Run with the Law

AN ENDURANCE RUNNER’S PERSPECTIVE ON LEGAL NEWS AND EVENTS

Archive for category Internet

Danger Mouse Releases a Blank CD!

Jun 16

Posted by GregSJ in Copyright, Infringement, Internet, Music

DNOTOne of the stories that broke during finals that I was dying to write about was Danger Mouse’s release of his new album “Dark Night of the Soul.”

The story is that for unknown legal reasons EMI has refused to release Danger Mouse’s album. While in the past record labels’ decisions where conclusive, the internet age has given artists other options. In that vain, Danger Mouse has refused to not release the album and has decided to release the cd as a book:

This limited edition art book contains 100+ pages of original photographs by celebrated film director David Lynch. Only 5000 copies have been printed and each one is hand numbered.  The book will also come with a 24″ X 36″ poster as well as a custom designed CD-R (poster comes folded).
Please note:  Due to an ongoing dispute with EMI,  Danger Mouse is unable to include music on the CD without fear of legal entanglement. Therefore, he has included a blank CD-R as an artifact to use however you see fit.

The internet of course has obliged and the album is currently available on torrent sites as well as NPR’s on demand music service.
tpbdnotsscreenshot

Not only is Danger Mouse’s release yet another demonstration of how music can be released both for free and for profit. But it also demonstrates yet another way artist can and are releasing music without labels.

Legally the release presents an interesting question of contributory copyright infringement (assuming EMI owns a copyright in the album not Danger Mouse.) Contributory infringement requires knowledge of the infringing activity and material contribution. While Danger Mouse’s instruction arguably raise a case for both, the question of the CD is not so simple.  Purchasing music CD-Rs includes a royalty payment. 17 USC §1008 provides that no action  may be brought for the “noncommercial use by a consumer of such a device or medium for making digital musical recordings.” Thus burning the album to the CD-R would not be actionable.

While EMI would/will likely argue that Danger Mouse is still inducing purchasers to download the music (itself a potential infringement), the material contribution claim is considerably weakened without the CD claim. Since the full story of who owns the copyright in the album and why EMI has refused to release it is currently unknown, the legal implications of this release are impossible to know.

All of that being said, Danger Mouse’s innovation in releasing his album makes this my favorite music release story of the internet age.

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National Broadband Plan – Crowdsourcing Needed!

Jun 9

Posted by GregSJ in Internet

Last semester I participated in the Broadband Regulatory Clinic. In a stroke of luck for me, the Economic Stimulus Package’s Broadband Stimulus coincided with the timing of the class. Thus we worked together to research the history of Broadband Stimulus on the federal and state level as well as a few notable city government projects. The end result was a filing before the FCC with regard to what the definitions of broadband, served, underserved, and unserved should be with respect to FCC’s role in the broadband stimulus.

Yesterday was the deadline for the FCC’s Notice of Inquiry regarding a National Broadband Plan. As part of the stimulus package Congress required the FCC to come up with a National Broadband Plan. The FCC requested comments from the general public and 318 comments were filed. All of the top broadband providers had there say (Comcast, Verizon, AT&T, Time Warner, etc.)  The FCC’s decisions in this matter will likely shape the broadband infrastructure of America for the foreseeable future.  Thus it is vital that consumers voices are heard not just the broadband providers who stand to profit.

Replies to comments are due July 7th.  I recommend you at least review the plan of one of the current providers.  If you find it lacking file a short comment!  Every voice is important.

For more information check out the discussions at Broadband Stimulus Exchange Home.

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Eric Goldman and Brand Spillovers

Jun 8

Posted by GregSJ in Internet, Trademark, keywords

Today I get to register for classes for next semester! I am very excited about my last year of law school as I will be taking almost entirely elective classes. One of the classes I am excited about is Eric Goldman’s Cyberspace law class. Prof. Goldman is the director of the High Tech Law Institute at Santa Clara, a prolific blogger, and a well liked professor. While this will be my first class with Prof. Goldman, I have followed his blog for years and have attended some of his presentations (including one on the legal issues of blogging.)

Last week Prof. Goldman released the final version of his brand spillovers paper (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1324822 ). I had read and cited an earlier version of the paper in my comment on the Rescuecom decision at Likelihood of Confusion.

I believe Prof. Goldman does an excellent job of describing the dichotomy between how traditional retailers profit from brand spillover while avoiding liability, whereas online intermediaries performing similar functions are often held liable. Prof. Goldman describes how both traditional retailers and online intermediaries are search cost managers and how their decisions on how to organize brands/trademark affect searches. Prof. Goldman argues that the end results in both situations is currently the best alternative available and thus a new policy on online intermediaries trademark liability is needed.

I highly recommend you read the paper for yourself.

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Yahoo v. NFL Players Association, Inc.

Jun 5

Posted by GregSJ in Fair Use, Internet, Publicity Rights, Sports Law

yahooffMy initial reaction to the news of yahoo filing suit against the NFLPA was shock. Shock that this wasn’t already an established issue in Yahoo’s favor. (In fact I had just talked to my dad the day before about how courts had held sports statistics as facts when we were discussing the Seinfeld Aptitude Test case.)

However the NFLPA’s alleged threat to file suit against Yahoo  and the decision in their favor (Gridiron.com, Inc. v. Nat’l Football League, Player’s Ass’n, Inc., 106 F. Supp. 2d 1309, (S.D. Fla. 2000)) made me realize the issue was far from established. Similarly Yahoo’s decision to file in Minnesota (far away from it’s Sunnyvale headquarters) is now obvious as well. The court in Minnesota has already decided a similar case in CBS Interactive Inc., v. NFLPA, Inc.

Unfortunately I don’t have hours and hours to dissect the courts’ differing decisions. However a quick review of both decisions revealed the following:

In CBS the MN court found that the 8th circuit court’s precedent in CBC v. MLBPA applied to the facts of the case.* The NFLPA fought the summary judgment motion on a number of procedural ground but no substantive grounds. Thus after finding none of the procedural grounds persuasive the court granted CBS’ summary judgment motion with little analysis. The court did note that:

The printouts of CBS Interactive’s website fail to demonstrate specific facts that support the assertion that the manner in which CBS Interactive presents the package of player information could give the false impression of an endorsement. The manner in which the information appears does not demonstrate or imply any connection between the players and the advertisement such that one could mistakenly believe that an endorsement is being made.

Put simply since the player’s information in connection with the fantasy football website is not an endorsement.

In Gridiron.com the court made the opposite conclusion:

Plaintiff uses these players to promote their websites in order to solicit third party advertisements. The websites, in and of themselves, are products, based on certain comments made by Plaintiff, the interpretation of the GLA by the NFLPA and the NFL Players, and by the plain meaning of the term describing the aggregation of the Players’ sites and the fantasy football game. The cases cited by Plaintiff do not stand for the proposition that a website is not a product.

Thus the court in Gridiron found the player’s information on the websites an endorsement. Additionally the court found that Gridiron’s use was not protected by the first amendment.

MLB Ad Parody

MLB Ad Parody

Plaintiff seeks to utilize the players it contracts with to use their images and have them perform functions that go way beyond merely conveying the news...Plaintiff actively sought out and obtained over 150 NFL Player’s publicity rights, and now argues that the information the websites produce are entitled to Free Speech protection. Plaintiff’s argument is not persuasive.

So what do you think? Are fantasy sports sites’ use of players’ statistics, biographical information, and images endorsements or relevant factual information?

One final note in CBS the NFLPA argued that “it is not clear whether the public’s interest in football statistics is equal in degree to the interest in baseball statistics, and, therefore, ‘there may be . . . weaker First Amendment interests at stake in this case.’” I would love to see MLB try and turn this into an advertising campaign. Even the NFLPA thinks baseball is better ….

* For a detailed analysis of CBC v. MLBPA see 121 Harv. L. Rev. 1439

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Tony La Russa sues Twitter — but why?!?!

Jun 4

Posted by GregSJ in Infringement, Internet, Trademark, Twitter

As I am sure you have already heard Tony La Russa, the coach of the St Louis Cardinals, has sued Twitter over an unauthorized account using his name. The question I want to know is why? After reading the complaint I am none the wiser. In fact, I am more convinced that this lawsuit should not have been filed and Mr. La Russa ought to fire whomever advised him to file this suit.

For starters, lets assume that the account is likely to cause confusion and did cause mental anguish and distress. The screenshot of the damaging twitter account shows that it had 4 followers. Compare that to the thousands of tweets now detailing the lawsuit. By filing the lawsuit La Russa and his attorneys have brought considerably more attention to posts allegedly damaging La Russa’s reputation. One would assume this was not the intent of the lawsuit (although it was a easily foreseeable result.)

Furthermore, reports indicate that Twitter has been responsive to celebrity requests to remove fake pages. Thus a simple request to Twitter is likely to have resulted in the removal of the page with much less fanfare. While one report indicates that La Russa did ask for the page to be taken down, the complaint makes no such allegation. In my opinion given the detailed nature of the complaint it is unlikely that such a key fact would have been omitted.

Even worse, the screenshot attached to the complaint also reveals that the page was clearly labeled a parody. This weighs heavily against a finding of likelihood of confusion, raises serious fair use issues, and in my opinion raises issues of fraud in the complaint. The complaint alleges that the statements “are impliedly written by Plaintiff himself.” I don’t understand how they could be impliedly written by La Russa when the page explicitly indicates they aren’t.

Additionally, the complaint also argues agency theory with respect to the creator of the page and Twitter. While I only have one semester of Business Organization under my belt, I am hard pressed to believe that an agency theory between the account creator and twitter will hold up in court.

Finally, I am confused why the complaint was filed in San Francisco Superior Court rather than federal court given it was filed on the basis of federal trademark statutes. Perhaps it was to try an avoid Judge Kozinski . (See Mattel Inc. v. Universal Music International for Kozinski’s take on trademark’s and parodies.)

In my opinion, this is another example of a poorly thought out, poorly drafted complaint which will likely cause more damage to the attorney’s client than the alleged cause of action.

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Top Level Domains (TLD)

Apr 16

Posted by GregSJ in Internet, TLD, Trademark

ICANN, the non-profit organization in control of top level domain names, has finished receiving comments from it’s proposed major overhaul which would allow anything to be a TLD.

For those of you that don’t know TLDs are .com, .org, .edu, etcetera. The ICANN has proposed that due to increasing demand for domain names the TLDs should no longer be limited to the current 2 and 3 letter acronyms (a list of all of the current TLDs can be found here.) Apparently despite the fact that ICANN would be “hard pressed to find more than one comment in favor of new TLDs from an organization other than those trying to launch new TLDs,” the proposal is still being considered.

While I have a consumer orientated view of Trademark law (see my comment at likelihoodofconfusion), I still think this is a bad idea. Those with a brand property view of trademark rights are extremely concerned. The fear is that people will be able to register infinite strings of tlds with trademarks in them, making it virtually impossible for trademark owners to protect their trademarks. While I don’t necessarily believe that people are going to suddenly start thinking http://www.drink.cokenotpepsi is coca-cola’s new homepage I do understand their concern.

U.S. Trademark law requires that owners police their trademarks or they lose some or all of their protection (either becoming weak and thus narrowly defined or abandoned entirely.) Allowing this new opportunity to register domain names as trademarks puts an incredible financial burden on trademark owners to protect their trademarks.

Thoughts?

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