The Associated Press recently sued Meltwater alleging in its complaint that “[Meltwater] has built its business on the willful exploitation and copying of the AP’s and other publishers’ news articles for profit.” AP asserts copyright infringement claims as well as a common law hot news misappropriation claim under N.Y. law. AP notes that it has to expend significant resources to create its news content. It complains that Meltwater free-rides on its efforts by misappropriating AP’s news and information which Meltwater can then sell for minimal cost via the Internet. It characterizes Meltwater’s actions as a “parasitic” service whose free-riding could make it cost-prohibitive for AP to profitably compete; and, therefore, AP’s economic incentive to continue its business could be significantly threatened.
AP’s common law misappropriation claim has its origins in a remarkably similar suit AP brought against a competing news service almost a century ago. In INS v. AP the Supreme Court, in 1918, enjoined INS, a competing news service, from free-riding on the work product of AP. The misappropriation action was based on INS re-distributing information to its customers which AP had previously released into the public domain. INS was enjoined from using the information for a limited time period while it was hot news (i.e. while it had commercial value as news). The Supreme Court’s decision was based on two rationales: (1) preventing unacceptable conduct in the form of a commercial enterprise free-riding on the investment of time and money by a competitor; and (2) avoiding the resulting ruinous competition that could result from a commercial enterprise free-riding on the efforts of a competitor.
UPDATE: First, please realize that IPWatchdog is not in any way affiliated with Jerk.com. We are a blog reporting on intellectual property and Internet issues. Second, since this article was initially published Jerk.com has moved it hosting at least several times. Third, if you wish to try and get removed please see Jerk.com: Who to Contact to Get Removed (published on IPWatchdog.com 1/18/2013).
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Jerk.com is one of those sites on the Internet that is the poster-child for everything wrong with the Internet and the anonymous communications that are so commonplace. The Internet is the refuge for cowards that wouldn’t have the guts to approach someone and say what they really feel to their face. Shrouded in secrecy provided by the Internet anonymous cowards become emboldened to say vile things and stoop to ridiculous lows — even publishing pictures of young children and asking the Internet community to vote on whether the minor is a jerk.
Jerk.com isn’t the worst website on the Internet by a long shot, but the arrogance with which the site is operated and the flagrant disregard for copyright law is astounding. It seems that anyone can anonymously post a picture of anyone else on Jerk.com, including pictures of young children, and then the voting begins with respect to whether that person is a jerk. All of this is done without the knowledge, permission or consent of the individual, or parents of young children. Once published, anonymous and sometimes vile comments are accepted and posted. Talk about cyberbullying! Disgusting!
Simply stated, the OPEN Act would be completely and totally ineffectual and, therefore, it must be opposed. There is simply no point in enacting more pointless legislation, we have enough pointless legislation already.
Anyone who is at all familiar with intellectual property knows that thanks to the digitization of content and the advent of the Internet infringement is rampant. With great frequency articles posted to IPWatchdog are cut and pasted and posted to various websites. On a daily basis companies and even government agencies are copying IPWatchdog articles verbatim and circulating them internally, presumably believing that the internal copying and distribution is not copyright infringement. Being a content creator, whether large or small, is exceptionally difficult because most people either don’t care or they don’t stop to think about what they are doing.
Last week I wrote an article titled Stopping Online Piracy in the Age of Entitlement, which lamented the egregiously false claims made by those who challenged and protested the Stop Online Piracy Act (SOPA). The truth is there are anarchists who simply believe that they have the right to steal creative works of others without paying for them and that causes real damage to businesses, to the economy and to workers who lose their jobs or are not hired.
A recent comment to the aforementioned article explained the problem perfectly. The commenter — Big Greg — explained:
[T]heft of our company’s creative works occurs regularly and costs real money. The effort our small group is forced to spend policing our IP from both ignorant and purposeful Internet thieves is so unproductive. And, win or lose, the cost to play in federal court is so daunting. I’d much rather put that effort and those resources into growing a business, hiring creative staff and making tangible contributions to our customer’s lives.
A frenzy of protest activity was recently unleashed and directed at two bills that sought to prevent online piracy of copyrighted materials. These two bills being considered by Congress would have assisted intellectual property owners who so frequently have their rights infringed online. The PROTECT-IP Act (PIPA) was the Senate version of the bill; The Stop Online Piracy ACT (SOPA) was its counterpart in the House of Representatives. Protests led to many leaders withdrawing support and the bills were scrapped. Further consideration of the issues is, however, ongoing in alternative forms so it is likely useful to substantively address some of the key criticisms of PIPA and SOPA, which are virtually certain to resurface.
The essence of the bills was to enable U.S. law enforcement or a private party to shut down websites that are “dedicated to infringing activities.” Such websites are defined in the bills as those whose primary purpose is infringement.The accuser must show that the website has “no significant use” other than engaging in, facilitating, or enabling any of the following:
Copyright infringement; or
Infringement or violation of any of the protections contained in the DMCA (Digital Millennium Copyright Act) including its anti-circumvention provisions; or
According to the United States Chamber of Commerce “rogue web sites that steal America’s innovative and creative products attract more than 53 billion visits a year and threaten more than 19 million American jobs.” NY Times Letter, November 18, 2011. Unfortunately, that doesn’t seem to matter much to those who believe they ought to be entitled to take, use, copy and distribute things that they legally do not own. We live in the age of entitlement.
All you have to do is look around at the various “Occupy this” or “Occupy that” groups that pitch tents and live rent free for months right in the heart of a once thriving business district. For crying out loud these “Occupy” people don’t even pay for permits like government makes the rest of us law abiding citizens do. There is an alarming double standard growing in the United States and frankly it is rather disgusting if you ask me. Whether you want to believe it or not, billions of dollars every year are lost as the result of theft of intellectual property.
Gene has asked me to write an executive summary that conveys the essence of my new book, The Software IP Detective’s Handbook: Measurement, Comparison, and Infringement Detection. While I definitely appreciate his request, I hope I’m not completely successful because that would mean that the two years of nights and weekends I spent writing the book, not to mention the years developing the mathematical algorithms and the methodologies described in the book, could have been done in a single evening.
I’ve personally been working as an expert witness in intellectual property disputes, specializing in software cases, for about 15 years. When I began working in this area, I found that most experts used a combination of off-the-shelf computer code analysis programs, home-grown analysis programs, and lots of long hours and late nights poring over lines of code. Some experts used tools available from universities that are called “software plagiarism detection tools” that produced dubious results even when they executed correctly. Expert reports were then written and rebutted. Arguments often got very technical and detailed and could easily confuse a non-technical judge or jury. Different experts often had different definitions of plagiarism or found different signs that they considered markers for copied code. Some parties to a litigation, and some experts they hired I’m sad to say, seemed to purposely cloud the issue to justify illicit or at least questionable behavior. I decided that a standard measure of software copying that could be objectively tested was needed, and so I developed code correlation.
On Monday, December 13, 2010, the United States Supreme Court issued a non-decision in the matter of Costco Wholesale Corporation v. Omega, S.A. The Per Curiam decision simply read: “The judgment is affirmed by an equally divided Court. Justice Kagan took no part in the consideration or decision of this case.” That meant that the 2008 decision of the United States Court of Appeals for the Ninth Circuit remained unchanged. But this was not the last to be heard of this controversial case.
On November 9, 2011, the United States District Court for the Eastern District of California, per Senior Judge Terry J. Hatter, Jr., granted Costco a summary judgment victory due to the fact that Omega engaged in copyright misuse. Yes, the plot thickened. The district court originally granted summary judgment to Costco on the basis of the first sale doctrine, which was overturned by the Ninth Circuit and then affirmed by the Supreme Court in the tie decision, or non-decision of December 2010. That meant that the case would proceed because the first sale doctrine summary judgment victory was erased. But not so fast! Judge Hatter had other ideas!
The digital age is upon us and there is no turning back. People all over the world are becoming increasingly connected via the global telecommunications network that we call the Internet. Perhaps the best, and certainly the most cited, definition of the Internet can be found in the now famous district court decision in American Civil Liberties Union v. Reno, 929 F.Supp. 824, 830-31 (E.D. Pa. 1996), which defines the Internet as follows: “The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks.”
This network of networks connects people from far away places as if they are in the next room. The Internet has revolutionized communications and the way we live, making virtual friends online that we are likely to never even meet; namely, those from far away locations that we share similar interests with and connect with via LinkedIn, befriend on Facebook or those we play fantasy sports in the same ESPN league. But for all the good and enjoyable that comes from the Internet there are ever present downsides. Loss of privacy, being constantly tethered to a machine or device and, of course, the crimes that become so much easier to perpetrate.
Copyright protection does not exist for an idea, procedure, process, method of operation, concept, principle, or discovery. This is true because a copyright protects only the form of expression rather than the subject matter of the resulting creation. Furthermore, a copyright is not “granted” in the same manner as patents or trademarks. A copyright is provided to the authors of “original works of authorship,” regardless of whether the work has been published and regardless of whether the work has been formally federally registered.