DMCA Notices Issued Over Windows 8 Beta

Microsoft has issued numerous DMCA (Digital Millennium Copyright Act) notices to Google concerning the recent leak of the Windows 8 beta, including requests that Google de-index established  news websites TechCrunch, the Huffington Post, BBC.com, and Wikipedia. Additionally, Mashable notes, almost 65 of the URLs flagged to be de-indexed for copyright infringement fail to even mention the Windows 8 beta.

 

Microsoft’s failure to discern between websites that have rightfully referenced the Windows 8 beta and those that have not, and its use of an automated DMCA takedown tool, reiterate the importance of choosing your copyright infringement battles appropriately. Not only does DMCA overreaching have public relations impacts, but it also my subject the issuing party to liability under the law. Consequently, it is important to contact an attorney prior to sending automated DMCA notice letters.

Newspaper Defamation Claim Fails

Sir Elton John’s newspaper defamation claim against the times of India has failed. The Times of India reports that the High Court of India has the statements made by the Times of India, specifically, that Elton John had engaged in tax avoidance, were incapable of a defamatory meaning. Though the article did not specifically mention that Elton John was participating in a tax avoidance scheme, his defamation attorneys argued that the connection was implicit. The High Court rejected this line of reasoning and dismissed the case.

Movie Downloading Copyright Infringement Case Goes to Trial

A federal judge in Pennsylvania has ruled that a movie downloading case will go to trial because it is unclear whether an IP address directly identifies a copyright infringer instead of simply the owner of an Internet account. Judge Michael Baylson noted,

Among other things, the declaration asserts that the BitTorrent software does not work in the manner plaintiff alleges, and that a mere subscriber to an ISP is not necessarily a copyright infringer, with explanations as to how computer-based technology would allow non-subscribers to access a particular IP address.

Malibu Media, the plaintiff, has initiated 43 lawsuits in Pennsylvania alone and 349 mass downloading lawsuits across the United States. The defendants accuse Malibu Media of extorting settlements from purported downloaders.

 

This case will be an interesting test of whether an IP can serve as adequate evidence of an individual copyright infringer. Over the last five years, various copyright enforcement firms, such as Copyright Enforcement Group (CEG TEK), US Copyright Group (Dunlap, Grubb, and Weaver), Prenda Law (John Steele), Mike Meier, and M. Keith Lipscomb, have filed mass copyright infringement lawsuits against defendants accused of downloading copyright infringing materials through BitTorrent websites.

 

We have defended numerous individuals in response to these lawsuits, so we will be watching this development carefully.

Common Law Trademark Rights Made Through Use In Commerce

Clients often ask, do I have a trademark even if I did not file for trademark registration? Though each situation is fact-dependent, often the answer is, “Yes.” Common law trademark rights may arise out of the use of a mark in commerce. Common law trademark rights are typically limited by case law to the area in which the trademark was actually used or advertised. If the trademark is inherently distinctive, one may obtain common law trademark rights within a specific geographic area within a short period of time. If the trademark is not inherently distinctive, meaning, it is descriptive of the goods or services sold under the trademark, common law trademark rights may be obtained once the mark has acquired secondary meaning, which occurs once the mark has become known by the general public as an indicator of origin or source.

 

Though one may rely on common law trademark rights in a trademark infringement lawsuit, trademark registration provides the mark owner with a presumption of a nationwide right to use the mark. Additionally, trademark registration provides the owner with the ability to obtain up to $2,000,000 in statutory damages for the infringing use of a counterfeit mark, treble damages, and the potential to obtain attorneys’ fees in a trademark infringement lawsuit. Trademark registration also allows the owner of a registered mark to use the ® to put others on notice of his or her claim of rights. Consequently, though one may rely on common law rights, the benefits of trademark registration often far outweigh the costs and registration is almost always recommend over relying on common law trademark rights.

Copyright Infringement Policy Change At YouTube

A subject of criticism over the years, YouTube has recently made a change to its copyright infringement policy. Specifically, YouTube’s Content ID system, which automatically flags content as copyright infringing based on an algorithm, has been changed to reduce the number of invalid copyright infringement takedown claims. Now, YouTube uploaders can dispute copyright infringement takedowns through an appeals process. Once an uploader requests an appeal, a content owner must either issue a proper notice under the Digital Millennium Copyright Act or release the claim.

 

Additionally, this change also is intended to reduce the amount of unintentional copyright infringement claims. Instead of the automatic takedown process, YouTube has changed its algorithm to require manual review of copyright infringement claims. YouTube hopes that these changes will reduce the amount of false positives.