Copyright Infringement Advisor

Porn Industry on a Copyright Roll

By John Whitaker on Posted in Interesting Cases, Porn Industry

I’ve mentioned a few victories for the porn industry in copyright infringement suits recently, including a huge $4 Million default judgment by Fraserside, IP.  Guess they were emboldened with that victory and have tried again.  Fraserside have filed another lawsuit, this time against the so-called “Porn Family Mafia.”

The defendants are accused of hosting a number of different domains through with they gather and stream unauthorized copyrighted works.  In addition to that, the defendants are accused of altering or blurring copyright notices in violation of the Digital Millennium Copyright Act. Fraserside is asking for $19 Million in damages plus enhancements and attorneys fees.

It looks like the porn industry is actually getting organized and starting to defend itself against what must be rampant infringement.  There are many people who say that the success of the Internet was essentially driven by the porn industry in the early days.  I guess profits are starting to get tight, and the industry is trying to enhance the bottom line.

Porn Industry Wins Another Copyright Victory

By John Whitaker on Posted in Interesting Cases, Online piracy

Porn Industry Wins Another Copyright SuitI mentioned earlier about the $4 Million default judgment entered against the PornVisit.com site for the unauthorized streaming of some porn movies. That’s real money. Well, it happened again.  This time, Corbin Fisher and Titan Media secured a summary judgment victory against GLBT Ltd. for copyright infringement.  For those of you who are unfamiliar with legal buzzwords, summary judgment in a copyright case is a pretty big deal.  Ordinarily, copyright infringement is a fact question, which means a jury needs to decide it.  But in this case, it appears the principals behind GLBT just took off and left the country when it started looking bad for them.

The case was originally filed in 2010.  Since that time, GLBT fired their original lawyers and started moving all their assets offshore. Then they just turned their backs on the U.S. justice system and started ignoring all the legal filings.  Judges don’t like that.  They really don’t like that.

So here’s the bottom line. Channel One Releasing, Corbin Fisher and Titan Media sued GLBT for unauthorized streaming of gay porn.  GLBT fought a little bit but lost a preliminary injunction hearing, then just abandoned ship.  So the judge threw the book at them, big time.  What does this say?  The last person you want to be against you is the federal judge.

Oracle Forced To Drop Software Patents To Pursue Software Copyrights

By John Whitaker on Posted in Interesting Cases, Oracle v. Google, Software Protection

Oracle Drops Software Patents For Software CopyrightsRecall that Oracle sued Google for both copyright infringement and patent infringement based, allegedly, on Google’s use of the JAVA technology in the Android phone operating system.  At the time that suit was filed, I’m certain the thinking was that those Oracle software patents would be the strongest part of the case.  That’s what everyone thinks: software patents are supposed to be how companies protect their software, right?

Well, that used to be true.  As far as I can tell, judicial activism and toothless legislation have evicerated whatever value software patents used to have.  These days, software patent claims are more noted for their failures than their victories.  Even when software patent cases win they lose.  In short, software patents are a thing of the past.

Oracle seems to be smacked right in the face with that dose of reality.  After suing Google, Oracle’s software patents have been systematically deconstructed until, essentially, nothing remains.  Earlier this year, Oracle asked the judge to just separate out its patent case from the software copyright case to speed up trial.  Oracle asked that it be allowed to purse its patent case separately.  Recently, the judge denied that request and forced Oracle to choose: patents or copyrights, but not both, at least not if Oracle wants a trial anytime in the near future.

Yesterday, Oracle faced today’s reality and made the hard decision.  Oracle asked the judge to drop its patent case against Google for good.  And why not?  Oracle has had huge success enforcing its copyrights against competitors.  The software patents in this case have been a distraction, not an advantage.

Are software copyrights the right way to protect all software?  Probably not.  But copyrights should definitely be taken into consideration when formulating your software protection strategy.  And with all the emphasis being place on stronger copyright law, and weaker patent laws, perhaps you should be speaking with your copyright lawyer first, rather than last.

Copyright Versus Patent: Let’s Get It On!

By John Whitaker on Posted in Fair Use, Infringement Defenses, Interesting Cases, Software Protection

Let's Get It On!

If you follow my blog at all, you know that I often comment on the emerging use of copyright law over patent law to protect software.  In fact, I will tell anyone who’ll listen that I think software copyrights should be the preferred mechanism for protecting your software over patents.  But even I could not foresee this:  copyright lawyers taking on patent lawyers head to head in the ultimate legal octagon.

That’s right.  A group of copyright owners has sued quite a few patent lawyers for submitting so-called prior art references to the Patent Office during the prosecution of patents.  Understand that the law requires those patent owners (and their clients) to submit copies of those references to the Patent Office or risk having their patents invalidated.  And the Patent Office even issued its own internal memorandum concluding that such submissions are fair use.  Still, John Wiley claims that those patent lawyers need an additional license to make the copies that were submitted to the Patent Office.

Now, I don’t have a dog in this race, but I will say that I can’t possibly see how this is not fair use.  Actually, I probably do have a dog in this race since I still do a fair amount of patent prosecution.  But still, I don’t see how this case ends any other way.  I mean the law requires that these copies be submitted.  Literally none of the fair use factors cuts in favor of the copyright owner on this.  It seems like just a big ole shake down to me.  But it is really fun to watch.

For a more in depth analysis of the claims and issues, head over to the Patently-O website and read more.

Pinterest Dodges Copyright Infringement Charges

By John Whitaker on Posted in DMCA Safe Harbor, Fair Use, Infringement Defenses, Online piracy

It seems that as soon as you become marginally successful on the Internet, you are accused of copyright infringement.  So too with Pinterest.

Pinterest has become all the rage

If you don’t know, Pinterest is the clever little service that allows you to freely surf the Internet, and if you come across an interesting picture or image, you can “pin it” to your Pinterest board.  What this means is that a thumbnail of that image is created on a virtual Pinterest bulletin board with a link back to the original image.  This gives you a tidy little place where you can keep track of all those pictures and images that you like so you can easily go back to them.  You know how frustrating it is to try and go back to find that one cool picture or clever saying that you remember seeing last week?  Pinterest solves that.

And that’s not all it does.  If you associate your Pinterest account with your Facebook account, all your Facebook friends can see your boards and follow the things you pin.  This creates a really interesting way for each other to share cool pictures and ideas.  Lots of folks pin exercise motivational pictures and cute quotes.

I’ll go out on a limb here and say there really wasn’t anything quite like Pinterest before, and there really should have been.  Pinterest is the perfect use of the Web to share thoughts and ideas.  And I think that’s the secret of Pinterest’s success.  And as with all things that are Internet-successful, Pinterest is being accused of copyright infringement.

Why copyright infringement?  The cynical side of me says just because they are successful.  The objective side of me says it’s because Pinterest allows users to make little thumbnail copies of copyrighted works.  To their credit, Pinterest is taking active steps to avoid actual claims of copyright infringement rather than allegations.  For instance, Pinterest has an active DMCA takedown policy available to copyright owners.  Pinterest are also trying to roll out a Pinterest meta tag that Web sites can use to prevent pinning the site’s content.  These are good things.  Pinterest’s CEO says they don’t have a copyright problem yet, just an issue.

For my part, I think it’s inevitable that Pinterest will be charged with copyright infringement if for no other reason because they are successful.  But to me, the flip side is Pinterest’s success will undoubtedly spawn a host of copycats.  I have said it numerous times, as soon as a company stumbles on the magic formula for software success, others try to steal that magic formula.  So just as Pinterest should keep building walls to ward off those copyright infringement claims, so too it should be loading its quiver with some ammunition against the inevitable infringement of its own copyrights.  Copyright protection is a two-way street.

Fraserside Awarded $4 Million Against PornVisit.com

By John Whitaker on Posted in I.P. Address Suits, Interesting Cases, Litigation Damages

Judges are clearly of two different minds when it comes to copyright infringement and culpability.  For example, consider these two recent cases that are similar on the facts, but have very different outcomes.

K-Beech, Inc. v. Schreiber and Valdez, et al.

In this case, K-Beech sued several people for copyright infringement of a small number of porn movies, I believe for downloading and uploading them.  Two of the defendants (Schreiber and Valdez) just didn’t answer the complaint. Judge Wake entered a default judgment against those two defendants for the minimum statutory damages amount of $750 per work for a total damage award of $1500. The good folks over at FightCopyrightTrolls.com wrote a great little piece about how such a small damages award jeopardizes the entire copyright plaintiff business model.

Fraserside v Faragalla

In this case, an IP holding company that owned the copyrights for some porn movies sued a couple of people who operated a free porn website (PornVisit.com) for streaming those movies.  The defendants chose not to answer the complaint and instead just ignored it.  Judge Bennett clearly had a different view of what it took to punish this type of conduct.  He entered default judgment in the maximum amount of statutory damages and threw the book at the Faragallas in the amount of $4 Million! Holy cow!  The porn industry is understandably very excited by this win.

What’s the lesson here?  You never know what will happen to you if you just ignore a complaint that gets filed against you.  Maybe you get the minimum, like Schreiber and Valdez, and maybe you get the maximum, like the Faragallas.  So if you get served with papers, hire a lawyer!  Don’t just ignore it because sometimes those nagging little problems go away, but sometimes they turn into huge problems.

Software Copyrights Keep Gaining Steam: Spry Foxx Sues 6Waves

By John Whitaker on Posted in Interesting Cases, Software Protection

Local Seattle game developer Spry Foxx has sued 6waves for software copyright infringement based on 6waves’s knock-off of Spry Foxx’s hit game Triple Town. Good for Spry Foxx.Spry Fox sues 6waves for software copyright infringement

Triple Town is shown on the left, and the 6waves knock-off on the right.  There are definitely similarities, although to my eye not as many as the Vostu knock-off of the Zynga Cafe World game.  But it’s hard to do a real side-by-side comparison of two complete games with just the still screen captures from the Spry Foxx complaint.  But still, the rest of the story fills in the blanks and leads me to believe that this is more than even a simple knock-off, but an overt act of corporate espionage.

Turns out, Spry Foxx and 6waves were in active, confidential negotiations for a deal that would see 6waves publish Spry Foxx’s Triple Town game.  Then, out of nowhere, 6waves pulls out of the deal and publishes its own version.  During the negotiations, 6waves had access to Spry Foxx’s code and everything under the hood.  In the words of Spry Foxx’s CEO David Edery, what 6waves did was “profoundly unethical by any measure.”  I agree.

6waves denies any wrongdoing.  Of course they do.  What else are they going to say: “Dang, we were hoping you wouldn’t notice that”?  It is important to note that Rex Ng, CEO of 6waves, only denies that they violated the terms of the NDA. He does not deny (or at least I haven’t seen it) that 6waves knocked-off Spry Foxx’s game.

So here we are.  A small game developer comes up with the magic formula for a hot game.  Shortly thereafter, a much larger game developer knocks it off, competing against the smaller developer with their own game.  Does anyone still not believe that this is exactly the kind of copying that software copyrights are intended to prevent?

SOPA and PIPA Must Be Stopped

By John Whitaker on Posted in Uncategorized

Congress is debating the new SOPA and PIPA legislation aimed at making it easier for the government to combat online copyright infringement.  In case you live under a rock, SOPA and PIPA are the two pieces of legislation that its supporters argue would enable the government to help stop online copyright piracy, and its detractors say would amount to Internet censorship.  I fall in that “detractors” category.

You have to look at legislation intended to combat crime from the worst case scenario.  These laws are always abused. Show me any law ever passed to combat crime, and I will show you a law that has been abused by the government to exceed the reaches of what it was intended for.  In other words, they always say “this law is only so we can go after the really bad guys” until it’s passed.  After that, all bets are off.

So, worst case, SOPA and PIPA allow the government not only to shut down any website that they can argue is “facilitating” infringement, they can also effectively seize the assets of those sites. Facilitating infringement?  Let’s think about that.  Megaupload is accused of facilitating infringement.  What does it mean to “facilitate” infringement?  Does Comcast “facilitate” infringement by providing you access to a pirate site?  Does Microsoft facilitate infringement by providing you with a free browser that you use to access that site?  How far can this go?  I guarantee you, if SOPA and PIPA pass, the government will start inventing ways in which companies “facilitate” infringement.

And what about the money?  Isn’t that really what this is all about?  It has to be, because no one has ever argued that the actual master recordings of anything have ever been stolen.  So, of course, SOPA and PIPA allow the government to seize all the assets of the website operators.  Not just money, everything.  In the Megaupload case, the government was happy to seize Kim Dotcom’s shotguns and luxury cars.  Here’s what many media outlets are saying:

Police seize guns, millions in Megaupload case

Now think about that.  That’s not the media trying to spin a story is it?  Police seize guns in Megaupload case.  Guns?  Really?  Surely the media aren’t trying to paint a picture of some gun-toting bandits hiding out in the woods for the first opportunity to jump out and rob you blind of your. . . . your . . ..  copyrights.  Really?

And also keep in mind that these things were done without SOPA or PIPA.  So if the U.S. Government can already swoop in and shut down a foreign website just for “facilitating” infringement, and seize all the assets of the operators of that website, including their “guns,” then why do we need SOPA and PIPA?  I think they’ve gone too far already with the Megaupload arrests.  The government certainly doesn’t need more power, far from it.  We need to start reigning in these drunk-with-power do-gooders and get a handle on what is really going on here.

If any area needs closer legal scrutiny, it’s private lobbyists. We need to be looking much closer at the apparently improper influence that the entertainment industry has on both our lawmakers and our law enforcers.  The fact that the entertainment industry can use our government as its own private law enforcement vehicle scares the shit out of me.  This has got to stop.

Oracle Advances Software Copyrights, Drops Patent Claims Against Google

By John Whitaker on Posted in Interesting Cases, Oracle v. Google, Software Protection

I frequently blog about the benefits of software copyrights over software patents.  I’ve also mentioned how Oracle is leading the charge in terms of promoting its software copyrights more than its software patents. Nowhere is it more apparent that software patents are the new thing, and software patents are out, than in the Oracle v. Google case.

Oracle sued Google for allegedly violating a bunch of Oracle’s software patents and also Oracle’s copyrights related to the JAVA technology.  Originally, it was thought the case was mostly a patent case with some copyright underpinnings.  Now, it appears to be quite the opposite.

In a surprise move, Oracle seems to have whole-heartedly bought into the theory that I have been promoting for some time–that software patents are yesterday’s news and software copyrights are the way forward.  Oracle filed documents asking the Court to throw out Oracle’s own patent infringement claims so it could move forward with the copyright case alone.  It seems Oracle has recognized that the last several years of judicial activism and proposed legislative overhauls have left software patents as essentially useless anachronisms.  As proof, many (most?) of the software patents that Oracle asserted against Google have already been thrown out by the U.S.P.T.O. on reexaminations initiated by Google.  In other words, Oracle’s patent case is disintegrating and its copyright case is gaining steam.

So why waste the money on the patent case?  Why shackle your thoroughbred to a plow horse?  Looks like Oracle agrees.  It wants to move forward with its strong case and dismiss its patent case.  This is one more example illustrating the shifting paradigm away from patents and toward copyrights as the mechanism of choice for protecting software.  Will it happen overnight?  Of course not.  But when highly litigious (and successfully so) multi-national companies completely drop their patent cases so they can focus on their software copyright case, you have to take notice.  Is this the right strategy for your business?  Maybe, maybe not.  But you must at least consider this as an option.

Hana Beshara (Phara) Goes To Jail for Criticizing the Government

By John Whitaker on Posted in Interesting Cases, Online piracy, Software Protection

Hana Beshara of NinjaVido sentenced to 22 months jail timeHana Beshara, the self-proclaimed attractive co-founder of NinjaVideo, was recently sentenced to 22 months in jail.  Now this really isn’t a big surprise, given the government’s fairly recent push to demonize and vilify people who push the limits of fair use online. As a copyright attorney myself, I can’t really say I’m in favor of weaker copyright protection.  I just wish copyright protection would be pushed harder in areas where it is more needed than in the entertainment industry.

But what makes Hana Beshara’s case even more interesting is the degree to which the government is trying not only to punish her, but to silence her as well.  Immediately after her sentencing, Ms. Beshara was released to go home until a bed became available at her intended prison. Makes sense, and seems like a decent thing to do.  But then the government actually petitioned to send her straight to jail instead, apparently to sleep on the floor.  Why, you ask?

Because she posted something on her Facebook wall!  That’s right, the government got pissed because Ms. Beshara posted something about being sentenced to prison and asked her followers to try and get her a modelling gig with a men’s magazine, like Maxim.

Here’s an actual quote of what the U.S. Government argued as grounds to rescind her freedom:

Beshara posted more than 25 additional Facebook messages, which variously criticized the government, celebrated NinjaVideo.net’s copyright infringement, and sought to assemble a public relations team to engage media and documentary filmmakers to help her ‘fight back’ and ‘change[ ] history . . . again.’

WHAT?!?!? How dare she criticize the government?  How dare she attempt to assemble a public relations team? Have these people even heard of the First Amendment?  When a person is convicted of a felony, they can lose certain Constitutional rights, like the Right to Bear Arms or to Assemble with other felons.  But you don’t lose the right to criticize the government, EVER!

Ours is a free society precisely because we never lose the right to criticize the government.  I’m certainly not suggesting that we should be free to violate the copyrights of others because of this, but wait a minute.  Two wrongs do not make a right.  In its zeal for “complete justice,” these government lawyers have allowed their perceived victory to cloud their judgment.  They have put the success of their crusade above justice, and above the Constitutional rights of us all.  And yes, that includes Hana Beshara.  As far as I’m concerned, Hana Beshara is a political prisoner until someone can demonstrate how a Facebook posting creates a clear and present danger to anyone.