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

Traverse Internet Law Disclaimer

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.


PERFECT 10, INC. v. RAPIDSHARE AG, ET AL.
SOUTHERN DISTRICT OF CALIFORNIA (SAN DIEGO)
3:09-CV-02596
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 Rapidshare.com 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 Rapidshare.com to download the remainder. It appears the John Doe Defendants include all of Rapidshare.com’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.


STANSBERRY & ASSOCIATES INVESTMENT RESEARCH, LLC v. JOHN DOE
DISTRICT OF MARYLAND (BALTIMORE)
1:09-CV-03026
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.

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

Traverse Internet Law Disclaimer

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.

CYBER WEBSMITH, INC. v. AMERICAN DENTAL ASSOCIATION, ET AL.
NORTHERN DISTRICT OF ILLINOIS (CHICAGO)
1:09-CV-06198
FILED: 10/05/2009

The American Dental Association and various subsidiaries are alleged to have taken the templates from the Plaintiff and held them out as their own. My guess is that what happened was a web developer at the ADA took a shortcut and his management didn’t conduct a simple source check. All they had to do was type unique website text into Google and see what results were generated before launching the websites into the marketplace. How can you be sure that the website delivered to you by your web developer does not infringe on the copyright of a third party? A little due diligence will go a long way. Under copyright law, intent or knowledge is not required, so if you are using a copyright protected work of another there is liability, whether you knew it or not.

The Plaintiff is engaged in the business of website design and marketing services, web hosting services, domain name registration services, and audio and video production services using website templates. The Defendants are alleged to have copied the Plaintiff’s work and licensed the resulting websites to dental practices across the United States.

The lawsuit alleges copyright infringement, contributory copyright infringement, unfair competition, and deceptive trade practices under 815 ILCS 510/2. Plaintiffs request the entry of a preliminary and permanent injunction against Defendant, the impoundment of all infringing copies of Plaintiff’s wok, actual damages, treble damages, reasonable attorneys’ fees and costs, and other relief the Court deems just. Traverse Internet Law Cross-Reference Number 1370.

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

Traverse Internet Law Disclaimer

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.


HUNTINGTON LEARNING CENTERS, INC., ET AL. v. REACHLOCAL INC.
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)
2:09-CV-06762
FILED: 9/17/2009

Franchise and distributor agreements must be read very carefully in today’s environment. Now, more than ever before, businesses are protecting their online presence by placing restrictions on the use of intellectual property by those selling, or reselling, services.

Huntington Learning Centers, Inc. is one of the leading educational tutoring providers in the United States. The Plaintiffs’ franchise agreement prohibits use of its trademarks “in connection with the Internet”. Reachlocal Inc., the Defendant, is a franchisee who is alleged to have copied the Plaintiff’s website and is using it on the Internet.

The lawsuit alleges copyright infringement, federal trademark infringement, federal unfair competition, unfair competition and unfair and deceptive acts or practices, injury to business reputation, common law trademark infringement and unfair competition, and tortious interference with contractual relations. Plaintiffs request the entry of a preliminary and permanent injunction against Defendant, the recall or destruction of all goods or services or other materials bearing the Huntington marks, an accounting of profits, actual damages including profits of Defendant, treble damages, reasonable attorneys’ fees and costs, and other relief the Court deems just. Traverse Internet Law Cross-Reference Number 1358.

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

Traverse Internet Law Disclaimer

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.

DIAMOND ROSE SHEARS, LLC v. HATTORI HANZO SHEARS, LLC, ET AL.
DISTRICT OF COLORADO (DENVER)
1:09-CV-02035
FILED: 8/26/2009

In this case, the Plaintiff obtained copyright registration of its website. In order to bring a lawsuit in federal court this registration is required. It can be obtained at anytime within a couple of weeks on an expedited basis. The important point to note is that if you have a situation like this, the easier approach might be to simply serve a Digital Millennium Copyright Act takedown notice and have the website of the infringing party removed from the web. No copyright registration is required to use that tool.

Plaintiff Diamond Rose Shears, LLC launched a website in 2004. At least one of the Defendants was previously a distributor with the Plaintiff and after a falling out created a website using copies of the Plaintiff’s website.

The lawsuit includes counts for federal copyright infringement, unfair competition, breach of contract, and unjust enrichment. Plaintiff requests the entry of preliminary and permanent injunction against Defendants, an accounting of profits, actual damages including additional profits of Defendants, reasonable attorneys’ fees and costs, and other just and proper relief. Traverse Internet Law Cross-Reference Number 1351.

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

Traverse Internet Law Disclaimer

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.


BRAND TECHNOLOGIES, INC. AND BRADFORD MANDELL v. MATRIX PHOTO, INC.
NORTHERN DISTRICT OF OHIO (TOLEDO)
3:09-CV-01691
FILED: 7/21/2009

Nothing good comes from using images which you thought were in the “public domain”. Make absolutely sure that you are properly licensing the images you use on your website and when acquiring images from third parties make sure that you have adequate assurances to cover any liability that might arise if the images have been misappropriated.

This is a lawsuit for a declaratory judgment that the Plaintiff has not infringed on the Defendant’s images. The Plaintiff owns gossip websites and acquired images of music star Stacey Ferguson (aka Fergie) taken in the Bahamas with her then-boyfriend Josh Duhamel and displayed those on its website. The Defendant claims copyright infringement and has demanded monetary compensation.

The lawsuit includes claims for declaratory relief for non-infringement, declaratory relief that the Defendant does not have valid claim for copyright infringement, declaratory relief that the Defendant does not own a valid copyright registration, and declaratory relief for innocent infringement. Plaintiff requests an injunction prohibiting the Defendant from bringing any future lawsuit or threat against the Plaintiff for copyright infringement for Plaintiff’s use of the photos, an award of attorneys’ fees, costs and disbursements, and further relief the Court deems proper. Traverse Internet Law Cross-Reference Number 1345.

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

Traverse Internet Law Disclaimer

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.

GHALEB MOHAMMED ISHAQ HIJAZI v. ATLAS ECONOMIC RESEARCH FOUNDATION, ET AL.
DISTRICT OF COLUMBIA (WASHINGTON, DC)
1:09-CV-01123
FILED: 6/18/2009

Businesses are often far too informal in establishing business relationships with third parties, particularly as they relate to the online world. We constantly see “informal” collaborative relationships in which the ownership of intellectual property, the rights and obligations of the parties, and even the status of the relationships are not clearly defined by contract. Inevitably, when there is a falling out and the relationship draws to a close, there is often a significant disagreement as to many of the key terms that should have been hashed out in advance in a written contract prior to the relationship being undertaken.

Plaintiff is a citizen and resident of the country of Jordan and is a researcher and financial manager educated at the University of Jordan and the Arab Academy for Banking and Financial Sciences. The Defendants include the “Cato Institute”, a Washington, DC based think tank. The parties entered into some sort of an “independent contractor” relationship involving the Plaintiff’s work and related website, and the Plaintiff alleges that the Defendants, including the Cato Institute, maliciously and willfully converted the Plaintiff’s property, including his website, for their own use.

Count one alleges copyright infringement, count two alleges unfair competition under the trademark laws, count three alleges common law unfair competition, count four alleges trespass to channels, count five alleges unjust enrichment, count six alleges tortious interference with business opportunity, count seven alleges tortious interference with contract, count eight alleges conversion, and count nine alleges violations of trade secrets. The Plaintiff is requesting an award of compensatory damages, triple damages, punitive damages, the entry of an injunction, and the entry of an order transferring domain names to the Plaintiff, as well as an award of attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1328.

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

Traverse Internet Law Disclaimer

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.


MATTHEW ROSENBERG v. SPICY BEAR MEDIA, LLC, ET AL.
WESTERN DISTRICT OF VIRGINIA (CHARLOTTESVILLE)
3:09-CV-00037
FILED: 05/15/2009

If the website did not post this image and they have registered an agent with the copyright office for purposes of receipt of DMCA takedown notices, then there should be no liability for the website if no takedown notice was served on the Defendant.

Rosenberg is a professional photographer who took a photograph of a venue in Charlottesville, VA. The Defendants are alleged to have copied, reproduced, and created a derivative work of the photograph on multiple occasions and used it on its local website serving the Charlottesville, VA area. The primary Defendant, the owner and operator of the website on which the image was posted by an apparent third party, is alleged to have failed to remove the image after knowing of the infringement claim. It is not clear from the pleading that any DMCA takedown notice was served on the website.

The Defendants have been sued for copyright infringement, the removal and alteration of copyright management information, and vicarious and contributory copyright infringement. Plaintiff requests an award of statutory damages of $150,000.00 per infringement, reasonable attorneys’ fees, court costs and a disgorgement of gains and profits from the Defendants. Traverse Internet Law Cross-Reference Number 1320.

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

TraverseInternet Law Disclaimer

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.


DON HENLEY AND MIKE CAMPBELL v. CHARLES S. DEVORE AND JUSTIN HART
CENTRAL DISTRICT OF CALIFORNIA (SANTA ANA)
8:09-CV-00481
FILED: 4/17/2009

Ever since President Obama’s tremendously successful online endeavors resulted in record-breaking contributions, politicians have been trying to figure out how to mimic the success of President Obama’s campaign. While there are certain carve-outs under the law that exempt politicians from the Can-Spam Act provisions, there is no such carve-out for copyright or trademark infringement. Whenever your business is entering into a new arena make sure that your team includes quality legal advisers. The “young guns” of technology understand the web, and that is about it.

The Plaintiffs are song writers and allege that two of their songs were used, without authorization or permission, by Defendant Charles S. DeVore in his campaign for the Republican nomination for the U.S. Senate. Videos created with the lyrics and musical composition of the “Boys of Summer” and “All She Wants to Do Is Dance” were allegedly fashioned into campaign advertisements.

The Plaintiffs have sued for copyright infringement, contributory copyright infringement, vicarious copyright infringement, false association or endorsement, and unfair business practices under California law. Plaintiffs have requested a declaratory judgment of copyright infringement by the Defendants, the entry by the court of preliminary and permanent injunctive relief, an award of statutory damages in the sum of $150,000.00, pre-judgment interest, attorneys’ fees, costs, an award of profits and damages, and such other further relief as the court deems proper. Traverse Internet Law Cross-Reference Number 1316.


GUADALUPE T. CANTU v. BEN HUH AND PET HOLDINGS INC.
WESTERN DISTRICT OF WASHINGTON (SEATTLE)
2:09-CV-00516
FILED: 4/16/2009

Content is king. The better your content, and the more popular your content, the greater the risk of it being stolen to draw visitors to another site. In this instance, the video on YouTube produced by the Plaintiff was apparently hugely popular and therefore ripe for the alleged misappropriation. As animations and videos become more popular as a method of communicating online, the issue of “stolen content” is no longer just about words.

Plaintiff is a sixty-six year old retired mechanical engineer, who has lived on the Big Island of Hawaii since November, 1998. His main hobby over those ten years has been to hike the back county of Kilauea Volcano and document the volcanic activity with videos and photographs. Plaintiff alleges that in December of 2006 he viewed the Mount Kilauea episode of the Discovery Channel series “Man vs. Wild” and a survival expert by the name of Bear Grylls was supposedly dropped off by helicopter in a remote location to simulate the journey of a lost hiker as he makes his way to civilization. Plaintiff, familiar with the Kilauea Volcano, recognized that most of the episode was filmed next to various highways near tourist areas and published the video on YouTube pointing out the fake aspects of the episode. The Defendant is alleged to have taken the videos created by the Plaintiff and put them on his own YouTube channel.

The lawsuit alleges violation of the Digital Millennium Copyright Act, requests an order restraining the Defendants from providing access to the infringing material, requests an award of up to $150,000.00 and that the Defendants be required to pay attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1317.

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

Traverse Internet Law Disclaimer

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.


PNZ MANAGEMENT SERVICES, INC. v. STEVEN MORAN, ET AL.
DISTRICT OF NEW JERSEY (TRENTON)
3:09-CV-01182
FILED: 3/13/2009

This is a John Doe lawsuit that aims at pursuing everyone involved with the Defendant’s businesses. Merely having a corporation rarely shields individuals from liability when directly and personally involved in this type of alleged misconduct. For those of you who think that forming a corporation provides a level of insulation, think again. And for those of you who are considering pursuing parties involved in copyright infringement, it might be advisable to consider that the individuals involved in the corporation may be personally liable for the copyright infringement.

PNZ is in the business of marketing and selling referral services through its various websites in the fields of dentistry, chiropractic, health clubs and personal fitness. The Defendants are alleged to have conspired to misappropriate much of the content of the Plaintiff’s businesses and copied substantial portions of the Plaintiff’s website and other websites and has launched those as competitive options to Plaintiff’s services.

The lawsuit includes a claim for copyright infringement, common law unfair competition, unfair competition under New Jersey state law, and tortious interference with prospective business and economic advantage. Plaintiff requests a “declaration” that Defendants willfully infringed the Plaintiff’s copyrighted works, the entry of a preliminary and permanent injunction enjoining the eight Defendants and others from copying, displaying, selling, reproducing or preparing derivative works of any original works of authorship of the Plaintiff, actual damages, compensatory damages, consequential and incidental damages, punitive damages, triple and exemplary damages, and reasonable attorneys’ fees, costs, and interest. Traverse Internet Law Cross-Reference Number 1303.

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

Traverse Internet Law Disclaimer

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.

MASTERFILE CORPORATION v. BUSINESS BUILDERS COACHING, INC.
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)
2:09-CV-00954
FILED: 2/09/2009

The idea that you can go out and “borrow” images that are out on the web is obviously problematic. Many of these stock photography agencies now use sophisticated programs to track all use of their images and have turned copyright infringements into quite a profitable business.

The Plaintiff is a stock photography agency with offices in Canada. The Defendant is a California corporation providing accounting and management consulting services. Plaintiff alleges that the Defendant was using five photographs it owns on its website.

The lawsuit asserts a claim for copyright infringement and requests preliminary and permanent injunctive relief, an award of damages, costs, fees, and legal expenses, and other relief. Traverse Internet Law Cross-Reference Number 1285.

AWR CORPORATION v. AEROANTENNA TECHNOLOGY
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)
2:09-CV-00869
FILED: 2/04/2009

The interesting point in this case is that the Plaintiff apparently installed a “monitoring mechanism” which reports back to the Plaintiff information about the use by those downloading its “test version”. This raises all kinds of interesting issues. The lesson for businesses is that if they want to distribute their products electronically and use this type of monitoring feedback process the installation and distribution may be covered by spyware laws or other privacy laws. If you are installing software be particularly careful to use it only as specified in the license agreement, which means you need to actually read the license agreement and understand the scope of authorized use. In this instance the Defendants are alleged to have installed it on more computers than permitted, exceeded the number of days they were allowed to use it, and put it to use for commercial purposes when the license expressly prohibited such use.

AWR is a California corporation engaged in the business of developing licensing computer software. The Defendant is a California corporation that develops and manufacturers GPS antennas and other similar products. The Defendant is alleged to have downloaded software and installed the software on multiple computers outside the scope of the license agreement.

The lawsuit claims copyright infringement, breach of contract, and breach of implied covenant of good faith and fair dealing. The prayer for relief requests the entry of a preliminary and permanent injunction from further unauthorized copying, an award of loss profits and actual damages, enhanced damages for willful infringement, cost of the suit and reasonable attorneys’ fees, an accounting of all Defendant’s profits, and destruction of all copies of the software. Additional claims for relief include an award of damages in an amount of at least $350,000.00. TraverseInternet Law Cross-Reference Number 1284.

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

Traverse Internet Law Disclaimer

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. CORBIS CORPORATION v. PERFECTION SOFTWARE, INC. SOUTHERN DISTRICT OF NEW YORK (FOLEY SQUARE) 1:09-CV-00837 FILED: 1/29/2009 Corbis is very aggressive and we have dealt with them on a number of occasions. They use automated software to search the web and locate images that are not properly licensed and then demand significant licensing fees for each image as damages. I have seen claims asserted by Corbis on images that are widely recognized as in the public domain. But Corbis claims that it has enhanced the images to such an extent that the creative works have become new and subject to copyright registration and protection. Consequently, all because you believe that an image is in the public domain (such as the photograph of the Scopes Monkey Trial or the image taken by the astronaut of the earth) you need to be careful. Even images that everyone thinks are in the public domain can be the subject of claims asserted by Corbis. And Bill Gates can afford to litigate. Corbis Corporation is in the business of licensing photograph and fine art images on behalf of itself and the photographers and other licensors it represents. It was founded by Bill Gates. The Defendant allegedly used some unlicensed copyright images of the Plaintiff on its website. The Plaintiff has sued for copyright infringement and violation of the Digital Millennium Copyright Act. Plaintiff requests injunctive relief, statutory damages and an award of attorneys’ fees, costs, and interest. Traverse Internet Law-Cross Reference Number 1279. JENNIFER L. GEORGE v. SCOTT GRUENWALD, ET AL. EASTERN DISTRICT OF CALIFORNIA (FRESNO) 1:09-CV-00189 FILED: 1/27/2009 Did you know copyright infringement does not require knowledge or intent to infringe? The mere use of a copyright protected image creates liability. It may seem unfair, but the fact is that anyone who uses images without determining definitely that they are in the public domain or without obtaining a license is at risk of infringing on a copyright. Don’t use images you find on the web and make sure that you have the proper license from the owner of the image or other creative work before using those on your website or in any other manner. Plaintiff is an individual who happened to be going through a ghost house and took photographs that depict “ghostly human forms and faces”. Plaintiff then sent the photos, with the desire to simply share her discovery, to the Defendant. She thereafter obtained registered copyrights for the photographs. The Defendant distributed the photographs to the other Defendants, some of which are publications that used the photographs online. Some of the Defendants posted the photographs on their MySpace page. The Plaintiff has sued for copyright infringement and requested an award of compensatory damages, statutory damages, attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1280. ENHANCED RECOVERY CORPORATION v. CORBIS CORPORATION AND INVEX GROUP, INC. MIDDLE DISTRICT OF FLORIDA (JACKSONVILLE) 3:09-CV-00052 FILED: 1/20/2009 You can expect Corbis to file a counterclaim against both parties for copyright infringement. This is another way in which you can get caught up in a claim for copyright infringement. Your web development contract must have adequate provisions prohibiting the use of any unlicensed images and containing adequate indemnification provisions so if such a claim is asserted you can look to the web developer for payment of both your legal costs and any damages that might arise. Doing business with a web developer that will be around when such a claim arises, or has adequate assets to assure you that it is financially capable of indemnifying your company, is of critical importance. Corbis sent a letter to the Plaintiff alleging copyright infringement for images hosted on its website. The Plaintiff had hired Defendant Invex to build the site and is alleged to have used the images without proper licensing from Defendant Corbis. Corbis initially demanded the removal of the 22 images. The Plaintiff immediately removed the allegedly infringing copyrighted images from its websites and licensed “similar images” from a third party for $100.00. Corbis then demanded licensing fees after the images had been removed from the site. The Plaintiff has sued for declaratory relief against Corbis and requested indemnification against Plaintiff’s web developer, Invex. Traverse Internet Law Cross-Reference Number 1281.

Traverse Internet Law Federal Court Report: December 2008 Copyright Infringement Lawsuits

Traverse Internet Law Disclaimer

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.


GATEHOUSE MEDIA MASSACHUSSETTS I, INC. v. THE NEW YORK TIMES CO.
DISTRICT OF MASSACHUSSETTS (BOSTON)
1:08-CV-12114
FILED: 12/22/2008

This is a very interesting case since the ability to take “snippets” and short representative passages from copyright protected materials is generally considered to be permissible under the “Fair Use Doctrine”. However, in the online world, the fair use nature of short passages and parts of creative works takes on a different analysis. If a blogger quotes a passage and it is submitted through an RSS feed, can you run that RSS feed content without copyright infringement risk? This is the type of issue that will shape the future of the web, and it is likely that some common business practices everyone thinks are legal today will be a thing of the past and illegal in years to come.

Plaintiff is the publisher and owner of weekly newspaper in Massachusetts and a daily newspaper covering the city of Waltham, Massachusetts. The New York Times Company is doing business as “Boston.com” in the same geographic area. Plaintiff claims that the New York Times is reproducing, displaying, and distributing on the www.boston.com website unauthorized verbatim copies of newspaper article headlines and the first sentences thereof.

The lawsuit alleges copyright infringement, unfair competition or false designation of origin, false advertising, trademark dilution, unfair business practices, trademark infringement, unfair competition, and breach of contract. Plaintiff requests entry of preliminary and permanent injunction, compensatory damages, disgorgement of Defendant’s profits, triple damages, punitive damages, attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1262.


TECHNOMARINE SA v. JOMASHOP.COM AND JOHN DOE 1
SOUTHERN DISTRICT OF NEW YORK (FOLEY SQUARE)
1:08-CV-10911
FILED: 12/16/2008

Anytime you borrow images from another website you are taking a risk, even if you have some sort of good faith argument that you have the right to resell the product and the image of the product is an essential aspect to accurately describe and present the product. It is one thing to use an image you have taken of a product that includes the product name when that is essential to the product description. It is another matter to “borrow” images from third parties, including a manufacturer.

Technomarine is a watch company headquartered in Switzerland and the Defendant allegedly copied watch photographs from its online marketing catalog and is using those photographs on its own website to sell “grey market” Technomarine branded watches.

The lawsuit includes claims for copyright infringement and federal unfair competition under trademark laws. Extensive preliminary and permanent injunctive relief is requested as well as an award of statutory damages, recovery of all gains and profits derived by the Defendants, triple damages, punitive damages, compensatory damages, and reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1263.