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.

Senior decision-makers from governments, law enforcement, Customs and the private sector gather in Istanbul, Turkey, for the Seventh Global Congress on Combating Counterfeiting and Piracy, to seek innovative responses to the illicit trade in counterfeit and pirated goods.

Over 850 delegates from more than 100 countries are attending the three-day meeting from 24 to 26 April that is being chaired by the World Customs Organization (WCO) and hosted by Turkish Customs with the support of the Union of Chambers and Commodity Exchanges of Turkey.

United around a common goal to stop the trade in counterfeit and pirated products, the organizers and participants aim to share experiences and devise strategies to counteract this global phenomenon and the harm these goods can have on consumer health and safety, as well as intellectual property rights (IPR).

It should come as no surprise that a nerd such as myself is into Sci-Fi, so when news of the Fox / Firefly / Shiny Hat kerfuffle hit the ‘verse, I was naturally all over it like the Alliance on an illegal salvage operation.

For those of you who are totally missing out, Firefly was a briefly lived television show that aired on Fox in 2002. It only lasted for a few months before Fox yanked the plug (a most egregious decision that I shall never EVER forgive them for). In the years that followed, Firefly – the best space western you didn’t watch – gained a cult following that gives Trekkies a run for their money. In one of the episodes, the character Jayne Cobb receives a care package from his mother containing a homemade orange and yellow poofball hat. The hat wasn’t a focal point of the episode but fans of the show, known as Browncoats, can easily be identified at conventions by wearing this most cunning hat.

Despite collecting dust on the shelf at Fox for over a decade, the fans’ devotion to Firelfly has kept the series alive. If you’ve never been to a convention like ComiCon, it’s common to see folks dressing up as their favorite character from a comic, movie, or TV Show. There may be a Viper Pilot here, a 4th Doctor there, even a Stormtrooper or two. Browncoats wear the Jayne Hat. The hat is, and has been, a favorite item of do-it-yourselfers to sell on sites like Etsy.

On March 20, 2013, Maria A. Pallante, who is the Register of Copyrights at the United States Copyright Office, testified before the House Subcommittee on Courts, Intellectual Property and the Internet Committee on the Judiciary. In her testimony she called for a comprehensive review and updating of the Copyright Act. She started her prepared remarks by explaining: “The law is showing the strain of its age and requires your attention. As many have noted, authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.”

During her testimony on Capitol Hill, Pallante explained that it is time to begin work on “the next great copyright act,” which is required because individuals “increasingly are accessing content on mobile devices and fewer and fewer of them will need or desire the physical copies that were so central to the 19th and 20th century copyright laws.” Pallante also lamented the fact that the current Copyright Act is cumbersome and difficult to understand, saying: “if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.”

With the prospect of comprehensive copyright reform on the horizon the familiar battle lines are being drawn between those who absolutely need copyright protection to survive and create versus those who are a part of the infringement culture. Will the comprehensive reforms necessary to protect creators or original works be possible? Will any reform be achievable? The goal of comprehensive reform seems laudable, but creators of original works must engage, both individually and by and through their various Guilds and Associations.

The Digital Millennium Copyright Act (DMCA) has recently become a hot topic in Congress. The renewed interest is the result of a “We the People” petition that successfully reached the required number of signatures to merit a response from the White House. The petition, titled “Make unlocking cell phones legal,” said, “We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.” The White House fully agreed with the petition, responding, “It’s time to legalize cell phone unlocking,” and adding, “if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.

Within days of the White House’s response, lawmakers were rushing to offer legislative fixes compatible with the petition. Senator Ron Wyden (D-OR) was the first to introduce a bill, the Wireless Device Independence Act (S.467), which would create a permanent exemption for unlocking. Most recently, Senator Patrick Leahy (D-VT) has introduced legislation, cosponsored by four other senators from both parties, that would reverse the Library of Congress’s decision and restore the exemption.

But many proponents of the original petition reacted negatively to these legislative proposals. Derek Khanna, for example, one of the most public advocates of cell phone unlocking, said of the legislation that “the worst … approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary ‘exception’ for three years and let the Librarian rule on this again in three years.”

Northern Exposure focuses on Canada and Canadian intellectual property laws, cases and procedures. From time to time we will also publish a Canadian perspective on important issues relating to US and Global intellectual property. For more articles please visit Northern Exposure – Canadian IP.

After receiving Royal Assent on June 29, 2012, the provisions of Bill C-11 came into force on November 7, 2012. Titled the Copyright Modernization Act, it has garnered the nickname “Canada’s SOPA” by some media outlets , referring to the highly contentious Stop Online Piracy Act bill introduced in the US House of Representatives that led to both physical and digital protests. Yet despite such bold claims, the Canadian amendment to the copyright act is a largely innocuous  piece of legislation that falls in line with its stated objectives.

Before delving into the major points of the bill and of its critics, it is important to note that an amendment has been a long time coming. The last one was in 1997. To put it into perspective: that was the year IBM’s Deep Blue defeated Garry Kasparov, and a good five years before any viable form of digital music became available for consumers. This means that for the better part of fifteen years, Canadians have been acting beyond the limitations of 20^th century technological terminology. Instead, in the void of proper legislation, the Supreme Court of Canada has set the precedents, with five of the most recent rulings made in July 2012.

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 Kirtsaeng v. John W. Wiley and Sons, Inc., the Supreme Court is set to decide whether the right of an owner of lawfully-made copies under Section 109(a) of the Copyright Act to “sell or otherwise dispose of”  those copies  trumps a copyright owner’s right under Section 602(a)(1) to bar importation of those copies when they were made and sold outside the United States.

The parties and amici have filed over 25 briefs in this case, almost none of which address or even consider whether the actual right granted under Section 109(a)—to “sell or otherwise dispose of” copies—applies outside the United States; instead, they have focused almost exclusively on Section 109(a)’s “lawfully made under this title” preamble, resulting in unsatisfactory readings of the Copyright Act as a whole.  As the American Intellectual Property Law Association has urged the Supreme Court in its amicus filing, applying long-standing extra-territoriality principles to the actual right created by Section 109(a) handily harmonizes both Sections 109(a) and 602(a)(1).  It also avoids damage to the rest of the Act caused by undue emphasis on the prefatory “lawfully made under this title” language.

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.

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.”

During the first quarter of the 2013, Congressional attention will be focused on budget, appropriations and debt ceiling matters – along with a few other public policy issues that have recently taken center stage – such as gun control and immigration reform.  That does not mean, however, that work on other important issues will cease, and lawmakers will have to contend with several other matters – including key copyright issues – during the 113th Congress.

Earlier this week, the House Judiciary Committee announced its members of the Subcommittee on Courts, Intellectual Property and the Internet.  Below is a discussion of some of the copyright issues that the Subcommittee, and Congress in general, is likely to consider in 2013.

General Copyright Law:

General Copyright Reform:

 2013 will mark the 15^th Anniversary of the Digital Millennium Copyright Act (DMCA), watershed copyright legislation that implemented two 1996 treaties of the World Intellectual Property Organization (WIPO), and Congress may well use this opportunity to review the general state of US copyright law, including whether the current “notice and take down” procedures instituted by the DMCA adequately protect copyright owners and online service providers alike, and well as whether current US copyright laws are adequate to deal with widespread international copyright infringement and counterfeiting practices.