In looking around for something to write I stumbled across a press release from August 10, 2010, issued by Your Baby Can, LLC. This is the company that advertises almost non-stop on Sirius/XM every morning, at least on ESPN Radio, claiming that all you have to do is put your children in front of the video and they miraculously learn to read. I have often joked about the commercial and how unrealistic and almost comical it seems, but when I noticed a copyright/counterfeiting angle I was immediately intrigued.

MEA CULPA

Upon further investigation it seems to me that what so many have said in the comments is, in fact, correct.  I have finally reached the person referenced who lead me to the story and based on what has been told to me now it seems relatively clear to me that Google did not at any time remove Oracle from its search database.  As many have pointed out the top screenshot (see below) does suggest that the person who lead me to this and took the screenshot visited a link explaining this was a hoax.

As regular readers of IPWatchdog.com know, I am a patent attorney and new to this whole “journalism” endeavor.  It would seem that I placed unwarranted trust in a single source.  That won’t happen again.

As far as whether this person intentionally duped me, who knows, but I do acknowledge what it seems given that a link that explains this was a hoax was visited, as evidenced by the screenshot.

I am not one to push things under a carpet, and for that reason the article below will remain, as well as the comments, to preserve this episode, apology and comments that were correct, as well as mine in defense of a hoax and erroneous single source.

Perfect 10, Inc., the former publisher of Perfect 10 Magazine, is back at it with Google over whether Google’s display of certain images of scantily clad women infringes the copyrights owned by Perfect 10. Perfect 10 created and sold pictures of nude models through a now defunct print magazine, and now creates and sells pictures through a password-protected subscription website. Simultaneous actions are pending in both United States and Canada, each with recent rulings over the last two weeks, with a ruling in Canada on July 18, 2010, and a ruling on Google’s motion for summary judgment in the United States District Court for the Central District of California on July 26, 2010.

On July 18, 2010, Perfect 10 announced that the Canadian Federal Court denied Google’s attempt to dismiss Perfect 10’s copyright infringement lawsuit against Google in Canada. “We are heartened by this ruling,” said Dr. Norm Zada, President of Perfect 10 and a former professor at Stanford and Columbia Universities. “The court rejected Google’s argument that Perfect 10 could not sue Google in Canada because Perfect 10 was in litigation against Google in the United States,” said Zada. “Perfect 10’s case against Google in the United States has been going on for almost six years,” Zada added.

Over the last couple weeks I have been giving more thought to open source software and what, if any role it has to play with respect to the economic future of both start-up companies and established giants.

My belief is that open source can and should play a vital role in innovation, but the way it is by and large carried forward today does little to forward innovation and an awful lot to significantly disadvantage start-up companies.  The horribly bad advice that pervades the open source community and the utter lack of knowledge or familiarity about patent law is staggering.  I don’t begrudge anyone who doesn’t like the patent system, but can you please at least not like it for a valid reason?  With the myths and disinformation spewed by those who are either clueless and loud, or those who know better and have an agenda, are drowning out rational debate and significantly impeding progress and innovation.

Last summer J.D. Salinger sued the author/publisher of the book entitled “60 Years Later Coming Through the Rye” for copyright infringement. Salinger claimed that the book was a sequel to his famous book entitled “Catcher in the Rye” and therefore it was an infringing derivative work. Salinger sought and the district court granted a preliminary injunction barring publication of the book. On appeal, the U.S. Court of Appeal for the Second Circuit vacated the preliminary injunction on April 30, 2010 and remanded the case to the district court.

Interestingly, the Second Circuit agreed with the district court that Salinger is likely to ultimately prevail in his lawsuit because the book is probably an infringing work which is not protected by the fair use exception to copyright infringement. However, the Second Circuit remanded because it held that the test used by the district court to decide whether to issue a preliminary injunction was no longer the proper test to use in light of the 2006 Supreme Court decision in eBay v. MercExchange, 547 U.S. 388.

Last week Dow Jones & Company filed a lawsuit in the United States District Court for the Southern District of New York alleging that Briefing.com is misappropriating headlines and articles content. According to the complaint filed, Dow Jones Newswires is a family of electronically-delivered proprietary news services that provide paid subscribers with a constantly-updating feed of breaking news and financial and business information. The complaint goes on to explain that Briefing.com, without permission from Dow Jones and without compensating it, systematically copies verbatim or nearly verbatim substantial portions of Dow Jones’ copyrighted articles from the Newswire service and distributes them in competition with Dow Jones to Briefing.com subscribers and to other vendors. The complaint alleges that in some cases the republication and distribution occurs within a minute or two after the article is published by Dow Jones. In just one two-week period, Briefing.com copied a substantial portion of at least 100 articles and republished more than 70 headlines within three minutes of the initial publication on Dow Jones Newswires. Dow Jones alleges that this conduct violates Dow Jones’ copyrights and also amounts to “hot news” misappropriation.

William Shakespeare

Earlier this week, on October 27, 2009, Amazon Technologies, Inc., received US Patent No. 7,610,382, which relates to a computer implemented method of marking copies of content distributed on a network. More specifically, the patent discloses and claims a variety of embodiments of a method and associated apparatus for programmatically substituting synonyms into text content distributed through a Web service. Embodiments include having a synonym substitution mechanism that will replace selected words in text with synonyms for those selected words, such as by substituting the synonyms in excerpts of copyrighted works that are provided to via a Web service interface. Tip of the hat to Slashdot for finding this patent and bringing it out into the open, but the major thrust of the patent and its potential importance was unfortunately downplayed. The submitter did recognize that in one version of the invention the method can be used to identify and call out copyright infringers, but then snidely joked about a minor aspect of the patent by saying “anti-piracy measures should trump kids’ ability to spell correctly, shouldn’t they?” Perhaps it is to much to ask for the masses to take any software related patent seriously, but there is no doubt this is an innovation and a good example running up to the Bilski Supreme Court arguments why software innovations should be patentable if they satisfy the other patentability requirements; namely if they are new and non-obvious.

Hal Wegner

I guess I have finally made the big time!  Earlier today Hal Wegner’s e-mail newsletter was passed along to me by someone who is a subscriber to his list.  If what I was sent was in fact his entire newsletter for September 12, 2009, I should be expecting a royalty check in the mail.  It would seem that Hal’s newsletter, 13 pages in total, had about half of a page written by Hal, followed by 12 pages written by yours truly.  It would seem that Hal didn’t have anything to write about himself, so he chose to simply redistribute my original content without authorization.  I guess that means that Hal doesn’t know as much about copyright law or copyright infringement as one would expect from such a distinguished partner at Foley & Lardner.  Don’t get me wrong, I am honored that Hal thinks enough of my writing to simply take it to populate what he is passing off as “his” newsletter.  I would have thought that someone with such a distinguished background would understand that citation to a source does not absolve what is otherwise clearly copyright infringement.  And the worst part, while he copies lengthy passages from my writings he uses the opportunity to give me back-handed compliments that are obviously intended as insulting and belittling.  Well Hal, I have ignored you and your writings in the past, the lambasting of blogs in general and your arrogant and self righteous attitude.  Now you have my full attention.

Every once in a while we do an Internet search to find out what is out there quoting to IPWatchdog.com or me personally.  We also try and make sure that others are not infringing upon our works by republishing our content without permission.  It is flattering in one sense to have people want to steal your stuff and copy it without permission, but that is, of course, copyright infringement.  I authorize some republication, but not much any more.  Search engines, particularly Google, punish websites for identical content being on multiple websites.  That has been and to some extent still is a tell-tale sign to Google that you are trying to manipulate their search rankings via other than preferred means.  So the republication, particularly when not authorized, is something that I do not tolerate.  I have even started sending out DMCA takedown notices as appropriate.  See Sample DMCA Take Down Letter.

It just came to my attention earlier today that someone had copied an entire article from IPWatchdog.com and posted it to their own website last week.  How is it possible that anyone doesn’t realize that you just cannot do that?  More likely, it is known that you cannot do that but people do it figuring they won’t get caught.  One of the most frequent questions I would get from my former law students was “how do you ever learn that someone is infringing”" or “how would you ever know what someone it thinking?”  For those areas of law where motive matters, luckily those who are malicious also tend to be rather stupid.  While they don’t necessarily need to tell you they fired you because you are African American, female or disabled, so many people revel in their own bigotry (and stupidity) and just cannot help themselves.  That is a special kind of hate, when you cut your nose off to spite your own face.  In the intellectual property context it frequently isn’t as easy to spot infringement unless you are vigilant, search and survey what is out there at any given time.

The recording industry has scored gold in its court battle with Usenet, which advertises itself as a massive online file sharing community. See: Arista Records v. Usenet, 07 Civ. 8822 (S.D.N.Y. June 30, 2009) The case, filed back in 2007, pitted the record companies against Usenet, with the recording industry alleging widespread infringement of copyrighted recordings through downloading over the Usenet network and Judge Harold Baer agreed, finding Usenet guilty of direct, contributory and vicarious copyright infringement.

Yesterday as I was watching news coverage of the thousands of tea parties that occurred all across America one particular sign caught my attention.  It was a poster of Ronald Reagan in a style reminiscent of the now famous Barack Obama poster created by Shepard Fairey.  You may recall that Fairey created a popular print made famous through the 2008 Presidential Campaign, which the Associated Press claims was an unauthorized copy of an AP photograph of then candidate Obama.  The Associated Press came forward with a statement explaining that it believed Fairey’s work was an infringement upon its copyright in the photograph, and then days later in a strange move Fairey sued the Associated Press for a declaration that he did not infringe the copyright in the photograph and that his use was a fair use. 

A Los-Angeles based street artist named  Shepard Fairey created what many would say was one of the most enduring images of the 2008 Presidential Campaign, a poster of Barack Obama with a stern and confident look gazing slightly upward and to his left.  The trouble with this poster is that is is based on a copyrighted photo taken by the Associated Press, and the Associated Press wants to be paid for the use of the photograph.  According to the Associated Press, the image has led to sales of hundreds of thousands of posters and stickers, and has become so much in demand that copies signed by Fairey have been purchased for thousands of dollars on eBay.  Fairey admits that his poster is based on the AP photograph, but claims that his use of this photograph is fair use and that the Associated Press is not entitled to any compensation.  Predictably, the AP takes the contrary view, saying that it was not a fair use and they they are entitled by law to protect the rights they own in the photograph.

While it seems on one hand that the Recording Industry Association of America (RIAA) is standing down its enforcement efforts, there are several reasons to wonder whether this is really the plan or if there is more under-handed and insidious behavior yet to come. As was discussed on Monday, an RIAA favorite attorney will become the Deputy Attorney Generalof the United States, and third in command at the Department of Justice. Additionally, while the RIAA has given up pursuing some college students, they seem to be quite persistent in going after Joel Tenenbaum in Massachusetts. In this case, the RIAA sued a number of defendants in the United States District Court of the District of Massachusetts, and most were not represented by counsel and simply defaulted. Joel Tenenbaum was different though. He is one of the few defendants represented by counsel, and his counsel is Professor Charles Nesson of Harvard Law School and the Berkman Center for Internet and Society, so he is extremely well represented given this is exactly what the Berkman Center specializes in.

What is going on with the Recording Industry Association of America (RIAA)?  After many years of waging a war against anyone and everyone that they thought illegally copied music, capturing many innocent people up with their Gustapo-like actions, and fighting with Internet Service Providers at every turn to get private information about users, the RIAA seems to have become a kinder, gentler organization lately.  Not only has the RIAA fired MediaSentry, the company they used to collect information about suspected infringers, but now they are giving up on several cases where they went after college students for downloading and sharing music.  What has gotten into the RIAA?  Have they finally understood that it doesn’t make any sense to sue potential customers?  Are they finally willing to embrace technology?  Have the figured out that they can actually make money with new technologies?  Of course, the technologies are not new to the rest of us, but undoubtedly new to the RIAA given they have spent most of the last decade trying to kill what they perceived to be evil compression technologies. 

The Motorcycle Safety Foundation announced that it has resolved its copyright infringement lawsuit against Dr. Edward Ray, on behalf of Oregon State University, and Stephen Garets, operators of the Team Oregon Motorcycle Safety Program. The Settlement Agreement was finalized by all parties on December 19, 2008.

Yesterday the Wall Street Journal reported that the Recording Industry Association of America (RIAA) fired MediaSentry, the Recording company it used to help it gather evidence for mass lawsuits it filed against people it claimed were illegally uploading copyrighted music. It would seem that the RIAA is finally coming to its senses and realizing that the way forward is not to use scare tactics or sue, but perhaps to accept the new technologies and maybe even embrace them.

On Monday, December 22, 2008, Gatehouse Media, Inc. filed what can only be charaterized as a ridiculous and frivolous lawsuit against the New York Times alleging copyright infringement by the New York Times because one of the papers owned by the Time, namely the Boston Globe, was linking to original articles owned by Gatehouse Media.  The complaint filed by Gatehousealleges that the Boston Globe is infringing its copyrights by taking the title of the article along with the first sentence of the article and posting them to its website.  Gatehouse acknowledges in the complaint that if someone visits the Boston Globe page in question, their Newton Page, and clicks on the title of the article they are immediately and directly taken to the Gatehouse page where the full article is available. 

On Monday, August 4, 2008, the United States Court of Appeals for the Second Circuit issued an important decision that sets the stage for Cable companies and Satellite TV providers to sell technology that will allow for the archiving of recorded television shows in digital format.  This decision overrules an earlier decision by a federal district court that ruled in 2007 that Cablevision could not pursue the technology because it would infringe the copyrights owned by content creators.  While this decision is a big victory for Cable and Satellite TV companies I would suspect that this matter will ultimately make its way to the United States Supreme Court before it can finally be put to rest.  My prediction is that if and when it does reach the US Supreme Court the decision of the Second Circuit will be upheld.

Recently Hollywood executives approached both AT&T and Verizon to seek their help in preventing piracy over their networks.  According to a New York Times article, AT&T is working with the entertainment industry to figure out how to identify illegally copied material that is being transmitted over its broadband network.  Verizon, on the other hand, said — NO — we are not going to be the police force for the entertainment industry online.