Representing copyright Scott-Hervey-10-webowners attempting to enforce online infringement is often routine, but can sometimes prove challenging. This tends to be the case when a content owner is trying to address large scale infringement of one or multiple works. Most often ISPs are cooperative, but on occasion an ISP may resist responding to a content owner when the owner is represented by an organization like Rightscorp — often referred to as “copyright trolls.” Based on the recent ruling by the Eastern District Court of Virginia against Cox Communications, an ISP is taking a huge risk ignoring infringement notices sent by Rightscorp or any similar organization.

In December of 2014, music publishers BMG Rights Management US, LLC and Round Hill Music LP sued Cox Enterprises Inc. for contributory and vicarious copyright infringement. In the complaint the music publishers allege that the ISP waived its immunity from copyright infringement liability under the Digital Millennium Copyright Act (“DMCA”) by disregarding numerous takedown notices sent on their behalf by their agent, Rightscorp, and otherwise failing to terminate the accounts of repeat infringers.

The DMCA was enacted in 1998 to implement the World Intellectual Property Organization Copyright Treaty and to update domestic copyright law for the digital age. In particular, the DMCA established a series of four “safe harbors” that allow qualifying Internet service providers to limit their liability for claims of copyright infringement based on (a) “transitory digital network communications,” (b) “system caching,” (c) “information residing on systems or networks at [the] direction of users,” and (d) “information location tools.” 17 U.S.C. §§ 512(a)-(d). To qualify for protection under any of the safe harbors, the ISP must, among other requirements, adopt and implement a “repeat infringer” policy that provides for the termination of account holders.

Continue Reading ISPs That Ignore Notices From “Copyright Trolls” Risk Losing DMCA Safe Harbor Protections

In Russell G. Ryan’s recent thoughtful article in the Wall Street Journal entitled “Get the SEC Out Of The PR Business,” he raised several issues that resonate well beyond the practices of the SEC and into the world of advertising law, direct marketing and FTC enforcement actions. See http://www.wsj.com/articles/russell-g-ryan-get-the-sec-out-of-the-pr-business-1417386821.

The gist of Ryan’s article is that the SEC’s pre-trial press releases and Public Relations “announcements” have the effect of unfairly trying its targets in the court of public opinion. He specifically makes the point that many of the press releases — which are typically made at the very outset of a prosecution — violate the so-called “Cinderella Schools” doctrine. That doctrine, originating from a case involving the Cinderella Career and Finishing Schools, was litigated in the 1970s, and resulted in certain FTC orders being nullified because of due process violations stemming from pre-trial pronouncements by the head of the agency that demonstrated pre-judgment. Supposedly, safeguards were put in place to protect against such violations. However, courts in the meantime, have upheld the right of governmental enforcers to make certain public pronouncements — and the agency enforcers have more than run with it.

As a result, the new crop of press releases are often derogatory, shaming and, in this writer’s view, straightforward violations of due process and the bedrock concept of “innocent until proven guilty.” See, e.g., http://www.ftc.gov/news-events/press-releases/2009/07/ftc-cracks-down-scammers-trying-take-advantage-economic-downturn.

In the web-citation, above, for example, which is from a case I was involved two years ago, the government corralled a number of disparate defendants, and, without so much as preliminary hearing, branded all of them “scammers” — and worse. The fact that the government ultimately prevailed against certain of the targets cannot color the issue, because in other cases, it does not.
Continue Reading The Power of the Press Release II: A Suggestion For Heightened Scrutiny of Governmental Prosecutorial Pre-trial Public Announcements

transparentYou don’t have to be a Disney enthusiast like myself to be familiar with its latest blockbuster franchise, Frozen.  To date, the film has grossed over 1.2 billion dollars in worldwide box office revenue, making it the highest-grossing animated film of all time, and the fifth highest-grossing film overall.  The fact is, Frozen has taken the world by storm since its November 27, 2013 release, and it does not appear to be letting up as Disney is planning on opening a Frozen themed ride at Walt Disney World and a Frozen musical on Broadway.  Nonetheless, one New Jersey woman is seeking to put an immediate halt on Disney’s cash cow with the filing of her complaint for copyright infringement in the United States District Court for the District of New Jersey.

On September 22, 2014, Isabella Tanikumi—also known as L. Amy Gonzalez, filed a complaint against the Walt Disney Company (“Disney”) alleging copyright infringement because Disney purportedly stole at least eighteen (18) elements of Frozen from her 2010 autobiography, Living My Truth.  Specifically, Ms. Tanikumi has cited the following similarities: (1) both stories involve villages at the base of snow covered mountains; (2) both stories involve two sisters with different colored hair; (3) both stories involve one of the two sisters injuring the other; (4) both stories have two male characters who act as the romantic interest of one of the sisters; and (5) open doors/gates are involved in the endings of both respective tales.  This list is merely illustrative, but for those of you who wish to see the entire list, feel free to read the complaint and its attachment by clicking Isabelle Tanikumi AKA L. Amy Gonzalez v. The Walt Disney Company.  In the interest of providing full disclosure, the remaining similarities do not get much more mind blowing than those stated above.  Regardless, Ms. Tanikumi obviously believes that she has been wronged by Disney, but whether she can prevail on these farfetched claims remains to be seen.
Continue Reading New Jersey Woman Refuses to “Let It Go.”

The answer may surprise you.

This dispute over ownership of Facebook ‘likes’ pits the creator of a fan Facebook page for a TV show against the television network that owns the show.  The facts of the dispute are as follows:   From 2008, the CW Network broadcasted the television series “The Game”, a dramatic comedy about the lives of professional football players and their wives and girlfriends.  BET acquired the syndication rights to the series in 2010 and then in 2011 began producing original episodes.

In 2008, when the series was on the CW Network, Stacey Mattocks created a Facebook fan page for the series.  Mattocks did not post any CW or BET owned content and she did not hold the Facebook page out to the public as the “official” series page.  Around October 2010, BET hired Mattocks to perform part-time work managing the series’ Facebook page.  BET then regularly instructed Mattocks to post, or not to post, certain information on the page and provided her with exclusive photos and video clips.  Mattocks posted most of the content on the FB Page, but BET employees also occasionally posted material.  Apparently Mattocks did a good job managing the series’ Facebook page as the number of ‘likes’ grew from around two million to over six million.

In February 2011, BET and Mattocks entered into a written agreement regarding each parties’ rights and privileges regarding the Facebook page. Mattocks granted BET full administrative access to the page, and BET agreed not to exclude Mattocks from the page by changing her administrative rights.  However, it appears that this agreement was silent on which party owned the Facebook page.
Continue Reading Who Owns Facebook “Likes” on Your Page