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.