Section 4.2: Lawsuit over Obama campaign
poster
During the presidential campaign, Shepard Fairey found a photo of Barack
Obama on the Internet, modified it to look more like a graphic design, and
made a very popular campaign poster out of it without any credit to the
photographer,
Mannie Garcia, or permission from the Associated Press, which owns the
photo. AP argued that
Fairey infringed AP's copyright. Fairey claims his use was
a fair use. AP claims that the design, on sweatshirts, etc.,
has produced hundreds of thousands of dollars in income. (Mar. 2009)
Fairey and AP settled out of court in 2011.
Section 4.2.2 and Exercise 4.11: Turnitin.com
lawsuit
A U.S. appeals court ruled that turnitin.com does not infringe copyright on
student term papers when it stores the papers to compare them against others
to detect plagiarism. The court ruled that this use is a fair use. It did
not matter whether or not an instructor had the student's permission to submit
the papers. (April 2009)
Section 4.3.1: Change in tactics to fight
illegal music downloads
The music industry sued or took other legal action against about 35,000
people in the five years 2003-2008 for downloading unauthorized music files
on the Internet. In 2008, recognizing that the lawsuits angered customers
and were not particularly effective in stopping the practice, the industry
decided to stop the policy of mass lawsuits. Instead, the RIAA is making
agreements
under which ISPs will warn customers who the RIAA believes to be transferring
music illegally, but the ISPs will not disclose the customer's actual identity.
The ISP may close the accounts of customers who ignore the warnings.
Section 4.3.1: Selling IP without DRM
In 2008, Sony BMG Music Entertainment began selling music without digital
rights management. Also, after a successful experiment with a limited number
of titles, Random House began selling audio books without DRM. The company
said that, without DRM, it will be easier to sell through a larger variety of
online retailers.
Section 4.3.1: When is file sharing
a copyright violation?
Does placing copyrighted songs in a shared file folder
on one's computer constitute a copyright violation? Or
does the Recording Industry Association
of America have to show that someone else actually
downloaded the songs? Legal uncertainty about this
detail led to a new trial for a woman (Jammie Thomas) who was
convicted in 2007 and ordered to pay more than $200,000.
(Aug. 15, Sept. 25, 2008)
Section 4.3.2 and 4.3.3: Court rules against
TorrentSpy
The Motion Picture Association of America won a permanent injunction and a
large monetary award against Valence Media, the owner of TorrentSpy for
contributing to copyright infringement. TorrentSpy
says it did not store videos on its site, but it provided an index of other
sites that had torrent files. A TorrentSpy attorney says the servers were
in The Netherlands and the sites with the files were listed in plain text, not
as links. (May 2008)
Section 4.3.3: Google's YouTube wins Viacom
suit (so far)
In June 2010, a federal judge ruled that the "safe harbor" provisions of the
DMCA protected Google from Viacom's claims of copyright infringement.
YouTube regularly removed video clips when Viacom informed the company that
the clips infringed Viacom copyrights. Viacom indicated that it will appeal.
(The textbook mentions the case on page 222.)
Google now provides a free, automated tool that content owners can use
to prevent their material from being loaded onto YouTube.
The lawsuit, filed in 2007, concerns videos posted before then.
Similar lawsuits in Europe have had varying results. YouTube won a case in Spain but lost one in Germany.
The next update describes a case on a similar issue.
Section 4.3.3: Responsibility of auction sites
for fake goods
Tiffany & Company sued eBay because some people sell counterfeit Tiffany
products on eBay's site, in violation of Tiffany's trademarks.
eBay removes listings that Tiffany identifies as
counterfeits. Tiffany argued that it should not have the burden to
monitor listings on eBay, but rather that eBay should have the responsibility
for not posting listings that it could reasonably expect to be counterfeits.
The issue is essentially the same as in disputes about whether sites such as
YouTube should have the responsibility to remove videos that likely infringe
copyrights. Tiffany filed its suit in 2004. A federal court decided in
favor of eBay in 2008. A federal appeals court upheld the ruling in 2010, and
the Supreme Court declined to consider Tiffany's appeal.
Lawsuits on the same issue in Europe have had varying results. eBay lost two suits in France (to Louis Vuitton and Hermes) and was ordered to pay more than $60 million. EBay won a suit in Germany, and a Belgian court dismissed a similar suit against eBay.
Section 4.3.3: The Pirate Bay
The Pirate Bay case (in Sweden) has several parallels to the 2001 Napster case
in the United States.
In April 2009, four organizers of the Pirate Bay Web site were convicted,
sentenced
to a year in prison, and ordered to pay damages to a group of entertainment
companies. (They are appealing.)
The case addressed the issue of whether the site violates Swedish
copyright law
by helping users find and download unauthorized copyrighted material (music,
movies,
computer games) although the site itself did not host the material.
After the verdict, a Swedish software company bought Pirate Bay and
planned to convert it to a legal site that would pay copyright owners when
their movies, TV shows, etc., are shared.
Section 4.4: Google loses suit in France
A French publisher (La Martiniere) sued Google for scanning its books
and putting extracts
online without permission. A French court found Google guilty of copyright
infringement and ordered the company to pay a large fine and remove
the extracts. Google is appealing the decision. (Dec. 2009)
Section 4.4: Settlement between Google and
publishers challenged
Google and several publishers made an agreement
focused on roughly five million out-of-print books that are
still covered by copyright. Some writers and publishers are unhappy with
the agreement, and it is being reviewed by U.S. courts. Here are some of
the provisions.
Google will make out-of-print works available online but will share proceeds
with the
publishers and authors (with 63% going to the publishers and authors).
The settlement provides a mechanism for copyright owners to
set prices, let Google set prices, or refuse permission for Google to use
certain books.
The settlement also addressed the contentious issue of how much of a book Google
could display as fair use, without payment. The parties agreed to 20%.
Google, without admitting it had violated copyrights, agreed to pay $45
million to compensate copyright owners of material it had
previously copied and made available without permission. Google also will
pay about $34 million to set up a registry through which copyright owners for
books can be identified and paid.
(The lawsuits are The Authors Guild, Inc. et al v. Google, Inc. and
The McGraw Hill Companies, Inc. et al v. Google, Inc.) (Jan. 2009, Dec. 2009)
Section 4.4: Trademarked search terms
The practice of selling search terms raises intellectual property issues
for trademarks. Business pay search-engine companies such as Google and Yahoo
to display the business's ads when a user enters specific search terms.
What if a business "buys" the name of another company or some of its products?
Users searching for one company will see its competitor's ads.
A company that makes software for learning foreign languages (Rosetta Stone)
is suing another several other companies (including Rocket Languages) over
this issue. (July 27, 2008)
Section 4.6: Free art
The Free Software movement inspired a project of the Berkeley Art Museum.
The museum provides digital artworks online with their source files and
allows people to download and modifiy the art.
Section 4.6.1: Copyright protection
for open source.
A federal appeals court upheld copyright protection
for open-source software. The court said
a person who distributes open-source software can sue
for an injunction against someone who uses the software
for commercial products without following the open-source
licensing agreement. (The case involves model train software
distributed by Robert Jacobsen.) (Aug. 14, 2008)
Section 4.7: Patent challenges
The Supreme court will hear a case
that might determine what standard of proof is required to rule that a patent
is invalid. Federal courts have
been requiring "clear and convincing evidence."
Many companies that use a large amount of sophisticated software technology
(Google, Microsoft, Apple, and others) argue that a
"preponderance of evidence," a weaker standard, should be sufficient for
ruling a patent invalid. (The case is an appeal of a $290 million judgment
against Microsoft for infringing another company's patent in some versions
of Microsoft Word.) (Dec. 3, 2010)
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