in the complaint was only a small portion of the total content, that could be sufficient. Topstep Trader did not need to detail each copied element. It was enough to provide examples of the copying at the complaint stage. And a review of the exhibits showed sufficient alleged copying.

The Court dismissed Topstep Trader’s breach of contract claim, but gave Topstep Trader leave to replead with sufficient facts to show that a contract was formed that would support Topstep Trader’s breach claim.

Finally, Alsabah argued that the claims against him should be dismissed because the complaint only specifically mentioned him in limited instances. Topstep Trader, however, defined a term that combined OneUp Trader and Alsabah and referred to it collectively throughout the complaint.

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