Negligence claim against RIAA fails because there was no physical injury

Andersen v. Atlantic Recording Corp., 2010 WL 4791728 (D.Or. November 18, 2010) [Download complaint]

Tanya Andersen has waged a years-long battle against the record companies after she was sued for copyright infringement for trading music files via a peer-to-peer network. She sued the RIAA and several record companies over a number of claims, including one for negligence, saying that the plaintiffs in the copyright case were negligent by “prosecuting sham litigation against” her and by failing to properly investigate the name of a pseudonymous file sharer.

The RIAA defendants moved for summary judgment on the negligence claim. The court granted the motion.

The court held that Oregon law (under which the negligence claim was brought) does not provide for the type of damages Andersen was seeking. She had claimed damages from emotional distress and physical ailments stemming from defendants’ alleged negligence.

Oregon’s “impact rule,” requires a “physical touching” for there to be emotional distress damages in cases like this. In this case, the actions of the plaintiffs that gave rise to Andersen’s alleged harm were the aggressive and otherwise objectionable tactics in pursuing the copyright litigation. Absent evidence of the required physical impact, her negligence claim failed.

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Class action lawsuit challenges Bittorent lawsuit factory’s business model

Well this is interesting. One of the bittorrent copyright defendants who has been victimized targeted by the law firm of Dunlap, Grubb & Weaver, a/k/a the US Copyright Group, has filed a class action lawsuit against the law firm. The complaint [download], filed yesterday (November 24), is 96 pages long, includes 456 paragraphs of allegations, and contains 25 claims for relief. The claims include extortion under the Hobbs Act, common law extortion, conspiracy, violation of the Computer Fraud and Abuse Act, and a slew of fraud claims. Mounting a defense to this gargantuan effort is certainly going to cut into the profit margin that the US Copyright Group should expect from its dubious business model.

If Thomas Aquinas considered the copyright implications of Firesheep and Blacksheep

Whether Blacksheep infringes copyright by “leveraging” Firesheep’s code?

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.

[Um, what is this?]

Court orders company to stop sending bogus DMCA notices to eBay

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.”