Google Goes on Offensive in AdWords Trademark Lawsuit–Google v. John Beck Amazing Profits

3 08 2009

By Eric Goldman

Google, Inc v. John Beck Amazing Profits, LLC, C09 03459 (N.D. Cal. complaint filed July 27, 2009). [Warning: 1.4MB file] The Justia page.

A couple of interesting developments in John Beck Amazing Profits v. Google, the putative nationwide trademark owner class action lawsuit against Google over AdWords.

First, as of last week, the plaintiff had not served the complaint on Google even though it’s been on file for over 2 months. I’m not sure what’s the hold-up, but in my limited experience, delays in serving an already-filed complaint are often a leading indicator of a troubled lawsuit.

Second, last week Google sued the individual named plaintiff in that case, John Beck Amazing Profits, for both a declaratory judgment that AdWords doesn’t infringe plus a breach of contract claim that the lawsuit filing breached the AdWords contract provision requiring any AdWords-related lawsuit to be brought in California. Going on the offensive against a plaintiff is characteristic of Google’s litigation strategy; Google often tries to turn the tables on its litigation opponents. In this case, a major goal for Google surely is to get the case out of the Eastern District of Texas, which has been a dangerous venue for patent defendants.

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Oy Tenenbaum! RIAA wins $675,000, or $22,500 per song

31 07 2009

A Boston federal jury has ordered Joel Tenenbaum to pay a total of 5,000—,500 per song—to the major record labels for willfully infringing 30 songs by downloading and distributing them over the KaZaA peer-to-peer network. The figure is closer to the 2,000 award in the first Jammie Thomas-Rasset trial than the .92 million figure from the second trial.

The verdict came down at late Friday afternoon after less than three hours of deliberation.

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DRM for news? Inside the AP’s plan to “wrap” its content

28 07 2009

The Associated Press last week rolled out its brave new plan to “apply protective format to news.” The AP’s news registry will “tag and track all AP content online to assure compliance with terms of use,” and it will provide a “platform for protect, point, and pay.” That’s a lot of “p”-prefaced jargon, but it boils down to a sort of DRM for news—”enforcement,” in AP-speak.

But how could that possibly work?

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Griping Blogger Gets Fair Use and Anti-SLAPP Win–Sedgwick v. Delsman

27 07 2009

By Eric Goldman

Sedgwick Claims Management Services, Inc. v. Delsman, 2009 WL 2157573 (N.D. Cal. July 17, 2009). The Justia page.

Judge Brown concluded that the republication of the photos on the “WANTED” postcards was fair use. She summarized her analysis:

Defendant’s uses of the photographs of North and Posey are highly transformative and serve an entirely different function than originally intended.

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Judge rejects fair use defense as Tenenbaum P2P trial begins

27 07 2009

There will be no fair use defense for Joel Tenenbaum at trial this week.

Everything about the Tenenbaum case has been highly unusual, and Judge Nancy Gernter’s final pretrial order was no exception. Tenenbaum goes on trial in Boston today at 9:00am for sharing 30 songs on KaZaA, but the judge did not make a ruling on the fair use issue until early this morning. And what a ruling it was.

Tenenbaum has essentially admitted to the accusations during his depositions, and recording industry investigators have the hard drives from his computers. These two facts alone make the case materially different from the first US file-sharing trial, the case against Jammie Thomas-Rasset in Minnesota, where Thomas-Rasset claimed she didn’t share the files in question and said that the hard drive in use at the time had been destroyed.

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Start-Up Plans to Make Journalism Pirates Pay Up

27 07 2009
Published: July 26, 2009
NYT

Online piracy isn’t just a problem for music companies; it hurts newspapers and magazines as well. News organizations are now trying to do something about the many Web sites that simply copy articles and paste them into their own pages.

Last week The Associated Press said it would put warnings against copyright violation on its articles and digitally track illegitimate uses. It didn’t say what it would do to violators, but it has been quick to use legal means to block reuse of its material.

A start-up called Attributor, based in Redwood City, Calif., is proposing an approach that is more carrot than stick. It has developed an automated way for newspapers to share in the advertising revenue from even the tiniest sites that copy their articles.

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AP Wants to DRM the News

24 07 2009

Techdirt’s story about how the Associated Press plans to “encapsulate” its digital content.

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Canada: We actually want to hear from public on copyright

23 07 2009

In 2008, the Canadian government discovered a new “third rail” of politics: copyright reform. Long considered a wonky subject of interest only to legislators and rightsholders, interest in copyright has exploded in recent years, and Canadians showed a keen interest in talking about term length, time shifting, DRM circumvention rules, format shifting, mashups, remixes, the public domain, and the levies that Canadians currently pay on things like blank CD-Rs.

When Bill C-61 was introduced in June 2008, though, it was instantly clear that consensus would be hard to find. Consumers wanted rights and flexibility, while copyright holders wanted… well, I’ll let them explain it.

“We would be deeply concerned if the Bill allows people to copy artists’ work onto media devices like iPODS without compensation for creators; and, also if existing levies and royalties are affected by this Bill,” said Brad Keenan, Director of the Performers’ Rights Society and Sound Recording Division at the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA).

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Tenenbaum circus enters big top next week; what to expect

20 07 2009

The second full trial of a US peer-to-peer file swapper begins next week. Sublimeguy14@KaZaA (aka Joel Tenenbaum, a Boston College grad student) will make his way through the marble corridors of Boston’s federal courthouse next Monday to face a set of RIAA lawyers who are fresh from a .92 million victory in the Jammie Thomas-Rasset case and eager to go 2-0 in such prosecutions.

But Tenenbaum has a secret weapon—Harvard Law professor Charles Nesson, who will argue that the 816 songs in Tenenbaum’s KaZaA share folder back in 2004 were simply a “fair use” of the recording industry’s protected work. Unfortunately, Nesson has the tendency to write this sort of thing, which appeared in a new motion just filed with the court:

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How Fair Use Enables Media Literacy to Thrive

17 07 2009

Educational Publishing

July 17, 2009

When educational publishers hear the term fair use, they often brace themselves for the argument that teachers should be able to copy, post, and reuse the material without permission as long as it’s for educational use. However, when Renee Hobbs of Temple University’s Media Education Lab and Peter Jaszi of the Washington College of Law, American University, spoke at the 2009 AEP Summit they explained that while the principle of Fair Use is important in education and educational materials, it does not trump a publisher’s copyright. In fact, in their breakout session, “How Fair Use Enables Media Literacy to Thrive,” they presented a compelling case for how Fair Use can actually help publishers enhance their own products and resources.

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