Is Twitter a big fat copyright infringing turkey?

November 26, 2008 | by Evan Brown | 10 Comments 

Here’s a topic you can mull over if conversation gets slow during tomorrow’s Thanksgiving dinner: Does Twitter infringe your copyright every time you post to it (i.e., put up a “tweet”)?

Consider this:

One of the exclusive rights of a copyright owner (under 17 U.S.C. 106) is the right to display the work. A website displays content when it serves up pages to the end user. Posts to Twitter — though they’re only 140 characters maximum — are arguably copyright protected works. (Set aside the question of retweeting.)

Is this a picture of Twitter?

Twitter’s Terms of Service, in an earnest effort to be generous and progressive, assure users that when it comes to copyright, “what’s yours is yours.” Elaborating on this point, the Terms of Service go on to say that “[Twitter] claim[s] no intellectual property rights over the material you provide to the Twitter service.” In so many words, Twitter is saying “thanks but no thanks” to any copyright rights it might otherwise have over user-submitted content.

But by displaying tweets, Twitter is exercising one of the exclusive rights of the copyright owner. To do this lawfully, it has to have permission. And this permission is an intellectual property right. But didn’t Twitter just tell us that it doesn’t want any such right? Yes. So it has no permission. Exercise of an exclusive copyright right without permission (fair use aside) is infringement.

So should we all go out and sue Twitter for infringement? Of course not. Twitter would have a number of good defenses, which I expect may get articulated in the comments to this post. Are you really going to pay the filing fee to the Copyright Office and register the copyright in each of your tweets? You’ll have to do that before you can even show up in court. And what about injunctive relief? A court order making Twitter take down your stuff would seem to defeat the whole purpose, at least a little bit.

Similar analysis from Venkat here.

Turkey photo courtesy Flickr user stevevoght via this Creative Commons license.

Court enforces forum selection clause in web hosting agreement

November 24, 2008 | by Evan Brown | Leave a Comment 

Bennett v. Hosting.com, Inc., 2008 WL 4951020 (N.D. Cal. November 18, 2008)

Bennett filed an astounding 30-count complaint against defendant Hosting.com. Though the Managed Hosting Agreement designated Jefferson County, Kentucky to be the sole and exclusive venue for actions brought in connection with the agreement, Bennet brought the action in federal court in Northern California. Hosting.com moved to dismiss for improper venue. The court granted the motion.

Kentucky on a map

The court held that Bennett failed to prove that the forum selection clause in the hosting agreement was unreasonable. The fact that Hosting.com may have had superior bargaining power and the agreement appeared to be non-negotiable was not enough to render the agreement unconscionable. Moreover, Bennett failed to demonstrate how the forum selection clause was against any public policy of California. And the court rejected her argument that the case belonged in California because Kentucky does not recognize certain of the causes of actions in the complaint. After all, a Kentucky court could apply California law.

The court also rejected Bennett’s argument that the forum selection clause shouldn’t apply because a number of the claims arose from tort law and did not involve the agreement. This argument was rejected because many of the tort claims would require the same findings of fact as the contract-related claims. Moreover, and perhaps more importantly, the forum selection clause was broad. All the claims appeared to be “in connection with” the agreement. That was enough in this case to bring them in.

(Missing Kentucky image courtesy Flickr user dog_manor under this Creative Commons license.)

Results of Internet searches helpful in earthworm trademark case

November 17, 2008 | by Evan Brown | 1 Comment 

Cascade Mfg. Sales, Inc. v. Providnet Co. Trust, 2008 WL 4889716 (W.D. Wash. November 12, 2008)

Cascade Manufacturing makes and sells composting bins in which earthworms “enhance and accelerate the composting process.” Cascade owns a federal trademark registration for WORM FACTORY. It sued its competitor Providnet Co. for trademark infringement over Providnet’s use of the mark GUSANITO WORM FACTORY. Cascade moved for a preliminary injunction against Providnet’s use of its “worm factory” mark. The court granted the motion.

Worms enhance and accelerate composting

Worms enhance and accelerate composting

One of Providnet’s arguments against the injunction was that “worm factory” is a generic term for the types of products being sold under the respective marks. To refute this contention, Cascade introduced evidence of Internet searches supporting its claim that the products at issue are referred to as “worm bins,” and that “worm factory” refers to Cascade’s particular product. The court found this evidence to be instructive.

Earthworm picture courtesy Flickr user Rick Harris under this Creative Commons license. Redistributed here under the same license.

Government spam blocking not a violation of First Amendment right to petition

November 6, 2008 | by Evan Brown | Leave a Comment 

Ferrone v. Onorato, No. 07-4299, 2008 WL 4763257 (3rd Cir. October 31, 2008)

The Third Circuit Court of Appeals has held that a county government did not violate a citizen’s First Amendment right to petition the government for a redress of greivences when the county set its spam filters to block all email from the citizen’s domain. There was no evidence that such blocking was done with intent to deprive the citizen of his Constitutional rights, or with reckless disregard of those rights.

The founding fathers managed Spam

The Founding Fathers managed Spam

The Allegheny County, Pennsylvania office of economic devlopment was getting a lot of email from press@rock-port.com. A county official directed that his IT staff block all future messages sent from that address. Accidentally, however, the filter was set to block all messages from the @rock-port.com domain from being sent to any county account.

Plaintiff Ferrone, who was already in a dispute with the county, tried sending 14 email messages to various county officials over the course of five weeks. Because of the spam filter settings, the messages did not get through. So Ferrone sued, claiming a violation of the First Amendment right to petition the government for a redress of grievences. The county moved for summary judgment and the court granted the motion. Ferrone sought review with the Third Circuit. On appeal, the court affirmed.

The court held that the First Amendment’s prohibition on the “abridgement” of the right to petition the government requires a plaintiff to show an actual intent on the part of the government to diminish this right. The court refused to accept Ferrone’s argument that the act of blocking email messages alone, without an examination of the government’s intent, would rise to the level of a constitutional violation. Rejecting Ferrone’s attempts to “plump” up his “specious claim” by throwing in the First Amendment, the court held that no reasonable factfinder could have found a violation of Constitutional rights.