Via Gizmodo we learn of the hilarious claim that China Central Television’s news broadcast recently showed some imagery purported to show Chinese military training exercises. The only problem is that some folks recognized the footage as coming from the Hollywood movie Top Gun, starring Tom Cruise. You can see the screenshots below, comparing the CCTV news footage (on the left) with the identical frame captures from Top Gun:

Of course, I can only assume that China Central Television did not have a license to show Top Gun on TV. What are the chances that someone in Hollywood decides to sue?

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Techdirt Mike Masnick

We’ve been covering the mass copyright infringement lawsuits being filed in the US over the past year or so. Most of them aren’t designed with the idea of actually taking anyone to court, but mainly to threaten people into “settling” (i.e., paying up) to avoid the lawsuit. A “concerned citizen” hoping to remain anonymous has taken the time to put together an amazingly detailed spreadsheet cataloging all of these lawsuits. He claims that he will continue to keep it updated. One stunning point from the data? Between January 1, 2010 and now, 99,924 “John Does” have been sued in this manner. If I don’t hurry up and publish this post, I imagine we’ll have already passed 100,000.

While many of the John Doe cases have been dismissed, the spreadsheet shows that 70,914 have not yet been dismissed, so there are plenty to go. When 100,000 people are getting sued anonymously by just a few firms, at what point do the courts and politicians realize that something is broken with the law?

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Techdirt Mike Masnick

Back in November, we wrote about how the lawyers behind US Copyright Group, Dunlap, Grubb & Weaver, were being sued for extortion, conspiracy and fraud. While we doubted the lawsuit would get all that far, it did seem to have a slightly stronger legal basis than similar lawsuits in the past, due mainly to the fact that the producers of Uwe Boll’s Far Cry screwed up with the registration of the copyright, meaning that many of those sued could not be hit with statutory damages — and yet DGW falsely claimed they could. While defenders of these pre-settlement “pay up or we’ll sue” campaigns like to claim that it’s not extortion if the party demanding the cash has a legitimate legal claim, it’s a lot harder to make that case when they don’t really have a legitimate legal claim, but simply say they do. That sounds a lot closer to extortion.

Ars Technica notes that DGW has filed a scathing response (though, oddly, Ars Technica does not provide the actual filing). Apparently, there are two key arguments made by DGW: First, that the guy suing, Dmitriy Shirokov, has no right to sue DGW, because they’re just the lawyers “simply doing their job,” and you can’t sue for that:

“Although an attorney may be accused of defrauding opposing parties, knowingly committing discovery abuses, lying to the court, or purposely and maliciously defaming another individual, if it takes place during the course of litigation, the conduct simply is not actionable,”

That’s quite a claim, in large part because it’s misleading. DGW is playing a little game of misdirection, and assuming everyone else is stupid (a dangerous game for lawyers to play). The main problem is that the actions that DGW is being sued over here are not actually “during the course of litigation.” The complaint is about the “pay up” threat letter, which is not directly a part of the litigation, but an attempt to avert litigation. To claim that demanding cash based on a factually incorrect legal claim is immune from a legal complaint seems like a stretch. If DGW’s legal theories are correct here, it would mean that a lawfirm could resort to outright, blatant extortion, just so long as it somehow connected it to the threat of litigation. That’s a plainly ridiculous outcome that I find hard to believe a court would buy.

Separately, DGW says that no “harm” has come to Shirokov since he hasn’t actually settled. That, again, seems like a questionable tactic. If true, the only way that someone illegally or unfairly threatened could sue is if they first give in to the threat. It seems that just the threat itself, if it truly was made maliciously with false information for the purpose of getting people to pay up, should constitute clear harm in itself.

Of course, not all DGW’s claims seem that crazy. On the question of racketeering and other criminal complaints, DGW points out that individuals can’t bring criminal complaints, only the government can. This point goes in DGW’s favor, and I’m a bit surprised that Shirokov’s lawyers focused on criminal statutes in their complaint. However, the complaint covers plenty of areas that aren’t criminal in nature, and there’s no reason why the case shouldn’t move forward on those issues.

Finally, DGW, in what appears to be becoming standard practice for the firm, is demanding sanctions against Shirokov and his lawyer for filing the lawsuit in the first place. Talk about obnoxious. DGW, in this filing, appear to be claiming both that they can effectively do whatever the hell they want to threaten someone if he doesn’t pay up (so long as they can claim a loose association with ongoing litigation) — and that anyone who then claims that this amounts to a form of fraud or extortion should be punished. In other words, it seems that DGW believes it can act beyond the law in the course of litigation, and anyone who sues them over it should be sanctioned.

Hopefully, a court sets DGW straight on all of that. I’m still not convinced this case will get very far. I’d be surprised if courts, while sympathetic to those charged in such “settle or we sue” lawsuits, went to the other extreme and claimed that the efforts behind them directly broke the law. I’d be thrilled if I’m proven wrong on this, but it just seems unlikely.

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Techdirt Mike Masnick

Don’t get me wrong.  I don’t mind the RIAA.  As a technology and internet lawyer who makes my living in and out of court trying to protect the intellectual property rights of my clients, I generally support the RIAA’s efforts to keep people from stealing music and infringing the copyrights of others—although the organization can get a bit too overzealous at times.  I’m starting to wonder, however, if perhaps the RIAA’s overzealousness is starting to cross the line into outright delusion, stupidity, or both.  They certainly keep their lawyers busy though.

Now the RIAA is making veiled legal threats against ICANN over the introduction of a “.music” domain name.  The RIAA’s deputy general counsel, Victoria Sheckler, informed ICANN that such a gTLD “will be used to enable wide scale copyright and trademark infringement.”  Actually, “informed” is too nice a word given the rest of her letter: 

We strongly urge you to take these concerns seriously….We prefer a practical a practical solution to these issues, and hope to avoid the need to escalate the issue further.

As you’re probably aware, “escalate” is legalese for “sue your ass.”  But come again?  How does a .music domain name ”enable” infringement?  As I recall, the RIAA has sued an awful lot of people over the years who have downloaded music from sites with .com and numerous other extensions.  So how does a .music gTLD change that in any way? 

If anything, a .music domain name might help consolidate all of the infringers in one place, kind of like a canyon with the snipers located above, and thereby allow the RIAA’s lawyers to pick them off as they see fit.  Of course, outright infringers would likely avoid using such an obvious domain name anyway and stick to the names they’ve been using for—oh, I don’t know—maybe the last decade or so before a .music name was ever contemplated.  (But then again, as an attorney I’ve learned never to underestimate the stupidity or chutzpah of people.)  And of course, the RIAA seems to forget that there are a ton of amateur musicians and bands out there who have no problem with people downloading their music for free and would readily take the opportunity to register a .music domain name.

In terms of potential trademark infringement, I have no doubt that many cybersquatters would try to register the .music names of famous bands and musicians.  But most won’t get very far given the ICANN domain name dispute resolution policy.  Or the even more far-reaching Anti-Cybersquatting Consumer Protection Act.  So the RIAA needs to chill.  What they really seem to be trying to do is to get ICANN to somehow implement copyright protections or to police the .music name for infringers.  But isn’t that the RIAA’s job?  And haven’t they done it well over the years? 

I can’t believe that ICANN would, could, or ever be forced to assume such a massive compliance burden.  This isn’t a situation like Napster where there was a single website facilitating infringement (which had nothing to do with ICANN).  The RIAA is essentially suggesting that ICANN monitor an entire gTLD for the infringing activities of, well, everyone who uses it.  And even if that were possible or within the purview of ICANN’s official responsibilities (which it’s not), what’s to stop the RIAA from then trying to extend ICANN’s efforts into all of the the other gTLDs that exist…or will exist?  Slippery slopes I can deal with, but slippery cliffs are another matter.  In any instance, a lawsuit against ICANN is something that the RIAA may want to think carefully about before pursuing.  Not that they will, mind you.  Their lawyers are kept very busy indeed.

Shakespeare said it first:  “A rose by any other name would smell as sweet.”  And a domain name by any extension could smell as rotten as any other.  And if people want to use it for illegal purposes, they’ll do it regardless.  As for me, I can’t wait until that proposed ”.xxx” gTLD finally becomes operational.  I just can’t find the porn I’m looking for without it.

I love it when tech giants battle over stuff, particularly in the legal arena.  When you have two parties with virtually unlimited resources and an unfettered willingness to spend money on lawyers, it makes for interesting reading … and hopefully for more interesting law at some point down the line.  We don’t always have such excitement in the Boston legal community.

Such is the case with Microsoft’s recent filing at the Trademark Trial and Appeal Board (“TTAB”) (of the United States Patent and Trademark Office) contesting Apple’s attempt to trademark the term “APP STORE.”  Microsoft argues that “APP STORE”  is “generic for retail store services featuring apps and unregistrable for ancillary services such as searching for and downloading apps from such stores.”  The company further contends that “APP”  is “a common term for mobile software applications, while “STORE” is a common term for a “place where goods are sold.” 

Following so far?  A generic term can’t be registered for use as a trademark because it refers to the actual product class of which a particular product is a member and therefore can’t be protected as a mark.  It would be like trying to register the term “VIDEO GAME” for video games or—for those of us over 40 who still remember video games’ predecessors—the term “PINBALL” to describe pinball machines.

Microsoft’s argument has merit and the company has a reasonable basis to contest the mark.  Of course, this doesn’t mean that Apple won’t win in the end, but it should be an interesting read when the TTAB decision come out—at least to us trademark lawyers.  (And the parties may then have the opportunity to fight it out in federal court.)  Needless to say, neither party suffers from a lack of resources to fight to the bitter end.  But they could settle too, if for instance, Apple lets Microsoft use the term to describe its own “App Store.”

There are numerous factors which the TTAB and a court can take into consideration when determining whether a mark is generic, including:  how the potential trademark owner itself uses the term; whether third parties use the term as a common name for their own products; what the dictionary definition is (if any) for the term as a common name for a particular type of product; whether there are other available terms to describe the common name for the products; the period of time in which the trademark has been in use; how the press and others use the term; and of course, the results of any survey evidence that either party introduces (which are usually subject to vigorous attack by the other party).  There are other factors too, but these tend to be the main ones for determining “genericness.” 

Without going into too much detail here, Microsoft does have some favorable evidence to support its claim, as does Apple.  While there are a ton of trademark cases that discuss generic marks, a 4th Circuit decision comes to mind, Hunt Masters, Inc. v. Landry Seafood Restaurant, Inc., 240 F.3d 251 (4th Cir. 2001).  In that case, the court found that the term, “CRAB HOUSE” to describe a restaurant that, uh, served crabs “is a generic term referring to a class of restaurants that serve crabs.”  It found:

Here, the meaning of the individual words is fairly clear. A crab is “any of numerous chiefly marine broadly built crustaceans,” while “restaurant” is one of the many definitions of the word “house.”  Webster’s New International Dictionary 1096 (3d ed. 1961). Other common words that are often used as synonyms for “restaurant” include bar, parlor, and shop. When preceded by a type of food, these words describe various classes of restaurants, such as ale houses, tapas bars, ice cream parlors, and coffee shops. Each term denotes a class of restaurant serving a particular type of food, just as”crab house” denotes a class of restaurant that serves crabs. 

The court also rejected the plaintiff’s survey evidence when assessing genericness.  So “CRAB HOUSE” was deemed to be unprotectable.  While there are a few factors that differentiate this case and some of its principles from what Microsoft is arguing at the TTAB (such as time frame related to evaluating genericness), given the abundance of legal precedent in this area, the company can reasonably argue that ”APP STORE” is a generic term (or a merely descriptive one) for a place that sells applications.  Much of the fight will be over the term “APP.”

Of course, as any intellectual property or technology lawyer will tell you, trademark law is a highly nunaced area of practice, so these cases can turn on distinctions that at times seem more imaginary than real—especially in a sector as fast-paced as technology.  We’ll just have to wait and see.

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World Trademark Review World Trademark Review

When I first heard about the Associated Press (“AP”) accusing Shepard Fairey, the artist who created the ubiquitous red and blue Obama poster emblazened with the word “HOPE,” for copyright infringement, the first thing I thought of was “fair use,” most notably the concept called “transformative use.”  The AP alleged that Fairey infringed its photograph of Obama when he developed his poster.

Then I read the story shortly thereafter about Fairey filing a “declaratory judgment” lawsuit in New York asking a federal court in Manhattan to “declare” that he was not infringing the AP’s photograph.  Fairey doesn’t deny that he based the painting on the photograph, but claims that it was a fair use, which is a defense against copyright infringement. 

Although I haven’t had a chance to read the complaint yet, transformative use is the principal part of Fairey’s defense.  And it’s a meritorious one that will make for an interesting legal analysis—assuming the case gets that far.  So what is “transformative use” exactly?  The Supreme Court addressed this issue most recently in Campbell v. Acuff-Rose Music, Inc. in 1994.  The Court described a transformative use as follows:

The enquiry here may be guided by . . . looking to whether the use is for criticism, or comment, or news reporting, and the like. The central purpose of this investigation is to see . . . whether the new work merely “supersede[s] the objects” of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”  Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. . . . and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.  (emphasis added)

So the court will be focusing on to what extent Fairey’s painting adds something new to the original AP photograph, i.e., its “expression, meaning, or message” and thereby “transforms” it.  While a fair use analysis can be quite lengthy and complicated (and is very fact-specific), Fairey will certainly be able to make a credible argument that his colorful and abstract painting combined with the word “HOPE” alters and transforms the photograph’s meaning or message. 

In fact, it’s unclear to me exactly what message the original photograph would be communicating by itself.  Is Obama looking confident?  Reflective?  Poised?  Attentive?  Presidential?  It’s somewhat subjective and it will be interesting to see how the AP characterizes the picture’s message.  It’s really more a question of opinion, which works strongly in Fairey’s favor.  (And what does “hope” consist of anyway?)  So Fairey has a strong defense in this regard.  But one thing that I learned about litigation over the past 15 years or so is that it’s a very fluid and dynamic environment and can change rapidly.  Unforeseen things happen.

So in practical terms, what’s the lesson to be learned here?  Here’s the basic one:  Contacting a party or sending a cease and desist letter can be risky business sometimes.  In any type of infringement action—whether it’s patent, trademark, or copyright—notifying the other side that you believe it’s infringing on your intellectual property rights gives them the ability to go running into federal court and seek declaratory relief.  After all, you’ve just told them that a problem exists.

Your notification to them of possible infringement creates what’s called a “justiciable controversy” and can give them the ability and standing to go into court to seek a declaration that they’re not infringing, just as Fairey has done.  Of course, each federal circuit has its own rules as to what creates a justiciable controversy, so Massachusetts may use a different standard than another state—although the standards will usually not differ all that much.

So why is this a problem?  If you’re located in Boston, Massachusetts and the possible infringer is located in California, that party can now go into a federal court in California and file its action and get the “home field” advantage.  The court would very likely have jurisdiction over you.  So in addition to now having to hire counsel in California to defend yourself, you would also be forced to go there to give and take depositions and engage in other forms of “discovery.”  It can be very incovenient and expensive.  That’s the point.

This is why whenever somebody contacts me about either sending a cease and desist letter or is the recipient of one, it’s crucial to really sit down and strategize as to what your next move should be.  If litigation is a probable outcome and you’re dealing with a well-financed adversary, then it may be best to strike first and file an action in your home state where it would be most convenient for you.  (It’s been my experience, however, that many clients—especially those who have never been through the litigation process before—are somewhat leery of filing litigation first given its potential expense and duration.) 

Of course, these are general guidelines only and each situation will have its own facts and nuances that will dictate how best to proceed.  The practice of law doesn’t usually lend itself to easy answers, particularly where issues of infringement are concerned.  Many factors need to be taken into consideration.

So, Fairey did the smart thing.  Rather than wait and let the AP sue him—especially given the meritoriousness of his case—he struck first.  It will be interesting to see how things develop.  And it’s always possible that the case will settle before the court has a chance to rule.  In many instances, filing an action such as this is simply designed to show the other side that a person is serious about protecting his/her rights and that a compromise might be in everyone’s best interest.  But Fairey has a strong case.  We’ll have to wait and see.