TCYK v. Does 1-17 – ISP Subpoenas OKed by Court

This case is one of the few “John Doe” copyright cases filed in Minnesota recently. In an order dated August 14, 2013, Magistrate Judge Keyes allowed subpoenas to be served on various internet service providers.

This case is one of many nationwide that use so called “swarm joinder” to allege that anyone who downloaded the same file using bittorrent acted in concert. This is presumably to allow plaintiffs in these cases to file only one case and there is rarely any allegation that the defendants actually knew each other. To my knowledge, courts in Minnesota have not addressed the issue as to whether “swarm joinder” is appropriate, but other courts have increasingly been rejecting joinder based only on common file being downloaded.

TCYK v. Does – Order granting leave

If you receive a notice from your ISP, I would be glad to work with you and help you understand what options you might have for responding.

Copyright “negligence” in Minnesota

The phenomenon of filing copyright lawsuits against anonymous “John Doe” internet users has been going on for several years now. While very few of these type of cases have been filed in Minnesota, there seem to have been about a dozen or so cases filed in the past couple of months. There are several different cases titled AF Holdings v. Doe and several more titled Quad Int’l v. Doe. All presumably with different unidentified defendants.

These cases all seem to allege that someone infringed the Plaintiff’s copyright in a movie by sharing it on BitTorrent. Whether or not they can identify the true infringer will be a problem as all that is known is an IP address and a time of alleged infringement. At best, this might lead back to a particular connection point, but not always to a specific user.

Perhaps because of this problem in identification, these cases also allege a claim of negligence. The “negligence” here is that by leaving a connection to the Internet available to others, the owner of the ISP account should be responsible for any infringement that occurred. This is absolute nonsense. And to the best of my knowledge, it is a claim that has never been recognized in court. The supposed “negligence” claim because it is essentially a reworked copyright claim, is preempted by the Copyright Act.

The courts that have addressed this issue of “negligence” have shot down the claim as well.
Here are two stories about claim being dismissed by a court in New York and another in California.

It may be that if they find the right person, these plaintiffs would have themselves a copyright case. However, by filing these negligence claims, they are merely hoping to extract a settlement from whoever they find, whether or not that person did anything wrong.

Free Speech Victory in Minnesota

On August 20, the Minnesota Court of Appeals overturned the district court verdict in Moore v. Hoff. This was a strange case but ultimately the question turned on whether the First Amendment protects true statements that cause someone to be fired. We won at trial on the issue of defamation, but the jury returned a verdict that essentially said that what Mr. Hoff wrote on his blog was true, but it interfered with Jerry Moore’s employment contract.

Tortious interference is the tort that involves interfering with someone else’s contract. But to be “tortious,” it the interference has to be wrongful. We successfully argued that no matter what the result, telling the truth about a public figure is protected speech and therefore it can’t be “tortious.” The Court of Appeals agreed with us that the jury’s tortious verdict violated existing tortious interference case law and the First Amendment.

This was a big first for me in several respects. It was my first jury trial, my first appeal, and my first case that attracted any media attention. Most trademark, copyright, or business matters don’t attract attention and don’t go to trial. I also took the case just a few weeks before trial. The appeal would not have been successful without the support and help of others, especially my co-counsel Mark Anfinson and counsel for the amicus parties, John Borger. Both of them had substantially more First Amendment experience and I needed every bit of help I could get.

The opinion is here.
The post that started it all is still online at The Adventures of Johnny Northside.

UPDATE: The case now has a reporter number and can be cited as Moore v. Hoff, 821 N.W.2d 591 (Minn. Ct. App. 2012).

Trademarks, the Psychology of Commercial Symbols

Justice Frankfurter in Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203 (1942) makes the case for protecting your trademark:

“The protection of trade-marks is the law’s recognition of the psychological function of symbols. . . . Whatever the means employed, the aim is the same – to convey through the mark, in the minds of potential customers, the desireablity of the commodity upon which it appears.  Once this is attained, the trademark owner has something of value.”

IP Addresses Are Not People

This is probably not news to anyone. But it has been a significant issue in copyright litigation lately. A judge in the of the Northern District of Illinois dismissed a suit filed by the Steele Law Firm on the grounds that it hadn’t identified any individuals as defendants and hadn’t served anyone either. A list of IP addresses would not suffice. Much of the fury over the copyright troll litigation has been that the plaintiffs have a list of IP addresses and nothing more. They then subpoena ISP’s who disclose the name of the subscriber who was assigned the IP address. Plaintiff’s then contact that subscriber demanding money.

This leads to a number of problems, not least of which is that the person who’s name appears on the ISP billing statements is often not the person who did any infringing activities. The infringer, if there is one, might not be in the household or even known to the person being identified. There is often a great deal of pressure to settle however, even if the person identified by the IP address is totally blameless.

Story on Techdirt with Judge Baker’s Opinion

FTC Moves Towards “Do Not Track” List

The FTC recently testified before Congress that there should be a function in browsers to allow a “Do Not Track” option. I am a bit cynical about how effective this might be considering I get robo-calls offering to lower my interest despite the “Do Not Call” list and I still get spam despite CAN-SPAM and other legislation. But as always, details matter. Is this going to work or cripple the free ad-supported Internet we have grown to love and loathe? I offer for your consideration a links:

FTC’s Statement
CNN’s “Do Not Track Would Cripple Web Giants”
Statement from the EFF
How Would Do Not Track Work?

“Tweakers” and “Pioneers” in innovation

I came across this post in the Freakonomics blog about how we value “pioneers” or people who make something entirely new and the “tweakers” who take existing works and improve them. Its a good article about an interesting problem because both “pioneers” and “tweakers” make art and technology better, but in different ways.

Fair Use – Priority Marketing Blog

I missed this when it was originally published. I spoke to the IABC a couple of weeks ago about internet law for marketing and public relations professionals. In attendance was Jen Carlton of Priority Marketing who blogged about the copyright and fair use portion of my talk. Thank you Jen!

I’m not surprised that the group found fair use to be interesting because its one of the more frequently contested and misunderstood areas of copyright law. You can read Jen’s post for a bit of fair use law and I’ll probably be blogging about it again soon.

“Is a trademark lawsuit worth it?”

Trademarks are fickle things. You only have them so long as people know and associate you (and only you) with that trademark. Whether or not you have a registration, your rights exist only exist if that trademark continues to distinguish you from everyone else.

So, if you have found a potential infringer do you have to sue or can you let it slide? The tough answer is that you have to stop them, and here’s why:

If you and your competitor are selling the same or similar goods or services, how will consumers know which is which? Even if your product isn’t exactly the same, consumers might think that you could have expanded your offerings into that area if its not too far off. If someone out there now sells products related to your own with the same name, you have to try to stop them if you want to keep your trademark distinctive.

If the other trademark is a little different, but still sounds the same, means the same, or looks the same as your own trademark and its used on the same product you have to stop them as well. Consider differently spelled trademarks that sound the same. If a customer is telling a friend about your great product, will they be able to hear the difference between “BISCOH Brand Product” and “BIZCO Brand Product,” or “BOSCO Brand Product?” Probably not. The longer those sound a like products are on the market, the less consumers can be expected to consider one the original and the other the knockoff.

Courts have also developed a doctrine called “laches.” That is basically a doctrine considering the fairness of bringing a lawsuit years after you knew or should have known about a legal problem. If you allow your competitor to continue building their market, investing time and money in their own infringing trademark and could have stopped them before they invested all that money, courts aren’t as willing to enforce those trademarks. There is no absolute cutoff point for laches to take effect, but as years go by, the chances you will be able to win your trademark lawsuit get slimmer and slimmer.

A registered trademark gives you a tool to keep competitors at bay, but it wont do it for you. Policing your trademark and occasionally bringing a lawsuit is the only way you can actually keep your trademark. No one is going to stop a competitor from infringing your marks if you don’t. The longer you wait, the less likely it is that you will be able to stop them.

“A republic, if you can keep it.”

So said Ben Franklin when asked what kind of government we had after the Constitutional Convention. Do your part in keeping it. Vote.