Can you infringe copyright by linking to somebody else’s work? In the United States, courts have largely answered “no,” relying on the fair use doctrine. According to a recent ruling of the European Court of Justice (ECJ), the answer in the European Union (EU) is also now “no,” at least so long as the link-targeted content is freely available to anyone on the Internet.
The ECJ was responding to a certified question from a Swedish appellate court. That court was hearing a copyright infringement case brought against an aggregator site called Retriever Sverige that linked to, among other things, articles from the Swedish newspaper Göteborgs-Posten’s website. Notably, the organization of Retriever Sverige’s own site made it difficult to determine whether a user clicking a link had actually accessed the newspaper’s website rather the aggregator’s. This was similar to the scenario faced by U.S. courts in Kelly v. Arriba Soft and Perfect 10 v. Google. But while those cases turned on fair use consideration, the ECJ based its ruling on the nature of Internet distribution itself.
Jewel-Osco Can’t “Be Like Mike”: Seventh Circuit Holds Grocery Chain’s Congratulatory Advertisement Constitutes Commercial Use
Want to take out an advertisement spread to congratulate Michael Jordan on his induction into the Naismith Memorial Basketball Hall of Fame? According to the Seventh Circuit’s recent decision in Jordan v. Jewel Food Stores, Inc., you better have the NBA legend’s permission before you do.
In 2009, grocery chain Jewel-Osco placed a congratulatory advertisement in a Sports Illustrated special edition issue commemorating Michael Jordan’s career and his induction into the Hall of Fame. The advertisement featured a pair of basketball shoes bearing Jordan’s famous number 23 and the headline “A Shoe In!” with the following text:
“After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan’s elevation in the Basketball Hall of Fame was never in doubt! Jewel–Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.”
The advertisement also included Jewel-Osco’s logo and slogan, “Good things are just around the corner.”
As the Seventh Circuit stated in its opinion, “To Jordan the ad was not a welcome celebratory gesture but a misappropriation of his identity for the supermarket chain’s commercial benefit.” (more…)
On Tuesday, Mt. Gox, the world’s leading Bitcoin exchange, abruptly closed down its website amid reports that the company had lost 744,408 Bitcoins—equivalent to about $380 million, or 6% of the total Bitcoins in circulation—in a large-scale theft. The theft, which apparently went unnoticed for years, involved a transaction malleability glitch that allowed hackers to take advantage of unconfirmed transaction payments and seep funds from Mt. Gox without notice—until now.
The theft further mars Bitcoin’s already shaky reputation, and the latest attacks signal another “setback for efforts to gain legitimacy for the virtual currency.” However, some optimists view the theft as merely “growing pains” for the cyptocurrency, arguing that the fall of Mt. Gox will only lead to a more stable future for the Bitcoin. As Anthony Hope, a former British Treasury official and now head of compliance at Hong Kong-based MatrixVision, noted, “It’s good for us as a business, not so good for us as consumers . . . Over the longer term it will be good for Bitcoin because over time the entire ecosystem will be made more robust.” Others are not so optimistic, viewing this most recent incident, the latest in a string of thefts, as writing on the wall that the end of Bitcoin is near.
By Matthew Fredrickson
On February 18, Maximo Caminero intentionally destroyed a vase from Chinese artist Ai Weiwei’s exhibition while it was housed at the Pérez Art Museum in Miami, Florida. After he destroyed the vase, he was promptly arrested and charged with criminal mischief. Caminero did not resist arrest; rather, according to the Miami New Times, he “waited for authorities peacefully and never resisted punishment.” Caminero said that he “did it for all the local artists in Miami that have never been shown in museums here.” Caminero explained that he chose Ai’s exhibition in particular because he saw a photo depicting Ai destroying a vase, which he viewed “as a provocation by [the artist] to join him in an act of performance protest.”
Unsurprisingly, though, the Museum and Ai did not approve of Caminero’s “protest.” The Museum’s official statement on the matter noted that “we have the highest respect for freedom of expression, but this destructive act is vandalism and disrespectful to another artist and his work.” Similarly, Ai said Caminero’s “argument does not support the act,” and “[i]f he really had a point, he should choose another way, because this will bring him trouble to destroy property that does not belong to him.” While it is true that Caminero’s act falls well outside First Amendment protections, to say that it was mere, nonsensical vandalism denies a strong and respected tradition in civil disobedience: the public destruction of artistic work to achieve a political effect.
In the beginning of February, the establishment “Dumb Starbucks” opened up its first faux store, pushing the boundaries of trademark law. The storefront looks like an actual Starbucks both inside and outside; complete with the Starbucks logo, drink names, and music. However, the word “Dumb” is placed in front of each of these. For example, you can order a “Dumb Grande” size of “Dumb Vanilla Latte” and buy a “Dumb Nora Jones” CD.
The store claims to avoid trademark trouble because adding the word “Dumb” in front of words is sufficient to classify the establishment as a parody. In fact, the owner is a comedian who claims that the storefront is a museum and the coffee—given out free of charge—qualifies as an art piece. Shortly after opening, however, the Los Angeles Health Department shut down the shop. The usually litigious Starbucks has not yet pressed charges. Still, this venture has tested the edges of trademark law, particularly the doctrine of dilution by blurring.
A strict reading of 15 U.S.C.§1125(c)(3)lays out exceptions to otherwise diluting uses. “Dumb Starbucks” relies on §1125(3)(a)(ii), which excludes parodic uses. By adding the word “Dumb”, it could certainly be said that the store is making fun of the famous franchise. However, employing close statutory reading, the exclusion excepts any fair use “of a famous mark by another person other than as a designation of source for the persons’ owns goods or services”. Since “Dumb Starbucks” is effectively using the Starbucks logo as its own, the argument that its use falls under this exclusion is fairly weak.
Concerned parents may soon be able to keep track of their children through a Global Positioning System (GPS) for a lot less money. On February 4, TraqCloud launched a Kickstarter campaign with a funding goal of $45,900 for development and production of an inexpensive GPS tracking device. As of February 16, over 375 backers have contributed more than $18,000 toward the goal. If successful, TraqCloud promises to market tracking devices as low as $69, with monthly service fee of $10 per month. Kickstarter backers will be able to get the device for $19 with three free months of service.
While GPS tracking is nothing new, the lower price point will likely cause the market to proliferate, increasing GPS use in a variety of scenarios. TraqCloud touts several less-controversial uses for their product: tracking luggage, tracking children and the elderly, tracking teenage driving, and tracking stolen property. But it is not hard to imagine this device becoming popular for more controversial uses, such as spying on a spouse or tracking someone with the intent to cause harm. The TraqCloud device is relatively small (smaller than a pack of cards) and the rechargeable battery stays charged for up to 14 days.
Any party who thinks about cutting corners in complying with e-discovery should think again. On December 9, 2013, U.S. District Court Judge David Herndon from the Southern District of Illinois imposed close to $1 million in punitive damages on defendants Boehringer Ingelheim International GMBH (“BII”) and Boehringer Ingelheim Pharmaceuticals, Inc. (“BIPI”) for failing to adequately comply with the court’s discovery orders in In re Pradaxa Products Liability Litigation.
The defendants in this case were punished, largely due to the limited scope of their litigation holds and the timeliness of their productions. Ultimately, the court found no problem with the scope or language of the litigation holds, but rather with their implementation. Notably, the court mentioned that the defendants never sought leave of the court to delay implementation of their litigation holds, and the court therefore relied on the presumption that all material relevant to litigation was being preserved as requested.
Last month the Virginia Court of Appeals affirmed an order requiring the website Yelp to disclose the identities of seven anonymous users who left critical reviews about a carpet cleaning company. Hadeed Carpet Cleaning, Inc., is a carpet cleaning business in Alexandria, VA. Like thousands of other business, Hadeed Carpet Cleaning has a profile on Yelp, a social networking platform that allows users to find, rate, and review local businesses. Users are able to post their reviews anonymously, but Yelp only allows users to review businesses that they have actually patronized.
Hadeed noticed several negative reviews posted anonymously on its Yelp page and tried to identify which of its customers had left these reviews. Unable to match seven of these anonymous negative reviews with actual customers, Hadeed began to suspect that these were fake reviews left by competitors or other dishonest users. Hadeed asked Yelp to disclose the identities of these seven anonymous users, but Yelp refused to do so. Hadeed then sought a subpoena duces tecum (an order to produce documents or evidence) for the identities of the seven users, and Yelp again objected. The state circuit court ordered Yelp to comply with the subpoena, but Yelp once again refused. Ultimately, the court held Yelp in civil contempt. Yelp appealed the decision of the circuit court, but the Court of Appeals affirmed it.
Just two weeks ago, on January 23, 2014, “the most hated man on the Internet” was arrested by the FBI. Hunter Moore, the proprietor of IsAnyoneUp.com and best known as the “Revenge Porn King,” and his accomplice, Charles “Gary” Evens, were indicted by a federal grand jury on 15 counts, including conspiracy, unauthorized access to a protected computer to obtain information, and aggravated identity theft. Oddly, none of the charges brought against Moore condemned him for publicizing private, sexually explicit photographs of women without their permission.
Revenge porn consists of graphic photos or videos, typically of women, posted online without the consent of those depicted. These pictures are often shared with a significant other but subsequently disseminated across the Internet by that same partner once the relationship dissolves and feelings turn bitter and spiteful. Although there are plenty of self-submissions by wannabe “models,” Moore crossed legal boundaries by hiring Evens to hack private email accounts and steal more nude pictures. The website went as far as identifying the women it victimized by providing their social media contact information, exposing their lives to the harassment of Internet creeps.
And yet, revenge porn is not generally illegal.
When you have intellectual property––especially IP worth millions of dollars––it makes sense to protect it. But can such protections go too far? Many video game industry figures are asking this question, as game developers whose games include the word “candy” are receiving cease-and-desist letters from British game developer King, the makers of the game Candy Crush Saga, one of the most popular apps across Facebook and on mobile devices.
King has registered a national trademark in the European Union for the word “candy” as it pertains to video games and, strangely, clothing. King is still awaiting word from the United States Patent and Trademark Office (USPTO) on a similar trademark application. This could potentially spell trouble for developers who have or plan to release a game that includes the word “candy.”