Michael Cieply, New York Times; Superheros [sic] Tangle in Copyright Battles:
"Lawyers on a Friday afternoon panel at Comic-Con were supposed to be talking about the legal challenges of social media and the battles over copyright, notably a case that involves the Walt Disney Company’s Marvel Entertainment and the heirs to the comic book artist Jack Kirby (Spider-Man among many others).
But David P. Branfman, a lawyer on the stage, first had a word of warning for anybody whose Web site carries stock photos that might belong to someone else: “Make 100 percent sure you’ve got a written license” to use the pictures, said Mr. Branfman.
Companies that own stock photos, he said, have been cracking down on sites that use their wares, demanding, in his experience, an average of $15,000 for each photo lifted from them.
That was certainly an attention-getter for the Web-friendly Comic-Con crowd. Many in the room had just raised their hands, to acknowledge having photos on sites of their own.
Moving on to the main event, Mr. Branfman and his fellow panelists said they were amazed at their ferocity on display in the disputes between Marvel and the Kirby heirs, and between Warner’s DC Comics unit and the heirs to a pair of Superman creators, Jerry Siegel and Joe Shuster, .
“You don’t see that too often,” Mr. Branfman said of a recent move by Warner to file suit personally against Marc Toberoff, the lawyer who has represented heirs in both the DC and the Marvel cases.
Michael Lovitz, a lawyer who moderated the panel, suggested that attempts by the Kirby and Siegel heirs to regain ownership of copyrights would open the floodgates to similar moves by a host of comic book creators. “This is something we’re going to see more and more of, these terminations,” he said.
To judge by the crush of attendees who afterward grabbed for a written rundown on copyright termination from Mr. Branfman — he called it “The Legal Undead” — Mr. Lovitz would appear to be right."
http://artsbeat.blogs.nytimes.com/2010/07/23/superheros-tangle-in-copyright-battles/?scp=1&sq=copyright&st=cse
Sunday, July 25, 2010
Saturday, July 24, 2010
Crown Copyright Strikes Again: Documents Revealed Under Freedom Of Information Act Can Infringe On Copyright?; TechDirt.com, 7/23/10
Mike Masnick, TechDirt.com; Crown Copyright Strikes Again: Documents Revealed Under Freedom Of Information Act Can Infringe On Copyright?:
"Frankly, the concept of "Crown Copyright" has never made much sense at all. We've discussed it here a few times in the past, but it's the concept that some countries have for government documents being covered by copyright. Thankfully, this is one area where the US actually leads the way: it has no such thing. Documents produced by the federal government in the US are automatically considered public domain (state government documents aren't always public domain, but that's another discussion for another time). But in many other countries that's not true, and those documents are covered by "crown copyright." This makes little sense no matter how you think about it. If the purpose of copyright is to give incentives to create the content, it seems obvious that a government should not need copyright.
Instead, it seems to show how some now view copyright: as a tool to restrict information, rather than as an incentive to create information."
"Frankly, the concept of "Crown Copyright" has never made much sense at all. We've discussed it here a few times in the past, but it's the concept that some countries have for government documents being covered by copyright. Thankfully, this is one area where the US actually leads the way: it has no such thing. Documents produced by the federal government in the US are automatically considered public domain (state government documents aren't always public domain, but that's another discussion for another time). But in many other countries that's not true, and those documents are covered by "crown copyright." This makes little sense no matter how you think about it. If the purpose of copyright is to give incentives to create the content, it seems obvious that a government should not need copyright.
Instead, it seems to show how some now view copyright: as a tool to restrict information, rather than as an incentive to create information."
German court overturns injunction against RapidShare; ArsTechnica.com, 7/23/10
Jacqui Cheng, ArsTechnica.com; German court overturns injunction against RapidShare:
"File sharing service RapidShare doesn't have to employ a word filter to combat the sharing of copyrighted files, the Higher Regional Court of Düsseldorf has now confirmed. The court reversed a preliminary injunction against RapidShare it issued last year, handing the company another legal victory.
Movie distributor Capelight Pictures had won a preliminary injunction against RapidShare for hosting a number of its films, including Insomnia and The Fall, as well as Inside a Skinhead. The court initially ruled that RapidShare had not done enough to prevent the sharing of Capelight's films because it didn't use a word filter, but RapidShare managed to eke out an appeal victory in April by arguing that common English terms, such as "insomnia" and "fall" would cause too many wrong hits with a filter.
A similar argument worked for the most recent decision as well. When it came to Inside a Skinhead, RapidShare said that a filter would hinder people from saving private copies of the file as allowed by German law. The court also said that RapidShare did not have the obligation to stop the dissemination of download links, and reversed its previous injunction.
RapidShare lawyer Daniel Raimer described the ruling as another step in the right direction. "The previously common practice of copyright holders to sue RapidShare on the off-chance there might be something to be gained from it, misunderstanding the realities it is operating within and showing contempt for its business model, will no longer bear fruit. The newest court rulings in Germany and the USA indicate this very clearly."
Indeed, courts in both Germany and the US have recently been issuing favorable rulings for RapidShare. The Düsseldorf appeals court overturned another decision in May, saying that the service can't be held responsible for the actions of third parties and pointing out that various filtering schemes are impractical. In the same month, a US District Court in California denied adult entertainment company Perfect 10's request for an injunction against RapidShare, saying that there wasn't sufficient proof that RapidShare itself had infringed on Perfect 10's copyrights.
The latest rulings are a long way from the days when RapidShare was being told to proactively remove infringing content and found itself facing a possible shutdown. As RapidShare CEO Christian Schmid pointed out, copyright holders may want to reconsider whether it's worth their time to go after file sharing companies (and file sharers)—especially when they seem to be spending so much more on legal fees than what they're getting back in claim settlements."
http://arstechnica.com/tech-policy/news/2010/07/german-court-overturns-injunction-against-rapidshare.ars
"File sharing service RapidShare doesn't have to employ a word filter to combat the sharing of copyrighted files, the Higher Regional Court of Düsseldorf has now confirmed. The court reversed a preliminary injunction against RapidShare it issued last year, handing the company another legal victory.
Movie distributor Capelight Pictures had won a preliminary injunction against RapidShare for hosting a number of its films, including Insomnia and The Fall, as well as Inside a Skinhead. The court initially ruled that RapidShare had not done enough to prevent the sharing of Capelight's films because it didn't use a word filter, but RapidShare managed to eke out an appeal victory in April by arguing that common English terms, such as "insomnia" and "fall" would cause too many wrong hits with a filter.
A similar argument worked for the most recent decision as well. When it came to Inside a Skinhead, RapidShare said that a filter would hinder people from saving private copies of the file as allowed by German law. The court also said that RapidShare did not have the obligation to stop the dissemination of download links, and reversed its previous injunction.
RapidShare lawyer Daniel Raimer described the ruling as another step in the right direction. "The previously common practice of copyright holders to sue RapidShare on the off-chance there might be something to be gained from it, misunderstanding the realities it is operating within and showing contempt for its business model, will no longer bear fruit. The newest court rulings in Germany and the USA indicate this very clearly."
Indeed, courts in both Germany and the US have recently been issuing favorable rulings for RapidShare. The Düsseldorf appeals court overturned another decision in May, saying that the service can't be held responsible for the actions of third parties and pointing out that various filtering schemes are impractical. In the same month, a US District Court in California denied adult entertainment company Perfect 10's request for an injunction against RapidShare, saying that there wasn't sufficient proof that RapidShare itself had infringed on Perfect 10's copyrights.
The latest rulings are a long way from the days when RapidShare was being told to proactively remove infringing content and found itself facing a possible shutdown. As RapidShare CEO Christian Schmid pointed out, copyright holders may want to reconsider whether it's worth their time to go after file sharing companies (and file sharers)—especially when they seem to be spending so much more on legal fees than what they're getting back in claim settlements."
http://arstechnica.com/tech-policy/news/2010/07/german-court-overturns-injunction-against-rapidshare.ars
Only 0.3% of files on BitTorrent confirmed to be legal; ArsTechnica.com, 7/23/10
Jacqui Cheng, ArsTechnica.com; Only 0.3% of files on BitTorrent confirmed to be legal:
"The large majority of content found on BitTorrent is illegal, a new study out of the University of Ballarat in Australia has confirmed. Researchers from the university's Internet Commerce Security Laboratory scraped torrents from 23 trackers and looked up the content to determine whether the file was confirmed to be copyrighted. They found that 89 percent of the files they sampled were confirmed to be illegally shared, and most of the remaining ambiguous 11 percent was likely to be infringing.
The total sample consisted of 1,000 torrent files—a random selection from the most active seeded files on the trackers they used. Each file was manually checked to see whether it was being legally distributed. Only three cases—0.3 percent of the files—were determined to be definitely not infringing, while 890 files were confirmed to be illegal.
Additionally, 16 files were of ambiguous origin and 91 files were pornographic, which were unclear due to their oft-mislabeled nature. "[M]any files were tagged as amateur (suggesting no copyright infringement) but further inspection revealed that they were in fact infringing," wrote the researchers.
Basically, the 89 percent is a baseline number when it came to infringing files, and the three most shared categories were movies, music, and TV shows—among those categories, there were zero legal files being shared. Assuming all 16 files of ambiguous legality were in fact legal, the researchers said that there was an overall figure of 97.9 percent infringing content being distributed on BitTorrent.
This report echoes similar results out of Princeton that were published earlier this year. Though the top categories were slightly different—Princeton found that movies and TV were the most popular, while music fell behind games/software, pornography, and unclassifiable files—that study found that all of the movie, TV, and music content being shared was indeed infringing. Overall, Princeton said that 99 percent of the content on BitTorrent was illegal.
The University of Ballarat said that just four percent of torrents were responsible for 80 percent of the seed population. And, according to the list of the top 10 most seeded files, they were all Hollywood films (save for Lady Gaga's album, The Fame Monster, at number 7)—it's clear that Linux distros weren't exactly dominating the charts here. Copyright holders have one consolation, however: P2P users seem to buy more content than the average person, so there's still some chance of earning those users' money after all."
http://arstechnica.com/tech-policy/news/2010/07/only-03-of-files-on-bit-torrent-confirmed-to-be-legal.ars
"The large majority of content found on BitTorrent is illegal, a new study out of the University of Ballarat in Australia has confirmed. Researchers from the university's Internet Commerce Security Laboratory scraped torrents from 23 trackers and looked up the content to determine whether the file was confirmed to be copyrighted. They found that 89 percent of the files they sampled were confirmed to be illegally shared, and most of the remaining ambiguous 11 percent was likely to be infringing.
The total sample consisted of 1,000 torrent files—a random selection from the most active seeded files on the trackers they used. Each file was manually checked to see whether it was being legally distributed. Only three cases—0.3 percent of the files—were determined to be definitely not infringing, while 890 files were confirmed to be illegal.
Additionally, 16 files were of ambiguous origin and 91 files were pornographic, which were unclear due to their oft-mislabeled nature. "[M]any files were tagged as amateur (suggesting no copyright infringement) but further inspection revealed that they were in fact infringing," wrote the researchers.
Basically, the 89 percent is a baseline number when it came to infringing files, and the three most shared categories were movies, music, and TV shows—among those categories, there were zero legal files being shared. Assuming all 16 files of ambiguous legality were in fact legal, the researchers said that there was an overall figure of 97.9 percent infringing content being distributed on BitTorrent.
This report echoes similar results out of Princeton that were published earlier this year. Though the top categories were slightly different—Princeton found that movies and TV were the most popular, while music fell behind games/software, pornography, and unclassifiable files—that study found that all of the movie, TV, and music content being shared was indeed infringing. Overall, Princeton said that 99 percent of the content on BitTorrent was illegal.
The University of Ballarat said that just four percent of torrents were responsible for 80 percent of the seed population. And, according to the list of the top 10 most seeded files, they were all Hollywood films (save for Lady Gaga's album, The Fame Monster, at number 7)—it's clear that Linux distros weren't exactly dominating the charts here. Copyright holders have one consolation, however: P2P users seem to buy more content than the average person, so there's still some chance of earning those users' money after all."
http://arstechnica.com/tech-policy/news/2010/07/only-03-of-files-on-bit-torrent-confirmed-to-be-legal.ars
Friday, July 23, 2010
Yeeeehaw! Naked Cowboy, Cowgirl in Federal Court Standoff; Wall Street Journal, 7/22/10
Clifford Marks, Wall Street Journal; Yeeeehaw! Naked Cowboy, Cowgirl in Federal Court Standoff:
"Our favorite naked, litigious cowboy is back at it.
When last we checked in, Robert Burck, better known as the Naked Cowboy, had filed suit against the Mars candy company for broadcasting an ad of an M&M dressed in revealing cowboy apparel. (The suit settled for undisclosed terms at the end of 2008.)
Now, the Times Square street performer famous for his skimpy, Western outfit (just cowboy boots, a hat, and a pair of briefs) is suing someone a little closer to his line of work: the Naked Cowgirl. Her shtick is similar to that of Burck’s — strolling the streets of Times Square with her guitar, clad in an outfit that, well, leaves little to the imagination.
An attorney for Burck told the New York Daily News that the Naked Cowgirl (real name Sandra Brodsky) is creating confusion and destroying Burck’s brand. And not only that. The suit, filed Wednesday in Manhattan federal court, alleges that Brodsky is tarnishing the Naked Cowboy’s wholesome image:
“She has been observed using visual profanity (flipping the bird at the camera) when photographing with people in Times Square,” the lawsuit states. “This is inconsistent with the manner in which the Naked Cowboy conducts business.” Click here, also, for the NY Post article.
Oh, my. The New York Daily News couldn’t reach Brodsky for comment."
http://blogs.wsj.com/law/2010/07/22/yeeeehaw-naked-cowboy-cowgirl-in-federal-court-standoff/
"Our favorite naked, litigious cowboy is back at it.
When last we checked in, Robert Burck, better known as the Naked Cowboy, had filed suit against the Mars candy company for broadcasting an ad of an M&M dressed in revealing cowboy apparel. (The suit settled for undisclosed terms at the end of 2008.)
Now, the Times Square street performer famous for his skimpy, Western outfit (just cowboy boots, a hat, and a pair of briefs) is suing someone a little closer to his line of work: the Naked Cowgirl. Her shtick is similar to that of Burck’s — strolling the streets of Times Square with her guitar, clad in an outfit that, well, leaves little to the imagination.
An attorney for Burck told the New York Daily News that the Naked Cowgirl (real name Sandra Brodsky) is creating confusion and destroying Burck’s brand. And not only that. The suit, filed Wednesday in Manhattan federal court, alleges that Brodsky is tarnishing the Naked Cowboy’s wholesome image:
“She has been observed using visual profanity (flipping the bird at the camera) when photographing with people in Times Square,” the lawsuit states. “This is inconsistent with the manner in which the Naked Cowboy conducts business.” Click here, also, for the NY Post article.
Oh, my. The New York Daily News couldn’t reach Brodsky for comment."
http://blogs.wsj.com/law/2010/07/22/yeeeehaw-naked-cowboy-cowgirl-in-federal-court-standoff/
Bratz Dolls Breathe Again After Stunning Ninth Circuit Reversal; Wall Street Journal, 7/22/10
Ashby Jones, Wall Street Journal; Bratz Dolls Breathe Again After Stunning Ninth Circuit Reversal:
"Wowza.
It’s been a while since we heard anything on the Mattel/MGA front. But the Ninth Circuit on Thursday handed down a stunning ruling, essentially reversing much of the December 2008 ruling that gave Mattel the rights to much of MGA’s Bratz products. Click here for the AP story; here for the Bloomberg story; here for the opinion, written by Judge Alex Kozinski and joined by Judges Stephen Trott and Kim Wardlaw.
The ruling may force a retrial.
In 2008, Mattel won a lawsuit claiming MGA had infringed its copyright and breached a contract because the designer of Bratz dolls was still under contract to Mattel when he developed the Bratz concept for MGA.
In April 2009, a federal judge upheld the $100 million jury verdict that gave Mattel ownership of the Bratz brand.
But the appeals court suspended that order in December and reversed it Thursday.
“It is not equitable to transfer this billion-dollar brand, the value of which is overwhelmingly the result of MGA’s legitimate efforts, because it may have started with two misappropriated names,” the appellate panel said in its ruling today.
The appellate court said it was likely that a significant portion of the jury verdict and damages award would need to be vacated and that the entire case will probably be retried.
“This is a breathtaking opinion by a unanimous panel of the Ninth Circuit. The panel endorsed all of the arguments that MGA has been advancing throughout this protracted litigation,” said Thomas Nolan, a lawyer at Skadden. Nolan led the trial team on behalf of MGA. Orrick’s Josh Rosenkrantz argued the appeal for MGA.
John Quinn and other lawyers from Quinn Emanuel handled the trial for Mattel. Daniel Collins of Munger Tolles argued the appeal.
Spokespersons for each company were not immediately reached for comment by Bloomberg."
http://blogs.wsj.com/law/2010/07/22/bratz-dolls-breathe-again-after-stunning-ninth-circuit-reversal/
"Wowza.
It’s been a while since we heard anything on the Mattel/MGA front. But the Ninth Circuit on Thursday handed down a stunning ruling, essentially reversing much of the December 2008 ruling that gave Mattel the rights to much of MGA’s Bratz products. Click here for the AP story; here for the Bloomberg story; here for the opinion, written by Judge Alex Kozinski and joined by Judges Stephen Trott and Kim Wardlaw.
The ruling may force a retrial.
In 2008, Mattel won a lawsuit claiming MGA had infringed its copyright and breached a contract because the designer of Bratz dolls was still under contract to Mattel when he developed the Bratz concept for MGA.
In April 2009, a federal judge upheld the $100 million jury verdict that gave Mattel ownership of the Bratz brand.
But the appeals court suspended that order in December and reversed it Thursday.
“It is not equitable to transfer this billion-dollar brand, the value of which is overwhelmingly the result of MGA’s legitimate efforts, because it may have started with two misappropriated names,” the appellate panel said in its ruling today.
The appellate court said it was likely that a significant portion of the jury verdict and damages award would need to be vacated and that the entire case will probably be retried.
“This is a breathtaking opinion by a unanimous panel of the Ninth Circuit. The panel endorsed all of the arguments that MGA has been advancing throughout this protracted litigation,” said Thomas Nolan, a lawyer at Skadden. Nolan led the trial team on behalf of MGA. Orrick’s Josh Rosenkrantz argued the appeal for MGA.
John Quinn and other lawyers from Quinn Emanuel handled the trial for Mattel. Daniel Collins of Munger Tolles argued the appeal.
Spokespersons for each company were not immediately reached for comment by Bloomberg."
http://blogs.wsj.com/law/2010/07/22/bratz-dolls-breathe-again-after-stunning-ninth-circuit-reversal/
Bratz dolls maker wins appeal against Mattel; Los Angeles Times, 7/22/10
Carol Williams and Andrea Chang, Los Angeles Times; Bratz dolls maker wins appeal against Mattel: MGA Entertainment violated Mattel's copyrights to some degree but is entitled to 'sweat equity' because it developed the dolls into a successful brand, court says:
"Toy giant Mattel Inc. can't claim a monopoly over dolls with a bratty attitude, and the rival company that developed the Bratz line deserves its fair share of the dolls' success, a federal appeals court ruled Thursday.
The decision reversed the copyright victory scored two years ago in the battle over who owns the billion-dollar Bratz — Mattel, which employed the inventor while he did early development of the pouty plastic figures, or MGA Entertainment Inc., which later hired him and went on to produce the brand.
Mattel, whose Barbie dolls ruled the world's toy chests and play houses for half a century, had been awarded $100 million in damages ($10 million of it for copyright infringement) and ownership of the trademark rights to all Bratz dolls after a 2008 jury trial. The lower court had found that the inventor, Carter Bryant, had violated his contract with Mattel by taking the idea with him when he left the company.
MGA, based in Van Nuys, was ordered by a federal judge to transfer all products, proceeds and other assets to a trust created for Mattel. MGA appealed, leading to Thursday's decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals.
While an employee of El Segundo-based Mattel, Barbie designer Bryant developed the Bratz dolls, worked up sketches and made at least one mockup of four flirty girls with hot clothes and heavy makeup. Bryant had called his line Bratz and named one of the first four dolls Jade — names that eventually made it to market on MGA products.
Although MGA violated Mattel's copyrights to some degree, MGA developed the dolls into a phenomenal success and is entitled to its "sweat equity," the appeals panel said.
"Mattel can't claim a monopoly over fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing — these were all unprotectable ideas," the panel headed by 9th Circuit Chief Judge Alex Kozinski ruled.
The judges also sent the case back to federal district court to determine a more fair disposition of the Bratz property, saying "it was not equitable to transfer this billion-dollar brand — the value of which was overwhelmingly the result of MGA's legitimate efforts — because it might have started with two misappropriated names."
Each dollmaker said it expected to ultimately prevail in the ownership battle."
http://articles.latimes.com/2010/jul/22/business/la-fi-0723-bratz-court-20100722
"Toy giant Mattel Inc. can't claim a monopoly over dolls with a bratty attitude, and the rival company that developed the Bratz line deserves its fair share of the dolls' success, a federal appeals court ruled Thursday.
The decision reversed the copyright victory scored two years ago in the battle over who owns the billion-dollar Bratz — Mattel, which employed the inventor while he did early development of the pouty plastic figures, or MGA Entertainment Inc., which later hired him and went on to produce the brand.
Mattel, whose Barbie dolls ruled the world's toy chests and play houses for half a century, had been awarded $100 million in damages ($10 million of it for copyright infringement) and ownership of the trademark rights to all Bratz dolls after a 2008 jury trial. The lower court had found that the inventor, Carter Bryant, had violated his contract with Mattel by taking the idea with him when he left the company.
MGA, based in Van Nuys, was ordered by a federal judge to transfer all products, proceeds and other assets to a trust created for Mattel. MGA appealed, leading to Thursday's decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals.
While an employee of El Segundo-based Mattel, Barbie designer Bryant developed the Bratz dolls, worked up sketches and made at least one mockup of four flirty girls with hot clothes and heavy makeup. Bryant had called his line Bratz and named one of the first four dolls Jade — names that eventually made it to market on MGA products.
Although MGA violated Mattel's copyrights to some degree, MGA developed the dolls into a phenomenal success and is entitled to its "sweat equity," the appeals panel said.
"Mattel can't claim a monopoly over fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing — these were all unprotectable ideas," the panel headed by 9th Circuit Chief Judge Alex Kozinski ruled.
The judges also sent the case back to federal district court to determine a more fair disposition of the Bratz property, saying "it was not equitable to transfer this billion-dollar brand — the value of which was overwhelmingly the result of MGA's legitimate efforts — because it might have started with two misappropriated names."
Each dollmaker said it expected to ultimately prevail in the ownership battle."
http://articles.latimes.com/2010/jul/22/business/la-fi-0723-bratz-court-20100722
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