Intellectual Property Law Internet Law IT Law Computer Law

A very simple issue in the Civil law countries had to be a subject of a writ of mandamus in the U.S. In the case Douglas v. United States Dist. Court for the Cent. Dist. of Cal., 2007 U.S. App. LEXIS 17061 (9th Cir. 2007), the U.S. Court of Appeals for the Ninth Circuit ruled that an Internet company who provided the Terms Of Use (also defined by academics as browserwrap license/agreement/contracts) can not update and enforce them as a binding contract without proper notification issued to its users.

Judge Alex Kozinski was a member of three-judge panel which decided this case. He is a very interesting person who wrote many rulings and articles concerning trademark law and the right of publicity. He used this famous “Hollywood Circuit” term to describe the law made by the U.S. Court of Appeals for the Ninth Circuit in the text of a judgement in the case White v. Samsung Elec. Am., Inc., 989 F.2d 1512 (9th Cir. 1993).

A full list with links to his articles is available at www.alex.kozinski.com website. If you are interested in trademark law and the right of publicity issues I recommend you to read S.Y. Reeves, “Speech-zilla Meets Trademark Kong?: How the Hollywood Circuit Got It Wrong in the Barbie Battle, Mattel, Inc. v. MCA Records, Inc.”, 4 Minn. Intell. Prop. Rev. 285, PDF file.

At the end of this post I would like to paste a short fragment of the judgement in the case White v. Samsung Elec. Am., Inc., 989 F.2d 1512 (9th Cir. 1993) at 1512-1513. It brings up many interesting issues.

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. [fn1] Clint Eastwood doesn’t want tabloids to write about him. [fn2] Rudolf Valentino’s heirs want to control his film biography. [fn3] The Girl Scouts don’t want their image soiled by association with certain activities. [fn4] George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” [fn5] Pepsico doesn’t want singers to use the word “Pepsi” in their songs. [fn6] Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. [fn7] Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. [fn8] Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. [fn9] And scads of copyright holders see purple when their creations are made fun of. [fn10]

Fn1. See Eben Shapiro, Rising Caution on Using Celebrity Images, N.Y. Times, Nov. 4, 1992, at D20 (Iraqi diplomat objects on right of publicity grounds to ad containing Hussein’s picture and caption “History has shown what happens when one source controls all the information”).

Fn2. Eastwood v. Superior Court, 149 Cal. App. 3d 409, 198 Cal. Rptr. 342 (1983). [**3]

Fn3. Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 860, 160 Cal. Rptr. 352, 603 P.2d 454 (1979) (Rudolph Valentino); see also Maheu v. CBS, Inc., 201 Cal. App. 3d 662, 668, 247 Cal. Rptr. 304 (1988) (aide to Howard Hughes). Cf. Frank Gannon, Vanna Karenina in Vanna Karenina and Other Reflections (1988) (A humorous short story with a tragic ending. “She thought of the first day she had met VR _ _ SKY. How foolish she had been. How could she love a man who wouldn’t even tell her all the letters in his name?”).

Fn4. Girl Scouts v. Personality Posters Mfg., 304 F. Supp. 1228 (S.D.N.Y. 1969) (poster of a pregnant girl in a Girl Scout uniform with the caption “Be Prepared”).

Fn5. Lucasfilm Ltd. v. High Frontier, 622 F. Supp. 931 (D.D.C. 1985).

Fn6. Pepsico Inc. claimed the lyrics and packaging of grunge rocker Tad Doyle’s “Jack Pepsi” song were “offensive to [it] and [are] likely to offend [its] customers,” in part because they “associate [Pepsico] and its Pepsi marks with intoxication and drunk driving.” Russell, Doyle Leaves Pepsi Thirsty for Compensation, Billboard, June 15, 1991, at 43. Conversely, the Hell’s Angels recently sued Marvel Comics to keep it from publishing a comic book called “Hell’s Angel,” starring a character of the same name. Marvel settled by paying $ 35,000 to charity and promising never to use the name “Hell’s Angel” again in connection with any of its publications. Marvel, Hell’s Angels Settle Trademark Suit, L.A. Daily J., Feb. 2, 1993, § II, at 1. [**4]

Trademarks are often reflected in the mirror of our popular culture. See Truman Capote, Breakfast at Tiffany’s (1958); Kurt Vonnegut, Jr., Breakfast of Champions (1973); Tom Wolfe, The Electric Kool-Aid Acid Test (1968) (which, incidentally, includes a chapter on the Hell’s Angels); Larry Niven, Man of Steel, Woman of Kleenex in All the Myriad Ways (1971); Looking for Mr. Goodbar (1977); The Coca-Cola Kid (1985) (using Coca-Cola as a metaphor for American commercialism); The Kentucky Fried Movie (1977); Harley Davidson and the Marlboro Man (1991); The Wonder Years (ABC 1988-present) (”Wonder Years” was a slogan of Wonder Bread); Tim Rice & Andrew Lloyd Webber, Joseph and the Amazing Technicolor Dream Coat (musical).

Hear Janis Joplin, Mercedes Benz, on Pearl (CBS 1971); Paul Simon, Kodachrome, on There Goes Rhymin’ Simon (Warner 1973); Leonard Cohen, Chelsea Hotel, on The Best of Leonard Cohen (CBS 1975); Bruce Springsteen, Cadillac Ranch, on The River (CBS 1980); Prince, Little Red Corvette, on 1999 (Warner 1982); dada, Dizz Knee Land, on Puzzle (IRS 1992) (”I just robbed a grocery store - I’m going to Disneyland / I just flipped off President George - I’m going to Disneyland”); Monty Python, Spam, on The Final Rip Off (Virgin 1988); Roy Clark, Thank God and Greyhound [You're Gone], on Roy Clark’s Greatest Hits Volume I (MCA 1979); Mel Tillis, Coca-Cola Cowboy, on The Very Best of (MCA 1981) (”You’re just a Coca-Cola cowboy / You’ve got an Eastwood smile and Robert Redford hair . . .”).

Dance to Talking Heads, Popular Favorites 1976-92: Sand in the Vaseline (Sire 1992); Talking Heads, Popsicle, on id. Admire Andy Warhol, Campbell’s Soup Can. Cf. REO Speedwagon, 38 Special, and Jello Biafra of the Dead Kennedys.

The creators of some of these works might have gotten permission from the trademark owners, though it’s unlikely Kool-Aid relished being connected with LSD, Hershey with homicidal maniacs, Disney with armed robbers, or Coca-Cola with cultural imperialism. Certainly no free society can demand that artists get such permission. [**5]

Fn7. Lombardo v. Doyle, Dane & Bernbach, Inc., 58 A.D.2d 620, 396 N.Y.S.2d 661 (1977).

Fn8. Geller v. Fallon McElligott, No. 90-Civ-2839 (S.D.N.Y. July 22, 1991) (involving a Timex ad).

Fn9. Prudhomme v. Procter & Gamble Co., 800 F. Supp. 390 (E.D. La. 1992).

Fn10. E.g., Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429 (6th Cir. 1992); Cliffs Notes v. Bantam Doubleday Dell Publishing Group, Inc., 886 F.2d 490 (2d Cir. 1989); Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986); MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981); Elsmere Music, Inc. v. NBC, 623 F.2d 252 (2d Cir. 1980); Walt Disney Prods. v. The Air Pirates, 581 F.2d 751 (9th Cir. 1978); Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964); Lowenfels v. Nathan, 2 F. Supp. 73 (S.D.N.Y. 1932).

Such judgments and the subject matter discussed in there make learning process of U.S. law a big adventure for me since long time. But I am not a nerd/geek/swot (choose whatever you want), just to be clear. ;) I will write another post about legal issues on browserwrap license/agreements/contracts later.

The Pirate Bay team likes to provoke and to overstep the mark. To celebrate the first publication of a CAM version of The Simpsons Movie they have changed its website. Check the story at www.torrentfreak.com website. But not all BitTorrent sites are so lucky and happy. As you can also read in the article available at www.torrentfreak.com website, Spanish Police shut down two Spanish torrent sites. Both were taken offline and three administrators were arrested and accused of facilitating “copyright infringement”.

Not such a long time ago I wrote a post titled Contractual liability for rootkits. Today, I read a short story about the (in)famous Sony/BMG End User License Agreemen being sung by a women’s choir and recorded by Toronto recording artist Brian Joseph Davis. Check www.wired.com website. Additionaly I would recommend you to visit www.reasonableagreement.org website.

I know it sounds a little bit demagogic but will it be a proper statement if I write that it is a really sick patent law that allows for patenting medical methods where such patents may later be used to prohibit or prosecute those who use them to treat patients? It was the article at www.law.com website that induced me to issue such statement. There are two cases mentioned. Medtronic Sofamor Danek, Inc. v. Michelson, 2003 U.S. Dist. LEXIS 24236 (W. D. Tenn. 2003) and Young v. Lumenis, Inc., 2007 U.S. App. LEXIS 15236 (Fed. Cir. 2007).

However, there is also patent misues doctrine in the US law based on a judgment in the case Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488 (1942).

There is also the so-called Doha declaration in the International IP law i.e. Doha WTO Ministerial 2001, Declaration on the TRIPS agreement and public health adopted on 14 November 2001. WT/MIN(01)/DEC/2, 20 November 2001.

June 21 was the big media day of “Harry Potter and the Deathly Hallows” book premiere. I also wrote about that in my post titled Potter mania. You could easily find such releases as Harry Potter and the Deathly Hallows [REAL] [PDF] [CLEAN].pdf, or any other combinations derrived in a single line from the one made by the use of telephone camera some days before the official premiere. As an illustration of this leak I suggest you to check this PDF file with four example pages (696 KB). Sadly to say, I was not able to contact with the author who took those pictures so I could obtain a proper license. I hope she/he will not sue me. Well, there are some traces that I may follow to find this mysterious person. Just check this illustration (JPG file, 66 KB). The author did not remove metadata attached to each file (EXIF). If you are looking for the answer to a question how many different version of this book is available in the net I recommend you to check the most popular torrent tracker well-known as www.thepiratebay.org.

I wonder about others who used this leak’s news to earn more publicity as I also did writing this post. The winner is the MPAA with its official statement that was commented at www.torrentfreak.com website and maybe www.bbc.co.uk, who wrote about Scholastic legal reactions. I know there is many many others. There is no need to give them free credits.

A lot of websites posted news about a suit in the case Eros, LLC v. Doe, No. 8:07CV01158 (M.D Fla. Jul. 03, 2007), which basically concerns copyright and trademark infringement of virtual goods (sex toys). I will not write too much about that. Just check the article at www.reuters.com website. You’ll find there attached documents of the suit and more comments. But, did anyone of you know about a vritual product that became sold as real? Quafe is both the name of a popular drink in EVE (which is MMOG - Massively Multiplayer Online Game) and the name of the corporation which produces it. On October 22, 2004, Crowd Control Productions, the owner of EVE, launched the virtual drink for sale in the real world. CCP sold the drink from their website - www.ccpgames.com, for $1.50 (USD) for a single bottle, or $15.10 for a multi-pack, but sadly to say, sales of this drink have since ceased. Quafe has a distinct lemon-lime taste.

As usually, if you are looking for more legal materials about mentioned issue, please refer to www.ssrn.com.

The U.S. Court of Appeals for The Nninth Circuit held in its judgement in the case United States v. Forrester, 2007 U.S. App. LEXIS 16147 (9th Cir. 2007), that Dennis Louis Alba’s (co-defendant) e-mail and Internet activity did not constitute as Fourth Amendment’s search. The court ruled that even if the government’s computer surveillance went beyond the scope of former 18 U.S.C.S. §§ 3121-27 (as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Oct. 26, 2001, P.L. 107-56, Title II, § 216(a), 115 Stat. 288.), he was not entitled to suppression of evidence.

Please bear in mind that U.S. courts strictly follow the rule of fruit of the poisonous tree, that generally speaking prohibits the use of derivatives of illegal evidence in a court against a defendant. It originates from a judgement in the case Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).

Well, no wonder that such case has spawned a lot of positive and negative comments issued by the American academia. Professor Shaun Martin voiced a forcible disagreement with Judge Raymond C. Fisher who wrote the opinion. However, professor Orin Kerr was not suprised by such findings and clearly showed in his article available at www.volokh.com website that there was no other option.

As usually, you will find more comments and links at www.slashdot.org. I think that a really good punchline to Mr. Alba’s reproaches was written in the article at wwwarstechnica.com website

In any event, readers interested in building a $10 million per month drug lab in the backyard should be aware that the government can get a list of all the phone numbers you call, the IP addresses you visit, and the people you e-mail.

I wrote about those issues before in a post titled Legal hacking, where I also briefly mentioned the case United States v. Heckenkamp, 2007 U.S. App. LEXIS 7806 (9th Cir. 2007), PDF file.

If someone is interested in Orin Kerr’s controversial (or not) statements then I recommend you to read for instance O. Kerr, “The Future of Internet Surveillance Law: A Symposium to Discuss Internet Surveillance, Privacy and the USA PATRIOT Act: Surveillance Law: Reshaping the Framework: A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It”, 72 GEO. WASH. L. REV. 1208 (Aug. 2004).

I must admit that when I see legislators’ inclinations to monitor and spy on citizens and a susceptibility of many businesses who produce and distribute software designed to protect computers users against methods such as keystroke logging or rootkit (as an example just check a fresh article posted at www.news.com website), I momentally recall myself Judge Stanley Sporkin’s opinion issued in the case McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998) at 220.

In these days of “big brother,” where through technology and otherwise the privacy interests of individuals from all walks of life are being ignored or marginalized, it is imperative that statutes explicitly protecting these rights be strictly observed.

I recommend you to read a judgement in the case United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. 2001), in which Nicodemo S. Scarfo questioned the use of keylogger software by the FBI, althogh its agents had search warrants.

Cybercrime is not a binding legal definition in Polish law so I will not dwell on that term too much. There is Andy Greenberg’s article at www.forbes.com website about top countries for cybercrime. The US Department of Justice prepared a nice collection of information and materials available at www.cybercrime.gov website as regards to crimes comitted with the use of computer or/and telecommunications networks. There is “CSI/FBI Computer Crime and Security Survey” document available at www.fbi.gov too. It was done with the help of almost 700 respondents in 2005. The National White Collar Crime Center (NW3C) together with the Federal Bureau of Investigation also provided us with “2006 Internet Fraud Crime Report”. It is freely available at www.ic3.gov website (PDF file). If you are looking for additional papers I recommend you to use www.ssrn.com.

The National Legal and Policy Center organization has published at www.nlpc.org website a short article in which it presents a study about movies uploaded and available in Google Video that were put there without a consent or a license agreement obtained from copyright holders. Even if the NLPC does not say that, and I do not want to speculate, I just wondered for a second if this research was somehow sponsored by Viacom. I recommend to check Viacom v. Youtube, 2007 U.S. Dist. Ct. Pleadings 2103 (U.S. Dist. Ct. Pleadings 2007) to all readers interested in this dispute. Anyway, in my humble opinion, there is a key question in the NLPC article. Namely:

After all, if an ethics watchdog group with a limited budget can find scores of copyrighted productions, why can’t Google?

I am not a legal adviser of the National Legal and Policy Center but I can disclose them the answer to their simply question. Well, because it does not have to! Why? The explanation is provided in the Online Copyright Infringement Liability Limitation Act, title II of the Digital Millennium Copyright Act, Pub. L. 105-304, 112 Stat. 2860, 2877 (Oct. 28, 1998), PDF file. Provisions of §512(a)(1-5) and §512(c)(1)(A-C) clearly state exclusions afforded for the potential ISP’s liability in case of such situations as described by the NLPC and also very precisely advice what steps should be taken by a copyright holder to remove contested materials.

What is more interesting, a similiar regulation being in force in The European Union, Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (’Directive on electronic commerce’), Official Journal L 178 , 17/07/2000 P. 0001 - 0016, in its article 15 clearly provides:

No general obligation to monitor

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

I have nothing more to add. At least it was free advice right?

There is a review of a book at www.thebachelorguy.com website that corresponds with a subject of this post. Additionaly, I would like to recommend you to check www.patentlysilly.com website and the Gallery of Obscure Patents available at www.delphion.com and (Internet is form porn, what do you think the Net was born for?) the collection of sex patents presented at www.fleshbot.com website. Below, I also present a short list of so-called “Internet patents” granted for software inventions and business models by USPTO. I hope that potential readers who are against granting patents for such “inventions” as well, will surivive this reading without any heart problems.

• U.S. Patent No. 6,029,141 (issued Feb. 22, 2000).
• U.S. Patent No. 5,625,694 (issued Apr. 29, 1997).
• U.S. Patent No. 5,781,438 (issued July 14, 1998).
• U.S. Patent No. 5,987,441 (issued Nov. 16, 1999).
• U.S. Patent No. 5,191,573 (issued Mar. 2, 1993).
• U.S. Patent No. 5,675,734 (issued Oct. 7, 1997).
• U.S. Patent No. 5,960,411 (issued Sept. 28, 1999).
• U.S. Patent No. 5,715,314 (issued Feb. 3, 1998).
• U.S. Patent No. 5,867,799 (issued Feb. 2, 1998).
• U.S. Patent No. 5,708,780 (issued Jan. 13, 1998).
• U.S. Patent No. 5,764,906 (issued June 9, 1998).
• U.S. Patent No. 5,835,896 (issued Nov. 10, 1998).
• U.S. Patent No. 5,774,870 (issued June 30, 1998).
• U.S. Patent No. 5,724,424 (issued Mar. 3, 1998).
• U.S. Patent No. 5,838,790 (issued Nov. 17, 1998).
• U.S. Patent No. 5,809,242 (issued Sept. 15, 1998).
• U.S. Patent No. 5,794,210 (issued Aug. 11, 1998).
• U.S. Patent No. 5,948,061 (issued Sept. 7, 1999).
• U.S. Patent No. 5,794,207 (issued Aug. 11, 1998).
• U.S. Patent No. 5,838,906 (issued Nov. 17, 1998).

In passing. Original work titled “The Internet is for porn” is avaliable at www.avenueq.com website in RealMedia container format but below you can watch another version done by World of Warcraft player. I can only speculate that this one was used and done without a proper permission or a license agreement from the owner of the Avenue Q show. But from the other hand, they could use fair use defence (parody) of course. Well, Internet.

This post was inspired by the lecture of many websites that devoted its space to news about Michael Meurer’s and Jim Bessen’s book titled “Do Patents Work?”, which will be published in 2008 and I await it much more then new Harry Potter’s book, that’s for sure. I recommend you to check the compillation done by Dennis Crouch on his website as regards to mentioned book.

July 21st is amongst other things, a day of the official premiere of the book “Harry Potter and the Deathly Hallows” in English-speaking countries. There was a lot of articles written about extra measures taken only to protect this book against a leak. For example, a fresh story described in the article at www.reuters.com website. However, I momentally recall myself the case of Canadian publisher Raincoast Books from 2005. Professor Michael Geist wrote an interesting post which included many details and comments as regards to the problem with pre-sold books about adventures of sorcerers from Hogwarts. Some additional and official statements are available at www.raincoast.com website. Richard Stallman was the one who also wrote short and bitter comment about the injunction granted by Judge Gill in connection with the right to read idea.

Update on July 17, 2007.
There is an article at www.salon.com website about “Harry Potter and the Deathly Hallows” leak which was done with the use of a pone with digital camera. I saw such release Harry.Potter.The.Deadly.Hallows.eBOOK-iND.

What is a difference between an idea and a piece of creation that incorporates it, so such work becomes also protected by copyright law? It is a long story to write about. I recommend you to read a post and watch those movies available at www.cracked.com website. The comparison between logotypes of Microsoft and Apple available at www.flickr.com website should be another illustration to the problem mentioned above.

Sony BMG has filled summons against The Amergence Group Inc., (formerly SunnComm International), in connection with MediaMax CD 3 technology, used by Sony to “protect” music CDs against consumers, which as it was later discovered wasn’t such “effective technological measure” but a very efficient rootkit. More details about BMG Music v. Amergence Group Inc., County Clerk Civil Index, NewYork County, New York Case Number: 602201/2007, available at www.slashdot.org website.

I will also remind you that there was a class action suit against Sony in 2006 that was settled later. For more details check In re: SONY BMG CD Technologies Litigation, Case No. 1:05-cv-09575-NRB, United States District Court For The Southern District Of New York, 2005 U.S. Dist. Ct. Motions 9575, 2006 U.S. Dist. Ct. Motions LEXIS 9329.

There is couple of really interesting articles as regards to theories of contractual liability for defective computer software. Amon others, I recommend you to read P.A. Alces, A.S. Book, “When Y2K Causes “Economic Loss” to “Other Property”", 84 Minn. L. Rev. 1 (1999), F.E. Zollers, A. McMullin, S.N. Hurd, P. Shears, “No more soft landings for software: liability for defects in an industry that has come of age”, 21 Santa Clara Computer & High Tech. L.J. 745 (2005) and L. Longdin, “Liability for defects in bespoke software: are lawyers and information scientists speaking the same language?”, International Journal of Law and Information Technology, Volume 8, Number 1, Oxford University Press 2000.

Since this post is about contractual liability for defective software I should mention at least two well-known cases in this subject matter i.e. Kaczmarek v. Microsoft Corp., 39 F. Supp. 2d 974 (N.D. Ill. 1999) and In re AOL, Inc. Version 5.0 Software Litig., 168 F. Supp. 2d 1359 (S.D. Fla. 2001).

It is so American. Fair use doctrine. Codified at 17 U.S.C. § 107. Limitations on exclusive rights: Fair use (Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541, October 19, 1976 as amended by The Visual Artists Rights Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5132 and Copyright Amendments, Pub. L. No. 102-492, 106 Stat. 3145, October 24, 1992) and at least a few dozen of judgments. Well it looks like fair use has its own day. More details to check at www.fairuseday.com website. A little bit longer comments then mine are available in the article at www.arstechnica.com website, where they also mention the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (H.R. 1201, 110th Congress, 1st Session, (2007)), reform which in my humble opinion will fail. Please forgive me my pessimism but I am also a realist.

For all of you interested in the mentioned subject matter I recommend this article, Beebe, Barton, “An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005″ . University of Pennsylvania Law Review, Forthcoming Available at SSRN:. Available at SSRN: http://ssrn.com/abstract=998421. In the Social Science Research Network’s database you may find a lot of articles in this subject. It is really worth reading for all interested in comparative studies or just in the U.S. copyright law itself.

I recommend you to read a story posted at www.ironicsans.com website. This is a very interesting combination and comparison. Check also USPTO database and trademark no 78781131 or no 74206327. The second trademark’s status is declared dead.