In October 2006, Ampersand Publishing LLC, the company that owns the Santa Barbara News-Press, filed a lawsuit against Santa Barabara Independent, Inc., publisher of the Santa Barbara Independent, another local newspaper. The case arose out of Independent editor Nick Welsh's posting of a draft News-Press article in connection with a post on his "Angry Poodle" blog on the Independent's website. The facts are a bit complicated.

Welsh's post appeared on July 14, 2006, during the turmoil following the resignation of several of the News-Press's top editors and a leading columnist because of conflicts between the newspaper staff and Wendy McCaw, the local billionaire who controls Ampersand and essentially owns the News-Press. On July 6, 2006, News-Press reporter Scott Hadley wrote an article about the resignations, but the News-Press chose not to publish it, and instead published a "note to readers" written by McCaw, which discussed the resignations and the departing staff members' supposed motivations for leaving. Apparently in response to this decision, Scott Hadley also resigned from the News-Press. (Since then, over fifty more employees have either quit or been fired. The whole crazy drama is chronicled in the documentary film, Citizen McCaw.)

Welsh's July 14 post reported on Hadley's resignation and criticized the News-Press for publishing McCaw's "note to readers" instead of Hadley's article. Crucially, Welsh included a hyperlink in the blog post to a copy of Hadley's draft article, which an unknown person had sent to the Independent's office the day before. (The link in Welsh's post led to a scanned PDF of the article hosted on the Independent's site). Welsh and the Independent contend that Welsh posted the draft in order to expose and comment upon what he saw as the censorship of an unflattering article. In court documents, they also argue that Welsh's use of the draft "contrasted its fact-based account of the News-Press resignations with the defensive editorializing published by the News-Press." The link and the draft article remained online from July 14 to July 19, at which point the Independent removed them after Ampersand threatened legal action.

Ampersand sued the Independent in federal court in California, claiming that Welsh's posting of the draft article constituted copyright infringement. Ampersand also alleged that Welsh had misappropriated its trade secrets by acquiring and publishing the draft article and by acquiring another draft News-Press article relating to the paper's arbitration proceeding against a former editor. (Welsh and the Independent deny ever obtaining a copy of this latter arbitration article.) Ampersand argued that although the draft articles contained publicly available facts, they also embodied confidential processes and information because they reflected the reporters' labors and ideas of how to investigate and report on an issue. Ampersand also brought claims for unfair competition under California law, intentional interference with propsective economic advantage and contract, and negligent interference with prospective economic advantage and contract.

In September 2007, both parties moved for summary judgment. Among other things, the Independent argued that Welsh's publication of Hadley's draft article for purposes of commentary and criticism was a fair use, that the draft article was not a trade secret, and that it never acquired or published a copy of the arbitration article. Ampersand argued that it was entitled to judgment as a matter of law on its copyright infringement claim. In November 2007, the court granted Ampersand summary judgment on its copyright infringement claim, holding that Welsh's posting of Hadley's draft article was not fair use. The court dismissed Ampersand's trade secret claim based on the Hadley article, finding that the draft was not a trade secret. It reserved decision on the trade secret claim relating to the arbitration article, pending resolution of Ampersand's motion to compel Welsh to answer questions about his source of information about the article. (Welsh had refused to answer these questions, relying on the federal reporter's privilege.) The court also dismissed the unfair competition and tortious interference claims, finding that they were preempted by federal copyright law and the California Uniform Trade Secrets Act.

After this ruling, the only issues remaining were the amount of damages to be awarded to Ampersand on the copyright infringement claim and whether Ampersand had a valid trade secret claim based on Welsh's alleged acquisition of the arbitration article. Related to this latter issue, the parties fought bitterly over Ampersand's motion to compel Welsh to reveal the source of his information about the arbitration article, presenting a bizarre and unprecedented legal battle between two newspapers over application of the reporter's privilege. Before the court resolved the motion to compel or ruled on the final trade secret claim, the parties settled the case. As part of the settlement, the Independent agreed not to challenge the court's ruling that it had violated federal copyright law. The financial terms of the settlement are not public.

Finnish media artist Santeri Ojala created a series of popular YouTube videos that parody legendary guitarists such as Steve Vai, Carlos Santana, and Eric Clapton. In the videos, Ojala overdubbed the guitarists' performances with his own (intentionally) bad guitar playing. The combination of the guitarists' rock-star stage antics and Ojala's amateurish noodling was humorous and well-executed enough to warrant attention from Wired, Guitar Player magazine, and the Jimmy Kimmel Live! television show, among others. Guns N' Roses guitarist Slash, who was a guest on the same episode of Jimmy Kimmel's show, jammed with Ojala after Ojala performed a live parody of a Slash concert video on the show.

In early 2008, YouTube recieved three complaints regarding the videos, which appear to have come from artists that Ojala had parodied. YouTube disabled Ojala's account in response. According to Listening Post, a Wired.com blog, YouTube parent company Google has a policy of disabling accounts that have "multiple copyright infringement claims filed against them." At this point Ojala has not taken action to reinstate his account; the Listening Post quotes Google as saying that this would require that Ojala "hire a lawyer and appeal the artists' infringement claims."

It remains to be seen whether YouTube will reactivate Ojala's account or whether the videos will result in liability.

Update:

Ojala still is producing shred videos, as can be seen at his website.

Wired.com, which has covered the situation in a number of articles and blog posts, now hosts some of the videos.

Brian Sapient, a member of the "Rational Response Squad," a group which seeks to debunk what it considers irrational beliefs, posted a video on YouTube from the NOVA television program "Secrets of the Psychics," in which magician James Randi challenges the performance techniques of famous spoon-bender Uri Geller. The clip allegedly incorporated images from a film of Geller performing at a charity event in England, the copyrights to which were assigned by the film-maker to Geller's company, Explorologist. According to Sapient, this portion of the NOVA clip lasts only eight seconds.

MoveOn.org, a progressive political organization, and Brave New Films, LLC, a politically oriented film company, created a video parodying Comedy Central's Colbert Report. The video, entitled "Stop the Falsiness," shows clips of the Colbert Report interspersed with tounge-in-cheek "commentary" from MoveOn activists and other political personalities, including liberal pundit Al Franken and Democratic sentator Russ Fiengold. MoveOn and Brave New Films uploaded the video to YouTube in August 2006. They also published it on a separate website, Stop the Falsiness.

On or about March 13, 2007, Viacom, the corporate parent of Comedy Central, delivered a takedown notice to YouTube pursuant to section 512(c) of the Digital Millennium Copyright Act, apparentl asserting that "Stop the Falsiness" violated its copyright and requesting that it be taken down. (Although Viacom later disputed sending the takedown demand, a notice appeared on YouTube on March 13, 2007 indicating that the video had been removed due to a copyright claim by Viacom, and Viacom ultimately relented.)

MoveOn and Brave New Films responded by suing Viacom under section 512(f) of the DMCA for knowing, material misrepresentation of its claim of copyright infringement with regard to the video. The suit was based on the argument that the video was so clearly a fair use that Viacom could not have asserted in good faith that the clip infringed its copyright. Viacom responded with a letter to the lawyers for MoveOn and Brave New Films, indicating that Viacom could not confirm sending the takedown notice and stating that Viacom had "no problem with your client's continued use of [the video] on its website or on YouTube."

That did not completely satisfy MoveOn and Brave New Films, and further negotiations took place between the lawyers. Eventually, Viacom agreed to adopt new policies enabling YouTube users to complain directly to Viacom about mistaken takedown notices and affirming the company's respect for fair use of its copyrighted materials. MoveOn and Brave New Films then dismissed the suit.

Christopher Fitzgerald, a freelance photographer who was working on assignment for the Boston Globe, photographed well-known mobster Stephen Flemmi on January 6, 1995 while Flemmi was being transferred shortly after his arrest. Fitzgerald was the only photographer at the scene, and thus his are the only known publicly-available photographs of Flemmi’s arrest. In June 2004, two CBS affiliate stations in Boston, CBS-4 and UPN-38, broadcast one of Fitzgerald's photographs without permission and CBS-4 put the photo on its website.

On October 12, 2004, Fitzgerald sued CBS for copyright infringement. Fitzgerald also filed a second, nearly identical copyright action (06-11302) against CBS based on the same set of facts, seeking to collect double statutory damages because the broadcast at issue went out over two of CBS’s Boston affiliate stations.

Several years prior to this action, Fitzgerald had sued CBS over the use of the same photographs in its show "60 Minutes." That lawsuit ended in a settlement, and CBS took steps to ensure that the photographs were not accidentally broadcast again. However, at least one copy of a photograph was not destroyed, and it was used in 2004 by the CBS affiliate stations.

On September 1 and 20, 2006, the parties filed cross motions for summary judgment, with CBS asserting that its use of the photograph constituted fair use under copyright law. The district court granted partial summary judgment for Fitzgerald as to CBS's liability, but denied Fitzgerald's claim for summary judgment as to willfullness. The court also consolidated the two lawsuits because they were based on the same set of facts.

Two final determinations are left to the jury: (1) whether CBS's use of the photograph was willful copyright infringment and (2) the extent of Fitzgerald's damages.

Update:

4/14/2008 - Judge dismissed the case after parties reached a settlement.