Wednesday, December 30, 2009

Traverse Internet Law Federal Court Report: November 2009 Copyright Infringement Lawsuits

The facts are unproven allegations of the Plaintiff and all commentary is based upon the allegations, the truthfulness and accuracy of which are likely in dispute.

FILED: 11/18/2009

Here’s a good thumbnail measure of whether you have a legitimate online video business: If every pirated work was gone forever from your site, would you still have a viable business model? The reality is that most torrent and related sites only exist because of the presence of pirated materials on the sites. A DMCA copyright takedown notice usually results in the specific material referenced in the notice being removed promptly from the site, but, in the interim, revenue has been generated by the site based upon the pirated works. Most importantly for affiliate marketers, you can see that if you have been participating in the affiliate program there is some cause for concern. Don’t assume that all because a website is one of the top twenty trafficked websites in the world that it must be operating legally. We don’t know how this case will come out, but make sure as an affiliate marketer you are selling a legal product and your method of marketing the affiliate offer is legal.

Perfect 10, Inc. is a business involved in the design, creation, production, marketing, promotion and sale of copyrighted adult entertainment products including photographs, magazines, video productions, cell phone downloads, and other media. Rapidshare, one of the Defendants in this case, is the twelfth most popular website on the Internet. The Plaintiff alleges that Rapidshare enables users from around the world to purchase virtually every pirated image, song, and movie for $10 a month. Rapidshare also runs an affiliate marketing program in which it pays other third party websites to refer traffic to it. In many cases, Plaintiff alleges that these affiliates offer the public the ability to download a sample of the infringing content and then lure customers into joining to download the remainder. It appears the John Doe Defendants include all of’s affiliate marketers using this technique.

The Plaintiff has sued for copyright infringement, trademark infringement, trademark dilution, unfair competition, violation of rights of publicity, and unjust enrichment. Plaintiffs have requested entry by the court of preliminary and permanent injunctive relief, an order for the destruction of all the Defendant’s infringing materials, removal of all links from Defendants’ websites to all affiliate infringing websites, restitution in an amount to be determined at trial but not less that $5 million, an award of actual damages of no less than $5 million, an accounting of profits, an award of statutory damages of no less than $10 million under the Copyright Act and California Civil Code Section 3344, an award of treble damages of no less than $5 million, the imposition of a constructive trust, punitive damages, and attorneys’ fees and full costs. TraverseInternet Law Cross-Reference Number 1385.

FILED: 11/13/2009

This is a pretty open and shut situation. Always keep in mind that a copyright in an article or even a newsletter arises as of the time it is written. Even if you are receiving a free newsletter, that does not give you the right to republish the contents. The same applies, of course, to content on blogs. Mark Cuban, the well known owner of a sports franchise, has recently questioned whether his “tweet” that was republished is protected by copyright laws. Of course, the best advice is to only use your original content.

The Plaintiff is an independent investment research firm that publishes investment advisories exclusively to its paid subscribers. An individual posted a substantial portion of the copyright-protected text of a report on the gold market on various finance boards.

The lawsuit alleges copyright infringement, requests an order restraining the Defendant from further reproducing and publicly displaying the infringing material, requests an award of statutory damages up to $150,000.00 and that the Defendant be required to pay attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1384.