MediaTech Law

By MIRSKY & COMPANY, PLLC

Dropbox TOS – In Praise of Clarity

Posted July 17, 2011 by Andrew Mirsky 0

Earlier this month, Dropbox spawned a new kerfuffle in internet-land with changes to its Terms of Service (TOS).

The outrage was fast and furious.  A nice deal of blog and Tumblr and other commentary zeroed in on changes Dropbox announced to its TOS before the 4th of July holiday, and in particular how this or that provision “won’t hold up in court”.  See for example J. Daniel Sawyer’s commentary here.

Sawyer was referring to language in the TOS for cloud-server services granting ownership rights to Dropbox or other cloud services.

At least I think that’s what he was referring to, because the Dropbox TOS did not actually grant those ownership rights to Dropbox.  Dropbox’ TOS – like similar TOS for SugarSync and Box.net – granted limited use rights to enable Dropbox to actually provide the service.  Here is the offending provision:

… you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent we think it necessary for the Service.

To be clear, if Dropbox actually claimed ownership rights to customer files – and actually provided for the same in its TOS – there’s no particular reason such a grant “won’t hold up in court”.   There are certainly cases of unenforceable contracts – contracts that are fraudulently induced or in contravention of public policy, for example – but a fully and clearly disclosed obligation in exchange for a mutual commitment of service is enforceable.

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Forever 21 – WTF? SLAPP Suit? Trademark Dilution?

Posted July 6, 2011 by Andrew Mirsky 0

A blogger publishing under the name “WTForever21.com” recently got threatened with litigation for trademark infringement by the LA-based clothing retailer Forever 21.

WTForever21.com, a parody site published by Rachel Kane, had prominently disclaimed any affiliation or endorsement by Forever 21.  And as indicated, Kane’s purpose was (some would claim clearly) parody.   Kane was the proud recipient of a cease and desist letter from Forever 21 on April 22 (a copy of which can be found here), which alleged trademark and copyright infringement, unfair competition and trademark dilution.

Without testing the merits of her legal position and, according to several initial reports, not willing to expend the resources to do so, Kane announced that she would pull down her site by June 10th.  Kane then reversed course, and issued a statement last month stating “If the company continues to makes threats that have no basis in law, my attorneys are prepared to vigorously defend me and seek all available legal redress against Forever 21.”  The site is currently live.

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Podcast #10: BitTorrent Copyright Infringement: Trouble for DMCA?

Posted June 20, 2011 by Andrew Mirsky 0

 

Today, I discuss BitTorrents, and a particular case in California challenging the copyright validity of what one service provider is doing.  BitTorrent has been in the (copyright) news lately – and not surprisingly – after the movie studios set their sites on bringing down yet the latest iteration of file-sharing technology.

Some of the issues I discuss are these:

  • What is the BitTorrent file sharing technology? And how is it different from Napster and its peer-to-peer progeny?
  • What are the 2 biggest distinctions between BitTorrent and peer-to-peer and, in particular, BitTorrent’s distributive approach to file-sharing?
  • Why is bitTorrent in the (copyright) news? I will particularly discuss a case in federal court in California, involving Columbia Pictures and other film studios who sued a bitTorrent company called isoHunt, together with its founder, Gary Fung.
  • What were the relevant legal issues in this case? Several important copyright arguments were made, but of most significance were 2 particular issues: inducement of copyright infringement, and the safe harbor for providers of “information location tools” under Section 512 of the Digital Millennium Copyright Act (the DMCA).
  • Why did Google get involved? I discuss how this case was an unusual instance where a court ruled that DMCA safe harbor protection was not available to a provider of “information location tools” who knew or should have known about potential or actual copyright infringement happening on its service.

Please click below for the podcast.

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App Developer Legal Issues: API TOUs, Copyright and Trademark

Posted April 21, 2011 by Andrew Mirsky 0

Our Twitter chat last week with technology and entertainment lawyer Joy Butler highlighted legal issues with app development, including contract issues between app developers and clients, on one end, and intellectual property (IP) and API issues between the app and the intended development platform, on the other end.

Privacy issues become pressing later when the app goes public for end users, although the biggest privacy problems tend to arise when app publishers get tripped up by commitments made in their own end user license agreements (EULAs) or privacy policies, more so than from any violations of privacy laws.  More on privacy and the app/API problems in a separate blog post.

Immediate issues are copyright and trademark, both governed by federal laws, but also governed by API terms of use and similar application development agreements with hosting platforms.  Apple’s software developer kits (SDK) for the iPad and iPhone encompass similar purposes as part of broader packages of developer protocols for use of those APIs.

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Podcast #8: “Street Art”: Fair Use of Prior Copyrights?

Posted April 14, 2011 by Andrew Mirsky 0

In today’s podcast, we discuss “street art”, which evidently isn’t just your grandfather’s graffiti anymore!  Street art has lately been in the news particularly because of several prominent copyright infringement cases, and most notably fallout from Shepard Fairey’s 2008 Obama “Hope” posters.  An even more recent controversy came out of the Oscar-nominated documentary film by Banksy, “Exit Through the Gift Shop”.

Along the way, we will touch on Run DMC, Thierry Guetta (aka “Mr. Brainwash”), “pop-art”, photography, Andy Warhol and Robert Rauschenberg.

Joining me to discuss copyright, fair use, street art, what is street art and all that we can cover in 15 minutes … I’m joined by Brooke Jimenez.  Brooke is a second-year law student at Georgetown University Law Center with a focus on international law, and a creative mind on issues of media law.

Stories mentioned in the podcast include this from The Art Newspaper, and this from George Will in the Washington Post.  Please click the audio player link below for the podcast. Enjoy.

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Copying of Entire Article a Fair Use? Maybe. Sort of. Not Normally.

Posted March 24, 2011 by Andrew Mirsky 0

The Las Vegas copyright fair use loss for Righthaven last week was probably less meaningful – and less amusing – than the “money quote” (as Wall Street Journal blogger Ashby Jones put it) from the federal Judge James Mahan, who reportedly mused, “I realize this is going to be appealed.  I tell litigators ‘that’s why God created San Francisco’” – site of the 9th Circuit federal appeals court.

At first glance, the case is a breathtaking blow for newspapers and media organizations (including, presumably, bloggers), because it upheld a fair use defense against copyright infringement where the newspaper story was copied in its entirety.

This case would seem to run afoul of every fair use guideline ever published, including the fair use law itself, and particularly the frequent characterization of a “fair” use as a “transformative” use:

… whether the new work “merely supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).

But that’s first glance.  Judge Mahan hasn’t yet issued his Order, so we know only wha the Las Vegas Sun reported from the hearing.  

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Podcast #6: Music Streaming with Grooveshark, Pandora, and Friends: Legal and Business Discussion

Posted March 14, 2011 by Andrew Mirsky 0

 

Today we’ll be looking at some of the prominent music streaming sites, including Grooveshark, Pandora, Spotify and others, looking at legal and business issues in a quickly shifting landscape. The New York Times recently reported on the very recent revival of venture capital and public market interest in the music industry after a bit of a funk period. The money seems to be flowing again, and where it’s flowing tells as much about the technology and business as it does about legal issues involved.

To talk about these issues, my guest today is Jake Kring, Co-Founder of GetSpontaneous.com. Jake, along with his other co-founder Mack Kolarich, founded GetSpontaneous, a social event discovery platform optimized for a fundamentally mobile world.

Please click the link below for the podcast.

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Podcast #4: Inline Links, Embedded Videos and Copyright Infringement

Posted February 9, 2011 by Andrew Mirsky 0

 

In today’s podcast, we discuss copyright issues, specifically the distinctions – practical and legal – between “inline” or “hot” or “embedded” links and downloaded images.  This comes up usually in the context of using video, but the principles should apply to any uses of images on websites, blogs, twitter, Facebook and other social media.

I am joined today by my colleague Thomas Yarnell.

In a series of cases starting around 2002 (a case called Kelly v. ArribaSoft) and accelerating in 2007 (a series of cases involving Google and Amazon and a photography database called “Perfect 10”), web hosting companies, search engines and sites like Amazon were accused of copyright infringement when they used thumbnail images of copyrighted works for their search or catalog results.  So for example, Google Images routinely shows images from copyrighted works in search results.  Google (based on the Kelly case and subsequent caselaw) argued that the use of the images was a “fair use”, in that the search engine’s cataloguing of images was a “transformative” type of use that should be protected under copyright’s fair use doctrine.

In the more recent cases involving Perfect 10, Google (and Amazon) were initially successful in arguing that their use of copyrighted images wasn’t copyright infringement at all – making a fair use defense unnecessary.  Those cases were appealed and reversed, but only partially.  The big point that was upheld was that a search web user’s (Google, Amazon, or anybody else for that matter) embedding of inline links would not constitute direct copyright infringement.

Please click the audio player below for the podcast.

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Is Inline Linking Images or Embedding Video Copyright Infringement?

Posted February 4, 2011 by Thomas Yarnell 0

Thanks to Andrew Mirsky for contributing research and feedback to this post.

Let’s say, like most of us, you run a Justin Bieber fan blog. You try to keep it up to date, especially with his latest songs and footage from recent concerts. This involves going on YouTube, finding the new single, and grabbing the embed code, to throw the video up on your site.

The question is… does embedding video (or photos, etc.) make you liable for copyright infringement?

In a word, the answer is yes, although recent major cases on the subject indicate that convincing a court of such infringement is an entirely different story.

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Podcast #2: Recent Search Engine Advertising Trademark Rulings in EU and US

Posted January 12, 2011 by Andrew Mirsky 0

Podcast #2: January 6, 2011

 

In today’s podcast, we cover trademark cases from both U.S. and European Union courts involving major search engines such as Google and Yahoo.  In particular, we look at whether and how search engines can be held responsible for trademark infringement when advertisers buy search result advertisements using the trademarked names of their competitors.

My guest is Howard Hogan, a partner in Gibson, Dunn, & Crutcher’s Washington, DC office.  Howard’s practice focuses on intellectual property litigation and counseling, including trademark, copyright, patent, false advertising, licensing, media and entertainment, and trade secret matters.

The trademark issue arises because in many countries, including the US, the search engines allow companies to advertise next to search results using their competitors’ trademarks.  We have seen a major shift in the last year.  Before 2010, it was clear that at least in France and Germany, it was not appropriate for search engines to sell marks, and Google’s policy reflected that.  In the US, there was a divide between the district courts of the Second Circuit and the rest of the country as to whether buying and selling trademarks for search engine advertising constituted a “use in commerce,” but there was very little law on whether that use was likely to cause confusion.

Now, in Europe, the law seems to have shifted against holding search engines liable, but leaving open the potential for trademark holders to go after the advertisers.  In the U.S. the “use in commerce” question has been resolved decisively against the search engines, and the debate has shifted to the “likelihood of confusion” question.  On one hand, we are starting to see more decisions finding that their sale of the marks are not confusing (Rosetta Stone, Boston Duck Tours, College Network) at the same time as other courts are finding that the use of marks by an advertiser are likely to cause confusion (Storus, Skydive Arizona).

Please press play on the audio player to hear the podcast.

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Trademarks: Why Registering Your Design or Logo May Not Protect You

Posted January 7, 2011 by Andrew Mirsky 0

What are the differences between “special form” (stylized, design, logo) trademarks and “standard character” (word) trademarks?

The 2 basic trademark types are these: (1) “special form” trademarks and (2) “standard character” trademarks. A “special form” trademark that consists of stylized words, letters, numbers and/or a design element such as a logo. A “standard character” trademark consists only of words, letters, or numbers, with no stylization, color or design element.

The issue comes up this way: A company or an individual wants to trademark a brand or company name. So far so good. The first question is does this individual or company have a particular design or logo for its name? If not, then the only type of trademark registration available is a “character” or word mark. If a design or logo is in the mix, then the question is whether or not that design or logo has any value to the company. Obviously examples are the Nike “swoosh” and the Coca-Cola script logo. These are good examples of designs or logos that – separate from the names of the companies themselves – have distinct trademark value for their owners.

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Fair Use and Mashups

Posted December 12, 2010 by Andrew Mirsky 0

I was recently asked about “fair use” standards for use of copyrighted video or audio in mashups.

What’s a Mashup?

First: What are mashups?  From WiseGeek:

A mash-up is a combination of tools or data from multiple sources. Mash-ups typically collect data from multiple web pages and bring their information into one simplified web application.

Mashups are common in the application development world, but also common in music and videos, and examples are legion (and some notorious).  In particular, a music mashup is (according to Squidoo) …

when the vocals from one song are laid over the music of a second song to create a mashed up version that’s both but neither.  If a good job is done, it enhances the original music.

Actually, the last part of that definition is most critical to a fair use analysis.  I recently wrote about fair use in the context of the republishing of copyrighted photographs or artworks in a magazine, book or electronic publications.  

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