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.

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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).

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“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.”

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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

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

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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.

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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.

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“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

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