GoldieBlox & 3 Little Beasties: Viral Video a Fair Use?

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In the eyes of their adoring fans, what can make the 32-year-old Beastie Boys hip-hop band unhip?

How about a copyright infringement war against an educational toy company whose viral video encourages girls to become engineers that is taking shape in the United States District Court for the Northern District of California?

In an eight-page complaint, GoldieBlox, Inc. v. Island Def Jam Music et al (Case No. 3:13-cv-05428), the plaintiff, a San Francisco-based company founded by a Stanford alumna that makes games and toys intended to draw girls to technology and science, seeks injunctive relief and declaratory judgment from the court that a two-minute video that already has drawn more than eight million views is protected by the Fair Use doctrine [17 U.S.C. sec. 107] against a potential copyright infringement claim over the video's parody of a Beastie Boys hit Girls, from its 1986 Licensed to Ill album.

The video at issue depicts girls erecting an elaborate gizmo to the Beastie Boys tune with altered lyrics that include: "Girls to build the spaceship/Girls to code the new app/Girls to grow up knowing/That they can engineer that." The corresponding original lyrics are far less politically correct: "Girls to do the dishes/Girls to clean up my room/Girls to do the laundry/Girls and in the bathroom/Girls, that's all I really want is girls."

The surviving original Beastie Boys are Adam Horovitz ("Ad-Rock") and Michael Diamond ("Mike D"). An original band member, Adam Yauch ("MCA"), succumbed to cancer last year, and a provision of his Will purportedly says the band's music should never be used for purposes of advertising, which could be significant if he solely held the copyright to Girls, according to a Forbes magazine account of the suit.

Horovitz and Diamond sent an open letter to Goldieblox praising the creativity of the video and supporting the notion of attracting girls to science and engineering through construction toys and the like, but pointedly saying the video constituted an advertisement, an affront to their philosopy about commercialism, and more to the point, an alleged infringement of copyright.

The four factors a court weighs in deciding whether the fair use defense should shield an alleged infringer involves looking at the purpose and character of the use, the nature of the copyrighted work (fiction/nonfiction, published/unpublished) the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole and the potential market for and value of the copyrighted work.

Battle lines already are being drawn, with the First Amendment Internet advocate Electronic Frontier Foundation squarely siding with GoldieBlox. EFF concedes that the viral video's length nearly matches that of the original song, which was both creative and published, though EFF claims the Girls parody is transformative and doesn't harm the value of the copyrighted work, but, rather, sparks debate about sexist stereotypes about girls shying away from becoming engineers.

On the other hand, however noble the intentions and warm & fuzzy the video may be, the underlying hope is that the start-up company, GoldieBlox, will sell its games and toys to the video-loving public at a profit. Stay tuned. Perhaps the Beastie Boys should look to their discography and heed the advice of their 1992 album Check Your Head, or 2011 hit Don't Play No Game That I Can't Win.

UPDATE: Warner Bros. Staves Off Superman Copyright Challenge

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After a protracted battle between the company that claimed the copyright of Superman against the estates of the creators of the comics superhero that rivaled the epic struggles the Man of Steel fought against criminal mastermind Lex Luthor, the United States Court of Appeals for the Ninth Circuit last week voted 2-1 in favor of Warner Bros, according to Deadline.com.

With Judge Sidney Runyan Thomas dissenting, Judges John Sedwick and Stephen Reinhardt upheld the trial court decision for the entertainment conglomerate against the heirs of Jerry Siegel and Joe Shuster, ruling Warner Bros. is the copyright holder of Superman and his alter ego, intrepid Daily Planet reporter Clark Kent. The case, DC Comics v. Pacific Pictures Corp. et al. (Case No. 12-cv-57245), has been closely watched by the perpetually pre-adolescent staff of this blog (see "TUOL" post 8/17/09).

In a 12-page Memorandum of Law, the appellate court reaffirmed that DC Comics, which is owned by Warner Bros., holds the copyright to Superman, seemingly removing any further obstacles to the studio producing more Superman and Superboy films.

That is, unless, as Superman addicts everywhere know, the decision actually was rendered by the Bizarro-9th Circuit Court of Appeals.

UPDATE: Freelance Photog Wins $1.2m in Copyright Infringement Case

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A federal jury last Friday in the case of Agence France Presse et al. v. Morel (Case No. 10-cv-02730) awarded Haitian-born freelance photographer Daniel Morel $1.2 million damages in his copyright infringement suit against Agence France Presse and Getty Images, Mashable.com reported.

Morel had alleged that the defendants used without permission photos he had taken and posted on Twitter depicting devastation to his homeland after a 2010 earthquake. U.S. District Court Judge Alison Nathan last January granted, in part, a summary judgment motion in Morel's favor on his claim that Twitter's terms of service did not grant a license to the defendants to reproduce his images without his permission (see "TUOL" post 1/16/13).

Getty Images had distributed Morel's photos to numerous subscribers, including The Washington Post.

Malcolm X Heirs Sue to Halt Publication of Diary

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In X Legacy, LLC v. Third World Press (Case No. 1:13-cv-07984), a copyright infringement suit filed earlier this month, United States District Court for the Southern District of New York Judge Laura Taylor Swain has been asked to enjoin publication of the diaries of  Malcolm X by an Illinois-based publisher.

Diaries, photographs and other papers of Malcolm X, a Muslim minister and civil rights advocate who was 39 when he was assassinated in 1965, were donated by his heirs in 2003 to the Schomburg Center for Research of Black Culture, a division of the New York Public Library, according to the 10-page complaint. The complaint alleges copyright infringement in that Third World Press purportedly plans to publish all, or a portion of Malcolm X's diaries this month without his family's permission.

Complicating matters, according to a post by the JD Supra.com legal web site, is that one of Malcolm X's daughters is serving as editor of the project for Third World Press.  "TUOL" has not seen the loan agreement between the heirs and the Schomburg Center, but  donating materials in and of itself does not transfer copyright ownership.

The defendant has yet to articulate its position regarding why it believes it can publish and distribute the diaries without running afoul of Title 17 of the U.S. Code.

UPDATE: Google Library Triumphs; Judge Throws the Book at The Authors Guild

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Citing the "significant public benefits" Google Books' Library Project provides, United States District Court for the Southern District of New York Judge Denny Chin today ended an eight-year battle and dismissed the copyright infringement suit brought by The Authors Guild against Google, Inc.

The case, The Authors Guild et al. v. Google Inc. (Case No. 1:05-cv-08136) was brought by The Authors Guild and the Association of American Publishers in 2005, alleging the search engine colossus' ambitious project of uploading the collections of the Library of Congress, New York Public Library and several university libraries violated the Digital Millenium Copyright Act [Pub. Law 105-304]. Google, which already has scanned more than 20 million books, countered that their actions were protected by the fair use doctrine.

Judge Chin, while conceding Google had not obtained permission from copyright holders before scanning their works, noted the project's value to scholars, the increased access to readers and the enhanced revenue opportunities for authors and publishers as among the benefits Google Books provided that warranted fair use protection. The book scanning process, Judge Chin ruled, was transformational.

The epic struggle between the two sides has been chronicled in this blog (see "TUOL" posts 7/2/13, 11/16/12, 9/19/12 & 2/19/10) and most recently, included the United States Court of Appeals for the Second Circuit reversing the trial court last summer by holding the plaintiffs were not entitled to class action status.

According to accounts in the Wall St. Journal Law Blog and THR, Esq. blog, The Authors Guild plans to appeal Judge Chin's decision.

Don't Mess With the Lessig

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Lawrence Lessig, Harvard Law School Professor and champion of a less copyright-restricted Internet, last month joined forces with the Electronic Frontier Foundation to file suit in the United States District Court for the District of Massachusetts against a Melbourne, Australia-based record company that accused the professor of infringing on a copyrighted song by using it in a lecture presented on YouTube.

In his 11-page complaint, Lessig v. Liberation Music Party Ltd. (Case No. 1:13-cv-12028), the professor is seeking injunctive relief, damages and declaratory judgment from the Court under the Digital Millenium Copyright Act [17 U.S.C. sec. 512] that his use of a 2009 tune, Lisztomania, by French songsters Phoenix in the YouTube lecture was protected by the Copyright Act's Fair Use provision [17 U.S.C. sec. 107].

Under the Fair Use defense against infringement claims, the Court weighs factors, including the purpose and character of the use of the copyrighted material, whether the use was for commercial or nonprofit educational purposes, the nature of the copyrighted work, and the amount and substanitality of the portion used.

According to an account of the case in The Boston Globe, Liberation Music claims to hold the copyright on Lisztomania and sent correspondence to Lessig accusing him of violating its license. In turn, Lessig claims in his complaint that the Down Under record company is abusing the Copyright Act and abridging his First Amendment rights.

Smackdown Between Amazon & Copyright Troll?

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A California-based photo agency has sued Amazon-owned social network Goodreads for copyright infringement after a site group member allegedly posted a celebrity image without permission, the paidcontent.org Web site reported this week.

BWP, Inc. filed suit in Los Angeles seeking $150,000 under the damages provision of The Copyright Act [17 U.S.C. sec. 504(c)] after a young bookophile purportedly posted an image of hunky IM5 boy band member Dalton Rappatoni without authorization on a Goodreads group page. The group at issue seems to consist of four teen-aged girls who think Rappatoni is dreamy, so it's unclear how deep the pockets would be for the plaintiff to recover on its claim.

The paidcontent article raises the possibility that the lawsuit may be an example of "copyright trolling," a practice that Internet users and, increasingly, some judges, find offensive, in which copyright holders employ software to search the Internet for violations and sue bloggers and individuals with impunity to force short-money settlements. Troll companies often ally themselves with law firms for a contingency fee.

"TUOL" is not positioned to comment on the facts of this particular case, but would issue a caveat that any entity backed by a colossus such as Amazon is no pushover. Look for Goodreads to seek shelter behind the Digital Millenium Copyright Act ("DMCA") [17 U.S.C. sec. 1201 et seq.] that allows Internet Service Providers to escape liability by swiftly blocking access to infringing material posted by third parties upon receiving notice from the copyright holder.

UPDATE: 1st Circ. Lowers the Boom on Tune-Infringin' Tenenbaum

Perhaps it was illegal download overload after years of blogging about BU grad and former online music lover Joel Tenenbaum (see "TUOL" posts 5/21/12, 9/19/11, 7/9/10, 8/3/09 & 7/28/09), but we were remiss in not reporting a decision late last month by the United States Court of Appeals for the First Circuit in Sony BMG Music Entertainment et al. v. Joel Tenenbaum (Case No. 12-2146) upholding the recording companies plaintiffs' $675k judgment against the defendant for illegally downloading copyrighted songs on defunct KaZaA and other peer-to-peer music networks.

In a decision written by Judge Jeffrey Howard, the appellate court noted that the defendant over the years 1999 to 2007 downloaded and distributed copyrighted music across various peer-to-peer platforms without permission. The amount of the judgment, pursuant to the damages provision of the Copyright Act [17 U.S.C. sec. 504(c)] allows for an assessment of between $750 and $150,000 for each instance of infringement. Damages were assessed against Tenenbaum for 30 purported illegal downloads at $22,500 apiece, or 15 percent of the maximum penalty, to reach the $675k award.

Tenenbaum argued the damages award violated his due process rights and were out of whack, contending that a more reasonable sum would be $450, reached by estimating each of the 30 albums illegally downloaded costs $15. The First Circuit, however, said such a calculation ignores the actual damages suffered by the plaintiffs, the challenge of proving copyright infringement, and most important, the deterrent effect of Section 504. The opinion acknowledged that Congress specifically amended The Copyright Act [17 U.S.C. sec. 101 et seq.]  to prevent music piracy through statutory damages.

Judge Howard made no effort to conceal the appellate court's disdain for the defendant's conduct, noting how Tenenbaum allegedly continued to download songs despite warnings from family, BU and others, and pointing out how Tenenbaum did not own up to his actions during Discovery in the case, initially blaming burglars, and then a foster child living in his family's home, for the downloading activities. The court emphasized that Tenenbaum testified at trial to downloading as many as 5000 songs, not the mere 30 for which he was held liable.

The devoted staff of "TUOL" (which is listening to music as it prepares this post) believes there is a genuine legal question over whether the copyright infringement damages authorized by the statute are disproportinate in non-commercial downloading cases such as this one. Unfortunately, an unsympathetic defendant and a questionable trial strategy by his defense team resulted in an outcome that doesn't satisfactorily reach that question. A corollary of the old legal bromide, "bad cases make bad law," is that misconduct leads to missed opportunities for legal reform.

Perez Dispenser of Others' Work?: Photog Sues Hilton for Copyright Infringement

Perez Hilton is being sued in the United States District Court for the Central District of California by a freelance photographer who alleges the gossip blogger posted photos of Glee star Darren Criss on his Web site without the photographer's permission.

In the 22-page complaint including counts alleging copyright infringement [17 U.S.C. sec. 501 et seq.] and violation of the Digital Millenium Copyright Act [17 U.S.C. sec. 1201 et seq.], Robert Caplin v. Mario Aramando Lavandeira Jr. d/b/a Perez Hilton (Docket No. 13-cv-04638), the plaintiff accuses the defendant of using 14 copyrighted photos of Criss on PerezHilton.com shot by Caplin in December 2011, for a New York Times article that ran in January 2012, concerning Criss' Broadway debut.
                                                                                                    
As reported by the New York Observer, Caplin claims Hilton refused his request to remove the photos from Hilton's Web site, though the images purportedly have been removed since the lawsuit was filed. The complaint alleges that Caplin posted 32 photos he took of Criss on his Web site and that Hilton allegedly superimposed his own watermark on the allegedly appropriated images over Caplin's watermark.

The plaintiff is seeking $150,000 for each alleged infringed image for total damages of more than $2.1 million, pursuant to 17 U.S.C. sec. 504.

UPDATE: Fed Appeals Court Knocks Down Class Action Status in Epic Google/Authors Guild Struggle

In a unanimous five-page decision, the United States Court of Appeals for the Second Circuit Monday reversed a ruling affording class action status to the plaintiff in the eight-year-old litigation, The Authors Guild, Inc. et al. v. Google, Inc. (Docket No. 12-3200-cv), PaidContent.org. reported.

"We conclude that class certification was premature in the absence of a determination by the District Court of the merits of Google's 'fair use' defense," according to the appellate court ruling.  Could make for some awkward moments in Second Circuit Court cafeteria, as the United States District Court for the Southern District of New York judge being overruled here is Denny Chin, who now serves as a judge on the Second Circuit, though he continues to preside over the Authors Guild/Google case.

As reported here previously (see "TUOL" post 9/19/12), Google, Inc.'s master plan to create the planet's largest digital library--20 million plus books already have been scanned--was challenged in 2005 by The Authors Guild, a nonprofit industry group numbering some 8,500 members, as a purported copyright infringement under the Digital Millenium Copyright Act [Pub. Law 105-304]. Google has countered that neglected and difficult to find works will be more easily accessed and authors won't be harmed if its plan for world domination...er...a world library were realized.  Moreover, Google has relied on the defense against copyright infringement of fair use [17 U.S.C. sec. 107], a four-pronged test that looks at the purpose and character of the proposed use, the nature of the copyrighted work, the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole and the effect of the use on the potential market for or value of the copyrighted work to determine whether a copyright holder's consent is required before his or her material is used. 
                                                                          

                                                                                           
The appellate court panel sending back the case to their colleague Judge Chin and decertifying the class action status of the case is a positive development for Google that, among other things, means several fewer zeroes at the end of any verdict were The Authors Guild ultimately to prevail in the suit.  Google has questioned the class action status of the plaintiff throughout the case, arguing that it, in effect, caused authors who were not troubled by Google's digital scanning of books to sit in the same section as authors opposed to it.

Ludacris Litigation: Hip Hop Star Defends Against Copyright Infringement Rap

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New Zealand tv station Web site www.3news.com.nz and the World Wide Entertainment Network are reporting on a copyright smackdown involving two Illinois-bred rappers, Ludacris and MarVo.

The 35-year-old Champaign, Ill. native Ludacris (nee Christian Brian Bridges), who has thrived in the business, film (Fast & Furious series) and music worlds, is accused of appropriating the tune, Sex Room, by Chicago hip hop artist MarVo.  According to the Complaint, MarVo alleges he and producer Kajun worked on the ditty (not Diddy; that's Sean "Puff  Daddy" Combs) in 2009 before Kajun purportedly sold the track without MarVo's permission, to Ludacris who released Sex Room in 2010 as a duet with Trey Songz, That's the same year Ludacris released the singles My Chick Bad and How Low. (Media law and Funk are "TUOL"'s strong suits.)

MarVo is looking for damages from both Ludacris and Songz concerning Sex Room. The Complaint alleges the final release of the song features many of MarVo's original lyrics.

"TUOL" heard about this lawsuit by Word of Mouf (2001). Always like to start the day with a little ludicrous Ludacris humor.

Commercial Broadcasters Showdown in DC Federal Court to Stop Programming Re-Transmitter

Logo of Fox Television Stations (Photo credit: Wikipedia)

Same battle, different forum.

 Fox Televisions Stations, Inc., joined by 10 other plaintiffs, has sued Alki David's Aereokiller LLC and FilmOn.TV in the United States District Court for the District of Columbia to stop unlicensed online streaming of commercial television programming. The 23-page complaint, Fox Television Stations, Inc. et al v. Aerokiller, LLC et al (Case No. 1:13-cv-00758) alleges copyright infringement.

Similar to the battle waged against Aereo by broadcasters transmitting content over the public airwaves (see "TUOL" posts 5/17/13, 8/14/12), the plaintiffs have thus far fared better against David's five-year-old digital tv streaming companies. According to a post by The Hollywood Reporter's THR, Esq. Web site, a California federal court this year issued an injunction against Aerokiller, finding a likelihood that the company was infringing on broadcasters' copyrighted programming. Last month, however, broadcasters were dealt a setback by a federal appeals court ruling in New York that refused to halt Aereo from retransmitting programming over the Internet.

Eminem Music Licensor Sues Facebook for Copyright Infringement

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Social media behemoth Facebook and an Oregon ad agency have been sued for copyright infringement [17 U.S.C. sec. 101 et seq.] in the United States District Court for the Eastern District of Michigan by the company that licenses and manages the music of 40-year-old rapper/songwriter Eminem (Marshall Bruce Mathers III).

In the Complaint filed May 20, Eight Mile Style, LLC & Martin Affiliated LLC v. Wieden + Kennedy Inc. & Facebook, Inc. (Case No. 2:13-cv-12268-GAD-MAR), the plaintiffs allege the defendants used an unauthorized version of Eminem's song "Under the Influence" from his Marshall Mathers LP to promote Facebook Home, an Android-compatible smartphone software application enabling users to post Facebook content from their mobile devices that was introduced in April 2013. The Complaint alleges the defendant ad agency selected the music to win over Facebook mogul Mark Zuckerberg, purportedly a big fan of Eminem.

According to a post about the suit by Courthouse News Service, Eight Mile Style LLC has brought 10 copyright infringement suits dating back to 2010. In an article about the copyright suit, the THR, Esq. Web site reported that the defendant ad agency claimed hip-hop producer Dr. Dre, who often collaborates with Eminem, wrote "Under the Influence" by allegedly cannibalizing a Michael Jackson hit, "Give It to Me."

Judge Gershwin A. Drain will preside over the parties' discordant notes.

Digital TV Streamer Asks Court to Dismiss Broadcast Networks Copyright Suit

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In a 31-page motion for summary judgment, digital tv streaming service Aereo has asked United States District Court for the Southern District of New York Judge Alison Nathan to dismiss copyright infringement claims brought by commercial public broadcasters. 

In American Broadcasting Cos. et al v. Aereo (Case No. 1:12-cv-01540), Aereo, which is financially backed by media mogul Barry Diller (see "TUOL" post 8/14/12), argues the March 2012, copyright infringement suit brought by commercial broadcasters CBS, ABC, NBC and Fox should be dismissed following the networks' failure to persuade the United States Court of Appeals for the Second Circuit to overturn Judge Nathan's earlier ruling not to issue a permanent injunction against Aereo for allegedly violating the broadcasters' right to public performance of its programming by not securing a license from the networks.

Aereo, which digitally streams broadcasters' programming over the Internet one-on-one to subscribers' computers and Web-enabled devices, contends its transmission to individuals' miniature antennae is nonpublic and in any case, protected by the fair use defense to copyright infringement, as reported by BloombergBusinessWeek(www.businessweek.com) and the Hollywood Reporter's legal blog THR, Esq. The networks counter that Aereo capturing their over-the-air signals and transmitting its programming constitutes a public performance that infringes on their copyrights.

9th Circuit Concludes Righthaven Isn't Right: No Standing to Press Copyright Claims

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In its 15-page opinion in Righthaven LLC v. Hoehn (Case No. 11-16751), the United States Court of Appeals for the Ninth Circuit last week affirmed a district court ruling that a litigious copyright holding company lacked the substantive exclusive right of ownership to pursue infringement claims against various online sites.

The eloquent decision written by Justice Richard Clifton began: "Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so...Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln's wisdom, and the requirements of the Copyright Act, we conclude that merely callling someone a copyright owner does not make it so." 

Righthaven LLC, founded in 2010 and derided by First Amendment advocates as a copyright troll, has fallen on hard times, selling its domain name at auction in 2012 to help satisfy its debts. Its brief meteoric ascension came from partnering with newspapers to pursue infringement claims against online sites that reproduced content from the dailies without permission.

At issue in the case was an inarticulately drafted assignment agreement between Righthaven and  the actual copyright holder purportedly giving to Righthaven the rights "requisite to have Righthaven recognized as the copyright owner of the [articles] for purposes of Righthaven being able to claim ownership as well as the right to seek redress for past, present and future infringements of the copyright...in and to the [articles]."

But the Ninth Circuit decision said Righthaven lacked standing to pursue copyright infringement suits and cited a separate agreement between the actual copyright holder and Righthaven that imposed restrictions on what the company could do regarding the assigned copyright, thereby derailing the exclusive right of ownership mandated by the Copyright Act to allow a party to pursue infringement claims.

Judge Clifton's decision awarded costs to the defendant against Righthaven.

UPDATE: Opera-Singing Dentist Flounders in Copyright Aria

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In his pun-filled, 10-page decision in Lee v. Makhnevich (Case No. 1:11-cv-08665, 2013 WL1234829 (March 27, 2013)), United States District Court for the Southern District of New York Judge Paul Crotty recently denied defendant dentist Stacy Makhnevich's motion to dismiss a potential class action suit challenging a Mutual Agreement to Maintain Privacy ("MAMP") form she forced patients to sign as a precondition to treatment that barred online criticism of her work.

As previously reported here (see "TUOL" post 2/2/11), consumer advocacy group Public Citizen filed suit in 2011 on behalf of Huntingtown, Maryland's Robert Lee and his confederates (sorry) claiming patients were entitled to post negative reviews on Web sites such as Yelp! and DoctorBase, as Lee did, pursuant to the fair use exception under the Copyright Law [17 U.S.C. sec. 107].

Dr. Makhnevich, whose Web site notes her skills as a dentist and opera singer, treated Lee in 2010, draining and filling a tooth that caused him discomfort. She insisted that he sign the MAMP form contract sold by North Carolina-based Medical Justice, which required patients to waive public comment about dental services and assigned to the dentist the copyright of any online comments. Lee defied the agreement and criticized the defendant's office over the amount of the bill and for allegedly not submitting reimbursement forms to his insurance carrier.

Attorneys for the dentist threatened to sue Lee for $100k for defamation, breach of contract and copyright infringement, subsequently sending him invoices assessing copyright infringement damages of $100 a day. Public Citizen not only attacked MAMP as violative of patients' First Amendment rights and the fair use exception, but questioned the validity of the contract overall, claiming the dentist's promise not to sell its patients' names to marketers in exchange for the patients' promise not to post online comments was illusory because dentists already are barred from selling patients' names to marketers without the patients' consent under HIPAA (Health Insurance Portability & Accountability Act).

Judge Crotty did not hide his disdain for defense counsel's argument that the suit should be dismissed because it stated no legal claim because no actual controversy existed. "Defendants created the controversy with Lee by attempting to enforce the agreement, which they extracted as a condition for getting dental treatment," Judge Crotty wrote. "[U]nder the totality of circumstances, the controversy is sufficiently 'real' and 'immediate.' Defendants cannot pretend now that their notices to Lee were 'just kidding,' or that Lee lacked any reasonably apprehension of liability."

Judge Crotty further anesthesized Dr. Makhnevich's position, writing: "This lawsuit about a toothache and a dentist's attempt to insulate herself from criticism by patients has turned into a headache. After appealing to his dentist for pain relief, Plaintiff Robert Allen Lee, ironically, is appealing to the court for relief from his dentist."

Soon after Public Citizen filed suit, Medical Justice stopped using the MAMP at issue, according to the  Forbes article.  To its credit, Yelp resisted defendant's demand that Lee's negative comments be taken down. The denial of the motion to dismiss is not dispositive of the outcome of the case, but based on Judge Crotty's acid-laced remarks, defense counsel may need a shot of Novocaine to get through this case.

Timelines Trademark Suit Marches On Toward Trial

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Trial is slated for April 22 in Timelines, Inc. v. Facebook, Inc. (Case No. 11-cv-06867) as United States District Court for the Northern District of Illinois (Eastern Division) Judge John W. Darrah this week denied Facebook's summary judgment motion in the trademark and copyright infringement suit.

According to reports by Bloomberg News and PCWorld.com, Judge Darrah wrote: "At this stage in the proceedings, it is not unreasonable to conclude that as to this group of users, 'timeline(s)' had acquired a specific meaning associated with Plaintiff."

The six-year-old Chicago-based Timelines, Inc. unveiled Timelines.com in 2009 and registered trademarks Timelines.com and Timelines for its site that enables users to organize sporting events, historical occurrences and scientific advances, among other events, chronologically. The plaintiff sued Facebook in 2011 after the Menlo Park, Calif.-based social network created a profile redesign dubbed Timeline that chronologically organizes users' personal history.

Facebook filed a summary judgment motion, offering a fair use defense to the infringement claims and contending that the plaintiff's registered marks were generic and not descriptive enough to warrant federal protection. Judge Darrah noted that the plaintiff had more than 1,000 users and had invested millions of dollars in its Web site in ruling that Facebook "has failed to demonstrate, as a matter of law, that the marks are generic."

Digital Music Re-seller Liable for Copyright Infringement, Federal Court Rules

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Sound quality, durability and portability are among advantages digital music listeners boast about to vinyl record lovers. A New York federal judge's summary judgment ruling last week held that although phonographophiles may unload their LPs at yard sales, a company that served as an online marketplace for used digital music infringed on the copyright of a record company.

United States District Court for the Southern District of New York Judge Richard Sullivan's 19-page decision in Capitol Records LLC v. ReDigi, Inc. (Case No. 12-civ.-95(RJS)) rejected the defendant's fair use and first sale doctrine defenses to the plaintiff's copyright infringement claim and said the defendant also is responsible for secondary copyright infringement.

As reported by the Arstechnica.com blog, Judge Sullivan said using the Internet to transfer digital music files without the copyright holder's permission is a reproduction under federal copyright law. The so-called first sale doctrine [17 U.S.C. sec. 109(a)] protects "lawfully made" copies, but Judge Sullivan said the doctrine applies only to sales "by the owner of a particular copy...of that copy." In contrast to the copyright owner who places an existing material item, such as a phonograph record, into the stream of commerce, the defendant, according to the court, is merely distributing reproductions of copyrighted code implanted into new material items in users' hard drives and the defendant's server. The digital file transfer necessarily involves making a copy of an original file.

UPDATE: Jury Likely to Hear Kung Fu Panda Kopyright Klaim

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In his 19-page Memorandum of Decision in Gordon v. DreamWorks SKG, Inc. et al (Case No. 1:11-10255-JLT), U.S. District Court for the District of Massachusetts Judge Joseph L. Tauro denied the defendants' summary judgment motion to dismiss a copyright infringement suit filed by a Boston illustrator, Massachusetts Lawyers Weekly newspaper reported today.

Artist Jayme Gordon sued the Glendale, Calif.-based studio behind the 2008 animated blockbuster Kung Fu Panda, alleging he had registered Kung Fu Panda Power illustrations with the U.S. Copyright Office eight years earlier (see "TUOL" post 2/18/11). His 28-page complaint included counts alleging copyright infringement, vicarious copyright infringement and contributory copyright infringement.

Judge Tauro said a jury "must decide whether DreamWorks subsequently independently developed the film or whether Gordon's submissions influenced the process." Gordon claimed he submitted his work to DreamWorks before the film was produced. Also weighing against summary judgment, Judge Tauro found, was a question of fact regarding whether DreamWorks had access to Gordon's work before it green-lighted Kung Fu Panda.

UPDATE: Federal Judge: Electronic Clipping Service Infringed on AP Copyright

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In The Associated Press v. Meltwater U.S. Holdings, Inc. (Case No. 12-cv-1087), United States District Court for the Southern District of New York Judge Denise Cote this week granted AP summary judgment, holding that the defendant news aggregator infringed on the wire service's copyrighted material without paying licensing fees.

AP last year filed suit against SanFrancisco-based Meltwater, a subscriber-only electronic clipping service whose corporate clients track reporting about themselves and their industries, alleging copyright infringement and hot news misappropriation. (See "TUOL" post 2/16/12.) According to a Reuters wire service story, Judge Cote ruled for AP and denied Meltwater's summary judgment motion, with one exception, in her decision, which has not yet been released to the public.