Free for a Fee

Eric Goldman
Technology & Marketing Law Blog
December 20, 2018

The parties compete for the provision of health services related to traveling, like immunizations. The defendant Avance bought keyword ads triggered on the plaintiff’s trademark “Passport Health.” In 2013, the trademark owner complained, and Avance apparently dropped the Google ad buy. However, apparently everyone forget about Bing. In 2017, the trademark owner reemerged, complaining about the Bing ad buys. This lawsuit ensued.

It doesn’t go well for the trademark owner.

Case citation: Passport Health, LCC v. Avance Health System, Inc., 2018 WL 6620914 (E.D.N.C. Dec. 18, 2018)

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/12/your-periodic-reminder-that-keyword-ad-lawsuits-are-stupid-passport-health-v-avance.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Rashanda Bruce
LexBlog
December 21, 2018

The Second Circuit Court of Appeals returned a favorable ruling for major record companies in a copyright infringement case on December 12, 2018.  The ruling came down in Capitol Records, LLC v. ReDigi Inc., a lawsuit involving an online platform (“ReDigi”) designed to enable the lawful resale of purchased digital music files.  The Second Circuit concluded that ReDigi infringed the record companies’ exclusive rights under Section 106 of the Copyright Act.

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The content in this post was found at https://www.lexblog.com/2018/12/21/buyer-keeper-forever-second-circuit-affirms-decision-music-files-purchased-online-cannot-resold-online/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Eric Goldman
Technology & Marketing Law Blog
December 14, 2018

Today’s case comes on post-jury motions in one of several litigation battle royales in the mattress industry. (Aside: I HATE blogging mattress cases because players in that industry litigate to the death, resulting in overlong opinions). The jury found that “Defendants did not infringe Select Comfort’s trademark rights in SLEEP NUMBER, WHAT’S YOUR SLEEP NUMBER?, SELECT COMFORT, or COMFORTAIRE.” Select Comfort sought to overturn the jury verdict based on the initial interest confusion doctrine. The court says no (emphasis added):

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/12/if-your-trademark-case-depends-on-showing-initial-interest-confusion-save-your-money-select-comfort-v-john-baxter.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Timothy Geigner
Tech Dirt
Dec. 6, 2018

Well, as you may have heard, Nintendo suffered its own high-profile leak recently, with the forthcoming Super Smash Bros. Ultimate finding its way onto the internet before the game has even been released. As you would expect, Nintendo got its lawyers busy firing off DMCA notices for all kinds of sites that were hosting the actual game that leaked. It also, however, decided to issue copyright strikes on YouTubers who showed any of the games content.

The YouTuber named Crunchii has been uploading new remixes from Super Smash Bros. Ultimate to his channel over the past few days, which has drawn the ire of Nintendo. Crunchii’s channel has been hit with copyright strikes from Nintendo of America, which has caused him to be locked out of his account and will result in its termination over the next few weeks.

There is also a YouTuber named Dystifyzer, who also posted songs from Super Smash Bros. Ultimate’s soundtrack. He too has been hit with numerous copyright strikes from Nintendo and is expecting his YouTube channel to be gone by next week.

This is stupid on so, so many levels. First, combating leaks with copyright notices rarely works at all, never mind well. Once the bell has been rung on the internet, it’s nearly impossible to fully unring it. On top of that, going after YouTubers that are simply showing off the leaked product really only makes a ton of sense if you don’t have a ton of confidence in the quality of that product. If you believe the product is awesome, you should want it shown off, even prior to release. Hell, maybe especially just prior to release, as a way to hype the game even further and push more sales.

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The content in this post was found at https://www.techdirt.com/articles/20181128/10221041122/nintendo-attempts-to-bottle-leak-genie-with-copyright-strikes.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Neal Klausner of Davis & Gilbert LLP, Howard Weingrad of Davis & Gilbert LLP & Claudia G. Cohen of Davis & Gilbert LLP
LexBlog
December 5, 2018

A recent decision from a Pennsylvania federal court underscores that there is generally no copyright protection in an actual building or a skyline of buildings; instead, the protection is in the particular photograph or rendering of the building.

Creating an original depiction of a building or skyline that is not substantially similar to the photograph or rendering may provide protection from liability for copyright infringement. Other federal courts, however, have held that actual use of a pre-existing photograph of a skyline of buildings, or a portion of such a photograph, without the copyright owner’s authorization, may constitute copyright infringement.

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The content in this post was found at https://www.lexblog.com/2018/12/05/when-does-copying-a-photograph-of-a-building-constitute-copyright-infringement Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Ryan Compton and Thomas Holguin
LexBlog
November 29, 2018

After many years of litigation and lobbying expenses, the battle over pre-1972 music rights has finally been ended.  On October 11, 2018, President Trump signed the Music Modernization Act (“MMA”), legislation that purports to provide additional protection for song writers and publishers, as well as to provide a clearer licensing landscape for those who use such music. The bill revamps Section 115 of the U.S. Copyright Act in three major aspects:

1. Pre-1972 Sound Recordings

2. Licensing

3. Royalties for Music Producers

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The content in this post was found at https://www.lexblog.com/2018/11/29/music-modernization-act-2/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Eric Goldman
Technology & Marketing Law Blog
November 29, 2018

For the past couple of years, I have invested significantly in all things emojis. This post rounds up everything I’ve done during that period.

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/11/everything-you-wanted-to-know-about-emojis-and-the-law.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Eric Goldman
Technology & Marketing Law Blog
November 26, 2018

Starting in 2002 and continuing for about a decade, 1-800 Contacts systematically locked up many of its online contact lenses retail competitors into settlement agreements that prohibited the parties from bidding on each other’s trademarks at the search engines. Perhaps not coincidentally (this was the subject of some back-and-forth among experts), 1-800 Contacts unapologetically and consistently charges higher prices than its online retailer competitors.

In 2016, the FTC filed an administrative complaint against 1-800 Contacts, alleging that its competitive advertising restrictions were illegal restraints on trade. The enforcement action implicates a number of complex topics, including: (1) when are settlement agreements pro- or anti-competitive; (2) when (if ever) can competitors agree to restrict advertising; and (3) when does competitive keyword advertising infringe trademarks? The case’s complexity virtually ensured long, fact-intensive, divisive, and very expensive proceedings. Both sides lawyered (10+ on each side) and experted up. . . .

Earlier this month, the Commission affirmed the ALJ ruling in a 3-1 ruling (one commissioner was recused). The majority opinion completely vindicates the FTC’s decision to bring the case. The dissent’s opinion, in contrast, raises numerous substantive and procedural flaws with the majority decision. The split of opinion exposes some potentially significant ideological fault lines that might define this cohort of commissioners.

Case citation: In the Matter of 1-800 Contacts, Inc., 2018 WL 6078349 (FTC Docket #9372, Nov. 7, 2018)

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/11/restricting-competitive-keyword-ads-is-anti-competitive-ftc-v-1-800-contacts.htm Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Timothy Geigner
Tech Dirt
June 19, 2019

. . . a deep fake of Kim Kardashian that altered an interview given to Vogue Magazine, such that she appears to be discussing a conspiratorial group called Spectre and giving her own fans a hard time. It’s all fairly parodic and not something that passes the most basic smell test. And, yet, as the discussion rages on as to how sites should respond and handle deep fakes, this particular video was taken down due to a copyright claim . . . .

As hard as it is generally to come up with an answer to this homework assignment, it is all the more difficult to answer this question with copyright law. Copyright very specifically carves out space for all of the above to make room for fair use, which is why it so boggles the mind that YouTube agreed to take down this Kim Kardashian video in the first place. The entire point of this particular deep fake is far less malicious than the Pelosi video and seems to be completely geared toward humor and parody. Suggesting that moves like this are a problem because they’re only available to the wealthy misses the point: moves like this aren’t legally available to anyone at all, rich or otherwise.

None of this is to say that the ability to create deep fakes isn’t a problem, of course. But it sure as hell isn’t a problem that can be easily solved by throwing copyright law at it.

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The content in this post was found at https://www.techdirt.com/articles/20190619/05392542429/kim-kardashian-deep-fake-video-removed-copyright-claim.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com