Category: Copyright

Tim Tebow Sends Cease & Desist Letter to T-Shirt Company

Thursday, 17 May, 2012 09:28 Written by Mark Malek 3 Comments
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By: Mark R. Malek

Anyone who knows me knows that I am an avid (and sometimes rabid) fan of the New York Jets.  Therefore, it is no surprise that my email inbox this morning was flooded with links to a story that Tim Tebow’s attorney has sent a cease & desist letter to a T-Shirt company that is making the T-Shirt pictured below.  The letter can be found here.

As we indicated in some previous articles, cease & desist letters are a good starting point for enforcing your intellectual property rights.  For more information, take a look at the articles here, here and here.  Some of these articles are directed to protecting your patent rights, and some are directed to protecting your trademark rights. Either way, a cease and desist notice is one in which the intellectual property owner merely informs the alleged infringer of their rights, and demands that any further infringement be stopped.

Back to the story at hand, as you can see, the shirt in question changes the current New York Jets logo to read “MY Jesus” instead of “NY Jets.”  So I guess my question is what intellectual property right is Tim Tebow attempting to protect?  The letter indicates that the shirt makes it appear as if Tim Tebow endorses the T-shirt company. Really?  I am trying to figure out why that would be.  Is Tim Tebow the only Jets fan that believes in Jesus (I can say for a fact he is not – I’m one!!)

Of course, when my anti-Jets fan friends (especially the dang Dolphin fans and the Patriot fans) found out about the story, it made for the same joke over and over again – Even Tim Tebow thinks he’s Jesus!  Aghh!  Enough already.  I suspect that young Mr. Tebow does not really understand the ins and outs of intellectual property law and why his overzealous attorney is sending out letters like this.  Granted, Tim Tebow, like the rest of us, does enjoy a right to his own likeness, but it is not as though there is a trademark issue here for Tim Tebow, and if this is about a right to his likeness, then what likeness is being protected.  Does he really think that a reference to Jesus in connection with football is a reference to him?  News flash – there have been plenty of very talented NFL players that believe in and worship Jesus long before Tim Tebow came around.

At best, there may be a trademark issue for NFL Properties, who I believe is the owner of all the NFL logos, or perhaps even the NY Jets.  There is likely even a copyright issue here.  Technically, the NY Jets logo (in all its glory) is afforded copyright protection.  Therefore, this T-shirt can technically be thought of as a derivative work.  With that in mind, not one of these intellectual property rights is Tim Tebow’s to assert.  To the owners of Chubby Tees – I would be pleased to respond to Mr. Tebow’s attorney for you.  Side note – Before the Florida Bar asks, I am not soliciting business…I just want to have some fun with the response to the attorney that thinks the name of Jesus is the same as an endorsement by Tim Tebow!

FACEBOOK AVERTS ANOTHER LAWSUIT

Tuesday, 15 May, 2012 05:00 Written by danieldavidson 0 Comments
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By Daniel Davidson

As if Mark Zuckerberg wasn’t already anticipating a landmark birthday, not because of age but because of Facebook’s anticipated IPO, he can now add a victory over a potential payout to self-proclaimed Facebook co-founder Aaron Greenspan. 

In the lawsuit which was filed with Massachusetts’ U.S. District Court, Greenspan alleged that he was not properly named in Ben Mezrich’s book  The Accidental Billionaire and was completely misplaced in the big screen story of Zuckerberg’s success, The Social Network.  Unfortunately for him, the judge dismissed the case with prejudice in favor of Defendants Benjamin Mezrich, Random House, Inc., Mezco, Inc., and Columbia Pictures Industries, Inc.

Allegations, in addition to the “defamation” cause above, included copyright infringement, contributory copyright infringement, and vicarious infringement.  Greenspan’s claims copyright infringement of his book Authoritas: One Student’s Harvard Admissions and the Founding of the Facebook Era which was granted a copyright in 2008.  In the judge’s opinion, which can be seen in its entirety here, the notion that ideas cannot be copyrighted is discussed.  The judge conveniently lays out examples of what can be copyrighted and what cannot.  For example, the judge writes, “As to Greenspan’s description of Summers’ assistant in (6), the fact of her ethnicity is not protected; however, the plaintiff’s original expression of the idea of an assistant taking notes should enjoy copyright protection.”

The defamation claim is a somewhat backwards theory for him to sue on.  As some may know, defamation is the publication of false statements against someone which are capable of damaging the reputation of someone, and have caused that person economic loss.  Greenspan argues that by being left out of the movie and being referred to by a different name in the book, he was being defamed.  The judge thought otherwise and states that Greenspan would not be held up to “scorn, hatred, ridicule or contempt” due to the name change and omission.

Greenspan, the last of the Mohicans against Facebook, has already noticed the court that he intends to appeal the decision entered on May 9.

I Got Sued By a Copyright Troll Part V: Judge Finds IP Address Does Not Identify Person

Monday, 07 May, 2012 06:00 Written by Aaron Thalwitzer 0 Comments
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The BitTorrent lawsuits (otherwise known as copyright troll lawsuits, often involving porn-related plaintiffs), have been smacked down again. I’ve spoken about these cases many times before, including the basics of pre-suit strategy, defenses both procedural and on the merits, and even the discovery shenanigans that go into such cases.

Those trolls just got smacked down. New York Judge Gary Brown spelled it out in a 26-page order dated May 1, 2011. I highly recommend reading the entire order. It’s a great read and provides an outline for other courts to deal with the onslaught of copyright troll litigation. Judge Brown recites some of the factual defenses presented by defendants:

The factual defenses presented are vastly different and highly individualized. One movant, John Doe #16 has stated that he was at work at the time of the alleged download. John Doe #2 states under oath that he closed the subject Earthlink account, which had been compromised by a hacker, before the alleged download. John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins. John Doe #10 represents that downloading a copy of this film is contrary to her “religious, moral,ethical and personal views.” Equally important, she notes that her wireless router was not secured and she lives near a municipal parking lot, thus providing access to countless neighbors and passersby.

(internal citations omitted).

Judge Brown also found that since a single IP address could be used by many different computers, the trolls’ quest for names associated with IP addresses disingenuous:

An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones . . . Thus, it is no more likely that the subscriber to an IP address carried out a particular computer function here the purported illegal downloading of a single pornographic film than to say an individual who pays the telephone bill made a specific telephone call.

Judge Brown notes that different members of the same household could additionally have performed the alleged downloads, as well as neighbors or passersby (if the wireless routers were unsecured). Citing a case from just a few months ago, the Court chastised counsel for their extortionist practices:

The Court is concerned about the possibility that many of the names and addresses produced in response to Plaintiff’s discovery request will not in fact be those of the individuals who downloaded “My Little Panties # 2.” The risk is not purely speculative; Plaintiff’s counsel estimated that 30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material. Counsel stated that the true offender is often the “teenaged son … or the boyfriend if it’s a lady.” Alternatively, the perpetrator might turn out to be a neighbor in an apartment building that uses shared IP addresses or a dormitory that uses shared wireless networks. This risk of false positives gives rise to the potential for coercing unjust settlements from innocent defendants such as individuals who want to avoid the embarrassment of having their names publicly associated with allegations of illegally downloading “My Little Panties # 2.”
Digital Sin, Inc. v. Does 1-176, — F.R.D. –, 2012 WL 263491, at *3 (S.D.N.Y. Jan. 30, 2012).
Other courts have found that the litigation tactics indicate:
[T]hat the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does.” Raw Films, 2011 WL 6182025, at *2.
The Judge sorted through the BS and found that all they trolls really wanted was a name, someone to threaten and extort and from whom they could make a few thousand dollars.

Judge Beach labels mass-BitTorrent lawsuits a “waste of judicial resources” and recommends that other judge do likewise. Lastly, Judge Beach also found that the “swarm” joinder of unnamed defendants violated Rule 20, further wasting judicial resources and improperly avoid paying filing fees.

The Court granted subpoenas to John Doe 1 only in each of the cases and recommended that each John Doe be filed as a separate lawsuit in the future. If the severance recommendation become the rule of law nationwide, we would likely see the end of this type of copyright troll. The filing fees aren’t worth it for them.

UK Court Says Yo-Ho No-No to Pirate Bay

Wednesday, 02 May, 2012 09:27 Written by Danie Roy 0 Comments
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Danie Roy

After ignored requests to voluntarily block The Pirate Bay, UK Internet Service Providers (ISPs) are now being ordered by the High Court to block the popular link site.

Like any good internet provider, the UK ISPs did not take blocking sites lightly. Even though The Pirate Bay is a site infamous for infringing copyright, requests to block content should always be considered a big deal. Not simply acquiescing to anyone who requests a content block does, after all, prevent innocent sites from being blocked (although I think we can all agree that The Pirate Bay is anything but innocent).

So, what happens now? Well, the UK ISPs will block The Pirate Bay, probably using a redirect. How will they enforce it?Well, after that, there’s not a whole lot the ISPs are required to do… which is why they probably won’t be held accountable when tech savvy pirates bypass it. Now, keep in mind, I don’t condone bypassing blocks to The Pirate Bay… and I’m quite sure we all know I don’t condone the use of The Pirate Bay. However, as someone who has been on the internet for longer than 10 minutes and also has a basic understanding of how the internet works, I know that those blocks are very easy to bypass. You don’t even need to be a “1337 H4X0RZ!1″ to do it, either. And no, I’m not going to tell you how.

I tend to agree with Virgin Media, who pretty much summed up the most reasonable take on this whole thing:

As a responsible ISP, Virgin Media complies with court orders addressed to the company but strongly believes that changing consumer behaviour to tackle copyright infringement also needs compelling legal alternatives, such as our agreement with Spotify, to give consumers access to great content at the right price.

We’ll see how this plays out.

USPTO: Entire U.S. Economy Relies on IP

Monday, 30 April, 2012 06:00 Written by Aaron Thalwitzer 0 Comments
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Last month, the USPTO released  a reporttitled “Intellectual Property and the U.S. Economy: Industries in Focus”. Weekend reading material! The report “aims to promote a better understanding of the industries where IP plays a particularly important role.” The report goes on to note that “[t]he entire U.S. economy relies on some form of IP, because virtually every industry either produces or uses it.” So they may have gotten a little carried away with themselves — or did they? I defy you to identify an industry that doesn’t produce or use IP. I can’t think of one, though there are industries which are certainly more IP-intensive. According to the report, “75 industries (from among 313 total) [are] IP-intensive.” These IP-intensive industries directly accounted for 18.8 percent of all employment in the U.S. economy, in 2010.

The breakdown is even more interesting. Off the top of my head, I might have guessed that patents would lead the way. Nope. Trademark-intensive industries provided 22.6 million jobs, patent-intensive industries accounted for 3.9 million jobs, and copyright-intensive industries provided 5.1 million jobs (all data 2010). The report states that these industries accounted from “about $5.06 trillion in value added, or 34.8 percent of U.S. gross domestic product (GDP).” Note the distinction. They’re not saying IP independently added trillions in value; the industries did. But without the protections afforded by IP, would those industries generate so much revenue?

Since many IP-intensive industries are in the manufacturing sector, which has long been on the decline in terms of jobs created (but not productivity), these numbers are actually low, particularly for patent-intensive industries. Another surprise to me was that “[w]hile trademark-intensive industry employment had edged down 2.3 percent . . . copyright-intensive industries [grew] by 46.3 percent between 1990 and 2011.” Another fun fact for you to ponder this Monday morning.

Not surprisingly, IP has been recovering from the Great Recession at a higher rate than non-IP intensive industries. “[B]etween 2010 and 2011, the economic recovery led to a 1.6 percent increase in direct employment in IP-intensive industries, faster than the 1.0 percent growth in non-IP-intensive industries. Growth in copyright-intensive industries (2.4 percent), patent-intensive industries (2.3 percent), and trademark-intensive industries (1.1 percent) all outpaced gains in non-IP-intensive industries.”

Furthermore, these are good jobs, on average 42 percent higher than the average weekly wages in other (non-IP-intensive) private industries. And the discrepancy is growing, having “nearly doubled from 22 percent in 1990 to 42 percent by 2010.” Much of this corresponds to the fact that these workers are better educated than their non-IP counterparts.

Importantly, merchandise exports of IP-intensive industries accounted for 60.7 percent of total U.S. merchandise exports. The U.S. doesn’t manufacture goods, it manufactures innovation (I should be in marketing).

The report sums up the importance of IP. It’s an ideal, and hopefully one which the USPTO and Congress will seek to facilitate:

One important way to help encourage innovation is through the protection of intellectual property (IP). The investments necessary to develop IP are often quite substantial. Firms and individuals, in order to invest the necessary resources, need some assurance that they will benefit from and recover the costs of the creation of intellectual property. IP rights help protect authors, inventors, and merchants of goods and services from having their creations and innovations quickly and easily exploited by other firms or individuals, diminishing the benefits to the inventor of the IP. This reduction in private benefits to be gained from the underlying innovation could, in turn, reduce the incentives to undertake the investments necessary to develop the IP in the first place.

Here, here!

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