A couple of weeks ago, I reported on a database publisher who successfully brought a case against a company that tried to copy the database and sell it as its own.  Now there's a very similar case in a different jurisiction that reached a similar conclusion.  Could the tied finally be turning for U.S. database publishers?  Are they finally getting the protection they so desperetaley deserve, and need?  You decide.  

 

The facts are as follows.  Health Grades develops and distributes ratings of health care providers, such as hospitals, by reviewing various sources of publicly available information and using its own proprietary methodologies to rate these providers using its “1-3-5 Star” rating system.  It publishes the ratings on its website, which is accessible by anyone who first agrees to a click-through agreement. This agreement allows the licensee to view the information and to copy, store and print a single copy of material on the site so long as it is for noncommercial use only and is not re-distributed to others. 

In instances where a third party wants to use the ratings for commercial use or to re-distribute the information to others, Health Grades has reached a separate agreement with the third party.  The revenue from these additional license agreements are what keeps Health Grades in business.

 

Robert Woods Johnson University Hospital (“RWJ”) is a hospital in New Jersey whose employees accessed the Health Grades website (more then 200 times), agreed to the click-through license agreement, and copied and distributed the ratings Health Grades gave to RWJ in numerous press release and articles in violation of the terms of the license agreement.More...

In Facebook, Inc. v. Power Ventures, Inc., the US District Court for the Northern District of California denied defendant Power Ventures's motion to dismiss Facebook's copyright infringement claim arising out of Power Ventures's unauthorized harvesting of data from Facebook user accounts.  Power Ventures operates a website designed to integrate various social networking or email accounts into a single portal. After a user provides his or her user names and passwords to Power Ventures's service (power.com), it takes this access information to “scrape” user data from those accounts.  Subsequently, the user can log on to Power.com to view the data culled from Facebook and any other social networking sites or email accounts.

Power Ventures commenced licensing negotiations with Facebook to authorize its data scraping activity.  After negotiations broke down, Facebook brought suit claiming, among other things, that Power Ventures's actions violated the Copyright Act.  Power Ventures moved to dismiss, arguing that Facebook does not have a copyright interest in the content posted by its users.

The court agreed with Power Ventures that Facebook does not have a copyright on user content, which ultimately is the information that Power Ventures software seeks to extract.  The court stated further, however, that Power Ventures's making a copy of a user’s entire Facebook profile page in order to collect that user content,  could constitute infringement of Facebook’s copyright interest in the collection and arrangement of the user content in the form of the profile page.  Accordingly, the court denied Power Venture's motion to dismiss Facebook's copyright infringement claim.

This case may provide further ammunition to site owners in their attempts to thwart unauthorized collection of site user data, even where the site user has granted permission and the site owner does not actually own the data.

This morning, the Supreme Court has denied the cert. petition filed by the copyright holder plaintiffs in the Cable News Network, et al. v. CSC Holdings, Inc., case. (See page 9).  Chief Justice Roberts and Justice Alito did not participate in the decision. The denial leaves in place the Second Circuit's holding that Cablevision's remote-storage DVR does not violate the copyright owners' exclusive rights to copy and publicly perform their works

Database publishers have often had a difficult time protecting their database against unscrupulous people who come along and copy it, place their own name on it and make money off it.  The courts have often been reluctant to protect databases as copyrighted works and, in the rare instance where they do, the courts usually afford them such thin protection as to allow just about any copying so long as it does not result in an identical copy.  As a result, database owners have been somewhat reluctant to attempt to enforce what rights they may have in their database in the courts.

But every so often a database publisher comes along who feels they have a good enough case to justify the risk of bringing their case before the court.  SaleTraq is just such a publisher.

SalesTraq compiles, arranges and owns a database of about 17,000 different models of residential properties in the Las Vegas area.  The database contains not only the usual information one might find in a database of residential properties (such as floor plans, measurements, features and location), but also includes the properties’ key attributes as determined by SalesTraq.  SalesTraq distributes the database to its customers through a fee-based subscription that is accessible through the SalesTraq website, and by providing the database on CD-ROM or DVD to its subscribers on a monthly basis. More...

Late last week, the poster child for P2P piracy, Jammie Thomas (who now goes by Jammie Thomas-Rasset) was found liable for copyright infringement … again. 

 

The first time, which occurred in a U.S. District Court in Minnesota back in 2007, a jury found her liable to a tune of $220,000.  She and her attorneys thought this was an injustice of the highest magnitude so they appealed. 

 

Their wish was granted and they got a new jury (in the same court) to consider whether Thomas would be liable and if so, for how much.  This new jury thought the first jury got it wrong.  They thought $220,000 was much too small an amount for Ms. Thomas to pay for her illicit actions and they came back with a verdict for $1.92 million.  Yes, that’s right, almost $2 million for infringing 24 songs.  I bet that $220,000 verdict is looking pretty good to Ms. Thomas and her attorneys right about now.

 

So what does all this mean?  Well, first off to fully understand what this means you need to know a little something about the copyright law.  Under the copyright law, plaintiffs may be awarded statutory damages ranging from $750 to $150,000 for each work infringed.  Ms. Thomas infringed 24 works so the damages could have been as low as $18,000 or as high as $3.6 million.  In reaching a verdict of $220,000, the first jury decided on an award of just over $9,000 per work.  The second jury’s award was $80,000 per work infringed – which is just about the mid-point in the possible range of statutory damages. More...

Author J.D. Salinger, at 90 years-old, filed a lawsuit this week  seeking damages for copyright infringement and an injunction against the writer, publishers and distributor of a sequel to "Catcher In The Rye" .... "60 Years Later: Coming Through the Rye."

A character very much like an aged Holden Caulfield,  at 76 years old, an escapee from a retirement home and identified as ``Mr. C" takes on New York, like the young Holden in "Catcher In The Rye."  J.D. California, the author of the sequel never refers to the character as Holden Caulfield, only as "Mr. C." 

The complaint asserts the sequel infringes Salinger's copyright rights in both his novel and the character Holden Caufield.  The sequel and the original both begin with Holden leaving an institution and end with he and his sister at the carousel in Central Park.   The complaint goes on to allege the bulk of the book has Holden doing, seeing and talking to the same folks as in the original while he is in New York.

The sequel is currently available for purchase in the UK and is scheduled for a Fall 2009 release in the US.

Can J.D. California successfully defend an action for copyright infringement?  The Wall Street Journal blog has a great outline of the defense here.  I struggle with the thought that this sequel could be fair use.  It is really going to hinge on whether or not this new work is transformative of the original.  I posted earlier this year on the status of fair use and transformation in the Shepard Fairy case.

So what's the takeaway from the Barnes v. Yahoo, Inc. case?  This is the case decided this month involving the dumped boyfriend who posted nude pictures of his ex on Yahoo and impersonated her in various Yahoo chat rooms suggesting she's ready for action.  He also posted her contact information.  Some people have a hard time moving on.  After a slew of not-so-gentleman callers, Barnes contacted Yahoo in accordance with their policies to request removal of the information.  Barnes asserts she received a phone call from Yahoo's "Director of Communications" telling her that she would "personally walk [Barnes's request] over to the division responsible for stopping unauthorized profiles and they would take care of it."  According to Barnes, it didn't happen.  After a few more months, Barnes sued Yahoo.  Yahoo asserted that it is immune, under Section 230 of the Communications Decency Act, from any liability for its actions, or lack of action, relating to Barnes. 

Barnes sued under two legal theories.  But the court gave credence to only one, promissory estoppel, which basically alleges that Yahoo made a promise (to remove the offensive content) which Barnes relied on to her detriment.  The court did not accept that Section 230 of the CDA means that Yahoo could not liable to Barnes under a promissory estoppel theory.More...

Yesterday, President Obama nominated Second Circuit Judge Sonia Sotomayor to replace retiring Justice David Souter.  To no one’s surprise, newspapers, blogs and TV news programs across the country immediately began scrutinizing Judge Sotomayor’s personal and professional background, including her judicial record.  This blog is no different of course, except that it focuses on intellectual property issues and therefore will examine Sotomayor’s experience exclusively from an IP standpoint.

In looking at Judge Satomayor’s background and experience in IP cases, there’s really not many cases to look back on.  While sitting on the bench on the U.S. Court of Appeals for the Second Circuit she did issue decisions in numerous trademark disputes.  But none of these cases seems particularly noteworthy.  Nor did there seem to be any overarching viewpoint that can be gleamed from a quick review of these cases.   

However, Sotomayor has issued decision in a few very significant IP cases.  In 2002, she issued a decision in one of the first rulings involving the Anti-Cybersquatting Consumer Protection Act.  Her decision helped establish the parameters of how and where claims under the ACPA could be brought by trademark owners.  The Act, which was enacted in 1999, makes it illegal for someone to register a domain name that is either a trademarked term or an individual’s name with the sole intent of selling the rights to that domain name for a profit.  One important provision in the law allows trademark owners to bring an in rem suit (which is a suit against the domain name itself, instead of against the registrant of the domain name).  The 2002 ruling in Mattel Inc. v.Barbie-Club.com (which was discussed in a prior blog issued by Sotomayor clarified that such in rem jurisdiction only applied in the judicial district where the domain name register, registry or other authority is located.More...

For the first time, a federal court has held a copyright statute unconstitutional as violating the free speech provisions of the First Amendment.  In Golan v. Holder, 2009 U.S. Dist. LEXIS 28263 (April 3, 2009) on remand from the Tenth Circuit, the district court denied the government’s motion for summary judgment and granting the plaintiffs’ motion for summary judgment.  The United States District Court for the District of Colorado held that section 514 of the Uruguay Round Agreements Act (17 U.S.C. § 104A), is unconstitutional.  (Note: I represented a group of amici supporting the constitutionality of the statute, so my views are far from neutral.  These are entirely my views, not necessarily theirs.)

How did this case get to this point?  In (very) broad strokes, the Supreme Court upheld the copyright term extension act against two constitutional challenges.  The first, heavily distilled, was essentially that “copyright protection lasts too long.”  The court rejected that argument.  The second was that overly long copyright terms squashed the plaintiffs’ first amendment rights.  The Court rejected that argument as well, but in a more nuanced fashion.  It found that term extension raised no First Amendment issues due to the copyright law’s free speech safeguards, but warned that if Congress changed copyright’s “traditional contours,” more searching review would be appropriate.  The “traditional contours of copyright” language had never before appeared in a reported case.

The scope of these “traditional contours” formed the basis for challenging restoration.  Section 104A of the copyright act restores copyright to certain works by foreign authors that had fallen into the public domain for a failure to comply with the formalities that used to exist under United States law (such as affixing a proper © on publication.  Users that had relied on the public domain status of the work had a 1-year selloff period to get rid of any restored work once they received notice of intent to enforce.  A group of plaintiffs (represented by many of the same academics that challenged term extension), charged that Congress both lacked the power to take works out of the public domain and that the removal of such works violated the First Amendment.  Initially, the district court rejected both claims, but then the case went back to the Tenth Circuit.More...

Last week an appellate court in Malaysia brought to an end an ongoing legal battle that began in 2001.  McDonald’s corporation sued the owners of the McCurry restaurant in Kuala Lumpur claiming likelihood of consumer confusion between the McCurry name and the McDonald’s trademark.

The menu at McCurry is traditional Indian food and the name supposedly stands for Malaysian Chicken Curry.  There was no use of the Golden Arches in the McCurry trademark.  The Appeals Court ruled there was no proof that the owner of the McCurry mark misrepresented the business to the public or confused consumers.  The court examined the differences in food sold as well as the differences in the consumers.

During the pending legal battle, the owner of the McCurry restaurant removed the “c” from Mc on its signage.   The “c” was replaced last week after the ruling.