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.

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

“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.

FCC Tweets Baseball Updates To Avoid Blackouts

Those disclaimers spoken on Major League Baseball broadcasts, you know:

“Any rebroadcast, retransmission, or account of this game, without the express written consent of Major League Baseball, is prohibited,”

Well, after Fox and Cablevision couldn’t agree and blackouts during the playoffs ensued, the FCC stepped in with Twitter updates of the games in progress. Its not particularly interesting that someone would tweet about baseball games. I’ve checked the #twins hashtag on Twitter during a Twins just to see what other people think of the game. That the FCC would do it, more interesting. I’m fairly certain that MLB won’t sue the FCC, partly because facts, such as what’s the score aren’t copyrightable (not withstanding the “account of this game” language).

H/T to Consumerist

Digital Locks Loosening?

The Librarian of Congress has recommended new exemptions from the prohibition on circumventing digital copy protections including one exemption for “jailbreaking” phones so that you can install your own software.

Another sign that perhaps section 1201 might not be as broadly applied going forward is this recent decision from the Fifth Circuit. That case involved the use of software that controlled uninterruped power supply devices. GE and PMI were accused of copyright infringement and circumvention because they had accessed and used the software which had an already circumvented or compromised dongle. The Fifth Circuit held that GE/PMI’s activities were not otherwise infringing and thus the circumvention was not actionable under section 1201. This seems to be a somewhat different position than that taken in the DeCSS case.

I’m not sure if this is really part of a trend, but it is encouraging for anyone who believed otherwise non-infringing activities should not give rise to a copyright lawsuit merely because a digital lock was circumvented. Section 1201 has been used unsuccessfully in the past to try to prevent competition in the markets for garage door openers and printer ink cartridges.

Copyright Law and Ownership of Software

I have a new podcast over at Tech{dot}MN. I interviewed Ray Bonnabeau of Hellmuth & Johnson about what software companies need to think about to make sure they truly own the software code the are using and creating. Ray is a really smart guy and the topic is something that is overlooked so frequently by new companies. Copyright law assumes ownership by the author, so the code you hired an independent contractor to create may not be yours.

Have a listen to “Copyright and Ownership of Software: Where Did We Get This Code Anyway?”

Summary of Costco v. Omega in MIPLA Newsletter

A short article I wrote summarizing the Costco v. Omega case was published in the Minnesota Intellectual Property Law Association’s New Matterâ„¢ Newsletter.

The case is about the “first sale” doctrine in copyright law and specifically, whether goods manufactured and sold abroad can be imported into the United States without the permission of the copyright holder. The Supreme Court has agreed to hear the case and it should have interesting implications for retailers, distributors and copyright owners.

MIPLA New Matter June 2010

Why I Volunteered for the EFF

A group called the U.S. Copyright Group (USCG) has filed a lawsuit against thousands of as yet unknown people who may (or may not) have downloaded or uploaded movies on file sharing networks. The strategy, which has been employed by others in the past, is to file or threaten to file a lawsuit and then offer to settle for a few thousand. Defending a copyright lawsuit will almost certainly cost much more so the offer is tempting. Plus, copyright law allows statutory damages of up to $150,000 per work, so the potential risk can be severe.

One problem with employing this strategy on the scale that the USCG is doing is that it will almost certainly result in a large number wrongly identified people who feel compelled to pay up because its cheaper than fighting. It undermines rights to privacy and anonymity. Furthermore, it doesn’t get to the real issue of how to compensate artists for their work. Lawsuits can’t possibly be a realistic long-term business model.

As far as I know, the USCG only has a large list of suspect IP addresses and is currently attempting to obtain the identities of people so they can give them the pay up or go to court offer. The Electronic Frontier Foundation has created a resource for people who are faced with responding to a subpoena and would like advice with responding. I have volunteered to work with people in Minnesota who are faced with this situation. There are other attorneys in other states who have volunteered as well.

The EFF Subpoena Defense Attorney List
The EFF’s press release about the case.