📽 Current Issues Relating to the Digital Millennium Copyright Act DMCA :: NANOG 69

:: RFC :: Copyright Office Seeks Additional Comments for Section 512 Study

Copyright Newsletter: "The U.S. Copyright Office is conducting a study to evaluate the operation of the ISP safe harbor provisions of section 512 of title 17 and has reviewed public input from the first round of written comments and from roundtable participation. You may access the comments and a transcript of the roundtables on the Copyright Office website here.

"To further aid the analysis, the Copyright Office is now soliciting additional written comments on a subset of issues. These include questions relating to the characteristics of the current Internet ecosystem, operation of the current DMCA safe harbor system, potential future evolution of the DMCA safe harbor system, and other developments relevant to this study. The Copyright Office is also seeking submissions of empirical research on any topics that are likely to provide useful data to assess and/or improve the operation of section 512. 

"You may access the Federal Register notice here. Written comments are to be submitted electronically using the regulations.gov system. Specific instructions for submitting comments are available on the Copyright Office website at http://copyright.gov/policy/section512/comment-submission/. 

"Comments must be received no later than 11:59 p.m. Eastern Time on February 6, 2017. Empirical research studies must be received no later than 11:59 p.m. Eastern Time on March 8, 2017.

:: LOC Section 215 Roundtables in SF May 12

Copyright Office Posts Agenda for Section 512 Roundtables in San Francisco, Announces Room Change
Issue No. 625 - May 06, 2016

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The U.S. Copyright Office has posted the agenda for the section 512 public roundtable taking place on May 12 and 13, 2016 in San Francisco, California. The agenda provides the location and times of the sessions and lists the participants assigned to each session. The agenda is available on the Office website here.


The Office is also announcing a change in the room location for the San Francisco section 512 roundtable. Originally scheduled to take place in courtroom four, the roundtable will now be held in courtroom five of the James R. Browning Courthouse, 95 Seventh Street, San Francisco, California 94103.  


For further information on the section 512 study, please see http://copyright.gov/policy/section512/

:: Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies

"In this final rule, the Librarian of Congress adopts exemptions to the provision of the Digital Millennium Copyright Act (“DMCA”) that prohibits circumvention of technological measures that control access to copyrighted works, codified in section 1201(a)(1) of title 17 of the United States Code. As required under the statute, the Register of Copyrights, following a public proceeding, submitted a Recommendation concerning proposed exemptions to the Librarian of Congress. After careful consideration, the Librarian adopts final regulations based upon the Register's Recommendation."  Fed Reg Notice.

IP Address =/= Individual Culpability. Breaking Glass Pictures v Does, DAZ 2013 #230 #CDA #copyright

Oh, I really like this decision.  Here is a court that understands that vagaries of the Internet.

Pop Quiz:  Something bad happens online.  I can tie that something-bad back to an IP address.  Do I know who did the bad thing??

Answer: N'ah!  According to the court, an IP address may identify an account owner; it does not identify who was using the Internet at that particular time and who may be responsible for the actions in question.

Ouch! But its right.  Imagine.... (oh I hate analogies).... imagine a TV set is on in a house... and for some reason that is bad.  Do I know who was watching the TV?  Of course not.  And in certain houses (group houses, duplexes, apartment buildings, dormitories, office buildings) that could be a lot of people.  And even if only one person lives at that house, it could be a guest or it could be the guy outside walking his dog who happens to look in the window.  There is a plethora of people who could watching that TV at any given moment in any given living arrangement.

In  Breaking Glass Pictures v Does, DAZ 2013, Plaintiff brought a claim for copyright infringement, wants early discovery, but the court is refusing.  Plaintiff wants an ISP to identify the subscribers that are matched to certain IP addresses so that Plaintiff can then sue those defendants in place of the "Does."

In a previous order, the court concluded that this effort 'was not "very likely" to uncover the identities of individuals who could legitimately be named as Defendants.'  Connecting an IP address to a subscriber gets you only the name of the subscriber, not the name of the person who was engaged in the conduct at issue.  To put it simply, Plaintiff cannot merely guess at who engaged in the conduct - Plaintiff must allege some basis that the defendant in question is the person engaged in the conduct.  Lacking that, Plaintiff does not get to just keep suing until he gets it right.

But the complication that Plaintiff fails to discuss is that it is not enough to simply identify the subscribers behind particular IP addresses to state a plausible claim for copyright infringement against those individuals. Instead, a plausible claim must be supported by factual allegations establishing that the particular person identified as a defendant was, in fact, the individual who engaged in wrongful conduct. In other words, discovery to identify the ISP subscribers is only the starting point. Plaintiff will also need to conduct discovery to determine who was using the Internet connection at the time the alleged infringement occurred. Plaintiff will then have to amend its complaint to allege the facts supporting its claim against each individual. The fact that Plaintiff needs discovery to unearth the factual basis for its claims is precisely the conundrum referenced in the Court's prior order regarding recent Supreme Court authority.

According to the Supreme Court, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations omitted). It is not enough for a complaint to plead facts "that are merely consistent with a defendant's liability." Id. at 678 (quotation omitted). Instead, the complaint must go further and "nudge[] [the] claims . . . across the line from conceivable to plausible." Id. at 680 (quotation omitted). And "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief." Id. at 679.

Plaintiff's current complaint alleges the subscribers, identified as John and Jane Does, engaged in direct copyright infringement. (Doc. 1 at 14). But the complaint contains no factual allegations setting forth that the subscribers were, in fact, the individuals using the Internet connections at the relevant time. Thus, it is conceivable that the subscribers were using the connection but it is equally plausible that someone other than the subscribers were using the connection. In fact, the motion for reconsideration concedes this point. (Doc. 10 at 7). Thus, the complaint does nothing more than make vague allegations that are consistent with the subscribers' liability for copyright infringement. Because those allegations are also consistent with the subscribers not being liable, Plaintiff has not stated plausible claims against the subscribers.

It is not enough that the subscriber associated with an IP address might have been the person engaged in the questionable conduct - the Plaintiff must have sufficient evidence that the person named as defendant actually was the person that engaged in the questionable conduct.  Suing until you get it right dont work.

Defendant then trots out an old argument that the subscriber of an Internet access service is responsible for everything that happens on that service.  In other words, the subscriber would be negligent for letting bad things happen; the subscriber would be negligent for improperly securing their Internet access.

The courts that have addressed this issue, however, have concluded there is no duty to secure your Internet connection. See, e.g., New Sensations, Inc. v. Does 1-426, 2012 WL 4675281 at *6 (N.D. Cal. Oct. 1, 2012) (rejecting negligence claim based on failure to secure Internet connection by stating "common sense dictates most people in the United States would be astounded to learn that they had such a legal duty"). And absent a recognized duty, the negligence claim is fatally flawed.

Even if the Court were to assume the subscribers had a duty to secure their Internet connections, Plaintiff's negligence claim likely would be preempted by the Copyright Act or barred by the Communications Decency Act. See, e.g., AF Holdings, LLC v. Doe, 2012 WL 4747170 at * (N.D. Cal. Oct. 3, 2012).

Okay, let's see how the umpires score this:  

Early discovery is denied because

• IP addresses reveal account subscribers; not the individual using the Internet and engaged in the conduct at issue;
• Subscribers have no duty to secure their Internet connection; and 
• Subscribers are not liable for what other people do over their Internet connections.

The subscriber to an Internet account is an intermediary.  It is the person who negotiates with the ISP and pays the bill.  But who uses that account can range in the multitude.  And as we have seen time and again over history, it can be extremely difficult if not impossible for that intermediary to monitor and control everything that transpires over that connection.  That is why Congress prudently passed 47 USC 230 which makes clear that online services (including subscribers) are not responsible for what other people do and say online. To hold otherwise would be to so encumber Internet access that there could be no public WiFi points, no sharing your Internet with your guests, and ridiculous indemnity forms for checking your email. It's just a bad idea.

VIDEO Internet Law and Public Policy Conference, Stanford Law School

"On May 3-4, 2013, Stanford's Program in Law, Science and Technology hosted the Second Stanford-Peking University Conference on Internet Law and Public Policy."

A Hack. A Scrape. A Crash. A Lawsuit. Snap-On Business Solutions, Inc., v O'Neil Associates, Inc., 5:09-CV-1547 (ND Ohio April 16, 2010)

In today's story, we hear a tale of a business deal gone sour, the alleged hacking and crashing of a computer system, data that are free except when it's not, and words that don’t always mean what they appear to mean. And while the characters in our story managed to have at least six disputes, we once again only focus on the federal causes of action, ignoring the other stuff.

The facts of this case involve an old favorite – a relationship breakup. And as always, in our story the names have been changed to protect the innocent (and to be totally Dragnet-like, I have acquired one of those really square haircuts). The story has been reformatted to fit your screen.

In this case, Third Party Thurston hired Plaintiff Penelope to make a database of Third Thurston's products for sale. Plaintiff's databases include pictures, links, and searchability. Plaintiff hosted the database on its servers and provided host network security. Third Thurston was responsible for authorization security (issuing and maintaining user names and passwords). The parties further agreed that all the work that went into creating the database was the property of Plaintiff – but that the data in the database constituted Third Thurston's trade secrets. Thurston provided Plaintiff with all the data and information about Thurston's products in order to make the database.

After a while Third Thurston decided he wanted to go with Defendant Daffy to make the database. When Thurston asked Plaintiff Penelope for the data, Plaintiff said, "Nope." Third Thurston then asked Defendant Daffy to "scrape" Plaintiff's database for the data. This scraping took place over several months and allegedly caused spikes in traffic loads on Plaintiff's servers. Plaintiff Penelope took offense at this scraping, blocked Defendant Daffy's IP Addresses, and sued Defendant Daffy (not Third Thurston). Defendant and Plaintiff are, of course, in the same line of business.

In this decision, the Court had before it a motion for Summary Judgment. In a motion for summary judgment, the moving party argues that no facts are in dispute and that the case can be resolved on paper, without a trial. If relevant facts are in dispute, then a motion for summary judgment fails. There are two federal causes of action: (1) Computer Fraud and Abuse Act and (2) Copyright Infringement.

Computer Fraud and Abuse Act: This is another example of the CFAA being used for a civil remedy – normally we hear about the CFAA in the context of criminal convictions. The question at hand is whether Defendant Daffy's access of Plaintiff Penelope's computers was authorized. This not a case, the Court points out, where a contract has been dissolved – and one party attempts access after termination of the contract having lost authorization. The contract between Plaintiff and Third Thurston was still in place, and Third Thurston was in charge of access authorization. Doesn’t that mean that Third Thurston gets to say who gets access and who does not? Third Thurston gave Defendant authorization to access the database. It seems like the access is authorized.

But the Court is not convinced that Third Thurston had the ability to authorized access to just anyone. There is some factual ambiguity as to the full scope of Thurston's authority. A part of the contract between the parties indicates that Thurston could only authorize access by Dealers, and the Dealers could use the database only "for its intended purpose" (how's that for vague!). On the one hand its plaintiff's servers, on the other hand Thurston got to hand out authorizations, but on the other hand it was just suppose to be "for the intended purpose." Where does that leave us, asks the Court. That creates a factual dispute (what is the scope of Thurston's authority) – and therefore the motion for summary judgment is denied.

Copyright Infringement: The second cause of action is for copyright infringement. This cause of action, as they say in legal jargon, "steps in the doo-doo." First, some basics. Ideas and facts are not copyrightable. It's original creative intellectual work that is copyrightable. The fact that the Earth is the center of the universal and that the Sun revolves around the Earth – is not copyrightable. Ptolemy's treaty explaining the whole Earth-is-the-center-of-the-universe thing is copyrightable. Now if I take a whole bunch of facts, and arrange them in a database – the database is not copyrightable. But if I add original structure or navigation or content to the database in order to improve the user experience, those creative enhancements are copyrightable. And it is on this legal boundary that a long list of legal battles have been pounded out – when does data which is not protected by copyright become protected by copyright when placed in a database?

Plaintiff argues that when defendant scraped the database, it copied the improvements and the creative aspects of Plaintiff's work. Defendant argues in its motion for summary judgment, "Nut uh. Plaintiff's 'database does not possess the minimal degree of creativity required for copyright protection because its structure is obvious.'" The Court points out that when Defendant scraped the database, it took the link structure and navigation information – along with a bunch of other stuff. Defendant reiterated its argument – "yeah, but you're Honor.The structure of the data, I mean it was obvious."

"Oh yeah??" exclaimed the Court (in A Few Brave Men like moment). "If the structure of the data in the database is obvious, how come you marketing pitch to Thurston was that that you would provide a better database by altering the arrangement of the data."

Whoops. Guess you cant argue that the arrangement of the data in the database you scraped was obvious, when your whole business plan rests on the fact that there are different ways of arranging the data – and your way is better. Score one for the Judge. Since Plaintiff's enhancements to the database could arguably be protected by copyright, defendant's motion for summary judgment once again fails.

Okay class, now here is your extra credit question. In Round Two of this case, assume ultimately hypothetically that it is found that the database is the property of Third Thurston, and that it was properly within the scope of Thurston's authority to grant access authorization to the database to Daffy. Plaintiff blocked Daffy's access by blocking Daffy's IP numbers. Does Thurston have a cause of action against Plaintiff for blocking an authorized user – and if so, what would that cause of action be?

Technology & Marketing Law Blog has an excellent review of this case, going over all of the causes of action. Technology & Marketing Law Blog make a number of astute observations – including the obvious – if you contract with someone to do data work for you, include a provision that says the data and database is yours - and if you say gimme gimme, you gettie gettie.

[Disclaimer]

In Which We (Once Again) Consider: Is It Legal to Link to a Website? "Voldemort" v. Blockshopper

Really? This is still an issue? The commodity, open to the public, Internet is almost 20 years old. The World Wide Web, an application fundamentally based on the premise of linking, was unleashed by Sir Tim Berners-Lee some 17 years ago. We have a waste can full of federal cases supporting the conclusion that it is, in fact, legal to link. And we still have to ponder the dilemma, It It Legal to Link?!?

Well, according to the Northern District Federal Court of Illinois, we do.

Really??

Ok, breath. Patience. Some people still are learning that the CD drive in the computer is not a cup holder. Breath.

Let's take it from the top. In today's case, we have, in one corner, Blockshopper.com, defendant, accused of infringing and diluting the trademark of plaintiff, in the other corner. Plaintiff v Blockshopper LLC, Case No. 08 CV 4572 (ND ILL). The Court recently had before it defendants' Motion to Dismiss, which it denied. And if the Court had any difficulty understanding the law in this area, the Court also had before it a Motion by the Electronic Frontier Foundation, Public Citizen, Public Knowledge, and Citizen Media Law Project to file Amici Curiae brief, which it also denied.

Now before we start, a few safety precautions. Plaintiff seems to be of the persuasion that merely uttering its name could result in trademark confusion or infringement (making information gathering, new reporting, and blogging rather difficult). Therefore, since we dont want to offend or be sued, in this post, Plaintiff will be a name that must not be uttered. In its place, we will have to use some other name. Let's see, what would be a good substitute for he-who-must-not-be-named. Oh, I know! Voldemort! In this post, we will use "Voldemort" in place of Plaintiff's name (and for you humor-impaired attorneys out there - this is called "parody" - say it with me, "p - a - r - o - d - y").

In addition, since Voldemort is of the persuasion that merely linking to its website gives rise to a cause of action, we will avoid doing so like a hound dog avoids taking a bath.

Back to the case. The Illinois Court describes defendant shortly as

"Defendant Blockshopper LLC is a Missouri limited liability corporation, having its place of business in Chicago. Defendants [John] and [Doe] are members of Blockshopper and co-founded, registered and own the internet website located at the domain www.blockshopper.com. Blockshopper is in the business of gathering and publishing details of private real estate transactions."

In Defendant's own words, "BlockShopper.com is a residential real estate news service for... eureka.. actual residents themselves." Reminds me of my local newspaper which does a lot of the same reporting.

Compare and contrast this to how the Illinois Court describes the plaintiff - and then, without even reading the decision, vote on who you think won this round:

"[Voldemort] is a large, international general partnership law farm with an office in Chicago, among other cities. [Voldemort] is the owner of two United States Service Mark Registrations, Numbers 2,316,539 and 2,212,877, for the mark [Voldemort] in connection with "Legal Services." As a result of the high quality of legal services it has provided to its clients and its reputation as one of the premier law firms in the United States and the world, [Voldemort]'s name and service marks have become very valuable assets and are famous. [Voldemort] has spent millions of dollars marketing its services using the [Voldemort] Marks; and as a direct result of the time and effort promoting the [Voldemort] Marks, [Voldemort]'s clients, its competitors and the general public have come to associate high quality legal services provided by [Voldemort] by its use of the name and service mark [Voldemort] in both word and stylized form." Court Opinion at 2.

Ladies and gentleman, in one corner, weighing in at 100 pounds of pure heavenly sainthood, is Saint Mother Teresa who has fed the hungry, clothed the poor, and given homes to the homeless. And in the other corner, some out-of-state schmuck doing one of those Internet Web 2.0 things.

Not good.

Okay, ah, maybe it's not as bad as it seems. What exactly did the out-of-state schmuck do to which plaintiff took offense.

"One at least two occasions, Defendants have used the [Voldemort] Service Marks on the blockshopper.com website and have linked articles on the website to the [Voldemort] website. Exhibited D of the Complaint pertains to reports appearing on the blockshopper.com of facts of residential real estate transactions made by two [Voldemort] associate lawyers, [Saruman the White] and [Merlin]. The report states the facts of real estate transactions of the [Voldemort] associates, displaying their pictures, and states that the associates work for [Voldemort]. In addition, the report includes links to information about these associates appearing within [Voldemort]'s website." Court Opinion.

If I am getting this correctly, Blockshopper linked to Voldemort's website in real estate articles discussing purchases of attorneys who worked at Voldemort. And this is a problem legally speaking why?

"[Voldemort] contends Defendants' use of the [Voldemort] Marks, the links to the [Voldemort] website, and the use of proprietary information from the [Voldemort] website create the false impression that [Voldemort] is affiliated with and/or approves, sponsors or endorses Defendants' business, which it does not.

"Arising from these facts, [Voldemort] alleges five claims for relief against Blockshopper and [John] and [Doe]:

(1) service mark infringement pursuant to 11 USC s 1114 and 1125(a)

(2) federal false designation of origin pursuant to 15 usc s 1125(a)

(3) federal service mark dilution pursuant to 15 USC s 1125(c)

(4) unfair business practices under the Illinois Uniform Deceptive Trade Practices Act; and

(5) infringement and unfair competition under Illinois common law."

Okay, ah, I didnt really know this was necessary - that someone reading a website providing information about third parties and stuff might confuse the information website with that third party - particularly when that third party is famous - but let's just be clear, shall we? Plaintiff is not affiliated with this website. I have never asked for Plaintiff's approval. Plaintiff has never, to my knowledge, endorsed Cybertelecom. Is it safe to discuss the case further??

Blockshopper filed a 12(b)(6) motion to dismiss Voldemort's complaint. Under Rule 12(b)(6), you assume the facts plead in the light most favorable to Voldemort. The Court then says, assuming all this to be true, is there an actual cause of action? Courts are at liberty to construe motions to dismiss as motions for summary judgment just to help sort things out (the two are pretty close - the difference would be with summary judgment, there is cause of action articulated, but on the facts assumed, there aint enuf and plaintiff still loses).

Finally, before diving into whether it is Legal to Link - Cybertelecom is focused on federal law - so I will just craftily wave away Count 4 and 5 of Voldemort's complaint which are based on state law.

The scene of the crimes can be found in exhibit D in Voldemort's complaint (the pages appear to be no longer available on the Blockshopper website). Exhibit D is of a webpage from the Blockshopper website. The top left corner is the Blockshopper domain name. The top right corner is the Blockshopper URL. The header is a Chicago Blockshopper Logo. Then comes the body text about the Voldemort attorney. Finally the footer states "Copyright 2006-07 Blockshopper..." The body text takes the form of a news article.

The webpage is an article about the purchase, has a picture of the attorney, a picture of the place he bought, and a map showing where it was purchased. The attorney's name is hyperlinked to the Voldemort website A second Blockshopper webpage is attached in Exhibit D for the second Voldemort attorney, with essentially the same format.

Nothing on the webpage indicates that Voldemort is affiliated with and/or approves, sponsors or endorses Defendants' business. The page takes the format of a news article with a title, date, byline, and article text. A quick glance at the Blockshopper homepage reveals that it is reporting on several such sales each day on a wide variety of real estate transactions involving a wide variety of individuals who may be associated with a wide variety of organizations.

So now I am confused. How do you get a cause of action based on these facts?

Voldemort's objection is "On at least two occasions, Defendants have used the Voldemort Service Marks and linked "articles" on the Web Site to the Voldemort web site. See Exhibit D." Complaint para 25. So the facts that are basis of the cause of action are:

• Defendant "is in the business of gathering and publishing details of private real estate transactions." It's a news site.
• Defendant used the name "Voldemort" in the title and text of a news article;
• The use of the name "Voldemort" describes the employment of a real estate purchaser in an article discussing the real estate purchase;
• The name "Voldemort" is not itself linked; and
• The name of the real estate purchaser is hyperlinked to the real estate purchaser's bio on plaintiff's website.

Count II of Voldemort's complaint claims trademark dilution. According to trademark law:

"The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:

(A) any fair use, including a nominative or descriptive fair use, or facilitation of such use, or a famous mark by another person other than as a designation of source for the person's own goods or services, including use in connection with (i) advertising or promotion that permits consumers to compare goods or services; or (ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.

(B) All forms of news reporting or news commentary.

(C) Any noncommercial use of a mark.

15 USC s 1125(c)(3). This would seem to be clear that no cause of action for dilution can lie based on Voldemort's facts; this would fall under "all forms of news reporting" . Seems like this would go for Counts 1 & 2 as well, but we shovel on.

Counts 1 (infringement) and 2 (false designation of origin) are both based on of 15 USC s 1125(a). Well, what has almost two decades of caselaw said about linking to someone else's website?

• Ford Motor Company v. 2600 Enterprises, 177 F.Supp.2d 611 (EDMi Dec. 20, 2001): As much as plaintiff Ford Motor Company might have been displeased by the antics of the defendant, the Court found that registration of the domain name "fuckgeneralmotors.com" which then linked to Ford's Homepage did not create a cause of action for trademark dilution, trademark infringement, or unfair competition. The Court stated, "This court does not believe that Congress intended the [Federal Trademark Dilution Act] to be used by trademark holders as a tool for eliminating Internet links that, in the trademark holder's subjective view, somehow disparage its trademark. Trademark law does not permit Plaintiff to enjoin persons from linking to its homepage simply because it does not like the domain name of other content of the linking webpage."
• American Civil Liberties Union v. Miller, 977 F.Supp. 1228 (ND Ga. 1997): A Georgia law criminalized the use on the Internet of a trademark or copyrighted symbol that implied permissive use when permission had not in fact been granted. The ACLU challenged this law arguing that it created an ambiguity concerning whether a trademarked term appearing in a hyperlink would constitute a criminal act. The Court overturned the law on constitutional grounds, finding that there is a First Amendment right to descriptively use a trademark in order to refer to the another webpage.
• Ticketmaster Corp. v. Tickets.Com, Inc., No. 99-07654 (CD Calif. Mar. 27, 2000) Tickets.com provided deep links to pages on the Ticketmasters.com website, assisting people in their ability to acquire tickets. Ticketmaster.com would have preferred that people come through their front door, and not through some side entrance, so much so that they sued Tickets.com. But Tickets.com provided only a hyperlink and there was a full disclosure that users were going to a third party website and would no longer be on tickets.com. Thus there was no confusion about whose services were being used. The Court concluded in this situation that deep linking in and of itself did not constitute copyright infringement.
• Knight McConnell v. Cummins, 03 Civ 5035 (SDNY July 29, 2004) "Plaintiff fails to state a claim for false designation of origin under the Lanham Act, 15 USC §1125(a)(1), based on allegations that defendant, who operates a site highly critical of plaintiff, has linked to plaintiff's web site without plaintiff's permission, has used plaintiff's name in the post-domain path of the URLs for several web pages, and has posted links on Internet chat forums and discussion boards directing users to visit these pages. To state a claim for false designation of origin, a plaintiff must show that she has a valid and protectable mark and that defendant's conduct is likely to cause confusion concerning the source or sponsorship of the goods or services in question. Even if plaintiff can show that she has a valid and protectable mark in her name, plaintiff fails to allege that defendant has engaged in any conduct that is likely to cause confusion as to the origin of defendant's web site. The mere appearance on a web site of a hyperlink to another site will not lead a webuser to conclude that the owner of the site she is visiting is associated with the owner of the linked site. Nor does defendant's use of plaintiff's name in the post-domain path of the URLs and the placement of those URLs on chat forums and search engines give rise to any source confusion"

So I'm back to confused. Looking at well established caselaw and the statute itself, where is Voldemort's cause of action? Plaintiff's alleged facts are (1) linking to plaintiff's website and (2) use of plaintiff's name Voldemort in news articles as a descriptive term. I know I keep repeating that - but I am struggling to comprehend how these facts can predicate a cause of action. The caselaw and statutory law are well settled that there is no federal trademark cause of action based on linking.

Either the law relevant to this case is well settled and the case should have been dismissed - or in the face of well settled jurisprudence, we have novel factors that complicate the analysis and may establish important new precedent in this area - in which case the input of expert organizations would be well appreciated and those organizations motion to file amici curiae briefs should have been granted. Surely a famous law firm such as Voldemort would not feel threatened or imposed upon by the appearance of such groups that could bring clarity to such a novel situation.

This decision has established that the mere mention of a famous trademark on your website in a fashion such as this - reporting on or discussing news and developments - much like so many blogs and websites do - can make you suffer the slings and arrows of expensive litigation. Plaintiffs may in the end lose their case - fine - but this case should never been allowed off square one. The motion to dismiss should have been granted. Since it was not, the fear of litigation - even litigation defendant is likely to win - is enough to chill speech and is contrary to the fair use provisions of the law.

According to Google, there are 594,000 webpages with the name "Voldemort" on it. I dont know, I guess plaintiff would like those 594,000 webpages not to link to it - but that might actually do more harm to plaintiff than good. It might jeopardize plaintiff's "famous" status as plaintiff would magically disappear from search engine results.

Well, even though the Defendant is getting soaked with pointless litigation expenses, at least bloggers have something to buzz about. I'm just thinking out loud here - what tarnishes a trademark more - having people link to your website in an article which increases your exposure and improves your ranking on search results - or filing a lawsuit that receives wide attention and condemnation?

"Wont Someone Please Think of the Children Webcasters!"

With all the elections, and ClusterF@#K to the Poor House, and figuring out which are the real Americans and which are the fake Americans - the 110th Congress sure found time to get busy with a lot of new legislation this fall.

This story begins with a fish - a CARP more precisely. Now given the nature of the past election, one would have thought that any discussion of fish would necessarily either involve Alaskan Salmon, or putting lipstick on a pig. Turns out - in the words of VPWannaBe Sarah Palin, PresWannaBe Barack Obama, and PresWannaBe John McCain - "You Can Put Lipstick on a Bad Music Royalty Deal, But It's Still a Pig."

The Copyright Arbitration Royalty Panel (CARP) had apparently agreed to a music royalty rate agreement for webcasters that was a pig, and would have put webcasters in the Poor House. Therefore, in the spirit of massive bailouts, Rep. Jay Inslee introduced the Webcaster Settlement Act which overrides the CARP decision, and allows the webcasters and the copyright owners to negotiate a new deal.

Tis the season for industry bailouts - and this one had the support of both sides of the negotiating table - the webcasters and SoundExchange, which represents the copyright owners. But in a democracy, every piece of legislation has to be opposed by somebody, so the National Association of Broadcasters volunteered to oppose it. But after a few smoke filled, back room deals to appease the opposition, the NAB relented and the legislation went through unanimously. It was sent to Still-President Bush and was signed into law on October 16.

Now everyone is happy (more or less):

• Inslee Internet Radio Bill Passes Senate Press Release : October 1, 2008 “It's a true delight to pass a bill which will allow for the survival of webcasting. Internet radio is an integral part of many of my constituents' daily lives and this bill will keep it that way."

• DiMA Thanks Congress for Passing Webcasters Settlement Act . “On behalf of DiMA and our Internet radio members, I want to thank Congress for acting quickly to pass the Webcaster Settlement Act. This legislation will enable DiMA and our member companies, and all Internet radio services, to continue negotiating royalty rates with SoundExchange for the years 2005-2015." "We express great thanks to Senators Wyden and Brownback, and Representatives Inslee and Manzullo for sponsoring the Webcaster Settlement Act and also being great leaders of the Internet Radio Equality Act.

• Press Release SoundExchange Welcomes Senate Passage of Webcaster Settlement Act , (Oct. 1, 2008) "The bill was needed to give the parties more time to negotiate while Congress is out of session and allow any agreements to take effect. Though there has been progress in the talks, SoundExchange expressed a note of caution because there is no deal yet with large webcasters although an agreement in principle with National Public Radio had already been announced. “We are hopeful, but we've been close at other times during the past 18 months,” said John Simson, Executive Director of SoundExchange. “Certainly, Congressman Howard Berman's role as facilitator has helped tremendously in moving the ball forward. My hope is that we can quickly get back to the table and capitalize on the momentum."
• Nab Statement On Senate Passage Of Webcaster Settlement Act , (Oct. 1, 2008) "NAB looks forward to sitting down quickly with SoundExchange to craft equitable streaming rates that enhance the online music experience and expose more artists to our listeners."

The law itself is relatively simple. According to the Congressional Reports Summary:

“Webcaster Settlement Act of 2008 - Allows a receiving agent (designated by the Librarian of Congress to collect royalties that ultimately are disbursed to sound recording copyright owners and performers) to enter into agreements with webcasters that establish royalty terms for the performance of sound recordings over the Internet. Provides that such agreements, which may be effective for a period of up to 11 years following January 1, 2005, are to be binding on all copyright owners of sound recordings and other persons entitled to payment, in lieu of any determination of compulsory license rates by the Copyright Royalty Judges.

Terminates the authority to negotiate settlement agreements under this Act on February 15, 2009.

Declares that nothing in this Act (or any agreement entered into under this Act) shall be taken into account by the U.S. Court of Appeals for the District of Columbia Circuit in its review of the May 1, 2007 determination of royalty rates by the Copyright Royalty Judges.”

Text of the legislation:

110th CONGRESS
2d Session
H. R. 7084|
AN ACT

To amend section 114 of title 17, United States Code, to provide for agreements for the reproduction and performance of sound recordings by webcasters.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Webcaster Settlement Act of 2008'.

SEC. 2. AGREEMENTS ON BEHALF OF WEBCASTERS.

Section 114(f)(5) of title 17, United States Code, is amended--

(1) in subparagraph (A)--

(A) by striking `small commercial' each place it appears and inserting `commercial';

(B) by striking `during the period beginning on October 28, 1998, and ending on December 31, 2004' and inserting `for a period of not more than 11 years beginning on January 1, 2005';

(C) by striking `a copyright arbitration royalty panel or decision by the Librarian of Congress' and inserting `the Copyright Royalty Judges'; and

(D) in the second sentence, by striking `webcasters shall include' and inserting `webcasters may include';

(2) in subparagraph (B), by striking `small commercial' and inserting `commercial';

(3) in subparagraph (C)--

(A) by striking `Librarian of Congress' and inserting `Copyright Royalty Judges';

(B) by striking `small webcasters' and inserting `webcasters'; and

(C) by adding at the end the following: `This subparagraph shall not apply to the extent that the receiving agent and a webcaster that is party to an agreement entered into pursuant to subparagraph (A) expressly authorize the submission of the agreement in a proceeding under this subsection.';

(4) in subparagraph (D)--

(A) by striking `the Small Webcasters Settlement Act of 2002' and inserting `the Webcaster Settlement Act of 2008' ; and

(B) by striking `Librarian of Congress of July 8, 2002' and inserting `Copyright Royalty Judges of May 1, 2007'; and

(5) in subparagraph (F), by striking `December 15, 2002' and all that follows through `2003' and inserting `February 15, 2009'.

Passed the House of Representatives September 27, 2008.

Attest:

Clerk.

110th CONGRESS

2d Session

H. R. 7084

AN ACT

To amend section 114 of title 17, United States Code, to provide for agreements for the reproduction and performance of sound recordings by webcasters.

END

H.R.7084
Title: To amend section 114 of title 17, United States Code, to provide for agreements for the reproduction and performance of sound recordings by webcasters.
Sponsor: Rep Inslee, Jay [WA-1] (introduced 9/25/2008) Cosponsors (4)
Related Bills: S.3649
Latest Major Action: Became Public Law No: 110-435 [GPO: Text , PDF ]