Kate Tummarello is a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly.  Follow Kate on Twitter @ktummarello.  Andrew Mirsky of Mirsky & Company contributed to this post.

Gone are the days of bashing your boss in the breakroom. Now, colleagues gather online to anonymously air their grievances.  A group of disgruntled Demand Media, Inc. employees did just that with their website DemandStudiosSucks.com.  Then Demand Media struck back.

Late last month, attorneys for Demand Media, a content production company whose properties include eHow, LIVESTRONG.com, Cracked.com, typeF.com, Trails.com and GolfLink, sent a letter to DemandStudiosSucks.com asking it to remove content that had been copyrighted by Demand Media.

The media company accused the people behind this censorious website of creating and maintaining “a forum in which users can, and do, post and misuse Demand Media’s trademark, copyrighted material, including confidential and proprietary copy editing tests.”  The letter also referenced “an internal presentation regarding the company’s business plans”, published without permission on DemandStudiosSucks.com.

Immediately, of course, the letter was posted on DemandStudiosSucks.com.

The next day, a user named “Partick O’Doare,” who has posted the majority of the content on the site, published an open letter addressing the claims made by Demand Media’s attorneys.  Although the website removed the content addressed in the letter, O’Doare explained that the site’s creators had not acknowledged any infringement in removing the content.

Instead, those behind the website claimed that their use of the Demand Media content fell under fair use guidelines, specifically protections for commentary and criticism.  “Let’s be honest,” the open letter says, “if ever there was a case of unequivocal fair use, this would be it.”  A statement which should raise flags to anyone who previously felt similarly.

Fair use is a defense to a claim of copyright infringement, but not other claims.  A fair use argument cannot simply succeed on its merits where other legal rights are violated.  Context matters.  So, for example, as seen in some Facebook “suck site” cases, fair use will not protect against a claim of defamation.  Employees who publish company trade secrets and other proprietary information cannot rely on fair use to defend against claims of violations of corporate and employment law.

O’Daire’s letter proudly boasts that the voices behind DemandStudiosSucks.com were fully prepared to defend themselves, citing the fair use cases Lenz v. Universal Music Corp. and Online Policy Group v. Diebold, Inc.

Earlier this month, Dropbox spawned a new kerfuffle in internet-land with changes to its Terms of Service (TOS).

The outrage was fast and furious.  A nice deal of blog and Tumblr and other commentary zeroed in on changes Dropbox announced to its TOS before the 4^th of July holiday, and in particular how this or that provision “won’t hold up in court”.  See for example J. Daniel Sawyer’s commentary here.

Sawyer was referring to language in the TOS for cloud-server services granting ownership rights to Dropbox or other cloud services.

At least I think that’s what he was referring to, because the Dropbox TOS did not actually grant those ownership rights to Dropbox.  Dropbox’ TOS – like similar TOS for SugarSync and Box.net – granted limited use rights to enable Dropbox to actually provide the service.  Here is the offending provision:

… you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent we think it necessary for the Service.

To be clear, if Dropbox actually claimed ownership rights to customer files – and actually provided for the same in its TOS – there’s no particular reason such a grant “won’t hold up in court”.   There are certainly cases of unenforceable contracts – contracts that are fraudulently induced or in contravention of public policy, for example – but a fully and clearly disclosed obligation in exchange for a mutual commitment of service is enforceable. Continue reading

A blogger publishing under the name “WTForever21.com” recently got threatened with litigation for trademark infringement by the LA-based clothing retailer Forever 21.

WTForever21.com, a parody site published by Rachel Kane, had prominently disclaimed any affiliation or endorsement by Forever 21.  And as indicated, Kane’s purpose was (some would claim clearly) parody.   Kane was the proud recipient of a cease and desist letter from Forever 21 on April 22 (a copy of which can be found here), which alleged trademark and copyright infringement, unfair competition and trademark dilution.

Without testing the merits of her legal position and, according to several initial reports, not willing to expend the resources to do so, Kane announced that she would pull down her site by June 10th.  Kane then reversed course, and issued a statement last month stating “If the company continues to makes threats that have no basis in law, my attorneys are prepared to vigorously defend me and seek all available legal redress against Forever 21.”  The site is currently live. Continue reading

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Today, I discuss BitTorrents, and a particular case in California challenging the copyright validity of what one service provider is doing.  BitTorrent has been in the (copyright) news lately – and not surprisingly – after the movie studios set their sites on bringing down yet the latest iteration of file-sharing technology.

Some of the issues I discuss are these:

• What is the BitTorrent file sharing technology? And how is it different from Napster and its peer-to-peer progeny?

• What are the 2 biggest distinctions between BitTorrent and peer-to-peer and, in particular, BitTorrent’s distributive approach to file-sharing?

• Why is bitTorrent in the (copyright) news? I will particularly discuss a case in federal court in California, involving Columbia Pictures and other film studios who sued a bitTorrent company called isoHunt, together with its founder, Gary Fung.

• What were the relevant legal issues in this case? Several important copyright arguments were made, but of most significance were 2 particular issues: inducement of copyright infringement, and the safe harbor for providers of “information location tools” under Section 512 of the Digital Millennium Copyright Act (the DMCA).

• Why did Google get involved? I discuss how this case was an unusual instance where a court ruled that DMCA safe harbor protection was not available to a provider of “information location tools” who knew or should have known about potential or actual copyright infringement happening on its service.

Please click below for the podcast.

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BitTorrent has been in the (copyright) news lately – and not surprisingly – after the movie studios set their sites on bringing down yet the latest iteration of file-sharing technology.

2 great background sources on what BitTorrent is and how it works can be found here and here.  In short terms, BitTorrent is a file sharing technology, different from Napster and its peer-to-peer progeny in that it draws down pieces of large data files from multiple computers – rather than single computer to single computer peer-to-peer – based on a “community” structure of participating individual users.  The two biggest distinctions are (1) no single source for the compiled total file contributes more than a very small portion of the total file and (2) the distributive structure finesses the constant file-sharing problem of large data transfers demanding large broadband resources.

Why is bitTorrent in the (copyright) news?

BitTorrent is in the news not simply because Netflix’ CEO stated that “we’ve finally beaten bitTorrent.”  (“We”, by the way, presumably refers to Netflix’ full-file streaming capabilities.)

Continue reading

You go into a conversation from a lawyer’s perspective, expecting the discussion to be all about “ownership, ownership and ownership”.  You might expect app and other software developers to focus on nothing other than ownership.

Many times you’d be wrong.  One problem with ownership: Misidentification of value.

As Dan Berger of Social Tables pointed out, many technology companies aren’t strictly “technology” plays at all, and their value isn’t in their code, but rather in their execution or implementation.

I recently spoke with Eric Gunderson of Development Seed, whose open-source mapping technologies illustrate the same principle of technology execution: In the case of Development Seed’s MapBox, the great strength is speed.  Big data use means great mapping potential, but also means big processing problems.  Big processing problems reward innovative design execution.  If speed of mapping capability and management of data is a priority, ownership is less of a concern than execution and capabilities.  This is true even with proprietary products rather than services.  One might of course say, “Use our system, use our product,” but why should we use it?  The answer is that you do something better than everyone else out there using comparable – and perhaps even identical – technologies.  You wrap it up and package it – and execute it – better and faster.

The coding is valuable, but the greater value is in the execution of the coding and coupling of the organic coding with acquired knowledge from third-party applications and libraries, including (for example) Javascript libraries and other open-source software under GPL, MIT or other licenses.

The code itself may, or may not be open-source, but the value often is in the packaging, in the delivery, in the execution and the support.  In reality, I – the end user – cannot do much with the code itself beyond the immediate and narrow need of my specific use, and that will be without support, without updates, modifications, improvements and all the other benefits from open-source collaboration.  From the developer’s standpoint, the ability to develop products that continue to feed a renewable support business drives further continued product development.

Whether or not open-source, Social Tables, like MapBox, can benefit from copyright protection as a “collective work” or compilation, and that protection has meaningful value.  But as Dan Berger of Social Tables is quick to recognize, the copyright protection has less meaning to his potential market than the elegance of his design and the ease-of-use of his execution.   As technologist Piotr Steininger told me recently, referring to SproutCore, with increasing use of open-source, developers – and technology businesses – have realized that “the framework has potential but it can only benefit from open collaboration.  So in a sense the company gives up a product but in return gains a better product by sharing it.”

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Today, we will discuss the business and, particularly, the legal landscape faced by application (App) developers dealing with mobile platforms (iOS, Android and Blackberry being dominant), including dealing with application interfaces (APIs) when developing based on existing applications, and, of course, client relationships.

I am joined today by Liz Steininger, co-founder of Tapangi Consulting and project manager in the DC Government’s Office of the Chief Technology Officer.  Tapangi Consulting specializes in mobile and HTML5 application development as well as content management.  Liz is also an active member of the DC Tech community and you can find her on Twitter as @liz315.

Some of the issues we discuss today are these:

• Protecting ideas in early stages of pitching to potential clients.

• Application developer agreements and API Terms of Use (TOUs).

• Platform question: As a developer, how do you think about development based on different platform (e.g. Android or iOS or Blackberry) or a specific API?

• Copyright and “open source” issues, GPL, libraries, use of third-party code.

• Ownership and Rights Issues

• Privacy and uses of personal information (PI).

Please click here for the podcast.

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Our Twitter chat last week with technology and entertainment lawyer Joy Butler highlighted legal issues with app development, including contract issues between app developers and clients, on one end, and intellectual property (IP) and API issues between the app and the intended development platform, on the other end.

Privacy issues become pressing later when the app goes public for end users, although the biggest privacy problems tend to arise when app publishers get tripped up by commitments made in their own end user license agreements (EULAs) or privacy policies, more so than from any violations of privacy laws.  More on privacy and the app/API problems in a separate blog post.

Immediate issues are copyright and trademark, both governed by federal laws, but also governed by API terms of use and similar application development agreements with hosting platforms.  Apple’s software developer kits (SDK) for the iPad and iPhone encompass similar purposes as part of broader packages of developer protocols for use of those APIs.

Continue reading

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In today’s podcast, we discuss “street art”, which evidently isn’t just your grandfather’s graffiti anymore!  Street art has lately been in the news particularly because of several prominent copyright infringement cases, and most notably fallout from Shepard Fairey’s 2008 Obama “Hope” posters.  An even more recent controversy came out of the Oscar-nominated documentary film by Banksy, “Exit Through the Gift Shop”.

Along the way, we will touch on Run DMC, Thierry Guetta (aka “Mr. Brainwash”), “pop-art”, photography, Andy Warhol and Robert Rauschenberg.

Joining me to discuss copyright, fair use, street art, what is street art and all that we can cover in 15 minutes … I’m joined by Brooke Jimenez.  Brooke is a second-year law student at Georgetown University Law Center with a focus on international law, and a creative mind on issues of media law.

Stories mentioned in the podcast include this from The Art Newspaper, and this from George Will in the Washington Post.  Please click the audio player link below for the podcast. Enjoy.

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The Las Vegas copyright fair use loss for Righthaven last week was probably less meaningful – and less amusing – than the “money quote” (as Wall Street Journal blogger Ashby Jones put it) from the federal Judge James Mahan, who reportedly mused, “I realize this is going to be appealed.  I tell litigators ‘that’s why God created San Francisco’” – site of the 9th Circuit federal appeals court.

At first glance, the case is a breathtaking blow for newspapers and media organizations (including, presumably, bloggers), because it upheld a fair use defense against copyright infringement where the newspaper story was copied in its entirety.

This case would seem to run afoul of every fair use guideline ever published, including the fair use law itself, and particularly the frequent characterization of a “fair” use as a “transformative” use:

… whether the new work “merely supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).

But that’s first glance.  Judge Mahan hasn’t yet issued his Order, so we know only wha the Las Vegas Sun reported from the hearing.   Continue reading