One apartment complex’s rule: You write a bad review, we fine you $10k

12 March 2015

From Ars Technica:

Trying to control customer opinions online is nearly always a losing game for a business, and there’s now a long line of cases where it has backfired on companies. We uncovered a new example this month, when a reader contacted Ars Technica to show us the “Social Media Addendum” that his Florida apartment complex, called Windermere Cay, included in his lease.

The Social Media Addendum, published here, is a triple-whammy. First, it explicitly bans all “negative commentary and reviews on Yelp! [sic], Apartment Ratings, Facebook, or any other website or Internet-based publication or blog.” It also says any “breach” of the Social Media Addendum will result in a $10,000 fine, to be paid within ten business days. Finally, it assigns the renters’ copyrights to the owner—not just the copyright on the negative review, but “any and all written or photographic works regarding the Owner, the Unit, the property, or the apartments.” Snap a few shots of friends who come over for a dinner party? The photos are owned by your landlord.

. . . .

Not only is such a contract unenforceable, but it could expose anyone promulgating it to legal repercussions, Santa Clara University Law Professor Eric Goldman explained.

“It would be a terrible idea to enforce this in court. A judge is going to shred it,” Goldman said in an interview. “If a person posts an Instragram photo of them having a party in their apartment, the landlord is saying they own that as well. The overreach reinforces that this clause is bad news, and it may be actionable just to ask.”

. . . .

 It’s been clear that such contracts are legally questionable since at least 2003, when the New York v. Network Associates decision came out. In that case, a judge found that telling customers they couldn’t publish reviews of software “without prior consent” violated New York’s unfair competition law. In Goldman’s opinion, “no review” contracts like the one pushed by Windermere could also lead to legal trouble under federal law, since the FTC Act bars “unfair and deceptive” business practices.

Goldman has written about some of the most notable attempts by businesses to squelch customer reviews, although he said the Windermere Cay Social Media Addendum is the first time he has seen such an attempt in the landlord-tenant context.

Link to the rest at Ars Technica

PG hadn’t heard about New York’s Unfair Competition law, so he did a little research (a little research can be a dangerous thing for a lawyer assisting a client, not so much for a blogger).

From The New York Litigation Guide:

We have long recognized two theories of common-law unfair competition: palming off and misappropriation.” ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 476 (2007).

  1. Defendant misappropriated the fruits of Plaintiff’s labor by obtaining access to plaintiff’s ideas through fraud or deception, or the abuse of a fiduciary or confidential relationship; and
  2. “(1) that the defendant’s activities have caused confusion with, or have been mistaken for, the plaintiff’s activities in the mind of the public, or are likely to cause such confusion or mistake; or (2) that the defendant has acted unfairly in some manner.”

KG2, LLC v. Weller, 105 A.D.3d 1414, 1415 (4th Dep’t 2013).

. . . .

Misappropriation is “[t]he principle that one may not misappropriate the results of the skill, expenditures and labors of a competitor has . . . often been implemented in [New York] courts.” ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 477 (2007).

“‘While [t]here is no complete list of the activities which constitute unfair competition, [t]he general principle . . . is that commercial unfairness will be restrained when it appears that there has been a misappropriation, for the commercial advantage of one person, of a benefit or property right belonging to another.’” IDG USA, LLC v. Schupp, No. 10-CV-76S(F), 2012 U.S. Dist. LEXIS 151554, at *31-32 (W.D.N.Y. Oct. 21, 2012).

Link to the rest at The New York Litigation Guide

PG did a little research because he immediately thought about the non-compete clauses included in the contracts of every large New York publisher. Basically, these clauses say something like “author shall not publish any book that might compete with (the books subject to the contract).” These same contracts also specify that New York law will apply to them.

Since the non-compete clauses are included in contracts that last for the full term of the copyright – the rest of the author’s life plus 70 years in the US – PG wonders if such non-compete clauses represent “a misappropriation, for the commercial advantage of one person, of a benefit or property right belonging to another” or that the publishers have “acted unfairly” under the relevant law and cases.

PG will warn all and sundry visitors that this isn’t a legal opinion or even a legal speculation, just a blog post.

WordPress Wins $25,000 from DMCA Takedown Abuser

7 March 2015

From TorrentFreak:

Automattic, the company behind the popular WordPress blogging platform, has faced a dramatic increase in DMCA takedown notices in recent years.

Most requests are legitimate and indeed targeted at pirated content. However, there are also cases where the takedown process is clearly being abused.

To curb these fraudulent notices WordPress decided to take a stand in court, together with student journalist Oliver Hotham who had one of his articles on WordPress censored by a false takedown notice.

Hotham wrote an article about “Straight Pride UK” which included a comment he received from the organization’s press officer Nick Steiner. The latter didn’t like the article Hotham wrote, and after publication Steiner sent WordPress a takedown notice claiming that it infringed his copyrights.

. . . .

The case is one of the rare instances where a service provider has taken action against DMCA abuse. The defendant, however, failed to respond in court which prompted WordPress to file a motion for default judgment.

. . . .

“Steiner’s fraudulent takedown notice forced WordPress to take down Hotham’s post under threat of losing the protection of the DMCA safe harbor,” WordPress argued.

“Steiner did not do this to protect any legitimate intellectual property interest, but in an attempt to censor Hotham’s lawful expression critical of Straight Pride UK. He forced WordPress to delete perfectly lawful content from its website. As a result, WordPress has suffered damage to its reputation,” the company added.

Link to the rest at TorrentFreak and thanks to Paul for the tip.

Update from Becca

6 March 2015

Regular visitors will remember Becca Mills’ post about dealing with a scammer who filed a DMCA Takedown Notice with Amazon, causing Becca’s book, Nolander, to be removed from sale:

Here’s an update PG received from Becca:

Dunno if it was my email to Jeff Bezos or the 20 emails other people on Kboards sent, but Amazon has agreed to restore Nolander to sale.

Here’s a link to Nolander back on sale

Independent Publishing and DMCA Abuse, or “How a Scammer got My Book Blocked with Very Little Effort”

3 March 2015

From author Becca Mills:

Okay, I’ve got a story. It’s a sort of scary one. I think independent/self-publishing authors need to know about it, and telling it carefully and correctly is also important for my own situation, so I’m going to take my time and lay it all out in order.

. . . .

On Friday, February 27, 2015, I noticed that my bookmarked link to my first novel, Nolander, was yielding, “We’re sorry. The Web address you entered is not a functioning page on our site.” I went to my Amazon dashboard and discovered the book had been blocked.

In my spam folder, I discovered an email from Kindle Direct Publishing (KDP), Amazon’s self-publishing arm, informing me that someone had sent in a DMCA notice. In response, Amazon had summarily blocked Nolander from sale.

“DMCA” stands for “Digital Millennium Copyright Act.” It’s a Clinton-era U.S. law that lays forth a process for dealing with copyright infringement online. If you find material online that infringes a copyright you hold, you can send the hosting website a DMCA notice; in order to be in compliance with U.S. law, the hosting website has to remove the material and notify the person who posted it.

When I heard a DMCA notice had been filed against Nolander — which is a completely original work — I assumed a reader had reacted badly after reading the book in a boxed set and then finding it available as a standalone. It could be confusing to find the same material in different places, after all. A vigilant reader might think something fishy was going on. So I wrote back to KDP, sending them my U.S. copyright registration info and assuring them that Nolander was my work.

Soon after, I found an email notification from Smashwords as well. That one was a little more informative:

Hi [my real name redacted],

I have just unpublished your book Nolander, formerly found here:

As we received a DMCA Notice and I was able to verify that the text in your book, published on Jan. 07, 2013, matched the text of a book made public on August 2nd, 2011.

If you have any questions or can give me critical information about the book, please do.  Per our policy, the book needs to remain unpublished until Smashwords is given consent by both parties to republish it.

Thank you for your understanding.


*[name redacted] – Smashwords Support Team*

. . . .

Also in my email was a notification for a pending comment on my website (I have to personally approve comments from first-time commenters):


February 28, 2015 at 3:21 AM

I can’t find Nolander on Amazon. The link is returning “Page Not Found”. I only found a Print Edition on Amazon which cots $15 ! But I find Nolander on other stores like B&N.

Have you removed your book from Amazon? Sorry but I only download or buy books from Amazon. Please consider your decision again.

. . . .

At that point, KDP got back to me:


As stated in our previous communication, we’ve received notice from a third party regarding copyright concerns over B007R6PPZA Nolander (Emanations, an urban fantasy series Book 1) by Becca Mills. We don’t involve ourselves in third party disputes and therefore have removed the availability of the book through our systems until this matter is resolved.

Here you will find information on the party that submitted the notice:

Rajesh Lahoti

If a resolution is reached, before we may take any appropriate action regarding the book(s), all involved parties must contact us via

Best Regards,

[name redacted]

Link to the rest at The Active Voice

PG doesn’t give legal advice on The Passive Voice, but he would suggest giving serious consideration to sending a counter-notification if someone files an improper DMCA Take-down Notice.

See this page for a good explanation of DMCA takedown notices and counter-notices.


Industry Issues Intrude in ‘Blurred Lines’ Case

2 March 2015

From The New York Times:

Before a special audience in Los Angeles last week, the velvet-voiced pop singer Robin Thicke performed his 2013 hit “Blurred Lines,” ran through a medley at the piano and discussed artistic inspiration.

Mr. Thicke’s stage was not an arena or a nightclub, but rather a federal courtroom where he is part of a lawsuit over copyright infringement that has gripped the music industry and revived perennial questions about when a song crosses the line from homage to outright plagiarism.

The case, which continues this week, pits Mr. Thicke and his two credited co-writers of “Blurred Lines,” Pharrell Williams and the rapper T.I., against the family of Marvin Gaye. The family accuses Mr. Thicke and his colleagues of using distinct musical elements of Gaye’s 1977 hit “Got to Give It Up” without permission.

Copyright cases can be esoteric affairs. But the “Blurred Lines” trial, which began Tuesday before Judge John A. Kronstadt in United States District Court for the Central District of California, has provided a rare window into an unseemly and embarrassing side of the music industry. Testimony and a flurry of pretrial documents have revealed lurid details of drugs, unearned songwriting credits, and intentional deception of the news media employed as a standard promotional practice.

Mr. Thicke has been the most affected by the revelations, many of which he has made himself. On Wednesday, he testified that despite his official credit, he did not write “Blurred Lines,” an upbeat tune that dominated pop radio in the summer of 2013. Instead, Mr. Thicke said, the song was largely written by Mr. Williams.

“The biggest hit of my career was written by somebody else, and I was jealous and wanted credit,” Mr. Thicke testified, according to news reports. “I felt it was a little white lie that didn’t hurt his career but boosted mine.”

Mr. Williams, who was present in court at the beginning of the trial and is expected to testify this week, has acknowledged the issue of incorrect credit with a shrug. “This is what happens every day in our industry,” he said in an earlier deposition in the case.

. . . .

The lawsuit has drawn attention not only for the fame of the parties involved but also because of what legal experts said was the relative rarity of an infringement case that goes to trial. Accusations of plagiarism are common, these experts said, but are often settled quietly to avoid embarrassment and further expenses.

“There is an old saying in the music business,” said Kenneth J. Abdo, a music lawyer who is not involved in the “Blurred Lines” case, “that if you get a hit, you will get a writ.”

. . . .

 Rulings by Judge Kronstadt have limited the scope of the case to the sheet-music versions of both songs — meaning that any infringement must be decided only on the basis of chords, melodies and lyrics, not on the sound of the songs’ commercial recordings.

. . . .

 “Even if they didn’t sample Gaye directly, it’s so similar that you could have predicted that this would happen,” said Sway Calloway, the MTV News personality. “The irony is that it’s supposed to be an homage. But you still have to follow the rules. If you’re going to take from someone else’s creation, then you may have to pay the piper.”

Link to the rest at The New York Times

On Copyright Again

2 March 2015

From Joe Konrath:

Last summer I wrote about the need to reform copyright.

. . . .

I talked about how fun it would be to write a comic where Superman, Hulk, and Spawn fight, but how that isn’t ever going to happen.

DC owns Superman. Marvel owns Hulk. Image owns Spawn.

Since none of these characters are in the pubic domain, the only way to use them is with a license. But that’s only one level of restriction. Even with an approved license, licencors will have rules. The few existing Marvel-DC/Hulk-Superman fights have been lackluster at best. That’s because the rules imposed by the licensor override any creative freedom on the part of the author/artist.

Writers who work for a specific comic company have rule sheets and bibles for what is allowed and what isn’t. Unless special exceptions are given, there are boundaries. It’s stifling creatively.

. . . .

How interesting it would be if fair use allowed writers to use the IPs of others. Let’s say it was a limited use; maybe 15% of the completed protect. It would still be a game-changer.

. . . .

We live in a world where artists are regularly screwed by publishers, producers, and record labels, but it’s okay because they signed on the dotted line, even though the contract sucked. But then we have a ridiculous double standard, where heirs and companies can hold onto the rights to Mickey Mouse and Sherlock Holmes and Carmina Burana for long after the original artists died.

I know I’m bringing up a lot of ideas here, some of them possibly conflicting, so let me highlight a few points:

  • When an artist dies, any IP they created should revert to heirs.
  • If that IP is currently being exploited by a company (producer, label, publisher) it should still revert. Artist dies, contract is over.
  • Once reverted, heirs are allowed to hold that copyright for a minimal amount of time. Say 40 years. But they don’t have a say in how that copyright is used.
  • Once reverted, any other artist or producer can use that IP in a commercial version of fair-use. I’ll propose that if a certain percentage of the IP is used in a certain percentage of a new work, the heirs get a certain percentage of profits associated with that work, or certain set fees if that work is for advertising purposes.
  • If the artist is still alive, there should still be commercial fair use laws. Perhaps stricter than what the heirs have, but other people should still be able to use what the artist has done. I point to my Jack Daniels & Associates Kindle World as an example of that. Go ahead and use what I created, however you’d like, but pay me some set percentage.

Link to the rest at Joe Konrath

You Bought the Rights to that Music, Didn’t You?

27 February 2015

From author Jacquelyn Lynn via Tuscawilla Creative Services:

We have written before about how important it is to either own or acquire the rights to use the material on your website. The same applies to anything you post online, including videos on YouTube.  It’s the ethical and legal thing to do and it’s the standard by which we operate for ourselves and our clients.

So you can imagine how we reacted when we were accused of using copyrighted music without permission. Here’s the story:

Earlier this year, we produced a short video that was designed to promote our video production capabilities and generate some residual income. To set the right tone for the video, we needed some music that was peppy but didn’t overpower the visual image.

I looked through the royalty-free music in our files and found the perfect clip. It was “Lawn Barbecue,” a short, upbeat Bluegrass tune. I had purchased the rights to use it last year from Sony Creative Software’s Sony Sound Series/Production Music. With the music track added, I uploaded the final product to our YouTube channel.

Immediately after the upload was complete, we received a notification from YouTube that there was a copyright claim on the music clip.

. . . .

Filing a copyright claim on media uploaded to YouTube allows the claimant to do one of three things:

(1) they can take down the entire video;

(2) they can strip out the entire soundtrack (or just the portion in question); or

(3) they can leave the video intact, place ads on it and have the entire proceeds from those ads directed to themselves.

The entity uploading the video (in this case, Tuscawilla Creative Services) is prevented from deriving any income from it even though the element in question represents a small part of the total.

. . . .

I searched the Organic Music Library website for the piece of music they were calling “Jubilation.” To my surprise, I found it listed among hundreds of other tunes. The contributor was listed as David Lawrence.

To my even greater surprise, when I listened to the “Jubilation” clip, it was (to my ear) identical to the clip I had purchased called “Lawn Barbecue” – not just the same melody, but the same recording.

Armed with this information, I disputed Audiam’s copyright claim with YouTube. I provided all the information my research revealed along with the confirmation number for my purchase of the rights to “Lawn Barbecue” from Sony.

After about ten days, I received an email from YouTube with this terse statement: “After reviewing your dispute, Audiam (Label) has decided that their copyright claim is still valid.” Interesting. And frustrating. I felt like I was trying to walk through a room full of baited mousetraps.

Link to the rest at Tuscawilla Creative Services

Here’s a link to Jacquelyn Lynn’s books

PG can’t comment on Jacquelyn’s particular situation, but generally speaking, if the owner of a copyright sees an infringing use posted to an online service provider like YouTube by a third party, in the US pursuant to the Digital Millennium Copyright Act, the copyright owner can file a takedown notice.

If the service provider promptly takes down the offending material, the service provider won’t be liable for copyright infringement.

Upon receiving a copy of the takedown notice from the service provider, if the party that posted the alleged infringing material provides a counter-notice under 17 U.S. Code § 512 (g), the service provider is required to repost the alleged infringing material within 10 days.

For much more information on takedown notices in (relatively) plain English, see the Electronic Frontier Foundation.

‘Fault in Our Stars’ author: Oops, I didn’t write that quote

19 February 2015

From CNN:

“I’m in love with cities I’ve never been to and people I’ve never met.”

It’s a quote that you may have seen online, attributed to best-selling author John Green. The sentiment is certainly thought-provoking, but there’s one problem: Green never wrote it.

The writer, whose hit book “The Fault in Our Stars” was made into a hit movie last summer, made the revelation in a YouTube video he posted on Tuesday, after only recently having realized what he said was a mistake.

“When I saw the quote, I assumed it came from [my book] ‘Paper Towns,'” he said.

“People kept sourcing it as coming from ‘Paper Towns.'”

The quote originally popped up on the social network Tumblr, which like other social media is a haven of quotes, both real and not-so-real.

. . . .

Because of what he says was a mistaken belief, Green sold posters of the quote, attributing it to himself. He said he did not remember writing the line, but he doesn’t remember writing a lot of things he wrote years ago.

In the video, he said, “Instead of blindly assuming something I’d written, something the Internet said I wrote, I should have done some research.”

He was alerted to the fact on Reddit, learning that a teenage fan of his, Melody Truong, had come up with the quote in 2009, and Green was then given credit by many people online as the quote went viral over the years.

Green was upset that Truong was being accused of stealing his quote: “I’m the thief!” he proclaimed.

. . . .

Green fell on his sword in the video, and added that Internet culture as a whole is guilty of this sort of thing.

“We do an epically bad job of acknowledging one another’s work and checking our sources.”

Green is retroactively paying royalties from sales of the posters to Truong, who learned about the quote being misattributed a few years ago, but didn’t think much of it.

Link to the rest at CNN and thanks to Meryl for the tip.

You bought it, you can re-sell it: Costco can keep selling gray market Omega watches at a discount without copyright liability

22 January 2015

From The Volokh Conspiracy blog at The Washington Post:

On the day that the Electronic Frontier Foundation designated “You Bought it, You Own It” day, the 9th Circuit has finally brought down the curtain on the decade-long dispute between Omega, the watch manufacturer, and Costco, the discount retailer and decided that Costco can continue to sell Omega watches at a discount because, in effect, they bought them, and they own them, and can dispose of them however they wish.

The background to the suit is pretty simple.  Costco bought a bunch of Omega Seamaster watches overseas on the so-called “gray market” – i.e. from an authorized Omega distributor.  The watches, intended for sale in Europe, were priced low enough so that a third party, ENE Limited, could purchase them abroad and sell them to Costco, which could offer them to US customers at a price significantly below the price at which Omega-authorized distributors in the US offered them for sale.  Omega, admittedly trying to block this very thing, had inscribed a tiny globe on the back of the watch (where no one would ever really see it); they then brought suit against Costco, asserting that the retailer was “distributing copies” of a copyrighted work – the tiny globe — to the public without its (Omega’s) permission.

. . . .

Omega, in the first round of litigation, initially prevailed – both in the 9th Circuit and in the Supreme Court (which affirmed the 9th Circuit judgment in Omega’s favor by a 4-4 vote, with Justice Kagan recused).  Although ordinarily the “You Bought It, You Own It and Can Do What You Wish With It” argument prevails as a defense to copyright infringement – the so-called “first sale” doctrine, which lets you, say, but 50 copies of a copyright-protected book and then re-sell them (or give them away) without liability – the 9th Circuit originally sided with Omega because it interpreted the first sale doctrine as being inapplicable to copies manufactured abroad.

. . . .

Kirtsaeng’s view of the law, the 9th Circuit has now held, disposes of the case (in Costco’s favor); they bought and owned the copies of the copyrighted works – the tiny globe designs, which just happened to be attached to watches – and can resell those copyrighted works at whatever price they chose.

. . . .

Judge Wardlaw, concurring here in the judgment against Omega . . . would ground the judgment against Omega here on the ground that Omega’s actions constituted “copyright misuse.”

It’s a pretty powerful argument – after all, Omega’s case really had absolutely nothing to do with “protecting its copyrights” and everything to do with stamping out competition.  The watches themselves are not copyright-protected works (because of another copyright doctrine, the “useful article” doctrine, which largely does away with copyright protection for “utilitarian” objects).

Because the watches are not the proper subject of copyright protection, Omega does not argue that Costco infringed copyrights protecting its watches, the argument upon which the majority rests its opinion. Instead, it argues that Costco infringed its limited monopoly over the copyrighted Globe Design, which was engraved on the watches that Costco sold.

Inherent in granting a copyright owner the exclusive right to reproduce his works is the risk that he will abuse the limited monopoly his copyright provides by restricting competition in a market that is beyond the scope of his copyright. An owner’s attempt to impermissibly expand his lawful protection from competition contravenes not only the policy of the copyright laws, but also the central purpose of the antitrust laws

Omega misused its copyright “by leveraging its limited monopoly in being able to control the importation of [the Globe Design] to control the importation of its Seamaster watches.”

. . . .

“The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” Omega’s attempt to expand the scope of its statutory monopoly by misusing its copyright in the Globe Design upset this balance. The watchmaker’s anti-competitive acts promoted neither the broad public availability of the arts nor the public welfare. Instead, they eliminated price competition in the retail market for Omega watches and deprived consumers of the opportunity to purchase discounted gray market Omega watches from Costco. Omega misused its copyright by engraving the Globe Design on the underside of its watches, and attempting to use copyright law to eliminate intrabrand competition from Costco in the retail watch market.

Link to the rest at The Washington Post

Here’s a link to the court’s opinion

PG predicts the first sale doctrine is going to be litigated with respect to resale of ebooks at some point.

Ebooks are, of course, routinely licensed, not sold and the Digital Millennium Copyright Act comes into play because, at their root, ebooks are (pretty simple) computer code.

Moreover, if the publisher of a printed book purported to license, not sell the book to someone who acquired the book, that would be easy for the court to strike down.

If you want to read more about copyright misuse, here’s a link to a good introduction.

Authors Guild Gives Up Trying To Sue Libraries For Digitally Scanning Book Collection

12 January 2015

From TechDirt:

Back in June we wrote about how the Second Circuit appeals court totally demolished the Authors Guild’s arguments against a bunch of university libraries for scanning their book collections digitally, in order to enable better searching of the contents. The lawsuit was against Hathitrust, an organization set up to manage the book scanning program for a group of university libraries. In 2012, a district court said that what the libraries/Hathitrust were doing was obviously fair use and the appeals court re-enforced that strongly. The Authors Guild is basically giving up in this case, saying that should the libraries change their practices, it may want to revisit the issue. But for now, it’s giving up the case while “reserving” its position.

This is hardly a surprise. However, while it’s given up on the Hathitrust case, the case against Google for basically the same thing is still ongoing. And, yes, it’s so far lost there as well.

Link to the rest at TechDirt

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