Copyright/Intellectual Property

Why is it so difficult to the make the case against counterfeiting

10 December 2017

From IPKat:

Why do there seem to be so many willing purchasers of counterfeit goods? After all, counterfeiting is a business and it works only if there are willing purchasers. Unless one is prepared to believe that all purchasers of counterfeit products do so on an innocent basis, then the reasonable conclusion is that at least some of them are complicit.

. . . .

Moral arguments, equating counterfeiting with stealing, do not seem to go very far with swathes of certain populations (have you had a talk about counterfeiting with a millennial lately?). Criminalizing counterfeiting, and the penal sanctions that go with it, may carry some weight, especially against the middlemen who import and then distribute the counterfeit goods. But the criminal sanction reaches only a small number of offenders.

. . . .

Ball’s primary argument focuses on the claim that counterfeit goods are “dangerous” and “pose a serious threat to consumers and businesses alike”, with special emphasis on product safety. The second line of attack is that counterfeiting contributes to economic hardship at the aggregate level, affecting innovation, stealing from legitimate companies, evading the payment of taxes, assisting illicit trade and even terrorism.

Link to the rest at IPKat

Trademark Protection

9 December 2017

Cease and desist letters are used by trademark owners to give notice to those that are using an individual’s or organization’s trademark without authorization. This is part of policing the use of their trademarks and failure to do so may result in the loss of protection for their marks.

While there is no mandated form that these letters/notices must take, they’re generally form letters and pretty dull.

Americans (at least those who watch sports on television) have become accustomed over the last few months to seeing a commercial for Bud Light beer that uses the phrase, “Dilly Dilly”. (example below)

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Anheuser-Busch delivered a cease-and-desist in an unconventional manner to stop Modist’s Dilly Dilly IPA, which it claims infringes its trademark for the phrase “Dilly Dilly”.

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And here’s a copy of the cease-and-desist letter.

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Toymaker Lego wins Chinese copyright case against brick imitators

8 December 2017

From Reuters:

Lego has won a landmark case in China against two companies that manufactured and sold toys almost identical to its LEGO Friends range but branded Bela, the Danish toymaker said.

. . . .

It is the first time that Lego has succeeded in a copyright competition case in China, where copies of its colorful bricks and figures have been a recurrent problem as it seeks to gain share in the $31 billion toys and games market.

Earlier this year, the Beijing Higher Court passed a ruling that recognized the Lego logo and name in Chinese as ‘well-known’ trademarks in China, putting the toymaker in a better position to act against infringement of its trademarks.

. . . .

Lego, whose name is derived from the Danish “leg godt” meaning “play well”, is competing with Barbie maker Mattel Inc and Hasbro, the firm behind My Little Pony, for a slice of the Chinese market.

Link to the rest at Reuters

Creative Trademark Enforcement: Velcro

8 December 2017

From Trademark and Copyright Law:

[T]rademark owners are required to actively monitor, police, and enforce their trademarks against infringement and misuse.  Failure to do so can result in limitation of and, in the most extreme cases, a complete loss of trademark rights.  It is thus understandable that trademark owners and their lawyers tend to handle such matters via decidedly humorless cease-and-desist letters, information campaigns, trademark guidelines, and civil actions.

However, in a world where companies increasingly interact directly with consumers via social media, and where companies’ perceived misdeeds travel across the social media landscape like wildfire, legal teams are becoming more mindful about how their various public-facing intellectual property protection activities reflect on their companies’ public images.

. . . .

The Velcro Companies, the creators of the original VELCRO® brand hook and loop fasteners . . . have protected the famous VELCRO® trademark worldwide for well over sixty years.

Link to the rest at Trademark and Copyright Law

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Artist Stole Photos for $15,000 Public Art Installation

8 December 2017

From PetaPixel:

Here’s a tip for the digital age: if you’re commissioned with $15,000 to create a public art installation in a large city, don’t steal photos from the Internet and pretend they’re your own. That’s the mistake one well-known artist in Canada recently made, sparking a good deal of controversy and embarrassment.

A couple of years ago, Calgary artist Derek Michael Besant was commissioned by his city to create a temporary art exhibit that aimed to make an underpass “more neighbourly” as part of the “4th Street S.W. Underpass Enchancement Project.”

Avenue Calgary Magazine reported in 2015 that Besant — a man who formerly headed the drawing department at the Alberta College of Art and Design for 16 years — visited the underpass with a camera, recorder, and notepad, photographing and interviewing passersby to capture profiles of them.

. . . .

His final artwork, titled Snapshots, was a series of 20 giant Polaroid-style photos installed on both sides of the underpass. Each one contained a blurred portrait and quotes given by subjects Besant interviewed.

. . . .

Except the photos weren’t what Besant said they were.

Late last month, UK comedian Bisha Ali was contacted by a Canadian friend who had noticed her face staring back at him in the Calgary underpass exhibition.

. . . .

Surprised, Ali began investigating the exhibition. She soon discovered the project’s website and learned that it was a government-funded art exhibition that had a public art budget of $20,000 CAD (~$15,600).

After finding more photos of the installation, Ali realized that she recognized quite a few of the other faces in the photos — they were other comedians that she knew.

. . . .

After some more sleuthing, it was discovered that Besant had lifted the photos from the program for the 2015 Edinburgh Fringe Festival of comedy — that’s why so many of the faces were of faces that Ali recognized.

. . . .

Besant did not reply to multiple requests for comment, but did reply to an investigation that Calgary Mayor Naheed Nenshi requested in response to the outcry. In a statement, head of community services Kurt Hanson said the artist advised officials to remove the installation, and that the city was considering its “next steps.”

. . . .

Besant told Metro Calgary he had spent time in the underpass, observing panhandlers, commuters and “young tattooed guys bopping along.” He interviewed and photographed them, and paired images with quotes like “I want love” or “I walk to work.” Besant has said the quotes and pictures were intended to convey a cross-section of downtown pedestrians. But “this could be any city, anywhere,” his artist statement on the city of Calgary website reads.

Link to the rest at PetaPixel and Macleans

PG is not a professional photographer, but he does know something about the process of creating photos.

If the photographer really took his time, he could have set up a studio backdrop and taken at least 20 photos virtually identical in content and appearance to the ones he stole — in a day or less. He could have blurred all 20 of the photos at the same time with a simple preset in Lightroom.

Now, he’s an internationally recognized photographer, specializing in plagiarism and copyright infringement. And he’s almost certainly seen his last $15,000 commission.

Would you buy a cut of your favorite artists’ royalties?

5 December 2017

From Marketplace:

Music will rake in $41 billion by 2030, according to a recent report from Goldman Sachs — over 80 percent of that from streaming sites like Spotify or Pandora. Thing is, every time a song is streamed online, somebody’s getting paid royalties. Now a new company is capitalizing on this growth in a novel way.

Every time somebody streams Eminem’s “Lose Yourself” or it plays in a bar or at a football game, somebody’s collecting what are known as performance royalties. Eminem himself makes money, but in the case of “Lose Yourself,” another production company called FBT Productions is also cashing in. That’s because it owns rights to a big chunk of Eminem’s song catalog.

. . . .

Royalties from the Etta James single, “Something’s Got a Hold on Me,” recently went for almost $150,000 in a Royalty Exchange auction.

. . . .

[Royalty Exchange is] paying FBT Productions nearly $19 million for royalties from 14 years of Eminem’s recordings, including “The Eminem Show.” Royalty Flow just began offering shares in those royalties to investors.

Peter Thall, a music attorney, said musicians often have a hard time borrowing from a bank. Selling off performance royalty income can help a musician raise money.

“Songs are intangible,” Thall said. “You can’t touch an intellectual property copyrights. These things are hard for lenders to understand.”

Link to the rest at Marketplace

Google’s End Run on the Canadian Supreme Court

4 December 2017

From Hugh Stephens Blog:

Google has successfully convinced a judge in the tech industry-friendly US District Court of Northern California (covering Silicon Valley naturally) to issue a temporary injunction nullifying the enforceability in the United States of an order from a Canadian provincial court in British Columbia (BC), upheld on appeal to the Supreme Court of Canada (SCC), to delist from its global search results all references to Datalink Technologies Gateways and its counterfeit product, an internet router called the GW1000. Datalink was found by the BC court to have infringed the copyright and stolen trade secrets from Equustek, a BC company, and passed off Equustek’s products as its own.

Google agreed to block search results in Google.ca but refused to do so in its global search results until ordered to do so by the BC Supreme Court, a decision upheld by the Supreme Court of Canada. After losing its SCC appeal, Google then sought an injunction in the US blocking the enforceability of the SCC order in the US. Equustek did not appear in the US to oppose the request for injunction, arguing only that Google’s application was “unnecessary” since it had never sought to have the order enforced in the US. The global de-indexing order by the BC Court was designed to deter global sales of the infringing products but also to deter Canadians from going around Google.ca to access the offending websites through other Google domains. On this point, the Court said,

“…although Google has a website for each country to which searches made within that country default, users can override that default and access other country’s Google websites. For example, even if the defendants’ websites were blocked from searches conducted through http://www.google.ca, Canadian users can go to http://www.google.co.uk or http://www.google.fr and obtain results including the defendants’ websites.”

In seeking the injunction in the US, Google argued that the Canadian order violated freedom of expression (First Amendment of the US Constitution) and that it was protected from such an order by virtue of immunity provided to internet intermediaries through Section 230 of the Communications Decency Act (CDA), and further that the Canadian order was contrary to “international comity” (i.e. the respect for one country for the legal jurisdiction of another). The judge granted the temporary injunction on the basis of Google’s status as a neutral intermediary under Section 230 but did not address the other arguments.

. . . .

There are clearly arguments on both sides of this, and Google is far from being out of the legal woods. One result of these legal shenanigans is that we now have conflicting court interpretations, an outcome that some, such as Michael Geist who had opposed the SCC decision, have decried as leading to legal uncertainty and protracted litigation. This is probably inevitable in a borderless internet where intermediaries like Google will argue that they cannot be forced to obey national law in one jurisdiction (e.g. Canada, EU—will the US be next?) because to do so might conflict with interpretation of national law elsewhere. In other words, Google would be effectively beyond the law.

Link to the rest at Hugh Stephens Blog

Content duplication issue briefly keeps self-published chapbooks off Amazon

4 December 2017

From TeleRead:

Authors Sharon Lee and Steve Miller are running into a little static when trying to publish some of their short stories via Amazon—thanks at least in part to the automation by which Amazon has to run its self-publishing operation.

Lee and Miller have been self-publishing some of their short stories in chapbook form since long before self-publishing became the monster that it is today. They started back in the 1990s, publishing actual paper chapbooks, but in recent years closed down the paper operation and switched to electronic versions.

. . . .

Lately, Sharon Lee and Steve Miller have republished four of their previously-published short stories in e-chapbook form. The stories were and remain available as part of a larger Liaden short story collection from Baen.

. . . .

They published these stories as a pair of e-chapbooks to Apple, Barnes & Noble, Kobo, and Baen without any problem—but the trouble came in when it came time to place them on Amazon.

. . . .

When it comes to ensuring that someone isn’t trying to pull a fast one by republishing someone else’s content, [Amazon’s] automation effectively takes a similar form to plagiarism-checker Turn It In: if previously-published content appears in a new form, this calls for some special attention.

. . . .

Amazon wanted to see reversion letters to the stories, signifying that Baen returned their publication rights to Lee and Miller after their contract expired. However, those stories were never fully sold to Baen to begin with. They sold Baen anthology rights, for the purpose of that anthology, while keeping for themselves the rights to place the stories again elsewhere or self-publish them.

. . . .

Sharon Lee explains that, “in the Normal World of Publishing” this sort of thing simply isn’t done. When an author places a work with a new publisher, they sign a contract in which they agree they have the rights to do so. If it later turns out they don’t have those rights, the lawyers come out to play. But never does any publisher require or expect authors to provide a copy of their previous contract with another publisher. Lee writes:

Now, Amazon is in a strange situation; it cannot itself decide if it’s a publisher or a distributor, but in either case the demand for a copy of our contract with our publisher is out of line, and Steve and I will not comply.

Link to the rest at TeleRead

In an update to the OP, TeleRead says Amazon customer service solved the problem. PG is happy to hear that in part because the authors seem like nice people.

PG is usually on the little guy’s/gal’s side in these kind of disputes, but in this case, he understands Amazon’s concerns:

–  The plagiarism/copyright infringement checker shows that someone is submitting material that has already been published by another publisher.

–  The authors say they have the right to self-publish this material themselves.

–  When Amazon asks for a reversion letter from the authors to document their right to self-publish, the authors say they don’t have/need such a letter.

–  Amazon understands that if the authors are not telling the truth and the real rights-holder is upset, Amazon will probably be sued for copyright infringement along with the authors.

–  Zillions of people are trying to pull some sort of scam on Amazon each day.

What exclusive rights does the owner of a copyright have under US copyright law? (Note that an author typically passes these rights to a commercial publisher under a typical publishing contract.)

17 U.S. Code § 106 provides a summary. PG highlights some language that would reasonably concern Amazon:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

KDP ebooks are certainly reproductions of copyrighted material. When someone pays Amazon for an ebook, Amazon is certainly reproducing and distributing a copy of the copyrighted ebook to a member of the public.

Under Paragraph 1 of the Kindle Store Terms of Use (the agreement which governs the relationship between Amazon and a customer with respect to ebooks) “Kindle Content is licensed, not sold, to you by the Content Provider.” In Paragraph 3 of the Kindle Store TOU, in the event of any violation of the TOU, Amazon is free to revoke a user’s access to the its Service, which, by definition, includes Kindle Content.

Although licensing is not expressly mentioned as an exclusive right under 17 U.S. Code § 106, it is difficult for PG to believe that a court would not find licensing to part of the exclusive rights of a copyright owner to control the “rental, lease, or lending” of an ebook.

Considering the above, is it unreasonable for Amazon to ask for a copy of the publishing contract between the authors mentioned in the OP and Amazon?

PG thinks it’s entirely reasonable and would almost certainly would have recommended reviewing the contract between Baen and the authors if Amazon had asked him what it should do.

He probably would have also recommended contacting Baen to confirm that it only had the limited rights the authors claimed to have granted.

The fact that this “isn’t done” in the publishing business will be no help to Amazon if it is sued by someone who has exclusive rights to publish a literary work that appears on Amazon despite what the authors have told Amazon.

Generally speaking, under most commercial publishing contracts, the publisher grabs every right its attorneys can think of from authors whose work is being published. “Anthology only” rights that apply to only a single edition of an anthology are rare birds indeed.

PG says there are a lot of things that “aren’t done” and a lot more things that “are done” in the traditional publishing business that are really bad ideas.

As far as “the Normal World of Publishing” is concerned, that world is what indie authors are fleeing from when they self-publish with Amazon. Amazon is disrupting “the Normal World of Publishing” to the benefit of both authors and readers.

If you want to decrease your chances of ever making a decent living from your books, stick with “the Normal World of Publishing” and the “rules” that apply to that world.

 

 

Sex, Plagiarism and Spyware. This Is Not Your Average Copyright Complaint.

3 December 2017

From The New York Times:

Emma Cline’s 2016 novel “The Girls” was, by any measure, a triumphant debut. The novel, which takes place in California in the 1960s and centers on a teenage girl who falls into a Charles Manson-like cult, sold to Random House for seven figures in a three-book deal, and spent three months on the New York Times best-seller list. Ms. Cline, who was 27 when the novel came out, was celebrated as a major new talent.

But for the last two years, her success has been overshadowed, in private, by legal threats levied against her by a former boyfriend, Chaz Reetz-Laiolo.

This week, that long simmering dispute became glaringly public, when Ms. Cline and Mr. Reetz-Laiolo filed dueling lawsuits in federal court in San Francisco. In his complaint, Mr. Reetz-Laiolo, who is also a writer, claims that Ms. Cline plagiarized phrases and scene structures from him that appear in “The Girls,” and used spyware to read his email and other personal documents. Ms. Cline’s publisher and Scott Rudin Productions, which optioned the screen rights to “The Girls,” are also named in the suit, which seeks unspecified damages.

Ms. Cline’s countersuit calls the claims “ludicrous,” and says that the suit was motivated by jealousy, and marks the culmination of Mr. Reetz-Laiolo’s continuing effort to threaten and intimidate her into paying him a large sum of money.

. . . .

 Random House issued a statement in support of Ms. Cline, saying that “there is no basis to the plagiarism claims made by Mr. Reetz-Laiolo and we look forward to presenting our arguments in court.”

. . . .

 The unusual and dramatic legal clash over “The Girls” is far from a standard copyright complaint. There are high-powered lawyers representing both parties, in a convoluted dispute that includes accusations of physical and emotional abuse and charges of digital spying and invasion of privacy.

. . . .

 “What should have been a happy milestone — publishing my first novel — has turned into a yearslong nightmare perpetrated by someone I believed I had finally escaped from,” Ms. Cline said in a statement to The Times.

Link to the rest at The New York Times

Yet another story to reinforce PG’s gratitude for being married to Mrs. PG.

Joint Authorship under UK copyright law

1 December 2017

From The 1709 Blog:

In the Florence Foster Jenkins decision, as discussed here, Hacon J gave a useful summary of UK copyright law on the issue of joint authorship. The summary, as set out in para. 54 of the judgment, almost reads as Hacon’s ‘10 commandments’ on joint authorship under UK copyright law:

“(1) A party will be joint owner of the copyright in a work only if he or she (or in the case of a company, its employees) collaborated in the creation of the work. The collaboration must be by way of a common design, i.e. co-operative acts by the authors, at the time the copyright work in issue was created, which led to its creation.
 
(2) The contribution of each author must not be distinct from that of the other author or authors.
 
(3) Contributions by a putative joint author (including those done by way of collaboration) which formed no part of the creation of the work are to be disregarded in the assessment of joint authorship.
 
(4) No distinction is to be drawn between types of contribution that did form part of the creation of the work. In particular, there is no distinction which depends on the kind of skill involved in making the contribution.
 
(5) The contribution, assuming it is relevant to the assessment of joint authorship, must be sufficient. This depends on whether the contribution constitutes a substantial part of the whole of the work in issue.
 
(6) That will be the case if the contribution would be protected by copyright in the work. Thus, if the contribution alone were copied by an unlicensed third party and such copying would result in an infringement of the copyright, the contribution constitutes a substantial part of the whole.
 
(7) The test of substantiality in the context of joint authorship of copyright, as in the context of infringement, involves a qualitative as well as quantitative assessment.
 
 (8) Suggestions from a putative joint author as to how the main author should exercise his or her skill – for instance by way of criticism or editing of a literary work – will not lead to joint authorship where the main author has the final decision as to the form and content of the work.

(9) It is thus relevant, but not decisive, whether an author is the ultimate arbiter as to the content of the work.

(10) If joint authorship is established, the court may apportion ownership of the copyright.”

Link to the rest at The 1709 Blog

The OP includes links to a number of other copyright case opinions discussing joint ownership.

PG says this is relevant for authors, including indie authors, because it is not unusual for more than one person to contribute to the creation of a manuscript. One may create the bulk of the first draft. A second person may produce a major rewrite of that first draft into a final draft that leaves only a tiny fraction of of the original draft untouched.

In a perfect world, spouses would never divorce or separate, friends would never experience a falling out, etc.

If the revised manuscript is forgotten or ignored or generates less than $1,000 in royalties, the issue of joint ownership of the copyright will likely never come to light.

However, if the manuscript becomes a bestselling book and a movie follows and one of the participants in its creation doesn’t see any money, PG says, after years of observing human nature in action in the legal arena and otherwise, there is a reasonable likelihood that one or more attorneys will be invited to a party no one ever thought about.

It’s not terribly difficult to put together a short and simple agreement that specifies who will own the copyright to a manuscript created with material contributions of two or more people.

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