Archive for the 'Intellectual Property' Category

Bieber and Usher “Usher” Out Copyright Claims

Many of the most famous musicians have faced high-profile copyright cases accusing them of stealing their music from another artist. From Led Zeppelin to the Beatles to Skrillex to the guy who wrote the Ghostbusters theme song, the list of musicians who’ve stared down a copyright infringement claim is a long on indeed,  In the last few years, Usher and Justin Bieber have been dealing with their own copyright infringement lawsuit.  The two were accused of stealing parts of their collaborative song “Somebody to Love” from an identically titled song written by two Virginia artists–Devin Copeland and Mareio Overton.

Understanding the Claim

Mr. Copeland and Mr. Overton wrote their own “Somebody to Love” back in 2008, two years before Usher and Bieber came out with their song in 2010 which then went on to peak at No. 15 on the Billboard Hot 100.  Copeland and Overton argued that Bieber’s song’s chorus
was incredibly similar to their own work and demanded $10M from the two artists.  However, the courts disagreed.  The case was dismissed, sent back down for reconsideration after appeal and Bieber and Usher finally succeeded in having the copyright lawsuit against them dismissed once and for all just a few weeks ago. 

The court’s decision revolved around the inability of the plaintiffs to show that Justin Bieber had access to their song before he wrote his own version–a fundamental element of proving copying in a copyright infringement case.  However, in order to truly understand the ruling it is necessary to understand exactly how copying is shown when somebody is accused of infringement.

Justin Bieber Copyright Claims

How to Put the “Copy” in Copyright Infringement

In order to succeed in a copyright infringement case you have to establish that the person you’ve accused of infringement, lo and behold, copied your protected work.  This makes sense, if you can’t show that a defendant copied from you, then why are you in court?  However, the evidence required to show copying has two parts.  First, you need to show that the accused work is similar to yours.  If it isn’t, that’s not exactly a copy is it?  Second, you need to show that your defendant had access to your work.  Once again, if they never saw your work how could they have ripped you off?

So we have our two elements but, like most things in law, it’s more complicated than that.  The two elements, similarity and access, are analyzed on a sliding scale.  The more proof of similarity, the less evidence you need of access and vice versa.  To add one more wrinkle, it was established in a case against the late Michael Jackson (and reaffirmed when the Isley Boys later sued Michael Bolton) that if the two works are similar enough you don’t actually need any evidence of access because the court is willing to presume that a defendant copied your work if it’s similar enough to what you made originally.  This is a concept known in law as striking similarity, courts look to a number of things to decide if two works are this similar but common examples would be where your work had particularly unique qualities that were copied nearly verbatim or that you messed something up in your work and they were dumb enough to copy your error.

In Bieber’s case, Mr. Copeland and Mr. Overton tried to establish striking similarity–arguing that the chorus of their version of “Somebody to Love” had a near identical chorus to the one put out by Bieber and Usher.  Unfortunately for them, their judge didn’t agree.  Thus, while they could show some level of similarity, they were required to produce evidence that Bieber or Usher had actually listened to or been exposed to their 2008 song before they wrote their own version in 2010.

Access Hollywood: A Star-Studded History of How to Prove Access

Unlike similarity, no matter how evidence of access you have you always need to show at least a little bit of similarity.  Otherwise if enough people see your work, anything they made would be copyright infringement.  However, just like in the Bieber case, it is frequently a crucial sticking point in copyright cases as it can be hard to prove at times.  Over time, exactly what is acceptable as evidence of access has been refined–often in cases featuring some particularly famous names.

First and foremost, the evidence required is a sliding scale.  The more similar the works, the weaker the evidence of access that is required.  For instance, there have been cases where evidence as weak as the fact that a work was published to the internet–and the defendant had internet access–was enough.  Where a work is particularly famous and widely distributed, that can also be evidence enough to show access.  However, just a few years ago a case dealing with the script to the Matt Damon’s Sci-Fi movie Elysium established that, just because something is posted to the internet once, that doesn’t by itself show that a work was widely distributed and won’t always be enough evidence to establish access.  This served as a counter point to a lawsuit brought by the developers of Angry Birds, where being posted online and subsequently downloaded approximately a billion times was enough to show widespread distribution.

In the internet age, availability online is often central to establishing access.  However, the cases above leave you with the helpful understanding that a single post is generally not enough to show access but content posted and then downloaded a billion times is.  Just to fill in the small gaps in the middle there, a couple factors to think about are how often something is viewed or shared, how publicly available the internet content is, how popular the site the content was posted on is, and how high the content appears in search results.

Also important in understanding access is the fact that copying does not need to be done consciously.  This was established in a case brought against George Harrison of Beatles fame.  His song “My Sweet Lord” led to a lawsuit as it was nearly identical to another song called “He’s So Fine.”  Harrison admitted that he knew of the song and had heard of it, but said he just wasn’t thinking about it when he wrote his own song.  The court, in a nearly apologetic ruling against the rock star, said that just because you weren’t intentionally copying or thinking about the work at the time, the subconscious knowledge of the work through previous access is sufficient to show copying.  This was highlighted more recently when Marvin Gaye’s children sued Robin Thicke.  Thicke testified that he was so high while the song was written that he could not have possibly recalled Gaye’s work–although he did admit Gaye was an inspiration to him.  This was irrelevant to access. however, as the actual access itself was all the evidence needed. 

Finally, a particularly common type of confusion in access cases dealing with music deals with cases where an artist gave their song to music industry executive who works with an artist who later makes a similar song.  Unless there is actual evidence that the executive showed that song to the artist accused of infringement, a devilishly tricky thing to find, there’s generally not enough there to establish access.

Ultimately, Why the Case Failed

Mr. Overton and Mr. Copeland were trying to argue just that, saying that they had given their songs to music executives working alongside Bieber and Usher.  However, they couldn’t produce any evidence of those executives passing on anything to Usher or Bieber.  What’s more, their song wasn’t particularly widely distributed–either over radio, the internet, or other methods.  They were left in a situation where they couldn’t show that either singer had ever even heard of their work–and that killed their case.  Bieber and Usher claimed that their song was based on a November 2009 song by a woman named Heather Bright with which they had previously reached an agreement to use her work.  Overton and Copeland simply couldn’t prove otherwise.

Uber Puts the Brakes on Their Self-Driving Cars

A few months back, Uber announced it was going to test something potentially groundbreaking–they announced tests of self-driving rideshare services in San Francisco.  Unfortunately for Uber, the tests turned out to be more premature than groundbreaking.  The California DMV condemned the tests as illegal and demanded that Uber not roll out their self-driving cars.  In the face of the disapproval of the California DMV, Uber decided to totally ignore the DMV and move forward with the tests anyway–for a week.  After moving forward, the California DMV revoked the registrations on every single one of Uber’s self-driving cars and Uber was forced to abandon their tests.

What’s the Problem with Uber’s Self-Driving Cars?

The problem California had with Uber’s self-driving test cars was a simple one, Uber simply didn’t bother to get the permits necessary to use an autonomous car in California.  Uber objected to the requirement of permits in the first place, arguing that because their self-driving cars needed human supervision they were not actually autonomous under California’s definition as California currently defines an autonomous car as one that drives “without the active physical control or monitoring of a natural person.”  The vice-president of Uber’s advanced technologies division made an announcement stating that “this rule just doesn’t apply to us, you don’t need to wear a belt and suspenders and whatever else if you’re wearing a dress.”
Uber Puts Brakes on Self-Driving Cars

The California DMV, as you can tell from how they responded, didn’t agree.  They’ve already issued hundreds permits to test autonomous cars on the roads of California.  They consider this permitting necessary for public safety when it comes to such new technology, and they demanded that Uber follow their rules.  Perhaps this was a wise precaution, in the one week Uber’s cars were running one was caught on tape running a red light.

This isn’t the first time Uber has chosen to ignore state laws in testing automation or had trouble with the law.  In fact, their very business model has occasionally been challenged as illegal.  Earlier this year, Uber went forward with testing self-driving trucks in Nevada despite explicit warnings from the state’s DMV that doing so would violate Nevada law.  Luckily for Uber, while Nevada has similar permitting requirements to California, the laws were so new as to not yet have any penalties set up for failure to comply.

Despite these setbacks, Uber’s self-driving plans have been making strides around the nation.  In Pittsburgh they have been given essentially free reign with a similar program testing autonomous ridesharing.  They have announced they will be moving the San Francisco test cars to Arizona and moving forward there.

Part of Uber’s problem, and how they caught a break in Nevada, is that self-driving cars are so new that very little law has actually sprung up to regulate how and when they can be used.  However, this has been slowly changing as states recognize that autonomous cars are here to stay.

Self-Driving Car Laws Around the Nation

Self-driving cars are coming and it’s not a matter of if, it’s a matter of when.  Just recently, Ohio announced it was investing $15M in self driving trucks going forward.  In the same week, Michigan became the first state to pass comprehensive laws on using, testing, developing and selling self-driving cars.

However, luckily for companies like Uber, Michigan’s laws have not focused on restricting the use and testing of self-driving cars–quite the opposite.  Michigans bills, 995 through 998, provide clear rules for how an autonomous car may be used on public roads and freeways.  The laws are set up to make clear rules for testing.  Once testing is complete, the new laws even allow for properly tested automated vehicles to be sold to the public.  The laws also require the Michigan Department of Transportation to recommend standards that will ultimately regulate the connected networks of autonomous cars and how the data collected from such a network–collisions, traffic data, etc.–will be allowed to shared with others.

What is less fortunate for Uber is that the laws also serve to outright lock them out of any self-driving rideshare services.  The new laws only allow specific most eligible automakers from creating a network of self-driving taxis.  While the law is very new, it certainly seems like this would keep Uber from spreading their new programs into Michigan.

Uber seems to think so, they’ve heartily condemned this part of the law in the media–calling the rules anti-tech and protectionist.  They have a point to a degree, creating a state made monopoly on a service or product does not seem like the best idea.   However, for the most part, Michigan’s rules will serve to open doors and ease the way as self-driving vehicles make their way into the marketplace.

While Michigan’s laws are the most sweeping, and likely the most lenient, laws passed on the subject they are far from the only laws regulating self-driving cars.  California, Arizona, Nevada, Utah, North Dakota, Louisiana, Tennessee, Florida, Massachusetts, Washington D.C., and Virginia all have laws in place regulating the use of autonomous vehicles.  In September of 2016, even the federal government–through the National Highway and Transportation Safety Administration–released an updated set of suggestions providing guidance for states in making laws.

It hasn’t all been forward progress, 16 states had self-driving car legislation that either stalled out or failed to pass in 2016.  However, Michigan–perhaps because it is a state so embroiled in car manufacturing–has taken the next steps in a trend towards fully preparing for self-driving vehicles to hit the market in earnest.  It’s only a matter of time until autonomous cars become as common as hybrids have become.  Uber may be flouting laws right now, but what they’re doing is going to become so common as to need clear regulation nationwide.

Can You Get Sued for Your Critical Yelp Review?

In a world where fast-food chains get blamed for customers biting off too big of pieces of chicken and coffee chains get sued for for under filling their lattes, it shouldn’t come as a surprise when someone gets sued for leaving a bad yelp review.  Yet, somehow… it still does.

Lan Cai, a 20-year-old nursing student, was seriously injured in a car accident.  Driving home from her waitressing shift late one night, she was struck by a drunk driver, ultimately leaving her with two broken bones in her lower back.  With the high costs of medical bills, Cai understandably critical yelp reviewsought out legal help to prove her damages.

Cai hired the Texas law firm of Tuan A. Khuu, who she claims was extremely unprofessional.  After writing about her experience with the firm on her Facebook page and via a Yelp review, Cai received cease and desist letter from Keith Nguyen, a lawyer at the Khuu firm, threatening suit if she didn’t remove her posts.  Cai refused and Nguyen proceeded with his lawsuit demanding close to $200,000.

What Did the Firm Sue for?

Defamation, libel per se, defamation per se, and injunctive relief.  The judge wasn’t buying it, though, and dismissed the case, ordering the Khuu firm to pay $26,831.55 in attorney’s fees.  The firm’s actions backfired and they have, unsurprisingly, received even more negative attention than they had to begin with.

This isn’t the first time a case like this has been brought before a court.  Earlier this year, a pet sitting business sued a Texas couple for up to 1 million for leaving a one-star review on Yelp.  What did the couple complain about on the review that was so harrowing to the pet sitting company?  Their fish had been overfed.

What’s to Stop Companies from Suing?

Well, it depends on where you live because there aren’t any federal protections, unless you count the First Amendment (which you should).  Let’s rephrase that to there aren’t any federal protections that address these specific issues surrounding negative reviews of online.

These suits aren’t uncommon and they fall under a classic SLAPP type lawsuit.  SLAPP lawsuits (Strategic Lawsuit Against Public Participation) , which are illegal in many jurisdictions, are intended to censor or silence critics by burdening them with the cost of legal defense in the hopes they comply with whatever it is the plaintiff wants them to do (or not do).

Sometimes you’ll also see companies trying to sue their customers/clients for leaving negative reviews because the client has signed some sort of non-disparagement clause.  What’s that, you ask?  Basically, it’s a clause in a contract (usually in the fine print) that prohibits the signor from taking any action that might negatively impact the business.

California has a law that’s been notoriously nicknamed the “Yelp Bill” because it renders these types of clauses null and void.  Others, like Texas, have laws that allow SLAPP lawsuits to be thrown out at early stages of litigation.  Remember the Texas couple with the fish?  They signed a non-disparagement clause.  Luckily for the couple, the case was dismissed, but I doubt it will be the last of its kind unless some kind of federal legislation is passed.

Negative Reviews May Prevail Depending On California Supreme Court Decision

The California Supreme Court is set to hear an appeal brought by Yelp involving a similar case similar to Cai’s.  In that case, a lower court ordered Yelp to remove a negative review off their website because a former client of a law firm left statements on the popular website that were found to be legally defamatory.

Yelp argues a favorable outcome for the law firm would open up the flood gates for businesses to force the company to remove critical reviews and, thus, infringing on free speech rights.  The law firm, on the other hand, argues their case is unique in that they’re only asking the company to remove the review that contained defamatory statements.

In theory, yes, defamatory statements made on the review site pose a different set of problems, but even still, forcing Yelp to remove the review will open up a can of worms.

If not, Hopefully Congress to the Rescue

How many of you have ever left a Yelp review?  How many of you have ever relied on one of those Yelp reviews when choosing a company to give business to?  Even something as simple as deciding what restaurant to go for dinner?

With big companies like Twitter, Facebook, Microsoft, and Yelp advocating for better consumer protection, Congress has started to listen.  Currently, Congress is trying to pass legislation through the House that would ensure customers are protected from any legal repercussions when leaving negative reviews online.

Last year, a similar bill was passed through the Senate and, although the two bills need to be merged before they can be officially signed into law by the president, both bills accomplish the same thing.  Business contracts for goods or services will be restricted from using non-disparagement clauses, or anything like it, that would prohibit negative reviews.

Hyperlink Hysteria: When is Posting a Hyperlink Breaking the Law?

It’s no understatement to say that hyperlinks are essential to a functioning internet. You clicked one to get here and you’ll probably click plenty more today. However, under a new Court of Justice of the European Union (CJEU) ruling, posting the wrong link in the wrong way can get you in legal hot water.

The case pitted Playboy magazine against a Dutch company whose business and website involved posting links to unauthorized replications of stills from Playboy magazine. Playboy took issue with this and sued, arguing that posting these links infringed their copyrights in the photos.

In their recent explanation of their initial opinion from a few months back, the CJEU sided with Playboy and created brand new rules describing the situations where posting a hyperlink can get you in trouble in the EU.

The EU’s New Ruling

First and foremost, where freely available content is posted to the internet with the copyright owner’s consent there is never copyright infringement. However, when the link posted is to unauthorized material, access to which would otherwise be restricted, the situation changes.

Under the new rules, a person posting such a link is liable for copyright infringement in two situations. First, where the link was posted “in pursuit of financial gain,” there is a presumption that the person posting knew they were not authorized to post the link and guilty of copyright infringement unless they produce evidence to rebut that presumption. Second, where the link is not posted for financial gain but the poster knew or should have known that the content they linked to was illegally published the poster is also guilty of copyright infringement.

The CJEU found that the Dutch company, GS Media, had posted both for profit and with knowledge they were linking to unauthorized content. However, the court was notably sparse as to the details of what counted as “for profit.” This means that the law, while certainly a boon to content creators seeking to protect the works they put on the internet, leaves many businesses in lurch.

The presumption of copyright infringement, barring any other legal defense, is something quite uncommon in law. Does a poster have to profit from the link itself? Is it enough that the website with the link makes profit from additional web traffic? As it stands, those who directly profit from links by putting them behind a pay wall and small bloggers posting links on articles earning ad revenue could both be in the same copyright infringement boat.

What’s more, the CJEU ruling makes it clear that when a post is “for profit” the onus is on the poster to ensure the legality of anything they chose to link. This puts a pretty hefty burden on small bloggers who may not have the money or legal expertise to ensure that every link they post is above board.

As for here in the U.S. of A, this ruling is unlikely to impact the links you post on social media. However, businesses that operate internationally will have to be especially careful about what and how they post. The ruling will have a substantial effect on companies offering internet search engines, such as Google, because these companies must take extra steps to determine if their listed sites contain unauthorized material so as to avoid the effects of the infringement presumption. They also will need to deal with increased instances of demands from companies wanting them to delist links to websites that include infringing material.

EU Law Compared to US Law

These new developments abroad probably have you asking, how does U.S. law treat hyperlinks? Well, rest easy, your usual posts on Facebook are unlikely to get in trouble.  It is long settled U.S. case law that the mere posting of a link does not give rise to a direct copyright infringement claim without more. This being said, you can still commit infringement where—as in the EU—a link is posted either for profit or with knowledge of it connecting to infringing material.  However, these facts don’t create a presumption against you as they do in the EU.  Instead, they are relevant evidence in an alternative cause of action to direct infringement—contributory infringement. While in the EU these facts could now leave you on the backfoot in a claim against you, they are the bare minimum to a plaintiff establishing a claim here in the states.

In practice, unless the posting is en masse and coming from a known company with deep pockets, most links to infringing material are dealt with through the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The DMCA provides protection for websites which host content so long as they have a statutorily compliant takedown policy in place and respond appropriately to takedown requests—requests to remove infringing content from a hosting site—from content owners. This obviously doesn’t apply where the website itself is posting the infringing links, but when it comes to links posted by private parties the expense of litigation and difficulty of identifying the person behind the computer make it preferable for content creators to focus on taking down the infringing links.

The CJEU ruling has pushed the potential for copyright infringement through posting hyperlinks to unprecedented levels. Unless these changes make the unlikely jump across the pond, they will only really impact internationally operating business within the U.S.  However, it is still important to be careful what links you post—especially if you make any sort of profit off those posts.

Intangible Karaoke: Explaining the Tangibility Requirement of Trademark

A night of karaoke is often just what the doctor ordered to unwind with some friends. You’re probably just like me, having long since realized your voice likely violates some part of the Geneva Conventions and adapted a strategy of songs that require no ability to sing—my go-to is “Baby Got Back.” You probably also constantly wonder about the intellectual property status of karaoke tracks, just like me. Even if you haven’t considered it before, the courts have recently addressed that very issue and in doing so addressed tangibility—a rarely discussed requirement of trademark law. In doing, so they’ve given me an excellent opportunity to share my strange love of intellectual property law by explaining some of the finer points of trademark law.

The case pits Pheonix Entertainment and Slep-Tone, producers and distributors of karaoke accompaniment tracks, against a number of pubs out of Illinois. Slep-Tone argued that the pubs were violating their trademark by making unauthorized copies of their karaoke tracks, then playing them. Slep-Tone argues that, because the karaoke tracks bear their “Sound Choice” trademark on their display screen, karaoke singers are confused into believing they are hearing authentic Slep-Tone karaoke tracks. Thus, Slep-Tone alleges that these pubs have infringed their trademark and trade dress by passing off their unauthorized versions as Slep-Tone tracks.

The court, however, was having none of it and promptly shut down Slep-Tone’s trademark claims. First, because of their lack of tangibility. Second, because of what the lawsuit really is—a copyright lawsuit trying to masquerade as a trademark suit to overstep Slep-Tone’s rights.

Trademark Tangibility

Just to start with the most basic of the basics, a trademark is any word, name, symbol, or device, or any combination thereof, used to identify a person’s good and to distinguish it from those goods manufactured or sold by others. Trade dress is essentially businesses’ recognizable overall image and appearance—commonly found in the context of packaging or the appearance of premises. Trademark or trade dress infringement occurs under federal law where somebody uses a registered trademark without permission in a way that confuses the average consumer as to source or sponsorship. State law can sometimes expand this protection where a mark or trade dress is not registered, but Slep-Tone had long registered both its mark and dress.

In most cases, a trademark infringement claim will hinge on the strength and validity of the mark as well as whether consumers were actually confused. In this case, the focus was on whether a karaoke track is a good such that it could be protected by a trademark in the first place.

Case law has established that it is a consumer’s confusion about the source of a tangible good sold in the marketplace by a defendant accused of infringement that gives rise to a claim of trademark infringement.  The pubs didn’t sell anything, they just played the unauthorized tracks.  The only thing that a consumer might interact with is the intangible content of the karaoke tracks, not the physical discs the tracks come on.  When a customer hears a song, they at most think that the music on the track is from Slep-Tone—which it is.  There’s no confusion about the tangible good the track is on, so there cannot be trademark infringement.

Some non-tangible things, such as a plumbing service, can have their brand protected by something called a service mark. However, that didn’t apply to Slep-Tone’s products and they had no service marks to protect.

I should also clarify that just because a good is digital does not mean it isn’t a tangible good. From iTunes tracks to Kindle Books, many digital products are sold in manner that qualifies them as a tangible good.  However, the bars that are being sued aren’t selling copies of the karaoke tracks. They also aren’t showing their patrons the digital files of the tracks and passing them off as their own. While somebody picking a karaoke track would see Slep-Tone’s Sound Choice trademark as they select their track through the display component of the karaoke tracks, this wouldn’t confuse them as to source of the actual tangible good here the physical discs containing Slep-Tone’s tracks.

Trying to Trade Trademarks with Copyright

It’s not surprising that Slep-Tone’s claim has such a tortured fit to trademark. To be frank, Slep-Tone is essentially trying to use trademark to bring what amounts to a copyright claim for infringement through derivative works. Attempts to use trade mark and trade dress to essentially duplicate copyright protection have become more frequent in recent years—even the lawsuit discussed here is only one of over 150 identical suits brought by Slep-Tone. This is no surprise because, while Slep-Tone does own a trademark, they do not own a copyright on any of the works that are on their karaoke tracks. Were one of these lawsuits ever successful, the precedent it set would be a serious problem as trademark is an intellectual property tool with essentially unlimited duration. Copyright, while congressional extensions may seem to make the duration unlimited, has defined limits on how long it can last.

Beyond the scope of protection issues, trademark and copyright also serve very different goals. The aim of copyright is primarily to promote creativity by offering a reward to those who create new works. Trademark, on the other hand, is aimed not at promoting creativity and invention but instead it is a commercial tool to ensure fair competition by preventing deceptive use of source identifying marks.

Copyright certainly protects against unauthorized reproductions and performances of a protected work. If Slep-Tone owned any copyrights they would have a heck of a case.  However, they own no copyrights and have instead attempted to overreach the bounds of their trademark.  Copyright and trademark each have their own body of law for a reason.  If trademark is allowed to bleed into the realm of copyright law, the unending duration of the protection on trademark will consume copyright whole and expand the protections of a trademark far beyond the appropriate bounds. Fortunately, Slep-Tone has been shut down here.  Here’s hoping they get shut down in their other 149 plus cases.



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