Copyright/Intellectual Property

Not the swiftest

26 September 2017

From Likelihood of Confusion:

It is so tiring.  But that, to some extent, is what they’re counting on.

Taylor Swift abusing trademark, again, of course.  And everyone else not understanding that the nature of the latest version of that abuse, discussed below, is the widespread misunderstanding of what trademarks do — protect goods and services associated with them by use — and what they don’t — which is protect slogans or other clever word combinations.

But muh brand building!


Item, via Billboard:

Why Taylor Swift Trademarks [sic] Her Lyrics and Why Other Acts May Follow Suit

Taylor Swift has made it clear to the world she controls her brand, and one tool the singer leverages regularly to achieve this goal is trademark law. Swift’s team has been regularly filing trademark applications for lyrics and other slogans under her holding company, TAS Rights Management LLC, striking down infringers in the process. But does it really work, and is this approach for everyone?

Earlier this month, Swift moved to trademark key phrases from her music: the title of her upcoming album Reputation, her latest single “Look What You Made Me Do” and one of the lines from said single, “The old Taylor can’t come to the phone right now.” Swift plans to use the phrases on a variety of licensed merchandise, from t-shirts to notebooks and guitar picks. “Look What You Made Me Do” is already emblazoned across t-shirts on Swift’s online merch store, which has likely generated significant sales in conjunction with the singer’s controversial Ticketmaster Verified Fan campaign that rewards merch and music buyers with a better shot at good tickets.

“Striking down”?

. . . .

This is just “trademarked” garbage. No, it’s not impossible for song lyrics to have legitimate trademark status — here‘s a kind of down-the-middle, book-report treatment of the issue; here’s a law professor being quoted as saying it’s totally cool, though I don’t see his explanation of how.  (“Nice to meet you. Where you been?” and “could show you incredible things”?  Really?!)  Not impossible but highly, highly probable.

Ultimately, though, it’s trademark bullying — the continuation of IP law by other means — from which the recipients of these baseless legal threats have no realistic recourse.

Is it utterly insane to suggest that if a celebrity (whether an athlete, “artist” or whatever they’re famous for these days) coins or brings fame to a phrase, other people should not be able to profit from it without the celebrity getting some of the vigorish?

Yes, it’s utterly insane.  I won’t give Congress credit for thinking this through, but the way it turns out neither the trademark regime nor the copyright regime protect clever wordplay, and they’re not meant to.  Why?  Because not everything should be monetized. 

Especially when it already is.  Every time one of these fans sells something with a Taylor Swift “lyric” (and, really — puh-lease) on it, each use of that something is an advertisement for Taylor Swift.

There’s your monetization, Taylor.  Hope that helps you make the rent this month.

Link to the rest at Likelihood of Confusion

It stinks to high heaven

25 September 2017

From Rebecca Tushnet’s 43(B)log:

Coty Inc. v. Excell Brands, LLC, No. 15-CV-7029, 2017 WL 4155402 (S.D.N.Y. Sept. 18, 2017)

Coty and a number of other producers and distributors of well-known fragrances sued Excell, which produced cheap “versions” of Coty’s fragrances, with similar names and “nearly identical packaging.” “Compounding matters, Excell prominently included on its packaging Coty’s own marks, albeit under words to the effect of “Our Version Of” in comparatively smaller text.”  Guess what Judge Furman found as to infringement and dilution after a bench trial? There was also false advertising, but not counterfeiting. Coty was entitled to injunctive relief and to recover Excell’s profits, but not to enhanced damages, and the case wasn’t “exceptional” for the purpose of attorney’s fees and prejudgment interest.

. . . .

To give some idea of the scope of Coty’s branding efforts, “between 2002 and 2015, Coty spent over $658 million advertising and promoting its Calvin Klein fragrances, over $114 million advertising and promoting its Vera Wang fragrances, over $14 million advertising and promoting its Lady Gaga fragrances, and over $13 million advertising and promoting its Joop! fragrances.”  Its net sales over that period for Calvin Klein fragrances were over $2.2 billion, for its Vera Wang products over $296 million, for its Lady Gaga products over $28 million, and for its Joop! line over $188 million. Some are successful enough to have subbrands, or “flankers” –Dark Obsession, Eternity Aqua, CK One Shock, and CK Free Blue.

Excell sought to copy expensive fragrances in a way that would be “understood by its customer base of ‘lower income, sometimes ethnic customers.’ ” Excell then chose a product name to evoke the name of the original fragrance. “Excell did not make any meaningful effort to replicate the scent of Coty’s products. Instead, using only their own noses and reviews of the original fragrances, Excell employees made broad recommendations to the company’s supplier in India, which then manufactured the alternative fragrances and packaging,” though Excell often supplied the original fragrance (or a picture of the fragrance) it sought to emulate along with instructions on how to emulate it. Excell also frequently made changes to the products so that the packaging would more closely resemble Coty’s original branded fragrances. Excell nonetheless lacked any meaningful quality assurance program.

On the front of each fragrance box at issue, Excell included a legend stating that the fragrance was “Our Version Of” the relevant Coty product. On the back was “Not Associated With The Makers Of,” followed by reference to the relevant Coty product.  But Coty’s marks were depicted more prominently than the other text. “On the top of each box, in comparatively smaller lettering, Excell included its own brand name: Diamond Collection Luxurious Fragrances.”

. . . .

Similarity: “Excell’s products copy, with only slight differences, the names, typefaces, packaging, design, coloring, and bottle shapes of Coty’s fragrances,” and also include two exact replicas of Coty’s house mark (e.g., Calvin Klein) and product mark (e.g., ETERNITY AQUA) as part of the “Our Version Of” and “Not Associated With” legends.  As the court noted, the City Girl and Love Story fragrances were “[a]t the less infringing end” of the similarity spectrum; the names evoked similar associations and the packages had notable differences.  By contrast, Excell’s OK ROCK and SERENITY fragrances were “remarkably similar” to Coty’s CK SHOCK and ETERNITY, in both name and trade dress. But even the “less infringing” fragrances had significant similarities in color, shape, and layout.  As a whole, each allegedly infringing product was quite similar to its counterpart.

Link to the rest at Rebecca Tushnet’s 43(B)log

Court Rules Copyright is Not a “Use It or Lose It” Right

22 September 2017

From Nova Southeastern University:

On September 7, 2017, the District Court for the Southern District of New York issued a significant ruling on the issue of fair use. In the case of Penguin Random House v. Colting, the Court ruled that the failure of a copyright owner to enter a segment of the market for an expressive work, here, the children’s market, did not entitle an unlicensed interloper to enter that market under the doctrine of fair use.

Here, the defendants adapted several widely famous novels into a series of “illustrated children’s books,” without (of course) taking the step of requesting a license to do so. The works at issue were “Breakfast at Tiffany’s” by Truman Capote, “The Old Man and the Sea” by Ernest Hemingway, “On the Road” by Jack Kerouac, and “2001: A Space Odyssey” by Arthur C. Clarke.

If the name of the Defendant here rings a bell, as it did with me, it is because this is not the first time he has claimed “fair use” by creating a derivative work by a famous author. Previously, Fredrik Colting wrote an unauthorized “sequel” to J.D. Salinger’s seminal work “The Catcher In The Rye” and claimed that his novel was fair use. Both the District Court and the Second Circuit Court of Appeals rejected this argument.

So, Mr. Colting is back at it again, defending his rather obvious infringements with arguments variously characterized by the Court as “absurd” and “an exercise in sophistry.”

. . . .

Here, amongst other defenses, the defendants make the preposterous arguments that the indelible character of Holly Golightly is a “stock [character] that does not warrant copyright protection” and that the plot of “2001: A Space Odyssey” is an unprotectable cliché or “simply a ‘man versus technology’ plot, hence the elements which naturally arise from it (“a space station, space shuttle, an intelligent machine, tragedy in space, overcoming technology”) are not protected.”

As the Court would say in the very next paragraph, this is absurd.

. . . .

But the main defense here is fair use. Defendants claim they have “transformed” Plaintiffs novels by:

  • Substantially abridging and shortening the novels
  • Removing adult themes (sounds like VidAngel doesn’t it?)
  • Adding analysis and two pages of quiz questions

The Court responds:

  • Abridgements are generally considered to be derivative works
  • “[T]he mere removal of adult themes does not meaningfully ‘recast’ the work anymore than an airline’s editing of R-rated films so that they can be shown to children on a flight absolve the airline from paying a royalty.”
  • “[T]acking on these few pages [of analysis and quiz questions] does not provide safe harbor for an otherwise infringing work.”  “Fair use…is not a jacket to be worn over an otherwise infringing outfit. One cannot add a bit of commentary to convert an unauthorized derivative work into a protectable publication.”

. . . .

“Congress did not provide a use-it-or-lose-it mechanism for copyright protection. Instead, Congress granted a package of rights to copyright holders, including the exclusive right to exploit derivative works, regardless of whether copyright holders ever intend to exploit those rights. Indeed, the fact that any given author has decided not to exploit certain rights does not mean that others gain the right to exploit them. ‘It would … not serve the ends of the Copyright Act—i.e., to advance the arts—if artists were denied their monopoly over derivative versions of their creative works merely because they made the artistic decision not to saturate those markets with variations of their original.’”

Link to the rest at Nova Southeastern University

Business Musings: I Spent Decades Developing My IP (Contracts/Dealbreakers)

22 September 2017

From Kristine Kathryn Rusch:

I’m conducting too many negotiations right now. I discuss them as if they’re easy.

They’re not. They’re stressful and take time.

But I always learn something.

And yesterday, I gained a brand new perspective.

I wrote the following sentence to someone who wanted to take my entire IP in a series for a pittance:

I’ve spent decades developing my IP.

I then proceeded to explain to that person that I controlled my IP and they would not get their grubby paws on it, especially for a few thousand dollars and promises of future money. (Anyone who could read contracts would know that the company didn’t have to pay me the full up front money in a timely fashion if at all, and there would be no future money…to me…because I would have signed it away.)

I’ve spent decades developing my IP.

I have never said that before, nor have I said it so blatantly. It provided me with an incredible and unexpected perspective.

I was trained in traditional publishing, where writers go begging for opportunity. Writers are taught to beg, from professors (let me into your class!) to critique groups (is my writing good enough?) to agents (will you take me on?) to publishers (will you buy my book?).

We’re not trained to value what we’ve built.

I’ve spent decades developing my IP.

That statement is a statement of power. It’s a statement of value. It says I have worked hard. Respect my work and deal with me like a professional.

Imagine if all writers took that attitude into their negotiations for their work. Or into anything they do for their writing.

Writers would become stronger, just by owning what they have done. By valuing what they have achieved.

I know many of you are frowning as you look at that sentence. A few of you don’t know what IP is. IP is intellectual property. Intellectual property has become so important in modern business that companies are buying it up and sitting on it.

. . . .

Writers are so used to begging to get attention, that they have no idea how to think of their work as something not just important to them, but as something with lasting value.

As Forbes said in the very short introduction to its list of the Top 25 Intellectual Property Valuation firms:

The world has changed dramatically in the past several decades with more and more of a company’s value attached not to factories, machines, or hard assets but rather the companies’ ideas, processes, and designs – their intellectual property.

The American economy has moved from a manufacturing economy to one that makes most of its revenue from businesses that monetize their intellectual property. You know, like film studios. Game companies. Damn near every business in Silicon Valley.

While I’ve been writing about the disruption in publishing initially caused by (ahem) someone’s proprietary design (um, Amazon Kindle), I really wasn’t paying attention to the outside world’s acknowledgement of IP. In the past, if I had written I’ve spent decades developing my IP to someone I was negotiating with, they would have responded with a confused “Whaaaaat?”

Now, they understand exactly what I mean.

Writers need to understand it too. Even if your books don’t sell well.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

This artist is making mega-millions ‘stealing people’s work’

20 September 2017

From the New York Post:

Artist Richard Prince has done album covers for Sonic Youth and A Tribe Called Quest; ranks as a darling of influential collectors such as Marc Jacobs, Peter Brant and Charles Saatchi; and until recently was repped by Larry Gagosian’s namesake gallery. He even collaborated with Louis Vuitton on a line of watercolor-print handbags.

But depending on whom you ask, Prince, 68, is either one of the world’s greatest artists or a stone-cold thief.

Making bank through provocation, the New Yorker has worked to create that division — and has the legal issues to prove it. So much so that his pal, “Spring Breakers” filmmaker Harmony Korine, has said, “For Richard, the lawsuits are also the artwork.”

It’s a good thing, since Prince currently finds himself up to his neck in them.

As put by Christopher Davis, one of the lawyers litigating against him, Prince is “a notorious appropriation artist who has made tens of millions of dollars over the course of his career by reproducing, modifying and preparing derivative works of others, typically without permission . . . ”

The current spate of lawsuits — four of them — are all related to 2014’s “New Portraits” show, originally mounted at Gagosian. Works in the exhibition depicted pictures of regular folk and stars — including Kate Moss and Pamela Anderson — plucked via screenshot from Instagram accounts, printed by Prince on canvases and tweaked with written comments from Prince.

For decades, Prince has mostly been able to sidestep other artists who felt wronged by his usage — free-expression laws afford a wide berth for adapting the visual work of others — but that trend may be reversing. In July, United States District Judge Sidney H. Stein shut down a request for dismissal of a suit from professional photographer Donald Graham, whose work was appropriated by Prince in “New Portraits.”

Graham said that he pursued legal recourse for himself and hopes to set a standard that will aid others. “Copyright is a foundation for photographers to make a living,” he told The Post.

Prince’s lawyer, Joshua Schiller, insisted: “We’re saying that it’s fair use.”

. . . .

Lacking traditional art training — the artist once admitted to Artforum, “I had limited technical skills . . . Actually I had no skills” — Prince’s career began after he moved from his childhood hometown of Boston to Manhattan in 1973 and got a job in the library at Time Inc. There, he snipped and archived magazine pages, foreshadowing his later work.

He started getting modest art-world attention in the late 1970s and early ’80s for pieces such as spot-on reproductions of cigarette ads. In 1983, Prince re-photographed a 1975 shot of a naked 10-year-old Brooke Shields and called it “Spiritual America” (the title was copped from an Alfred Stieglitz photo). It was first shown in the front window of a Lower East Side store rented by Prince for this single purpose.

Garry Gross, the shot’s original photographer, won a $2,000 settlement from Prince and an agreement that he would be credited every time the appropriated version was shown at the Whitney — a promise Prince reneged on in ’92. (After Gross pointed it out, Whitney employees credited him.)

In 2014, Prince’s copy of Gross’ photo sold at auction for $3,973,000.

Link to the rest at the New York Post

PG notes that if you enter fair use vs. derivative works or fair use vs. transformative use into your Google search box, you’ll find a great deal of commentary about the the line between the legal and the illegal under copyright law.

However, you will not find a bright line.

During his brief Google-dive into the topic, PG did find a piece written by someone at the University of Minnesota Libraries that PG thought described the issues clearly (and briefly) in terms a non-lawyer might appreciate.

PG also notes that the the University helpfully makes all content in the Copyright Information section of its website available under a Creative Commons Attribution-NonCommercial License.

Here’s an excerpt:

Fair use is an important part of copyright law that provides some flexibility for users and new creators. At its core, fair use ensures that there are some kinds of uses that do not require permission or payment. But there are no easy rules for fair use – if you want to take advantage of its flexibility, you have to understand its complexities!

Although there are other exceptions to the far-reaching rights of copyright holders, most of those exceptions only apply in very limited circumstances. Fair use is much more flexible, but also much harder to understand and apply. To understand fair use, you need to be familiar with the four statutory factors, and the idea of “transformativeness”. To think through whether a particular use is a fair use, you have to look at these details and other associated issues as a whole. Even then, fair use is unpredictable enough that the best anyone can do is make a well-informed, reasonable guess.

Link to the rest at University of Minnesota Libraries – Copyright Information

The University also provides an interactive tool to assist in “Thinking Through Fair Use.” The Office for Information Technology Policy of the American Library Association also has an online interactive Fair Use Evaluator.

PG cautions that the use of these tools is not a substitute for consulting a competent attorney for close cases. He’ll also caution that fair use is not the only potential legal question. The proper/improper use of a trademark owned by someone else may come into play and the Right of Publicity may be another issue that comes into play.

PG will also note that executives of large entertainment conglomerates, many of which are located in the Los Angeles area, can be aggressive about enforcing their rights under a variety of theories. Think very, very hard before you include a picture of Mickey Mouse in your book or you will learn far more about copyright and trademark law than you know at present. (Here’s a link if you want a preview)

Can a tattoo on human flesh be copyrighted?

20 September 2017

From Ars Technica:

There’s a tattoo as a design, and then there’s that same tattoo after it’s inked on the human body. Tattoo artists often copyright their tattoos. But does that copyright stick once the image is inked on the human body?

So far, no US court has ruled that it does, despite several lawsuits on the topic that have settled out of court or have been dropped. But barring a settlement, we might soon get our first ruling on the topic, and we have video games to thank.

Tattoo artists are suing the makers of the highly popular NBA 2K game series for the allegedly unauthorized use of their tattoos as they appear on popular players like LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan and others. In short, Solid Oak Sketches says that Take-Two Interactive Software is infringing its copyrighted works because the game shows the players with their real-world inked tattoos that Solid Oak Sketches has copyrighted.

In response, Take-Two says (PDF) Solid Oak Sketches is seeking “to hinder the ability to depict people as they appear in real life. Solid Oak is not an aggrieved artist—it is an opportunist.”

. . . .

US copyright law protects “original works of authorship fixed in any tangible medium of expression” that “is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”

Solid Oak Sketches claims the flesh constitutes the fixed medium.

“The copyrighted tattoo designs are imprinted permanently upon the skin of humans, clearly stable and able to be perceived for much more than a transitory duration,” Solid Oak Sketches argues.

. . . .

Take-Two argues that Solid Oak Sketches posits an absurd argument and claimed as much in a legal filing:

In essence, Solid Oak argues that these public figures must seek its permission every time they appear in public, film, or photographs and that those that create new works depicting the players as they actually appear (with their Tattoos) should be enjoined and pay damages to Solid Oak.

What’s more, even if the tattoos are copyrightable, Take-Two argued that it has a fair-use right to show the players with their tattoos, which are not a prominent feature of the video game.

. . . .

Perhaps the most famous case involved the tattoo inked by Victor Whitmill on Mike Tyson’s face. Whitmill sued Warner Brothers in a bid to block the tattoo from appearing on a character played by Ed Helms in the movie Hangover Part II. Whitmill had sought a court order to prevent the movie from showing in 2011. The film went on as planned, and the parties settled out of court.

Before the case was settled (but during an open-court session), US District Judge Catherine Perry of Missouri said, “Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that.”

. . . .

[Copyright scholar David] Nimmer [argued] that if tattoos were subject to copyright, then the rights holder could sue somebody to block it from being removed.

The tattoo qualifies as an original “work of visual art” that may gain “recognized stature,” with the result that a court may enjoin its destruction. See 17 U.S.C. § 106A(a)(3)(B). After a court invokes that provision to bar him from removing his tattoo, Mr. Tyson literally may not show his own face to the world; that is, he will be required to keep Mr. Whitmill’s handiwork spread across his face, regardless of his own desires. Copyright law thereby becomes the instrument to impose, almost literally, a badge of involuntary servitude, akin to the mark with which ranchers brand the cattle they own.
Plenty of ink

Link to the rest at Ars Technica

PG says don’t get a tattoo of Mickey Mouse. Your body will be Exhibit A.

Adding clickbait title isn’t false advertising or fraud on author

20 September 2017

From Rebecca Tushnet’s 43(B)log:

Dankovich v. Keller, 2017 WL 4081852, No. 16-13395 (E.D. Mich. Sept. 15, 2017)

Interesting dispute: the pro se litigant didn’t like the editing of his essay, including the clickbaity headline added by the editors, and sued for various fraud/false advertising claims. The magistrate judge recommended denial of leave to amend/dismissal of various claims, and the district judge agreed.

Dankovich wrote an essay about his experience as a young prisoner in solitary confinement.  He sent a draft to defendant Eli Hager, an editor at defendant The Marshall Project, a non-profit news organization that focuses on the criminal justice system. He called the essay The Riving, which dealt with “how quickly solitary confinement can institutionalize and mess with the mind of an adolescent.” Hager requested a few alterations and stated “[j]ust like last time, my higher-up editor will have the final say, so I don’t want to make any promises. But I definitely CAN promise that if you keep working on these pieces and future submissions, you will definitely be published here.” He responded, and then Hager sent him “the latest” version and said that it had moved to the top of the queue for publication. The Marshall Project, in collaboration with defendant VICE, published the essay under the title I’m Losing My Mind after Refusing to Plead Insanity for Murdering My Mom. Dankovich also alleged other changes to the text of his essay, including that he pleaded no contest to the murder of his mother when he pleaded guilty, and that “around”—not “on” — his eleventh birthday he was taken to the hospital for physical abuse by his mother.  (The plea information was apparently later corrected.)  Dankovich objected to the published version but Hager told him that VICE Media wrote the headlines and wouldn’t be changing this one.

. . . .

The statement, “My editor just informed me that she liked your piece (‘The Riving’) so much that she’s moving it to the top of our production queue,” wasn’t a statement that the piece would be published as submitted, nor was the statement that “[a]ll of the different parts are still yours, but they’ve shifted around a lot of lines to make things pack more of a punch” false in context, which included Hager’s statements that he wanted Dankovich to see the edits “since it’s your piece” but that “this kind of editing happens with all of our pieces.” The statement “[a]ll of the different parts are still yours” was thus, in context, not a representation about the published version would be “all his.”  Dankovich’s subjective interpretation was wrong, but that didn’t make out a fraud claim.

. . . .

Initially, Dankovich only pled §43(a)(1)(A) claims, but wanted to argue false advertising: “Defendants continue to advertise a completely false statement which Plaintiff has never written or uttered with Plaintiff’s name online, advertisement which furthers The Marshall Project’s business and political goals.”  The initial complaint argued that the headline was falsely attributed to him.  Considered as false advertising, this fell short: there were no facts alleging that any false statements were made in “commercial advertising or promotion.”

Link to the rest at Rebecca Tushnet’s 43(B)log

The name of the blog where the OP appeared refers to 15 U.S.C. 1125 (Section 43 of The Lanham Act), which prohibits False Designations of Origin, False Descriptions, and Dilution.

To give you a flavor of The Lanham Act, here’s how it starts:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,

Since PG is certain this little taste will give rise to an uncontrollable craving for more Lanham Act, here’s a link to the entire masterpiece. If that’s not enough, Ms. Tushnet’s blog has more and there’s Lanham Act: Litigator’s Casebook (the ebook is free).

Of course, everyone knows The Lanham Act was named for Representative Fritz G. Lanham of Texas.

Netflix – A Cease and Desist Letter For The Ages

20 September 2017

From DNA Info:

We’ve got bad news for anyone who assumed the wildly popular “Stranger Things” pop-up bar would get an extended run.

Netflix won’t let the Logan Square venue at 2367 N. Milwaukee Ave. stay open past the six-week mark.

The streaming/production company’s legal team sent an adorably nerdy — yet firm — letter to the folks behind the pop-up on Aug. 23, insisting the bar close by the originally scheduled end date, Oct. 1.

“Look, I don’t want you to think I’m a total wastoid, and I love how much you guys love the show. (Just wait until you see Season 2!) But unless I’m living in the Upside Down, I don’t think we did a deal with you for this pop-up,” the letter reads.

“You’re obviously creative types, so I’m sure you can appreciate that it’s important to us to have a say in how our fans encounter the worlds we build.”

The letter goes on, saying, “We’re not going to go full Dr. Brenner on you, but we ask that you please (1) not extend the pop-up beyond its 6 week run ending in September, and (2) reach out to us for permission if you plan to do something like this again.”

. . . .

“If Netflix were OK with us running The Upside Down project through the season two premiere & the Halloween weekend we would most definitely have continued this incredible party a little bit longer!” manager Jared Saul wrote in an email. (The season two premiere is scheduled for Oct. 27.)

Link to the rest at DNA Info and thanks to Pete for the tip.


Founder of Fan-Made Subtitle Site Convicted for Copyright Infringement

18 September 2017
Comments Off on Founder of Fan-Made Subtitle Site Convicted for Copyright Infringement

From TorrentFreak:

Every day millions of people enjoy fan-made subtitles. They help foreigners understand English-speaking entertainment and provide the deaf with a way to comprehend audio.

Quite often these subtitles are used in combination with pirated files. This is a thorn in the side to copyright holder groups, who see this as a threat to their business.

In Sweden, Undertexter was one of the leading subtitle resources for roughly a decade. The site allowed users to submit their own translated subtitles for movies and TV shows, which were then made available to the public.

In the summer of 2013, this reign came to an end after the site was pulled offline. Following pressure from Hollywood-based movie companies, police raided the site and seized its servers.

The raid and subsequent criminal investigation came as a surprise to the site’s founder, Eugen Archy, who didn’t think he or the site’s users were offering an illegal service.

“The people who work on the site don’t consider their own interpretation of dialog to be something illegal, especially when we’re handing out these interpretations for free,” he said at the time.

. . . .

The Attunda District Court sentenced the now 32-year-old operator to probation. In addition, he has to pay 217,000 Swedish Kroner ($27,000).

. . . .

During the trial, the defense had argued that the fan-made subtitles are not infringing since movies are made up of video and sound, with subtitles being an extra. However, the court disagreed with this line of reasoning, the verdict shows.

Link to the rest at TorrentFreak

PG notes that criminal penalties are available for copyright infringement in the United States if the copyright holder can persuade the government to pursue such cases.

The statutes are 17 U.S.C. 506(a) And 18 U.S.C. 2319.

17 U.S.C. 506(a)

(a) Criminal Infringement. 

(1)In general.—Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed—

(A) for purposes of commercial advantage or private financial gain;
(B) by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
(2) Evidence.— For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.
(3) Definition.—In this subsection, the term “work being prepared for commercial distribution” means—

(A) computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution—

(i) the copyright owner has a reasonable expectation of commercial distribution; and
(ii) the copies or phonorecords of the work have not been commercially distributed; or

(B) a motion picture, if, at the time of unauthorized distribution, the motion picture—

(i) has been made available for viewing in a motion picture exhibition facility; and
(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.

(b)Forfeiture, Destruction, and Restitution.—

Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.

(c)Fraudulent Copyright Notice.—

Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

(d)Fraudulent Removal of Copyright Notice.—

Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500.

(e)False Representation.—

Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.

(f)Rights of Attribution and Integrity.—

Nothing in this section applies to infringement of the rights conferred by section 106A(a).
And what’s a crime without a punishment?

18 U.S. Code § 2319 – Criminal infringement of a copyright

(a) Any person who violates section 506(a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law.

(b) Any person who commits an offense under section 506(a)(1)(A) of title 17

(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.

(c) Any person who commits an offense under section 506(a)(1)(B) of title 17

(1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more;
(2) shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.
(d) Any person who commits an offense under section 506(a)(1)(C) of title 17
(1) shall be imprisoned not more than 3 years, fined under this title, or both;
(2) shall be imprisoned not more than 5 years, fined under this title, or both, if the offense was committed for purposes of commercial advantage or private financial gain;
(3) shall be imprisoned not more than 6 years, fined under this title, or both, if the offense is a felony and is a second or subsequent offense under subsection (a); and
 (4) shall be imprisoned not more than 10 years, fined under this title, or both, if the offense is a felony and is a second or subsequent offense under paragraph (2).
(1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim.

(2)Persons permitted to submit victim impact statements shall include—

(A) producers and sellers of legitimate works affected by conduct involved in the offense;
(B) holders of intellectual property rights in such works; and
(C) the legal representatives of such producers, sellers, and holders.

(f) As used in this section—

(1) the terms “phonorecord” and “copies” have, respectively, the meanings set forth in section 101 (relating to definitions) of title 17;
(2) the terms “reproduction” and “distribution” refer to the exclusive rights of a copyright owner under clauses (1) and (3) respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;
(3) the term “financial gain” has the meaning given the term in section 101 of title 17; and
(4) the term “work being prepared for commercial distribution” has the meaning given the term in section 506(a) of title 17.


Joshua A.T. Fairfield’s ‘Owned’ examines the ‘feudal system’ of digital property rights

18 September 2017

From Talking New Media:

The issue of digital property ownership recently, and surprisingly, came to the forefront during Hurricane Irma. Select Florida Tesla car owners received a notice that there was a software update available for their vehicles. The update, once applied, suddenly allowed gave their vehicles about a 30 mile increase in range. The idea was to help Floridians get out of harm’s way. But what it really did was remind the Tesla owners just who owns the software in their cars. It turns out that the only thing that had separated out two different models of Tesla — one that offered more range between charges, and one that didn’t — was the software in the vehicle, something that Tesla could change at any time.

In a way, this is the issue at the heart of Joshua A.T. Fairfield’s book Owned: Property, Privacy, and the New Digital Serfdom, from Cambridge University Press.

. . . .

“We own and control fewer and fewer of the products that we must use to function in modern society,” Fairfield writes. “Many computing devices (iPads, for instance) run only those programs approved by the device seller. We cannot even tell our devices not to reveal our personal data.”

“This is an untenable position in an information-age society,” Fairfield believes, and so he urges readers to promote changes in the laws governing such things, believing that right now we are living in a digital rights environment closer to feudalism than freedom.

. . . .

“First, internet technologies created an unprecedented ability to copy intellectual property — file sharing services spread pirated music like wildfire and fueled the music industry’s fears for its own future — before they created the ability to track and verify individual copies of electronic information,” Fairfield writes.

Then, the rise of free content created a situation were “software providers needed a revenue model that circumvented internet users’ refusal to pay for content that they could obtain — usually illegally, but with some degree of safety — for nothing. So software providers monetized information about their customers by surreptitiously monitoring everything their users typed, clicked or did, and selling that information to advertisers who could use it to extract more and often costlier deals from their customers.”

Fairfield’s observations are somewhat self-evident, we see examples of them every day, but the author gives the readers the background information, the cause and effect, and then lays out what needs to be done about, best summed up in the line “ordinary property ownership should apply to digital and smart property.”

Link to the rest at Talking New Media

PG suggests there are a lot of click-to-accept terms of use that might not hold up to well-lawyered litigation based on fraud, intentional misrepresentation, various consumer protection statutes and the like. He further suggests that smart lawyers will rein in their corporate clients’ overreach when establishing their legal relationship with their customers/users based on a mouse click instead of a signature at the bottom of several pieces of paper.

In PG’s litigating days, he observed that if, during the course of a trial, the judge decided one party or the other was a bad guy/gal, things didn’t go well for that party in the courtroom or in the judge’s decision.

Of course, a losing party can always appeal the trial court’s adverse decision. However, PG once heard an experienced trial judge say, “I know how to write an opinion that will never be reversed by an appellate court.” Knowing that judge, PG was inclined to believe him.

In PG’s experience, trial judges overwhelmingly want to do the right thing regardless of the legal arguments of the parties. Most good judges ascended to the bench because of a desire to do the right thing and could have earned more money by staying in their former practices. At the end of the trial, they want to walk out of the courthouse feeling like they helped make the world a little fairer with their decision.

In a fight between a giant corporation and the little people, most judges tend to identify with the little people.

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