Greenberg Smoked Turkeys, Inc. v. Goode-Cook, Inc., No. 10-621, (Complaint filed November 23, 2010, E.D. Texas) [Download the Complaint]
Happy Thanksgiving. I’m grateful for your continued support and interest in Internet Cases. It truly is a pleasure to write these posts and to get your feedback and engagement. And it’s also a pleasure to bring you news of this ultra-timely new copyright lawsuit.
Greenberg Smoked Turkeys, as you might expect, sells turkeys. Since 1987 it has distributed these turkeys with some simple instructions, comprised of three short paragraphs. You can read these instructions which are embedded in the complaint. It posted these instructions on its website in 2003.
Some time thereafter, Greenberg alleges, its turkey selling competitor copied the instructions and began using the instructions on its own website. Thus this lawsuit.
Infringement claims over instructions can be a tricky endeavor. In copyright law, there’s something called the “merger doctrine.” This relates to the idea-expression dichotomy: ideas are not copyrightable but their expression is. Simple instructions or directions may not pass this threshold: in their simplicity, they may be expressing something in the only possible way. That kind of expression does not rise to the level of copyrightability.
Objection 1: Firesheep claims that its purpose is to demonstrate security vulnerabilities and is not intended for nefarious purposes. Would not what it does be illegal otherwise? If it complained about others using its code for similar purposes, would that not illustrate that its objective is other than educational and at that point it would then be breaking the law?
Objection 2: Firesheep has put its code out there and others should be able to use it as they see fit, especially to protect themselves from how the Firesheep code may be used. Further, all Blacksheep does is provide the tool. It is the individuals using it who are the infringers. Blacksheep should be left out of the equation.
On the contrary, if by “leveraging” Firesheep’s code, Blacksheep causes a copy of the Firesheep code to be made, this copying, if unauthorized by Firesheep, would seem to constitue an infringement.
I answer that, Blacksheep markets its product for the very purpose of combatting Firesheep, so one may find that Blacksheep has distributed such “device” with the object of promoting its use to infringe copyright, as shown by its clear expression to foster infringement. As such, Blacksheep could be contributorily liable for the conduct of its users.
Reply to Objection 1: One’s characterization of his own purpose does not ultimately determine whether that purpose is legal. Consider the law’s unwillingness to exhonerate a person accused of inflicting a black eye based on the defense that the assault was to study of the biological origins of bruising. But just below the surface here is the sentiment of the “unclean hands” doctrine. A court will not award relief to a party who comes to court with “unclean hands.” It may seem unfair for Firesheep to be so exploitative of others (privacy rights) and at the same time complain that others are being exploitative of its copyright rights.
Reply to Objection 2: The stated purpose of education or furtherance of the public interest, should not preclude Firesheep from claiming copyright in its code. Consider that no reasonable person will deny public television stations’ claim of copyright on their programming. One would infringe by posting NOVA to YouTube.
Design Furnishings, Inc. v. Zen Path LLC, No. 10-2765, 2010 WL 4321568 (E.D. Cal. October 21, 2010)
Decision shows court’s willingness to crack down on overreaching rights holders and abusive DMCA takedown practices.
Plaintiff and defendant both sell wicker furniture on eBay. Defendant sent 63 notices to eBay complaining that plaintiffs auctions infringed on defendant’s purported copyright in the furniture.
So plaintiff filed a lawsuit over the barrage of DMCA takedown notices, claiming, among other things, that defendant violated 17 U.S.C. 512(f) by knowingly and materially misrepresenting that plaintiff’s eBay auctions contained infringing material. Plaintiff asked the court to grant a temporary restraining order (TRO), stopping defendant from sending the notices to eBay. The court granted the motion.
The court found that plaintiff would likely succeed on its Section 512(f) claim because of the strong inference that defendant knew it did not have a valid copyright claim. On this point, the court found that the defendant appeared to be claiming copyright protection in the industrial design of the wicker furniture. But the Copyright Act excludes “useful articles” from the scope of copyright protection.
The court also found plaintiff might suffer irreparable harm if defendant were permitted to keep sending the bogus DMCA takedown notices. If eBay were to suspend plaintiff’s account, plaintiff might lose prospective customers and goodwill. This sort of harm was intangible and not capable of measurement. Because of the risk of harm, the court also found that the balance of equities tipped in plaintiff’s favor.
Finally, the court found that the TRO would serve the public interest. On this point the court made the intriguing observation that eBay’s policies of taking down content upon the mere allegations of infringement reverses the ordinary burden of proof in copyright infringement matters. The court granted the TRO to prevent defendant from “effectively shut[ting] down a competitor’s business on eBay simply by filing the notice that the seller’s product allegedly infringes on the complaining party’s copyright.”
“Performance” under Copyright Act requires “contemporaneous perceptibility”.
U.S. v. ASCAP, — F.3d —, No. 09-539 (2d Cir. September 28, 2010).
Yahoo and RealNetworks commenced a proceeding to determine the rate of a “blanket license” they would pay to ASCAP to perform musical works over the internet (e.g., through streaming services). (As an aside, such actions are brought in the U.S. District Court for the Southern District of New York pursuant to an antitrust consent order entered way back in the 1940′s.)
ASCAP wanted as big a piece of the pie as possible and argued that it should be paid royalties for songs that are downloaded. Remember, ASCAP only collects fees for the public performance (not the distribution or copying) of musical works. So it asked the court to find that each time a user downloads a file, that should be treated as a performance, and thus ASCAP should be entitled to payment.
The district court disagreed that a download is a performance as defined by the Copyright Act. ASCAP sought review with the Second Circuit. On appeal the court affirmed, agreeing that a download is not a performance.
The analysis is straightforward: The Copyright Act grants copyright owners the right, among other things, to perform the copyrighted work publicly. Under the Copyright Act, to “‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process.” Since a download plainly is neither a “dance” nor an “act,” the court had to determine whether a download of a musical work fell within the meaning of the terms “recite,” “render,” or “play.”
The court looked to dictionary definitions of the terms “recite,” “render” and “play” to observe that all three actions entail contemporaneous perceptibility. It found that music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.
In more detail, the court said that:
[music downloads] are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded. Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work, as defined by [the Copyright Act].
So ASCAP’s piece of the pie was not as big as it wanted.
State v. Boyd, 2010 WL 3565414 (Ohio App. 1 Dist. September 15, 2010)
Defendant was convicted under Ohio state criminal law for selling pirated DVD movies on a street corner. This apparently was the first ever prosecution under a law — a “record pirating statute” — enacted in 1976 (which was two years before the Copyright Act took effect). Defendant sought review of his conviction with the state appellate court. On appeal, the court reversed the conviction.
The court held that the state record pirating statute (R.C. 1333.52) was preempted by Section 301 of the Copyright Act (17 U.S.C. 301).
It was not clear which subsection of the record pirating statute defendant had been accused of violating. The statute provides:
No person shall purposely do either of the following: (1) Transcribe, without the consent of the owner, any sounds recorded on a phonograph record, disc, wire, tape, film, or other article on which sounds are recorded, with intent to sell or use for profit through public performance any product derived from the transcription. . . .
No person shall purposely manufacture, sell, or distribute for profit any phonograph record, tape, or album of phonographic records or tapes unless the record and the outside cover, box, or jacket of the record, tape, or album clearly and conspicuously discloses the name and street address of the manufacturer of the record, tape, or album, and the name of the performer or group whose performance is recorded. . . .
The Copyright Act expressly preempts certain state-law actions. Section 301 states that all legal or equitable rights that are equivalent to any of the exclusive rights conferred by the Copyright Act and that come within the subject matter of copyright . . . are governed exclusively by the Copyright Act.
In this case, there was no dispute that the movies were within the subject matter of federal copyright law. The more detailed analysis came in examining the question of whether the work was governed exclusively by the Copyright Act. That inquiry looks to see whether there is a qualitatively different “extra element” in the state law claim beyond what is required to show copyright infringement.
The court looked to two similar Ohio cases in which defendants had engaged in similar conduct. In State v. Perry, the Ohio supreme court found that the statute supporting the prosecution for “unauthorized use of property” by uploading and downloading computer software to an internet bulletin board service was preempted. In State v. Moning, the court held that a computer crime statute that prohibited the unauthorized access to data in a database was not preempted. The unauthorized access provided the extra element in that case.
West Bay One v. Does 1 – 1,653, — F.Supp.2d. —, 2010 WL 3522265 (D.D.C. September 10, 2010)
Achte/Neunte Boll Kino Beteiligungs v. Does 1 – 4,577, — F.Supp.2d —, 2010 WL 3522256 (D.D.C. September 10, 2010)
In mass copyright infringement cases against alleged traders of copyrighted movies via Bittorrent, unknown defendants had no reasonable expectation of privacy in their subscriber information held by internet service provider.
Several unknown “Doe” defendants who were sued for copyright infringement for trading movies via Bittorrent moved to quash the subpoenas that the plaintiff copyright owners served on the defendants’ internet service providers.
The subpoenas sought subscriber information such as the defendants’ names, addresses and MAC addresses, so that they could be named as defendants in the copyright litigation.
Defendants moved to quash the subpoenas, arguing that their subscriber information was private information that should not be disclosed pursuant to a Rule 45 subpoena. The court denied the motions and ordered the subscriber information produced.
The court held that the defendants did not have a reasonable expectation of privacy in their subscriber information held by the internet service providers. It cited to a number of cases that supported this holding, each of which had found that a person loses his or her expectation of privacy in information when that information is disclosed to a third party. See Guest v. Leis (6th Cir.), U.S. v. Hambrick (4th Cir.), and U.S. v. Kennedy (D. Kan.).
In footnotes, the court also addressed the potential First Amendment rights that the defendants would have to engage in anonymous file sharing. It quickly dispensed with any notion that such activities were protected in this case, as the pleadings on file set forth a prima facie case of infringement. “[C]ourts have routinely held that a defendant’s First Amendment privacy interests are exceedingly small where the ‘speech’ is the alleged infringement of copyrights.”
Let’s set aside for a moment any objections or snickering we might have about Righthaven’s approach, or any disdain we may feel about spamigation in general. There’s one paragraph in the Angle complaint which demonstrates a plaintiff mindset that is over the top on just about any reasonable scale.
In addition to the ususal demands for copyright infringement relief in the complaint (e.g., statutory damages, costs, attorney’s fees, injunction, etc.), Righthaven asks that the court:
[d]irect the current domain name registrar, Namesecure, and any successor domain name registrar for the Domain to lock the Domain and transfer control of the Domain to Righthaven.
This is a copyright lawsuit, not one for trademark infringement or cybersquatting. Nothing in the Copyright Act provides the transfer of a domain name as a remedy. Such an order would be tantamount to handing the whole website over to Righthaven just because there may have been a couple of infringing items.
The Copyright Act does provide for the impounding and disposition of infringing articles (See 17 USC 503). So it’s plausible that a court would award the deletion of the actual alleged infringing articles. Or if it wanted to be weirdly and anachronistically quaint about it, could order that the infringing files on the server be removed and somehow destroyed in a way additional to just being deleted. In any event, there’s no basis for a court to order the transfer of a domain name as a result of copyright infringement.
I’ll let you, the reader, decide what you will about Righthaven. But if you decide that their tactics are silly, and in some cases uncalled-for, you won’t be alone.
BMMSOFT, Inc. v. White Oaks Technology, Inc., 2010 WL 3340555 (N.D.Cal. August 25, 2010)
Plaintiff, a software development company, sued defendant, a company that was performing software installation services for it client, the U.S. Air Force. Plaintiff alleged that defendant violated the End User License Agreement (“EULA”) for the software by copying and distributing the software in violation of the terms of the EULA.
Defendant moved for summary judgment, arguing that it should not be bound by the EULA, since when it purportedly clicked on the “I Agree” button during installation, it was doing so as an agent on behalf of a disclosed principal, namely, the federal government.
The court agreed, finding that the purchase orders clearly disclosed that defendant would be installing the software on behalf of its government client. And the terms of the EULA were clear in designating that the “You” authorized to use the software was not the defendant, but the government, at the location specified in the order.
So the court threw out the breach of license claim. One is left to wonder why facts that support copying and distribution of the Software in a manner prohibited by the terms of the EULA would not also support copyright infringement. But apparently there was no such claim in this case. Perhaps there are some nuances of the defendant’s conduct that would not necessarily violate a condition, but be merely a breach of covenant.
Three adult media entertainment producers filed suit yesterday in the U.S. District Court for the Northern District of Illinois alleging copyright infringement against hundreds of anonymous defendants accused of trading videos using Bittorrent. This kind of action resembles the much-criticized mass litigation undertaken by the U.S. Copyright Group against hordes of unknown accused Bittorrent users trading movies like Hurt Locker.
In this case, the subject matter promises to be more provocative. Plaintiff Millennium TGA is known for producing content in the “transsexual adult entertainment niche.” Plaintiff Lightspeed Media Corporation is alleging infringement of content including collections relating to its Jordan Capri and Tawnee Stone websites. Plaintiff Hard Drive Productions produces the Amateur Allure website.
Christen v. Iparadigms, LLC, No. 10-620, 2010 WL 3063137 (E.D.Va. Aug. 4, 2010)
Plaintiff was a graduate student and one of her professors uploaded a couple of plaintiff’s papers to the web-based plagiarism detection service Turnitin. You may remember how the Fourth Circuit held last year that this uploading and use of students’ papers is a protected fair use that would not subject Turnitin to liability for copyright infringement.
Perhaps recognizing the difficulties of a copyright case against Turnitin, plaintiff pursued various state-law, non-copyright claims based on Turnitin’s inclusion of plaintiff’s works in its database. So plaintiff sued for conversion, replevin and unjust enrichment.
The Copyright Act specifically preempts all state-law rights that are equivalent to those protected under federal copyright law. Many courts apply a two-pronged test to determine if a particular state-law claim is preempted: (1) the work must be within the scope of the subject-matter of copyright, and (2) the rights granted under state law must be equivalent to any exclusive rights within the scope of federal copyright.
The court found that there was “no question” that the works at issue — plaintiff’s unpublished manuscripts — fell within the subject-matter of copyright protection.
It went on to find that plaintiff’s conversion claim was “simply a copyright infringement claim dressed in state-law clothing.” And the rights in the works that the plaintiff asserted — mainly, to use and reproduce the copyrighted work — were exclusive rights granted by the Copyright Act. The conversion claim also failed because plaintiff was not seeking the return or destruction of tangible property, just code stored on the Turnitin server.
The court dismissed the replevin claim on similar grounds. Because there was nothing tangible to be purged or returned, an action in replevin would not be viable. But even more importantly, replevin actions are no longer recognized under Virginia law, as the cause of action was repealed by statute.
Finally, the court held that plaintiff’s unjust enrichment claim failed. Citing to Nimmer and a batch of cases holding unjust enrichment cases to be preempted by the Copyright Act, the court held that a state-law cause of action for unjust enrichment should be regarded as an “equivalent right” to rights granted under the Copyright Act.