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

Although the general ruleAudrey-Millemann-03_web (based on 35 USC section 101) is that anything made by humans is patentable, there are exceptions. Laws of nature, physical phenomena, and abstract ideas are not patentable. Inventions that fall in these categories are “patent-ineligible,” that is, directed to subject matter that is not eligible to be patented. After the Supreme Court’s key decisions over the last few years in Bilski v. Kappos, 130 S. Ct. 3218 (2010); Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012), and Alice Corp. Pty. Ltd. V. CLS Bank International, 134 S. Ct. 2347 (2014), the courts have increasingly held computerized methods of doing business unpatentable.

The district court for the Eastern District of Texas, where many patent infringement cases are filed, handled such a case in Kroy IP Holdings, LLC v. Safeway, Inc., 2015 U.S. Dist. LEXIS 69363. In Kroy, the court provides a useful review of the state of the law, starting with the three Supreme Court cases.

In Bilski, supra, decided in 2010, the Supreme Court held that claims to a method for commodities traders to minimize the risk of price fluctuations was an unpatentable abstract idea. The idea of hedging against risks is a common practice in our economy. The Court found that an idea cannot be made patentable by limiting it to a particular field, such as commodities. The Court held that the Federal Circuit Court of Appeals’ previous test for claims that appear directed to abstract ideas, the machine-or-transformation test (which requires a claimed method to be linked to a particular machine or to transform an article into something else in order to be patentable) is one test that can be used, but is not the sole test.

Continue Reading Why Business Methods Are Difficult to Patent

Another intellectual property dispute has arisen in the brewing industry. This time, however, the battle took place on Canadian soil. British Columbia based Pacific Western Brewing (“PWB”) sued renowned Mexican brewery Cerveceria del Pacifico (“CDP”), arguing the latter’s name was confusingly similar to PWB’s various brew-related trademarks. For those who do not know, Cerveceria del Pacifico is the brewery responsible for Cerveza Pacifico Clara, better known as Pacifico. Although the claim concerns numerous PWB marks, the lawsuit seems to center on the alleged similarity between their Pacific Pilsner marks and CDP’s Pacifico marks. After analyzing the merits of this case, I cannot understand why PWB felt the need to pursue this lawsuit. Aside from both marks generally using the word “Pacific,” the marks are vastly different.

First, Cerveza Pacifico ClaraPacificPilsner355ml-220pimage is clearly distinct from Pacific Pilsner. Even if you compare the commonly used name Pacifico to Pacific Pilsner, the marks are distinguishable, albeit slightly more similar. Further, the respective design marks are distinct. Pacifico’s mark is generally presented against a bright yellow background with the words appearing in red and a different shade of yellow. The logo also features a lifesaver encompassing a hill with the port city of Mazatlan’s lighthouse hill, known locally as Cerro Del Creston. In contrast, Pacific Pilsner’s mark is generally presented against a white background with the words appearing in red and iridescent blue. Although the PWB designs vary slightly, they consistently include a sailboat. Based on these descriptions, it should be clear that the marks are patently distinguishable.

Continue Reading Pacifico Defends its Trademark Rights on Canadian Soil

This copyright Scott-Hervey-10-webcase pitted two big YouTube content brands against each other over issues of fair use. On one side is Equals Three, LLC, a YouTube content studio and channel created and owned by Ray William Johnson, an early YouTube content pioneer. The Equals Three channel has over 10 million subscribers and over 3 billion total views making it one of the most viewed channels on YouTube. Equals Three produces YouTube comedy content. A typical program involves a host who gives an introduction to a particular video clip, shows parts of video clips (which are usually shown in edited form and inset within a decorative graphical frame) and tells humorous or provides humorous commentary about the events and people presented in the clip. Each program is roughly five minutes long and typically features three segments, each of which centers around a different video.

One the other side is Jukin Media, Inc. Jukin is a digital media company that primarily acquires user generated video content and distributes and monetizes such content over multiple online platforms and traditional media outlets, produces and licenses. Jukin acquires the user-generated content by using a research and acquisitions team of eleven people to scour the internet for videos likely to become sensationally popular. Once Jukin acquires the rights to user-generated content, it uploads the video to its YouTube channel and its own websites. Jukin makes money from these videos by ad-supported or subscription-based platforms. Jukin also licenses these videos to other digital, television and cable shows.

Continue Reading Court Provides Fair Use Guidance On YouTuber’s Use of Viral Video

Over the last half James-Kachmar-08_webcentury there has been an explosion in the popularity of yoga in the United States, much of it attributable to Bikram Choudhury, the self-proclaimed “Yogi to the Stars.” In 1979, he published a book titled Bikram’s Beginning Yoga Class, which centered on a sequence of 26 yoga poses and two breathing exercises. Two former students of his started a new type of yoga (hot yoga) which resulted in Choudhury suing them for copyright infringement. On October 8, 2015, the Ninth Circuit issued its opinion affirming the trial court’s summary adjudication as to the copyright claim and finding that the Bikram yoga “sequence” was not subject to Copyright protection.

In 1971, Choudhury came to the U.S. and settled in Beverly Hills, California. With his arrival, he helped popularize yoga in the United States and developed a “sequence” of 26 asanas and two breathing exercises; Choudhury opened a yoga studio where he taught the “Sequence” and eventually published his book, Bikram’s Beginning Yoga Class. In 1979, he registered the book with the U.S. Copyright Office. (In 2002, he registered a compilation of exercises contained in the book using a supplementary registration form that referenced the 1979 book.)

Continue Reading Yoga and the Copyright Idea/Expression Dichotomy