Scott Hervey was quoted in an article in the International Business Times on how Fox’s fair use defense in a copyright infringement lawsuit arising over its use of a famous 9/11 image could change the landscape of copyright enforcement online.
A Dress’ Trade Dress
By Lisa Y. Wang
As New York Fashion Week carries on, so does fashion litigation. One brand that is constantly “copied” is Herve Leger, famous for their bandage dress. While a Herve Leger bandage dress can cost you thousands, stores and brands all over have copied the style and sold their own versions of the bandage dress for much less. However, fashion protection for clothing is limited, which is why fast fashion stores are able to copy your favorite runway designs, most of the time without getting sued.
Fast Fashion retailers, Forever 21 in particular, are often successful at trial partly due to the higher standard of creativity required to qualify for copyright protection for fashion items, which courts consider “useful articles,” which is “an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” Courts use a higher standard to prevent stifling innovation in the industry – after all, there’s only so many ways you can vary a plaid pattern and a shirt still has to have holes for your arms and head. For example, Express lost a case against Forever 21 – and had to pay Forever 21’s $700,000 in legal fees – because it couldn’t prove that its plaid designs were original enough to be protected. If Express had won, where would courts draw the line? Next could be polka dots, stripes, etc. Fashion could come to a screeching halt if one brand had copyright protection over every incarnation of polka dots.
Craigslist Content Aggregator Continues To Face Copyright Infringement and CFAA Claims
By Scott Hervey
Craigslist operates one of the most well known and widely-used online classified ad services. Craigslist claims that more than 60 million Americans visit and use Craigslist each month, and they collectively post several hundred million classified ads each year. 3Taps is a technology company that aggregates and republishes real time ads from Craigslist and other services and allows web developers to access such aggregated information. One developer who used the 3Taps data services for its service offering was PadMapper, a location-based apartment rental search engine with real-time filtering. PadMapper takes aggregated Craigslist home and apartment rental information and pots the various individual postings on a searchable map.
Upon becoming aware of 3Taps and PadMapper’s activities, Craigslist sent them a cease and desist letter, advising 3Taps and PadMapper that they committed various violations of the Craigslist’s Terms of Use and demanding that they “cease and desist your abuse of Craigslist, all violations of Craigslist’s legal rights and all access to and use of craigslist.” In closing, Craigslist informed 3Taps and PadMapper that they were no longer authorized to access or use the craigslist services for any reason and that “any prior license or authorization to use the [Craigslist website or service] is revoked and any access to or use of the [Craigslist website or service] by you or on your behalf is unauthorized.” Additionally, Craigslist blocked certain IP addresses associated with 3Taps and instituted various technical measures designed to block those IP addresses from accessing Craigslist’s servers. However, it appears that 3Taps used proxy servers and other anonymous proxies to circumvent Craigslist’s efforts to prevent 3Taps from accessing Craigslist’s servers.
When 3Taps and PadMapper failed to comply, Craigslist filed a complaint in the US District Court for the Northern District of California. The complaint alleged numerous causes of action, including claims for copyright infringement, contributory copyright infringement, violations of the Computer Fraud and Abuse Act (CFAA) and violations of the California corollary to the CFAA, the California Comprehensive Computer Data Access and Fraud Act (Cal. Penal Code § 502).
In support of its copyright infringement claims, Craigslist alleged copyright ownership of all user postings. In its complaint, Craigslist alleged:
[E]ach user-generated posting on the craigslist website is itself an original work of creative expression, as it includes unique written descriptions of the goods or services offered for sale, for example, and often include photographs or other creative works. …craigslist either owns or has exclusive rights in its website and all portions thereof, including, but not limited to, the database underlying the website and the user-generated postings on its website
Scott Hervey to Speak at Westdoc Conference
IP Law Blogger Scott Hervey to speak September 17, 2013 at the Westdoc Conference, the West Coast documentary and reality conference, on various aspects of digital distribution of content. 
Patent Infringement Cases Before The Supreme Court
Two interesting patent cases are before the United States Supreme Court. The first is Akamai Technologies, Inc. v. Limelight Networks, Inc. 692 F.3d 1301 (Fed. Cir. 2012). The second is Medtronic Inc. v. Boston Scientific Corp., 695 F.3d 1266 (Fed. Cir. 2012).
Does Inducing Infringement Require that a Single Party has Performed All of the Steps of a Method Claim?
In Akamai, the issue is whether a plaintiff suing a defendant for inducing infringement of a method patent must show that a single party performed all of the steps of the method.
Inducing infringement exists if a defendant instructs or causes another party to infringe a patent. With respect to a method patent, a defendant has induced infringement if it has instructed another party to perform all of the steps of the claimed method. The party who has induced infringement is an indirect infringer. The party who has performed all of the steps of the method claim is a direct infringer. “Divided infringement” is a phrase used to describe the situation where multiple parties have performed different steps of the claimed method.
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