Fair Use

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Pete Bouchard and the Battle Against Bogus Takedowns

I'm not one for local news broadcasts. When I do watch, it's to enjoy the unintentional humor brilliantly parodied by those like the Onion News Network.

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EMI/Vimeo Lawsuit Leaves Lip-Dubbers Speechless

A group of friends gathered after work a few years ago to record what may be now the most popular performance of Harvey Danger's "Flagpole Sitta." In a video that has since been viewed more than 2 million times on Vimeo, the 30 or so friends took turns lip-syncing, dancing and then ultimately falling to the floor as a group at the son

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Szukalski v. Frey

Date: 

01/09/2010

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Patrick Frey

Type of Party: 

Individual

Type of Party: 

Individual

Legal Counsel: 

Pro Se

Publication Medium: 

Blog

Status: 

Pending

Description: 

Ted Szukalski, an Australian photographer, sent blogger Patrick Frey of Patterico's Pontifications what purported to be a DMCA takedown notice on January 9, 2010.  The takedown notice complained about Frey's blog post that reproduced and commented on a photoshopped image showing President Obama shining Sarah Palin's shoes. 

The image in question is a photshopped version of Szukalski's photograph of a homeless man shining the shoes of a seated woman (see the non-modified version titled Shoeshine - homeless and a woman client MG_6348-27).  The modified version does away with Szukalski's copyright notice and replaces the heads of the shoe shiner and woman with those of President Obama and Sarah Palin, respectively.

The photoshopped image caused a small stir in early January 2010 when a Colorado Department of Transportation worker faced discipline for forwarding the image.  Frey's post took issue with another blogger's description of the incident as an "ugly little upwelling of racism from the right wing base," pointing out that the woman who forwarded the email was a registered Democrat.

Frey responded in an email refusing to take down the image and asserting that his use of the photograph for political commentary was a classic example of fair use.  As of the date of this writing, Szukalski had taken no further action. 

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Commentary on Obama/Palin Image Generates Questionable DMCA Takedown Notice

Last Friday, political commenter and blogger Patrick Frey of Patterico's Pontifications found a chilly email waiting in his inbox.

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One of the Classic Blunders: Microsoft’s De-Listing Campaign Makes No Sense

Before the Thanksgiving holiday, Microsoft held talks with News Corp. in an attempt to convince the titan of information to de-list its content from Google.

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Fox News DMCA-Bombs News1News on YouTube

Like many former newspaper employees, I hate the 24-hour "news" networks.  Be it Fox News, MSNBC, or CNN, I think they're just across-the-board awful.  The only time I'll pay any attention to them is in the midst of some event that demands real-time attention, say a presidential election or a terrorist attack (and even then, I may just switch to BBC coverage instead).  Other than in those situations, the news channels are just echo chambers for the dreck spewed by your Becks, O'Rei

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A New Leistungsschutzrecht? Say It's Nicht So!

It's tough being a publisher these days.  Of course, no one is having much fun in the current economic downturn, but publishers were up against it even before the slowdown.  Circulations have been down across the board for years now, which in turn has slashed the advertising revenues that print publications have always relied upon to survive.  It's just a bad time to be publishing newspapers and magazines, at least while using the classical publishing business model.

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Platinum Equity v. San Diego Reader

Date: 

06/26/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

San Diego Reader; Jim Holman; Matt Potter; Don Bauder

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Publication Medium: 

Print
Website

Relevant Documents: 

Status: 

Pending

Description: 

Platinum Equity, LLC, the parent company of the Union-Tribune newspaper, sent a letter to the San Diego Reader, another local newspaper with a website edition, cautioning them against publishing a story on two lawsuits charging Platinum with workplace sexual harassment.

In June 2009, when a CNBC report publicized the two lawsuits, the Reader asked Platinum’s public relations executive, Mark Barnhill, for a comment. Platinum responded with a six-page letter sent to the editor and publisher of the Reader and two of its reporters, warning them that Platinum would file a defamation suit if the newspaper published a story suggesting that Platinum engaged in wrongdoing as alleged in the lawsuits. 

Platinum's lawyers also marked the letter "Confidential Legal Notice" and threatened legal action for "breach of such confidence and a violation of the Copyright Act" if the Reader published the letter in whole or in part. 

The Reader published no in-depth coverage of the two lawsuits, but mentioned the lawsuit in two articles. In one, the Reader commented specifically on Platinum's threat letter and its assertion of confidentiality and copyright.  The article included a copy of the letter for download

As of the time of writing, neither Platinum nor its lawyers have pursued any legal claims against the newspaper or individuals involved.

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CMLP Notes: 

Stylianou, Oct/09

Priority: 

1-High

Miami Herald v. Bill Cooke d.b.a. Random Pixels

Date: 

08/20/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Random Pixels Blog, Bill Cooke (owner)

Type of Party: 

Media Company

Type of Party: 

Individual

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On August 20, 2009, counsel for the Miami Herald sent a cease and desist letter to Bill Cooke, the blogger behind Random Pixels, accusing him of copyright infringement.  The Herald alleged that Random Pixels was reproducing entire articles and large size pictures from the newspaper on the blog. The cease and desist letter requested that Cooke remove any full-length articles, and limit all photo reproductions to smaller thumbnail sizes.

The blogger responded to the Herald's claims by asserting that the articles he copied are about 20 years old and hence "historic artifacts." He also noted that the pictures he used have been reduced substantially from their original size, although not to a thumbnail size.  Cooke has so far refused to comply with the Herald's demands.

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CMLP Notes: 

Stylianou, Oct/09

Priority: 

1-High

Polo Ralph Lauren v. Boing Boing

Date: 

10/02/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Boing Boing; Priority Colo; Photoshop Disasters; Blogger

Type of Party: 

Large Organization

Type of Party: 

Organization
Intermediary

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

In October 2009, Ralph Lauren sent a DMCA takedown notice to Boing Boing's webhost, Priority Colo, alleging that Boing Boing's posting of a Ralph Lauren advertisement violated its copyright. The Ralph Lauren advertisement featured a photograph of an improbably skinny model that appeared to have been photoshopped, and Xeni Jardin's post on Boing Boing reproduced the advertisement with a critical caption: "Dude, her head's bigger than her pelvis." Priority Colo and Boing Boing refused to remove the post, citing fair use.

The advertisement originally came to Jardin's attention via another blog, Photoshop Disasters. Photoshop Disasters published the advertisement with its own critical caption: "Make her head bigger than her pelvis! Do it!" Ralph Lauren also sent a DMCA takedown notice to Blogger, Photoshop Disasters' blog host, which removed the image.  (The original post is still available through Google's cache.)  It is not clear whether Photoshop Disasters submitted a counter-notification and whether the post will be restored.

After a great deal of media attention stemming from the takedown notices, Ralph Lauren acknowledged responsibility for photoshopping the image in a statement saying, "[f]or over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body."

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CMLP Notes: 

-mw reviewing 10/12

Priority: 

1-High

RSA v. Scott Jarkoff

Date: 

07/19/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Scott Jarkoff

Type of Party: 

Organization
Government

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

After Jarkoff posted an entry about the security risks he sees with the login mechanism of the Navy Federal Credit Union (NFCU) website on his blog, TechMiso, he received an e-mail from the RSA Anti Fraud Command Centre.  RSA Security Inc. is  an encryption and network security company, and the RSA Anti Fraud Command Centre helps the NFCU with online fraud prevention.

The RSA email claimed that Jarkoff's post infringed on NFCU's copyright and trademark rights, and it expressed concern that Jarkoff's site could become a host of phishing attacks against NFCU's clients. The email then proceeded to ask for various kinds of information from Jarkoff, including the tar/zip file of the site's source code. After Jarkoff replied to the email, clarifying the purpose of his post and maintaining that there was no fraudulent activity involved, RSA replied that Jarkoff's post may confuse NFCU's customers and stating that NFCU had asked RSA to take down Jarkoff's blog.

A month later, Jarkoff received an email from Rackspace, his web host, regarding a trademark infringement complaint it received from RSA. Jarkoff replied to the email from Rackspace, explaining that there was no trademark infringement. Soon afterwards, Jarkoff received another email from Rackspace letting him know that RSA had requested that Rackspace disregard the shut down request.

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CMLP Notes: 

EK editing (10/07/2009)

Priority: 

1-High

Think Twice Before You Dust Off Those Mix Tapes

Digital technologies have allowed people to share music in unprecedented ways, and earlier this week recording artists, music industry leaders, and policymakers gathered at George Washington University in Washington, D.C. for the Future of Music Policy Summit sponsored by the Future of Music Coalition to talk about their impact on the music community.

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Przydzial v. Alkhateeb

Date: 

08/01/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Firas Alkhateeb

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Disposition: 

Material Removed

Description: 

In August 2009, photo-sharing site Flickr removed an image from Firas Alkhateeb's photostream in response to a DMCA takedown notice.  The image was a photograph of President Barack Obama from the cover of Time Magazine modified to look like Heath Ledger's Joker from The Dark Knight.  The image gained some notoriety when someone else used it to make a poster captioned "socialism." 

At first, it was unclear who sent the DMCA takedown notice because DC Comics and Time publicly stated that they had not done so.  Some investigation by Thomas Hawk, chief executive of Flickr rival Zoomr, revealed that someone named Edward Przydzial sent the DMCA takedown notice and claims to be the originator of the Obama/Joker image.  

It is not clear whether AlKhateeb has filed a DMCA counter-notification. 

After the debate sparked by Flickr's removal of the image, the company revised its policy for handling DMCA takedowns.  According to ZDNet

"Upon receipt of a complete NOI [notice of infringement], the US
Copyright Team will replace the image with a new static image that
bears the following copy: 'This image has been removed due to a claim
of copyright infringement,'" said Heather Champ, Flickr's director of
community, in a comment. 

According to Flickr, under the change in policy the discussion under the photo is preserved and it should be easier to reinstate a photo after a counter-notification is filed.

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Priority: 

1-High

Lego® My Video: "Clearance Culture" Becomes a Parody of Itself

Much has been written on the proliferation of the so-called "clearance culture" and the threat that overly aggressive intellectual property enforcement poses

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Yes We Cannabis: Another Obama Photo Sparks Fair Use Controversy

Is it fair use to recast an iconic photograph of President Obama to send a political message?  You've got to hand it to the National Organization for the Reform of Marijuana Laws (NORML) for adding a humorous dimension to this now-familiar question:

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Sedgwick Claims Management Services v. Delsman

Date: 

04/03/2009

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Robert A. Delsman

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California

Case Number: 

09-cv-1468

Legal Counsel: 

Pro Se (trial court); Paul Alan Levy - Public Citizen Litigation Group (appeal)

Publication Medium: 

Blog
Print
Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (total)

Description: 

Sedgwick, a company that provides insurance claims management services, sued Robert Delsman, a former employee of one of Sedgwick's clients, for copyright infringement, defamation, and other torts, after he created gripe sites, blogs, videos and print materials criticizing the company. Delsman's beef with the company started after he filed a claim for disability benefits in 2006.  According to the complaint, Delsman was unhappy with the way in which Sedgwick handled his claims, and began a campaign of harassment which allegedly included:

  • Hosting pictures of Sedgwick's CEO and COO on his website and blog, which "morph[ed] . . . into images of Adolph Hitler and Heinrich Himmler," and posting a similar video to YouTube
  • Referring to Sedgwick and its employees as "Sedgthugs"
  • Unjustly accusing Sedgwick of engaging in criminal behavior on his website and in emails
  • "Operation Going Postcard," in which Delsman sent postcards to Sedgwick offices, employees, customers and outside insurance agencies in multiple states.  These postcards allegedly contained copyrighted images of Sedgwick's CEO and COO and an image of a human skull containing Sedgwick's trademark in the eye sockets, along with "defamatory, false and libelous statements against Sedgwick.

(Compl. ¶¶ 12-13.)  Sedgwick sought damages, fees, and an injunction preventing Delsman from sending offensive emails or postcards and further defaming or libeling Sedgwick, and requiring him to remove all of Sedgwick's copyrighted material from his website and blog and to destroy all Sedgwick's copyrighted material in his possession.

Delsman, who is representing himself pro se, has filed a motion for summary judgment.  The court has yet to rule on his motion.

UPDATE:

07/17/2009- The court construed Delsman's motion for summary judgment as a motion to dismiss and granted the motion.  The court held that the copyright claim failed because Delsman's use of Sedgwick photographs was fair use.  The court dismissed the remaining claims under California's anti-SLAPP statute.

12/16/2009- Sedgwick filed its opening brief on appeal.

01/29/2010 - Delsman filed its response brief.

03/01/2010 - Sedgwick filed its reply brief.

03/21/2011 - In an unpublished, two-page opinion, the Ninth Circuit Court of Appeals affirmed the district court's ruling.

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CMLP Notes: 

Updated with Ninth Circuit ruling, sent to us by Delsman - AAB 4/1/11

 

Priority: 

1-High

The AP of Oz: Associated Press Prohibits Reporters from Peeking Behind its False DRM Curtain

Last Friday, the Associated Press briefly became the Great and Powerful Wizard of Oz. It announced, in a booming press release, an “initiative to protect news content from unauthorized use online.” To accomplish this feat, the AP will use an informational “wrapper” embedded in its product.

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