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.

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.”

In the fight over artistically designed fabric, Topson Downs of California, Inc., Target Corporation and Wal-Mart Stores Inc. has prevailed against Meridian Textiles Inc.

On October 7, 2011, Meridian Textiles filed a copyright claim against Topson Downs, Target and Wal-Mart (collectively called Defendant in court documents), claimed the used fabric designs that are solely theirs. The claim was related to 4 separate fabric designs: a zebra stripe pattern, a burnout pattern, an animal print pattern and a lace design.

Meridian Textiles is a L.A. based company which works directly with garment manufactures who are in need of printed fabric. To obtain the artwork for the fabric, Meridian creates original graphic designs or buys the exclusive rights to original artwork from art studios and artists.

In their claim against the retail stores, Meridian stated that between the years of 2008 and 2009, their in-house designer Myoung Chung had created originals of the designs in question, named Subject Designs in the claim. They stated that they “owned all the rights in the Subject Designs, and applied for, and received, copyright registrations for each of the Subject Designs. After creation of the Subject Designs, Plaintiff offered samples of the designs to numerous customers in the apparel industry, including Defendant.”

There’s something to be said for old school cool. The original Batmobile from the 60’s television show, with sleek design and red detailing, is going up for auction later this month. Unfortunately, in the midst of this superhero coolness, the Batmobile namesake owners are doing battle over replicas of this very car.

DC Comics, a subsidiary of Warner Bros., is pushing a lawsuit against California custom paint and auto body shop, Gotham Garage. Owned and operated by Mark Towle of Santa Ana, Gotham Garage specializes in customizing replicas of the various Batman vehicles. To date, Towle has sold two replicas of the original Batmobile, which was designed by a legend in the custom car business, George Barris. The cars have sold for $80,000 and $90,000, and Towle has also sold another replica that was based off the Batmobile version that was featured in the 1989 movie.

This lawsuit started nearly 2 years ago, when Warner Bros. claimed that Towle’s business was violating copyrights and trademarks that are owned by DC Comics. Both sides have been arguing their case, with DC Comics claiming that the copyright protection includes not only the actual Batmobile, but also the overall look and feel of the car.

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?

Clark Kent and the Daily Planet would have been all over this story. A Los Angeles judge ruled that DC Comics will retail all rights to the news reporter’s super hero secret identity. The battle of wills took place between comic book giant DC Comics and the heirs of Superman co-creator Joe Shuster. They battled to the end, with the heirs wanting more compensation, and with DC Comics stating that the heirs signed away their rights about 20 years ago.

The decision in this case means that DC Comics will retain all the rights to the Superman characters and can continue to use them in books, movies and other entertainment media. It also means that Warner Bros., which owns DC Comics, will retain the rights for use in books, films, television and other various mediums.  Given the enormous popularity of movies portraying Marvel superstars such as Iron Man, Thor and the X-Men, keeping the rights to Superman and not interrupting the new Superman movie, which is scheduled for release on June 14, 2013, is a big win for DC and Warner Bros.

The case that set up this battle started in 2010, when DC Comics sued Shuster’s heirs to seek an official ruling that the heirs had lost their rights to reclaim any copyrights to the infamous superhero back in 1992.  In a ruling issued on October 17, 2012, U.S. District Court Judge Otis Wright II sided with DC Comics, stating that Shuster had relinquished rights in exchange for annual compensation in the form of pension payments.

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.

October overwhelmingly means one thing in the legal world. No, not Halloween, although to some it may seem just as scary.

Every October the United States Supreme Court breaks its hibernation and starts its new session. Every case heard and decision handed down by the Supreme Court between October 1, 2012 and the end of June 2013 will be a part of the Court’s October 2012 term.

I know I am running a little late, because the Supreme Court heard its first arguments earlier in the week, but I have been planning to make October 2012 Supreme Court month on IPWatchdog.com. This, the first of what will be a handful of SCOTUS related intellectual property articles, is a summary of the most important Supreme Court copyright fair use cases dating back Baker v. Selden in 1879.

Stay tuned for similar articles on trademarks and patents, as well as other Supreme Court related articles I’m sure you will enjoy.

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.”

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.

The decisions in the recent intellectual property lawsuit of Oracle v. Google [i] have drawn the attention of software developers and intellectual property lawyers alike. As we read about the verdict’s potential to shape future copyright case law, our team here at Zeidman Consulting also wondered whether all the facts in the copyright portion of the case had been uncovered. We decided to pursue these questions using the advanced tools for detecting copyright infringement created by our sister company, Software Analysis and Forensic Engineering (SAFE Corporation) and the thorough processes that we have developed. What started off as simple curiosity turned into an interesting research and analysis project to determine if we could uncover evidence of copyright infringement that Oracle’s experts had missed. Our two-week effort turned up some very surprising results–significant amounts of apparently copied code that was not brought up at the trial.

The Oracle v. Google Lawsuit

The lawsuit began with Oracle accusing Google’s mobile operating system, Android, of violating both patents and copyrights that Oracle holds based on its Java programming language. Specifically Oracle initially accused Google of infringing seven of Oracle’s patents [ii] though five were later thrown out [iii], and also accused Google of copying 37 Java language application program interfaces (APIs) [iv] and other Java source code into Android source code. This article focuses on the copyright portion of the case, leaving the patent infringement claims to a future article (if we have the time).

United States Federal District Court Judge Denny Chin recently issued a decision denying Google’s motion to dismiss lawsuits by the American Society of Media Photographers and the Authors Guild, and has also certified a class to proceed against Google for what can only really be characterized as massive and intentional copyright infringement.

The major facts in the case are not in dispute.  In 2004, Google announced that it had entered into agreements with several major research libraries to digitally copy books and other writings in their collections. Since then, Google has scanned more than 12 million books. Google has delivered digital copies to the participating libraries, created an electronic database of books, and made text available for online searching.

Google users can search its “digital library” and view excerpts – ”snippets” — from books containing search results. For example, when a user enters a search term on the Google Books website, Google displays a list of books containing that term. In many cases, when the user clicks on the link to a particular book, Google displays up to three “snippets” of text from that book — each about an eighth of a page — each of which contains the search term. Millions of the books scanned by Google were still under copyright, and Google did not obtain copyright permission to scan the books.

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.

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!