Dr. Phil McGraw’s company, Peteski Productions (Peteski), recently filed a lawsuit against Gawker Media (Gawker) for copyright infringement. It appears that Deadspin.com (Deadspin), which is owned by Gawker Media, posted portions of the doctor’s exclusive interview with the man behind the Manti Te’o girlfriend hoax online before the show actually aired in various parts of the country.

Deadspin originally broke the story, including the hoaxster’s catfishing scheme; however Dr. Phil was given an exclusive interview with hoaxster, Ronaiah Tuiasosopo. Dr. Phil’s interview with Tuiasosopo was a two-part episode, with a cliff-hanging first episode. But Deadspin took away Dr. Phil’s thunder (and seemingly lowered his ratings) by showing the “answer” to the cliffhanger online prior to Dr. Phil airing in most markets.

The National Press Photographers Association (NPPA) recently announced that it is joining the other cast of characters who have filed a class action complaint against Google, claiming (as the other plaintiffs have) that Google’s “Google Book Search” program violates the copyrights of several photographers and visual artists. The other plaintiffs include individuals Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback and Gail Kuenstler Living Trust, Leland Bobbe, John Francis Ficara and David Moser, and associations The American Society of Media Photographers, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, the Professional Photographers of America, and American Photographic Artists.

So what brought on this class action suit in the first place?  Well, it would seem that whenever someone conducts a search using the Google Books program, that search brings up images that are contained in both books and periodicals–images that are copyright protected. And apparently, this isn’t the first time Google Books has been under fire in litigation–even the writers of some of the books and periodicals that come up when using the search have also claimed copyright infringement.

In a recent brief ruling, Manhattan Federal District Court Judge Jed Rakoff dismissed Edward White’s lawsuit against legal research companies LexisNexis and Westlaw. An opinion had not been issued at the time of the ruling; however, the judge noted that the reasons for his dismissal would be set forth at a later date.

Background

In February of 2012, Edward White and Kenneth Elan (both of whom are attorneys) filed a class action complaint against Westlaw, which is owned by Thomson Reuters Corp., and LexisNexis, which is owned by Reed Elsevier, PLC, claiming that the companies actively participated in “wholesale unlawful copying of attorneys’ copyrighted work, bundled those works into searchable databases, and sold access to those works in the form of digitized text and images for huge profits.” White’s and Elan’s plan was to represent two specific classes of attorneys–those who had registered their works with the U.S. Copyright Office (as White had) and those who had not (as in the case of Elan). A few months later, though, Judge Rakoff threw out Elan’s claim, stating that “completing registration or pre-registration is a prerequisite to filing a claim.”

Charles Caleb Colton once said, “Imitation is the sincerest form of flattery.” But when the fruit of one’s labors are copied without regard, while flattering recognition that what has been created is worth taking, the taking causes real damage and calls into question whether further creation is economically viable.

Indeed, imitation can be quite annoying, particularly when that imitation masquerades as infringement of intellectual property rights. Such a taking was something that couldn’t be tolerated in the case of Tetris Holding, LLC and the Tetris Company, LLC vs. Xio Interactive, Inc.

As it turns out, Tetris Holding was not flattered at all about the infringement, took the fight to the infringer and ultimately prevailed. Tetris certainly was not the first video game to be imitated, and unfortunately it won’t be the last, but the outcome of this copyright and trade dress infringement lawsuit screams — Copycats Beware!

I am pleased to announce that in January 2013 we had our biggest month ever in terms of traffic to IPWatchdog.com. During the last Quarter of 2012 we averaged 89,260 unique visitors per month. In January 2013 we had 101,922 unique visitors, which represents growth of 14.2%.

Readers have probably noticed that we are publishing more articles, and we are lucky to continue to have a growing number of periodic guest contributors and regular featured columnists as well, which likely accounts for some of this increased traffic. However, another thing that almost certainly accounts for this substantial jump in visitors is the fact that in early January 2013 we made the decision to disable copying and pasting from IPWatchdog.com. This has caused some to become quite agitated with us, with more people than you might expect writing to tell us that if they are no longer able to copy and paste our articles then they will no longer read IPWatchdog.com.

So why the change?

The White House website explains that it is the right of the people to petition the government, a right that is guaranteed by the First Amendment of the United States Constitution. Of course, the idea of petitioning the President is not something that is new, but the ability to use the Internet to create an online petition that may be considered and responded to by the Federal Government is indeed quite new. Not surprisingly, the Obama Administration, known for savvy use of the Internet both in governance and campaigning, pioneered this unique approach to making government reachable by the masses.

With this in mind, last week, a petition was created to petition the White House to take down the website Jerk.com. To date the petition has unfortunately not received many votes. Earlier today I was the 28th e-signer of the petition. My guess is that this is due to lack of publicity more so than anything else. Once people learn of the petition my guess is that the signatures will accumulate quickly, but will there be enough time to reach the 100,000 signature threshold by February 22, 2013?

The first order of business, however, is to get the required 150 signatures so that the petition will be searchable on WhiteHouse.gov.  To view and/or sign the petition visit We the People.

Love her or hate her, Lady Gaga certainly provides good fodder for news stories and blog topics.  For some reason, an infringement suit against her that started back in 2011 is now the copyright topic du jour.  A Chicago musician called Rebecca Francescatti says that Mother Monster stole part of her song  “Juda” for the hit song “Judas”.  More specifically, the complaint alleges that a particular portion of “Judas” violates Francescatti’s exclusive rights of reproduction, distribution, performance, and preparation of a derivative work.  But before we get to that, we’ll need to wade through a bit of a semantics morass.

This suit is being couched in terms of plagiarism. This is incorrect.  Plagiarism is taking someone else’s work or ideas and passing them off as your own. While the term may be linguistically correct, it is not the appropriate way to frame the issues here.  The actual basis for the suit is copyright infringement so let’s be sure to call it what it is.   While each allegation merits its own separate analysis, the biggie here is whether the accused portion of Gaga’s song is substantially similar to the relevant portion of Francescatti’s song. Sweet!  Today we get to talk about sampling- my musician friends are going to be all over this one.

Jerk.com is one of those sites on the Internet that is the poster-child for everything wrong with the anonymity of Internet communications. Shrouded in the secrecy provided by the Internet, anonymous cowards become emboldened to say vile things and stoop to ridiculous lows — even publishing pictures of minors and asking the Internet community to vote on whether the minor is a jerk. That is the business Jerk.com is in, and they refuse to remove any profile that has been created regardless of the vile, anonymous comments that have been posted.

An earlier edition of the Jerk.com “REMOVE” page explained:

No one’s profile is ever removed because Jerk is based on searching free open internet searching databases and it’s not possible to remove things from the Internet. You can however use Jerk to manage your reputation and resolve disputes with people who you are in conflict with.

That obviously ridiculous and inaccurate statement of fact and law has been watered down now, but based on what I hear from those who feel aggrieved by Jerk.com suggests that their philosophy seems to continue to be that no one gets removed. Jerk.com almost seems to play the part of victim, suggesting that it is impossible to remove something from their servers. It is certainly possible for Jerk.com to remove a profile.

On Thursday December 13, 2012, Google and a group of Belgian newspaper publishers reached an agreement on a 6-year long copyright dispute.

In an official statement that was released by Google, the company stated: “We have reached an agreement that ends all litigation. From now on Google and Belgian French-language publishers will partner on a broad range of business initiatives.”

Thierry Geerts, Managing Director of Google Belgium, also wrote on the Google Europe blog: “We have reached an agreement that ends all litigation and represents great news for both us and the newspapers. We continue to believe that our services respect newspaper copyrights and it is important to note that we are not paying the Belgian publishers or authors to include their content in our services.”

With cease and desist letter, Hasbro has shut down an unauthorized online multiplayer game that featured the characters from their widely popular cartoon, My Little Pony: Friendship is Magic.

ToastyJustice , the moderator of My Little Pony Online (found at MLPonline.net) stated on their website that:

Just over a month ago, we released our first episode of our game. After a year and a half since the outset of the project, we were happy to present our first Episode to you. Though our servers suffered, we were pleased with the response and the great feedback we received!

Shortly after that–exactly 4 weeks prior to now–we received a complaint about copyright and trademark infringement. We initially dismissed this it was most likely submitted by some trolls, as they could be submitted anonymously by anyone through our CDN. However, we continued to look into it, and by the following Monday, found it to be very real…

The matter was quite strict: there was little that we could do to work around it. We removed the download link and development was suspended. Discussions continued through the month, but it came down to one fact: MLP:Online had come to an end.

Yesterday the Copyright Clearance Center, Inc. (CCC), a not-for-profit organization and leading provider of licensing solutions, announced that one of the top patent firms in the United States has signed a five year licensing deal, taking advantage of CCC’s Annual Copyright License. The firm is Oblon, Spivak, McClelland, Maier & Neustadt, L.L.P., which year after year is the top firm in terms of the number of cases filed and handled at the United States Patent and Trademark Office.

“Law firms thrive on the exchange of information,” said Miles McNamee, Vice President, Licensing and Business Development, CCC. “The Annual Copyright License gives Oblon Spivak employees the freedom and flexibility to share content with each other.”

“We think this is a win-win situation for Oblon and CCC,” said Brad Lytle, Managing Partner, Oblon Spivak. “This license allows us to go about our business and focus our efforts on protecting the intellectual property of our clients.”

But why is Oblon taking a copyright license, that is the real question?

In a battle for the superheroes, a federal complaint alleging copyright infringement was filed on October 9, 2012, in the United States Federal District Court for the District of Colorado by a company called Stan Lee Media. The company was started by Stan Lee with his friend Peter Paul, who is now serving time in prison for fraudulent activities regarding this company. Lee wisely pulled out of the company over a decade ago when it failed. According to the complaint, Lee signed over the rights to his famed superheroes to the company Stan Lee Media.

Now, Stan Lee Media has filed a lawsuit against The Walt Disney Company for their production of movies and memorabilia that star Marvel characters such as Spider Man, Captain America and The Avengers. Although The Walt Disney Company has put out many movies based on these super heroes and have also licensed them to other studies to use, the complaint states that the Marvel characters movie audiences have come to know and love are not legally Disney’s to use.

According to the complaint, Disney has generated billions of dollars in profit, and has misled the public into believing that they own the copyrights to the Marvel characters. Stan Lee Media asserts that this is a falsity and they in fact own the rights to the beloved super heroes and are asking for compensation in the billions price range. The lawsuit focuses on the blockbuster movies like “Iron Man,” “Thor” and “X-Men” which Disney has licensed to other movie studios.

The Association of American Publishers (AAP) and Google announced earlier today that the parties had reached a settlement agreement in the ongoing copyright infringement lawsuit that pits content creators against Google.  This copyright dispute started between Google and various content creators as the result of Google’s efforts to digitize books for distribution on the Internet without first obtaining copyright permission.  According to AAP and Google, the settlement will provide access to AAP in-copyright books and journals digitized by Google for its Google Library Project.  The dismissal of the lawsuit will end seven years of litigation, at least between these parties.

The Authors Guild, however, has not given up the fight and will continue to move forward against Google.

“The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google,” Authors Guild executive director Paul Aiken said in a statement. “Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues.”

Now that the Olympics are over, or as Jon Stewart calls them, the “Quadrennial Corporate-Sponsored International Ring-Based Sports Event”, it’s time to take a look back at some of the humor the Games inspired.  From NBC’s coverage to rumors of rogue wi-fi scramblers and the brand police, the XXX Olympiad’s (snicker) festivities provided plenty of fodder for the jokester in all of us.

My favorites were the Wall Street Journal’s “Homemade Highlights” and the UK Guardian’s “Brick by Brick” series. Gymnastics with pipe cleaners and clothespins? Count me in!  Basketball teams made entirely of Legos®?  Even better.  But, given the litigiousness of the IOC, I thought this would be a good time to discuss why the Guardian and WSJ could get away with making us laugh without fear of the infringement hammer of doom.

The Copyright Statute provides a defense to infringement called “Fair Use” (17 U.S.C. 107). The statute gives us a non-exclusive 4-factor test that provides about as much guidance as furniture instructions requiring an Allen Wrench.

We’ve titled this paper Round 2 because it feels like we’ve been through a boxing match regarding our first article on the subject. Despite the wounds, we felt that the first article brought up a number of interesting issues and generated a few very useful discussions, causing us to rethink our initial conclusion.

First, we’d like to thank the people who commented and gave useful information, particularly those who pointed to relevant links and applicable documents. That was much more helpful than the personal attacks posted in response to our article.

Second we want to again state that we did not accuse anyone of copying, of theft, of illegal activity, of guilt, or of infringement. We tried to walk the line of fairness. Some readers accused us of making those accusations. Interestingly, some readers claimed we were unfairly accusing Oracle, some claimed we were unfairly accusing Sun, and others claimed we were unfairly accusing Google. Maybe that means we succeeded in walking that line. (We did not actually accuse any party.)

We did say, however, that it appears Oracle missed a number of files that appeared to have been copied from Sun, but distinctly noted, “Not knowing all of the details of the case, there could be issues that we’re not aware of.” We realize that this was a long case involving many people, much code, and a very large pretrial record containing a huge number of documents. As we explained in the beginning of the article, we considered this an interesting exercise and wanted to share our results.