Chilling Effects Weather Reports

Who Dat Trademark Belong To?

Blake Reid, Chilling Effects Clearinghouse, February 3, 2010
Abstract: It's sunny and warm in south Florida as the New Orleans Saints head to the Super Bowl for the first time in the team's 42-year history. Back in New Orleans, though, a cold front is blowing through as the National Football League tries to use intellectual property claims to lock down "Who Dat," a seminal New Orleans slogan adapted by Saints fans to cheer on the team.
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Happy New Year: Federal Anti-SLAPP Bill Introduced

Rebecca Schoff, Chilling Effects Clearinghouse, December 30, 2009
Abstract: Rep. Steve Cohen of Tennessee has introduced a bill (H.R. 4364) that would provide protection from strategic lawsuits against public participation (SLAPPs) at the federal level.
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Filmmakers Sued for Fictional Patent Infringement?

Rebecca Schoff, Chilling Effects Clearinghouse, December 3, 2009
Abstract: Legal reporter Eriq Gardner over at THR, Esq. has brought our attention to a lawsuit filed by Global Findability, Inc. against Summit Entertainment, makers of the sci-fi thriller Knowing, for patent infringement, apparently because the characters in the film are depicted using a string of numbers (including date, latitude, and longitude) to indicate the time and location of an event.
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Something Smells Off: Getty Images Sued Over Silhouette of Air Freshener

Research Staff, Chilling Effects Clearinghouse, November 23, 2009
Abstract: Getty Images has been sued by Car-Freshner Corp. for trademark infringement, dilution, and unfair competition over stock photographs of cars that include images of tree-shaped air fresheners hanging from the rear-view mirror.
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Intel Corp. Sues Mexican News Outlet (For Publishing "Intel")

Research Staff, Chilling Effects Clearinghouse, November 19, 2009
Abstract: Another hat tip to Techdirt for bringing our attention to Intel Corp.'s recently filed suit against the publishers of Mexico Watch, a digital newsletter whose URL is latinintel.com, and whose parent company does business as Americas News Intel Publishing.

Intel Corp. has alleged both confusion-based infringement and trademark dilution against the company, although its website is clearly branded in ways that would easily distinguish it from the computer chip maker and its use of the word "intel" to mean "intelligence" is in common use.
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German Murderer Threatens to Censor Wikipedia

Rebecca Schoff, Chilling Effects Clearinghouse, November 13, 2009
Abstract: A convicted murderer is attempting to have his name removed from the English-language version of Wikipedia and all other media coverage of his crime under a German law that protects private citizens from having their names and likenesses published against their will.
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Ohio County's Free Wi-Fi Shut Down Over a Single Complaint

Rebecca Schoff, Chilling Effects Clearinghouse, November 13, 2009
Abstract: The chilling effect in Coshocton County, Ohio, was in obvious evidence last week when a single complaint from Sony Pictures Entertainment caused the county to shut down its free Wi-Fi service.
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Pending Legislation Could Make ISPs Liable for Financial Fraud

Rebecca Schoff, Chilling Effects Clearinghouse, November 6, 2009
Abstract: John Timmer over at Ars Technica has reported that a bill introduced in Congress last month would make Internet service providers liable if a particular kind of financial fraud is perpetrated on their networks.
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Takedown Hall of Shame Debuts at Electronic Frontier Foundation

Rebecca Schoff, Chilling Effects Clearinghouse, November 5, 2009
Abstract: The Electronic Frontier Foundation has inaugurated a new venue for exposing bogus copyright and trademark claims that stifle free speech on the Internet.
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Trademark Disunity: Clear Channel Zaps "Unity Day"

Research Staff, Chilling Effects Clearinghouse, October 9, 2009
Abstract: After announcing that Philadelphia radio station WDAS would not be able to sponsor the Unity Day festival for the first time in 30 years, Clear Channel has used an allegation of trademark rights in the name "Unity Day" to prevent citizens from raising funds and obtaining city permits to keep the tradition going.
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BoingBoing brings a ray of sunshine to DMCA-chilled air

Wendy Seltzer, Chilling Effects, October 8, 2009
Abstract: For several years, the Chilling Effects Clearinghouse has cataloging the effects of legal threats on online expression and helping people to understand their rights. Amid all the chilling we continue to see, it's welcome to see rays of sunshine when bloggers stand up to threats, helping to stop the cycle of threat-and-takedown.

The BoingBoing team did this the other day when they got a legal threat from Ralph Lauren's lawyers over an advertisement they mocked on the BoingBoing blog for featuring a stick-thin model. The lawyers claimed copyright infringement, saying "PRL owns all right, title, and interest in the original images that appear in the Advertisements." Other hosts pull content "expeditiously" when they receive these notices (as Google did when notified of the post on Photoshop Disasters), and most bloggers and posters don't counter-notify, even though Chilling Effects offers a handy counter-notification form.

Not BoingBoing, they posted the letter (and the image again) along with copious mockery, including an offer to feed the obviously starved models, and other sources picked up on the fun. The image has now been seen by many more people than would have discovered it in BoingBoing's archives, in a pattern the press has nicknamed the "Streisand Effect."
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Cyanogen and Google Work Past the Cease and Desist

Rebecca Schoff, Chilling Effects Clearinghouse, October 2, 2009
Abstract: News this week of a cease and desist letter sent to Cyanogen, the popular amateur developer of Android software, had members of the Android community hoping for a Jedi mind trick to make the legal threat go away: "Google, this is not the Droid you are looking for...."

But as the situation unfolds, participants hope that Google and Cyanogen will find a solution that protects Google's closed-source applications without chilling the innovation of the open-source Android community.
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DMCA Double Take: Suit Claims No Safe Harbor for Scribd

Rebecca Schoff, Chilling Effects Clearinghouse, September 29, 2009
Abstract: We know what the safe harbor provisions in the Digital Millennium Copyright Act mean ... don’t we?

A number of cases in California have confirmed what a straight-forward reading of the law would suggest: that the DMCA safe harbor provisions apply to hosting sites when those sites meet the requirements set out in section 512 of the law. (Perhaps most recently, a federal judge ruled in California that the safe harbor provisions applied to video-sharing site Veoh, see Veoh Survives Universal Music Group Copyright Infringement Suit.) Plaintiffs in a case just filed in Texas against document sharing site Scribd, however, would like to challenge that understanding.

As you read on, bear in mind that a complaint is just one party's allegations -- not proof of facts or accepted legal theories. Plaintiffs can ask for anything, even one hundred billion dollars, but that doesn't mean they'll get it.
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Sedgwick Appeals Case Over Wild West Wanted Posters

Rebecca Schoff, Chilling Effects Clearinghouse, September 18, 2009
Abstract: In July 2009, blogger Robert Delsman, representing himself in court, won a rousing victory against Sedgwick, a large claims management company that had sued him, among other things, for copyright infringement over his use of modified corporate promotional photos in mailings that were critical of the company. The judge ruled that Delsman’s use of the promotional photographs, which had been transformed to look like “wanted” posters out of the Wild West, qualified as fair use and threw out Sedgwick’s remaining claims under California’s Anti-SLAPP statute. Now Sedgwick has appealed the ruling to the 9th Circuit, setting the stage for a major review of the application of fair use analysis and Anti-SLAPP legislation in similar contexts—and raising questions about whether the “Streisand Effect” really discourages litigiousness.
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Veoh Survives Universal Music Group Copyright Infringement Suit

Rebecca Schoff, Chilling Effects Clearinghouse, September 17, 2009
Abstract: U.S. District Court Judge A. Howard Matz has granted summary judgment in favor of Veoh, an online video hosting site, ruling that Veoh’s procedures to protect against copyright infringement are adequate to qualify Veoh for safe harbor protection under the Digital Millennium Copyright Act.
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Apple Reverses Course on Public Chats, Withdraws BluWiki Objection

Research Staff, Chilling Effects Clearinghouse, September 11, 2009
Abstract: The Electronic Frontier Foundation reports that Apple has stepped back from threats of legal action against BluWiki, a host of public wiki pages that discussed the use of software other than iTunes to download media onto Apple products--but the withdrawal of threats was based on the pages having been rendered obsolete by new code.
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Apple Steps up to Podium with TM Claims

Research Staff, Chilling Effects Clearinghouse, September 11, 2009
Abstract: Apple has once again objected to the use of the suffix "pod" in the names of two products: Pivotal's "Podium" and "FlyPod."
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DMCA Scattershot Hits Lessig Copyright Presentation

Ryan Paul, Ars Technica, April 29, 2009
Abstract: Lawrence Lessig, the well-known legal scholar and copyright reform advocate who founded Creative Commons, was surprised to discover that Warner Music issued a Digital Millennium Copyright Act (DMCA) takedown notice against one of his presentations on YouTube.
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DMCA "Repeat Infringers": Scientology Critic's Account Reinstated after Counter-Notification

Wendy Seltzer, June 6, 2008
Abstract: The Scientology critic known as “Wise Beard Man” returned to YouTube this week after successfully filing counter-notifications to copyright claims that had earlier been made against his account. The takedown and delayed return illuminate another of the lesser-known shoals of the DMCA safe harbor, the 512(i)(1)(A) “repeat infringers” consideration.
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Blue Jeans Cable Not Cowed by Monster's Roar

Wendy Seltzer, April 15, 2008
Abstract: When Kurt Denke at Blue Jeans Cable got a cease-and-desist demand from Monster Cable, his litigator's instinct kicked in. He sent back five pages of questions detailing what he'd need to see before he'd be convinced to back down.
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Air Force DMCA-Bombs YouTube

Wendy Seltzer, from a report at Wired's Threat Level, March 7, 2008
Abstract: It's cyber war! Lawyers representing the Air Force's elite electronic warriors have sent YouTube a DMCA takedown notice demanding the removal of the 30-second spot the Air Force created to promote its nascent Cyber Command. We'd uploaded the video to share with THREAT LEVEL readers.
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Here Comes Another Takedown

Wendy Seltzer, December 19, 2007
Abstract: Earlier this month, comedy group The Richter Scales released a funny music video, "Here Comes Another Bubble." The video showed a montage of Silicon Valley images over a sound-track adapted from Billy Joel's "We Didn't Start the Fire," lampooning the Web 2.0 bubble that seems near bursting again. The video must have touched a nerve, as well as a funny bone, because it got wide linkage and discussion and became the week's top-rated video.

Then, it was removed from YouTube, "due to a copyright claim by a third party."
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Best Buy Apologizes For Cease & Desist Letter to Laughing Squid Blog

Wendy Seltzer, via Scott Beale of Laughing Squid, December 12, 2007
Abstract: Best Buy sent a cease-and-desist to Scott Beale of Laughing Squid for reporting on an "Improv Everywhere" prank and their sales of T-shirts mocking the Best Buy logo. Best Buy claimed the post infringed its trademarks and copyrights by "promoting" T-shirt sales. Laughing Squid promptly posted the C&D, where it was picked up by BoingBoing and Slashdot.

But Best Buy seems to have learned from the hubub, and sent its apologies a day later:

"We appreciate your clarification of the nature of your posting. We do object to sales of T-shirts or other products bearing a logo which violates our trademarks or copyrights or other misuse of our logo in commercial ventures. However, we do not object to fair and accurate reporting fo facts, and respect the First Amendment rights of Laughing Squid and other bloggers to provide articles or commentary on current events. Now that we have a better understanding of your website, we regret sending you the demand letter."

It's good to see a company recognize the distinction between reporting and trademark infringement and drop its threats. We have to say, though, the T-shirts give "trade dress" claims a whole new meaning.

Prince Threatens to Sue Fansites

Peter Ostrovski, November 12, 2007
Abstract: Prince is threatening to sue his biggest fansites for improperly hosting content featuring his likeness.
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Sen. McCain Calls Fair Use on Fox

Associated Press, October 26, 2007
Abstract: The Associated Press reports that presidential candidate John McCain has rejected Fox's call to "cease and desist" from using Fox debate footage in a campaign ad.

Fox is apparently claiming infringement by the use of 18 seconds from a 90 minute debate, in which Sen. McCain is the speaker. Political argument, even in the heated sound-bite form of campaign ads, is at the core of First-Amendment protected speech. This kind of commentary use, of newsworthy material available only from Fox, suggests that not only McCain, but the general public should have greater access to debate footage.
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Black Friday Ads: the Prequel

Wendy Seltzer, October 22, 2007
Abstract: If it's fall, these must be cease-and-desists for Black Friday ads. This year, they seem to be coming earlier than ever, as Wal-Mart sends pre-notifications against future posting.
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MediaDefender Claims Analyzed

Peter Ostrovski, October 7, 2007
Abstract: As against the hosts of stolen emails, MediaDefender's three statutory claims do not appear to be backed by the letter of the law or cases. Its claim of misappropriation of trade secrets would have some weight, if the information from the e-mails is found to contain trade secrets.
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Public Citizen challenges "copyrighted" C&D

Greg Beck, Public Citizen Law & Policy Blog, October 5, 2007
Abstract: DirectBuy sent its critics cease-and-desists with copyright warnings. Public Citizen's response: Bring it on.

Public Citizen decided to post the letter on its website because it is only possible to understand our letter in response by seeing the letter we are responding to, and because we think Morris's letter is a good example of the many meritless threats that companies hurl at their online critics in an effort to silence dissent. We also don't think the copyright laws prevent us from posting the letter. First, the letter is not registered with the copyright office, and until it is, DirectBuy's law firm can't sue to enforce it. Second, posting the letter is a clear example of fair use. Companies should not be able to make threats and then hide from criticism behind the Copyright Act.

Media Defender Struggles to Defend Leaked Emails

Peter Ostrovski, September 27, 2007
Abstract: During an embarrassing week of leaks, Media Defender has been trying to use takedown notices to prevent internal information from circulating around the Internet. So far, it has met with minimal success.
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Better Know a Lawsuit

Andy Gass, Samuelson Clinic, Boalt Hall, March 27, 2007
Abstract: Last week, the authors of a short video parodying “The Colbert Report” filed suit against Viacom, corporate parent to the show’s network and no stranger to enforcement actions in its own right. The alleged offense: telling YouTube to take down the clip, “Stop the Falsiness,” when Viacom knew or should have known that excerpted selections from the TV show did not infringe copyrighted material but instead amounted to “self-evident fair use.”
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The Silencing of Internet Radio?

Jeremy P., Samuelson Law, Technology, and Public Policy Clinic - Boalt Hall, March 12, 2007
Abstract: Internet radio has become a place where small independent radio stations can thrive by offering a different music mix than broadcast radio. This, however, is in danger, due to a recent decision by the Copyright Royalty Board.
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RIAA Refuses to Share Even After Verdict in Defendant's Favor

Niki R. Woods, Samuelson Law, Technology, and Public Policy Clinic - Boalt Hall, February 23, 2007
Abstract: In a move to alleviate some of the damage done to its future prospects of winning on file sharing infringement cases, the RIAA decided to appeal the attorneys’ fees awarded to the prevailing defendant in a copyright infringement claim.
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ViaCom's Dragnet Catches a Few "Dolphins"

Elvin Lee, Samuelson Law, Technology, and Public Policy Clinic - Boalt Hall, February 14, 2007
Abstract: ViaCom recently revealed that it had sent 100,000 DMCA takedown notices to YouTube, alleging widespread copyright infringement. Soon after, it became apparent that not all of the copyrights were properly asserted, and ViaCom did not have claims to all content taken down.
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Viacom Tells YouTube: Hands Off

GERALDINE FABRIKANT AND SAUL HANSELL, New York Times, February 3, 2007
Abstract: In a sign of the growing tension between old-line media and the new Internet behemoths, Viacom, the parent company of MTV and Comedy Central, demanded yesterday that YouTube, the video-sharing Web site owned by Google, remove more than 100,000 clips of its programming. Viacom, along with other major media ...
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The Shot Heard 'Round The Blogosphere

David E. Snyder, Samuelson Law, Technology & Public Policy Clinic -- Boalt Hall, December 8, 2006
Abstract: Until recently, blogs seemed immune from the threat of libel lawsuits. A recent verdict in Georgia suggests that’s no longer true. For the once pugnacious community blog www.aboutforsyth.com, the truth is no longer an affirmative defense.
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"Stuffing" the DMCA "Turkey" with 6 New Exemptions a Day Before Thanksgiving

Jason H. Tokoro, Samuelson Law Technology & Public Policy Clinic - Boalt Hall, November 23, 2006
Abstract: On Wednesday, November 22, 2006, the Librarian of Congress, James H. Billington (“Billington”), announced six new exemptions from the prohibition against circumvention of technological protection measures that control access to copyright works, as provided in the Digital Millennium Copyright Act (DMCA). Six exemptions are the most that have been granted during a single rulemaking session. The exemptions will go into effect on November 27, 2006 and continue through October 27, 2009.
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YouTube Threatens Legal Action Against Host of Video Download Tool

In an ironic twist, YouTube demandsTechCrunch remove tool which allows users to downl, Samuelson Law, Public Policy and Technology Clinic, November 17, 2006
Abstract: As part of its efforts to reduce copyright infringement of its site, YouTube sends TechCrunch a Cease and Desist notice demanding that owner Michael Arrington remove a tool that enables users to download streaming videos hosted by YouTube.
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Turkey with a Side of DMCA Abuses

Elizabeth Gonsiorowski, Brooklyn Law School, November 16, 2006
Abstract: After being threatened with a DMCA takedown notice, an online deal site removed Best Buy's prices from their online price list.
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EFF files suit for damages over abuse of DMCA

Aaron Schohn - Samuelson Law Technology and Public Policy Clinic - Boalt Hall, November 12, 2006
Abstract: EFF filed suit seeking damages for the alleged abuse of the DMCA. The defendant, Michael Crook, allegedly sent several take down notices to the ISP of the web magazine 10 Zen Monkeys complaining of copyright violation. While these notices were (arguably) facially invalid, the ISP was not willing to risk legal liability and obliged with the content’s removal. EFF and 10 Zen Monkeys argue that this constitutes intentional abuse of the DMCA and warrant damages for the time and effort expended by 10 Zen Monkeys and the interference with its First Amendment rights.
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No trademark for stealth...

Elizabeth Gonsiorowski, Brooklyn Law School, November 6, 2006
Abstract: Leo Stoller has lost another trademark infringement case, and people who use the word "stealth" have re-claimed a little linguistic freedom. Stoller has been trying to protect his trademark for the word "stealth" for over two decades. In mid-October, not only were Leo Stoller’s claims of trademark infringement dismissed; he was deemed a vexatious litigant and barred from instituting a trademark suit without prior leave from the court. Hopefully, this marks the end of his Trademark abuses.
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Cities Making Waves: Dude, Where

Kristy Murphy, Samuelson Law, Technology & Public Policy Clinic, November 2, 2006
Abstract: In a gnarly move, the owners of two Santa Cruz shops have sued the Huntington Beach Conference and Visitors Bureau, claiming that the Bureau’s “Surf City USA” trademark is totally bogus. In the lawsuit, the shop owners contend the four trademarks Huntington Beach holds are only listed on the supplemental register, meaning that they do not have an exclusive right to use of the mark. “What we've said is, this mark is so weak and so limited that if it is valid at all, it does not extend to Northern California,” said Ted Herhold, a surfer and partner in the Palo Alto office of Townsend and Townsend and Crew, the firm representing the shop owners. Herhold said he decided to take on the case for free upon reading a newspaper account of the dispute after a day of surfing in Santa Cruz.
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Don't Host It Girl.com?

Alan Massengale, Samuelson Law, Technology & Public Policy Clinic, UC-Berkeley School of Law (Boalt Ha, October 27, 2006
Abstract: Can the owners of websites whose users post intimate and salacious details about the personal lives of others be held liable for libel?
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Second Life -- A Whole New World of Trademark Infringement?

Sarah Adamczyk, Samuelson Law, Technology and Public Policy Clinic, UC Berkeley, October 27, 2006
Abstract: As the virtual world of Second Life continues to expand and more companies open virtual stores, the problem of trademark violations and counterfeit products takes on a whole new form.
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Copyright Questions Dog YouTube

Verne Kopytoff, San Francisco Chronicle, October 27, 2006
Abstract: The proliferation of pirated video and music uploaded by users -- everything from concert footage of pop band Death Cab for Cutie to clips of "Gone With the Wind" -- has made YouTube a target of the entertainment industry, which fears that the illegal free-for-all will crimp its profits.
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Microsoft's Zune Music Player Incompatible With Microsoft's Own DRM Ecosystem

Ross Housewright, Samuelson Law, Technology and Public Policy Clinic, UC Berkeley, October 24, 2006
Abstract: In recent years, Microsoft has been promoting its "PlaysForSure" DRM ecosystem, a branding system intended to identify media players and providers that will work compatibly with each other. Microsoft's new Zune player and associated media service, however, will not be compatible with this ecosystem.
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We're Google. So Sue Us.

KATIE HAFNER, New York Times, October 23, 2006
Abstract: Google's growth has brought company increasing number of lawsuits involving copyright violation, trademark infringement and its Web site ranking methods; company has spent millions in legal fees over last few years; legal department has grown from one lawyer in 2001 to almost 100, including some overseas; Google must be aggressive in fighting lawsuits that may reveal too much about its proprietary technology in court.
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Apple goes to bat over "Pod" trademark

Sarala V. Nagala, Samuelson Law, Technology, & Public Policy Clinic, Boalt Hall UC Berkeley, October 19, 2006
Abstract: Apple seeks to extend its trademark reach from "iPod" to all uses of the word "pod" in product names.
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Music Companies Grab a Share of the YouTube Sale

ANDREW ROSS SORKIN AND JEFF LEEDS, New York Times, October 19, 2006
Abstract: Vivendi's Universal Music Group, Sony BMG Music Entertainment and Warner Music Group each quietly negotiated to take small stakes in YouTube as part of video- and music-licensing deals they struck shortly before sale to Google; music companies collectively stand to receive as much as $50 million from these arrangements; Web site had been considered litigation land mine because of significant portion of videos posted to YouTube contain copyrighted songs or video material; Universal ahs filed suits against Bolt and Grouper, smaller video-sharing sites, for allowing users to post hundreds of pirated music videos of its artists; deals that music companies struck for stakes in YouTube should help shield Google from copyright-infringement lawsuits, issue that concerned some Google investors when YouTube deal was first announced; other copyright holders, including Hollywood and television studios, could pursue legal action if their content appears on YouTube.
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LimeWire Strikes Back against the RIAA (Cartel?)

Sarah Simmons, Samuelson Law, Technology & Public Policy Clinic, UC-Berkeley School of Law (Boalt Ha, October 13, 2006
Abstract: LimeWire appears to be fighting back hard against the RIAA. In answer to the RIAA’s August lawsuit against LimeWire (Arista v. LimeWire), LimeWire has responded aggressively with a counterclaim against the RIAA alleging illegal cartel formation resulting in antitrust violations, consumer fraud, and other misconduct.
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When High School Gossip Goes Hi-Tech

Elizabeth Gonsiorowski, Brooklyn Law School, October 2, 2006
Abstract: In an attempt to hold students responsible for what they say online, school districts are punishing students for what they post on the internet after school hours.
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Taking it to the Streets, plus Librarians on the March?

Heather C. McGhee, Samuelson Law, Technology & Public Policy Clinic, September 28, 2006
Abstract: In a big week for the DRM and anti-circumvention debate, scattered citizens and a flagship institution weigh in on the future of access to digital content.
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Suit Alleges Illegal Use of 'Charging Bull' Image

Dow Jones/the Associated Press, Los Angeles Times, September 22, 2006
Abstract: The artist who created Wall Street's famed "Charging Bull" statue has filed a copyright suit against Wal-Mart Stores Inc., North Fork Bancorp and others over their use of images of the bull.
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Game On: MLB can't control fantasy leagues' use of stats

Elizabeth Gonsiorowski, Brooklyn Law School, September 8, 2006
Abstract: In a home run for fantasy baseball players, a court held that online fantasy leagues can use Major League Baseball statistics without a license from MLB. The statistics are facts belonging to the public, not property of MLB or its players, the court found.
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30 Days of DRM: Suggestions to moderate a Canadian DMCA

Elizabeth Gonsiorowski, Brooklyn Law School, September 8, 2006
Abstract: In light of the Canadian Parliament's upcoming fall session, Prof. Michael Geist, a Law Professor at the University of Ottawa, has taken on a project to highlight public-interest exceptions that should be addressed if Canada enacts a law like the U.S. Digital Millennium Copyright Act.
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High court justices sound cool toward Internet libel case

Bob Egelko, San Francisco Chronicle, September 6, 2006
Abstract: The California Supreme Court showed little inclination Tuesday to allow suits against Internet service providers such as Google and Yahoo by people who claim they were libeled online.
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Now the Music Industry Wants Guitarists to Stop Sharing

New York Times, August 21, 2006
Abstract: The Internet put the music industry and many of its listeners at odds thanks to the popularity of services like Napster and Grokster. Now the industry is squaring off against a surprising new opponent: musicians.
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Free Speech v. Trademark Rights: Has the weather changed?

Sarah Mazzie-Briscoe, DePaul University College of Law, March 19, 2006
Abstract: When analyzing claims under the ACPA courts must decide whether preserving a domain name registrant’s right to free speech outweighs the mark owner’s trademark rights.
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Blu-Ray and HD DVD already singing the broken DRM blues?

Yaser Herrera, Samuelson Law, Technology, and Public Policy Clinic - Boalt Hall, March 18, 2006
Abstract: In a set of developments that shocks almost no one familiar with Digital Rights Management ("DRM") technology, it appears that the technology used to prevent copying of new, high definition DVDs, Advanced Access Content System ("AACS") has already been partially cracked.
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A Perfect 10 Storm for Google

Stephen Dang, Samuelson Law, Technology, and Public Policy Clinic, February 27, 2006
Abstract: Storm clouds gather as a court found Google’s image search, which generates thumbnail-sized image reproductions from websites, to infringe Perfect 10’s copyrighted photos. The holding potentially weakens Google’s ongoing litigation over its Book Search Program, where the Association of American Publishers (AAP) claims Program search results providing short “snippets” of copyrighted books infringes the copyright holder’s rights. Google raises a fair use defense, arguing that the snippets are transformative and do not harm the copyright holder’s commercial interests.
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The Trusted Platform Module

Samuelson Law, Technology & Public Policy Clinic, January 8, 2006
Abstract: There is a strong chill in the air as PC manufacturers move towards installation of Trusted Platform Module (TPM) chips in personal computers this year. These chips assign a permanent unique identifier to each computer in which they are installed, effecting ending anonymous internet use. Advocates for the chips argue that the TPM technology may be used to make online transactions such as banking and shopping more secure, reducing identity theft and online fraud. However, critics contend that the technology will be used by the music, movie, and software industries to restrict consumers’ use of copyrighted content, and further erode traditional fair use rights under copyright law.
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How A

Erica Brand, Samuelson Law, Technology & Public Policy Clinic, UC--Berkeley School of Law (Boalt H, November 30, 2005
Abstract: How the use of Creative Commons licenses helped three dudes get hired by Saturday Night Live.
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U.S. Supreme Court to consider whether MercExchange wins an injunction against eBay

Sara Adibisedeh, Samuelson Law, Technology, and Public Policy Clinic, November 28, 2005
Abstract: On November 28, 2005, the U.S. Supreme Court announced in eBay Inc. v. MercExchange, 2005 U.S. LEXIS 8572 (2005), that it would consider whether an appeals court erred in finding that a permanent injunction barring use of a technology must generally be issued once infringement of a valid patent has been determined. The Court said it would reconsider its own precedents on when it is appropriate to grant an injunction against a patent infringer. The Court will likely hear the case around April and issue a decision by the end of June in 2006.
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Quantifying the DMCA's Chill: A forthcoming report

November 22, 2005
Abstract: Two members of the Chilling Effects team today released a preliminary report on their research into the use of the DMCA notice and takedown process. In an executive summary of a paper to appear this spring, Jennifer M. Urban of the USC Gould School of Law and Laura Quilter of the University of California-Berkeley (Boalt Hall) report on a disturbing number of legal flaws in so-called "DMCA notices"--which result in online materials being pulled from the Internet, generally without notice to the target. Urban and Quilter studied a sample of nearly 900 notices collected by the Chilling Effects project, and discovered that a third of them demanded removal when the target had a clear legal defense. The full research paper will appear in the March, 2006 edition of the Santa Clara Computer and High Technology Law Journal.
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Apple Gets Cease and Desist Order from Lugz

Boalt Hall School of Law, University of California, Berkeley, November 12, 2005
Abstract: Jack Schwartz Shoes Inc, the maker of Lugz shoes, has issued a Cease and Desist order to Apple over the new iPod commercial featuring Eminem, according to AdWeek. The order claims that Apple, and its advertising agency TBWA\Chiat\Day, copied a commercial for Lugz shoes that aired in 2002.
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Worst DRM scheme ever? Sony BMG CDs install unremovable hidden software that leaves users

Samuelson Law, Technology & Public Policy Clinic, November 5, 2005
Abstract: It was a cold day for music lovers when security experts discovered that recent CDs released by Sony BMG Music Entertainment contain a DRM scheme that threatens to compromise the security of consumers’ computers. The DRM scheme is enforced by the automatic installation of a software program the first time a user inserts one of the protected CDs into a computer. Unfortunately, the poorly executed software leaves a significant security hole on users’ computers that may be exploited by malicious programs, and is difficult to remove because it employs methods similar to those used by spyware and other malicious software to thwart detection and removal. Removal of the software, provided that a user actually manages to figure out how, disables the CD-ROM drive on the computer. After much outcry, Sony BMG has released a “fix”; however, questions linger as to the software update, which does not actually remove the DRM software.
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Scheme to Mislead Software Reseller Results in Loss of Right to Assert Microsoft Copyrights

Samuelson Clinic, UC-Berkeley School of Law (Boalt Hall), October 31, 2005
Abstract: On October 4, 2005, in HGI Associates, Inc. v. Wetmore Printing Co. (pdf), 2005 LEXIS 21427 (11th Cir. 2005), the Eleventh Circuit affirmed a district court ruling that Microsoft Corporation’s business partner, Wetmore Printing Co., fraudulently induced computer software reseller HGI Associates, Inc. to enter into sales contracts for Microsoft software. The court upheld the district court’s rulings that the contracts were valid, rejecting Wetmore’s defense that the contracts were against public policy because they would have led to copyright infringement. Under the doctrine of copyright estoppel, the court held that defendant Wetmore could not assert any copyright claim for the software that was the subject of the contracts.
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White House C&Ds the Onion over Presidential Seal

Katharine Q. Seelye, New York Times, October 25, 2005
Abstract: You might have thought that the White House had enough on its plate late last month, what with its search for a new Supreme Court nominee, the continuing war in Iraq and the C.I.A. leak investigation. But it found time to add another item to its agenda - stopping The Onion, the satirical newspaper, from using the presidential seal.

...

"It has come to my attention that The Onion is using the presidential seal on its Web site," Grant M. Dixton, associate counsel to the president, wrote to The Onion on Sept. 28. (At the time, Mr. Dixton's office was also helping Mr. Bush find a Supreme Court nominee; days later his boss, Harriet E. Miers, was nominated.)
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Stoller Strikes Out.....Again!

David Kozman, DePaul University College of Law Technology/Intellectual Property Clinic, October 23, 2005
Abstract: Leo Stoller and his corporate entities were thrown out at the plate when the U.S. District Court for the Northern District of Illinois, Eastern Division, issued a recent decision in Central Mfg Co. v. Brett, granting summary judgment to Baseball Hall of Fame inductee George Brett and Brett Brothers Sports International, Inc. against Central Mfg. Co., Stealth Industries, Inc., and Leo Stoller and cancelling Central’s Trademark Registration No. 2,892,249 for the mark “Stealth” for use on baseball, softball, and T-ball bats. The Court also ordered Stoller and his companies to pay Brett’s attorney fees and costs as provided for under the Lanham Act and pursuant to Illinois statute.
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Court Sees Clearly Now: "Use" in 1 800-Contacts, Inc. v. WhenU.Com, Inc. and Vision Direct, Inc.

Chloe Hecht, DePaul University College of Law Technology/Intellectual Property Clinic, September 25, 2005
Abstract: 1-800 Contacts, Inc., (1-800) sued WhenU.Com, Inc.(WhenU)and Vision Direct, Inc. alleging inter alia that WhenU’s advertising services infringed its trademark rights. The district court found in favor of 1-800 and issued a preliminary injunction enjoining WhenU from “using or otherwise displaying 1-800’s trademarks or anything confusingly similar to such trademarks” as part of its advertising. However, on appeal, The Second Circuit Court of Appeals disagreed and held that WhenU’s actions do not amount to “use” as required under the Lanham Act to prove trademark infringement. The Court reversed the district court’s entry of a preliminary injunction and ordered the court to dismiss all claims 1-800 made against WhenU that were based on trademark infringement.
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DRM in a Budget Bill? Groups Discourage Congress from Requiring Broadcast Flag Technology

Samuelson Law, Technology & Public Policy Clinic, September 25, 2005
Abstract: Consumer Federation of America, Consumers Union, and Public Knowledge have asked Congress not to give the FCC authority to require that receivers of digitally broadcast content be able to screen for a “broadcast flag,” which is a digital code in the broadcast signal that prevents its content from being redistributed to other devices or the internet. The FCC had imposed such a requirement, but it was struck down by a federal court as beyond the agency’s jurisdiction. The consumer groups worry that allowing a requirement of broadcast flag technology would give the FCC unprecedented authority and harm consumers; they also argue it is unnecessary given the tools copyright owners already have to protect their works.
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Blizzard Entertainment, Inc. Freezes On-Line Gamers with an Eight Circuit Court Victory

Amy Keating, Samuelson Law, Technology, and Public Policy Clinic, September 19, 2005
Abstract: On September 5, 2005, in Davidson & Associates v. Jung, 2005 U.S. App. LEXIS 18973 (8th Cir. 2005), the Eight Circuit upheld a district court ruling that three men illegally bypassed anti-piracy controls when they developed free technology to let computer users play games against each other online without using the gamemaker's own system. Specifically, the defendants violated the Digital Millennium Copyright Act as well as software license agreements by helping people bypass Blizzard's system for playing multiplayer games such as Diablo and StarCraft online.
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Having a Bad Hair Day? Customer tries to get even with Bosley Medical.

Ameet Patel, DePaul University College of Law Technology/Intellectual Property Clinic, September 14, 2005
Abstract: In a domain name dispute, the Ninth Circuit found that the use of another’s trademark as part of a domain name for a noncommercial gripe site does not constitute trademark infringement or dilution under the Lanham Act. However, the court remanded the matter back to the district court to determine whether in registering his domain name the defendant had a “bad faith intent to profit” from plaintiff's trademark which would allow recovery under the Anticybersquatting Consumer Protection Act (ACPA).
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Federal Circuit ruling allows repair and maintenance of machines under Copyright Act and DMCA

Tara Wheatland, Samuelson Law, Technology, and Public Policy Clinic, September 2, 2005
Abstract: Last week, in Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 2005 U.S. App. LEXIS 18131 (Fed. Cir. 2005), the Federal Circuit held that under 17 U.S.C. § 117(c), a third party may lawfully repair machinery running copyrighted software owned by another company, and that a claim under DMCA § 1201(a)(1)(A), prohibiting the circumvention of access controls, can not be brought if the underlying repair and maintenance conduct does not constitute copyright infringement. In this case, because the hardware repair company did not engage in copyright infringement, they also cannot be liable for a violation of the DMCA.
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Fourth Circuit Rules For Critic in Falwell Domain Name Dispute

Public Citizen, August 26, 2005
Abstract: WASHINGTON, D.C. – In a victory for free speech on the Internet, a New York man ordered to transfer the domain name www.fallwell.com to the Rev. Jerry Falwell will be allowed to keep the Web site, the United States Court of Appeals for the Fourth Circuit has ruled.
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Chilling Effects Internationally

Wendy Seltzer, Chilling Effects Clearinghouse, July 24, 2005
Abstract: You may have noticed that Chilling Effects has recently begun posting international C&Ds: complaints from people outside the United States to U.S. individuals or companies raising arguments under non-U.S. law. These C&Ds raise some distinct issues from U.S.-based complaints, including jurisdiction, substantive law, and language. They also raise similar issues of transparency for the web hosts and search engines who receive them. Chilling Effects has begun to receive these international complaints from Google, which at times removes results from Google localized searches (e.g., searches on google.fr or google.de instead of google.com).
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Branson Attempts to Rip "Virgin" From the Dictionary

July 10, 2005
Abstract: Virgin Enterprises, Richard Branson's group of companies, has tried to stop others from using the word "Virgin" in names and domain names. When it went after Virgin Threads, a site featuring emerging independent fashion designers, owner Jason Yang thought that was a stitch too far. He's fighting back against Virgin Enterprises' trademark claims.
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NYT on STEALTHy Cease-and-Desists

Wendy Seltzer, via New York Times, July 4, 2005
Abstract: The New York Times reports on Leo Stoller's attempts to possess the word "Stealth": He Says He Owns the Word 'Stealth' (Actually, He Claims 'Chutzpah,' Too). The Times notes that for all Mr. Stoller's courtroom appearances, he has not won a single reported case. That hasn't stopped him from sending dozens of cease-and-desist letters, like these two from the Chilling Effects collection: Stealth v. Stealth Signal and Stealth Attack. Bullying, and even federal trademark registration, only give a trademark holder the right to police against consumer confusion -- not to take a common word out of the English language.

EFF Publishes Legal Guide for Bloggers

Electronic Frontier Foundation, June 13, 2005
Abstract: The difference between you and the reporter at your local newspaper is that in many cases, you may not have the benefit of training or resources to help you determine whether what you're doing is legal. And on top of that, sometimes knowing the law doesn't help - in many cases it was written for traditional journalists, and the courts haven't yet decided how it applies to bloggers.

But here's the important part: None of this should stop you from blogging. Freedom of speech is the foundation of a functioning democracy, and Internet bullies shouldn't use the law to stifle legitimate free expression. That's why EFF created this guide, compiling a number of FAQs designed to help you understand your rights and, if necessary, defend your freedom.
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Google DMCA Takedowns: A three-month view

Michael Davis-Wilson, Electronic Frontier Foundation volunteer, June 2, 2005
Abstract: Google receives more than 30 copyright-based takedown demands each month invoking the Digital Millennium Copyright Act. A review of three months of notices shows they cluster in a few big categories: C&Ds from companies and individuals demanding removal of competitors’ sites; C&Ds demanding removal of “cracks” or material copied wholesale; and C&Ds demanding removal of criticism.
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Free Speech Vindicated in OPG v. Diebold

Wendy Seltzer, September 30, 2004
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In a victory for free speech and transparency in electronic voting debates, Judge Jeremy Fogel has ruled that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions. Decision here.
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How 'Liberty' Disappeared from Cyberspace: The Mystery Shopper Tests Internet Content Self-Regulatio

Christian Ahlert, Chris Marsden and Chester Yung, May 1, 2004
Abstract: This paper represents the results of a research project on Notice and Take Down
attempting to shed light on the "reality" of content self-regulation by Internet Service Providers in general and in particular on differences between the US and the EC legal framework in this area.
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Garage Door Opener Company Loses DMCA Claim

Amalie Weber, December 18, 2003
Abstract: Chamberlain Group has recently lost an aggressive DMCA claim, both in the U.S. International Trade Court and in U.S. District Court. Like Lexmark before it, the company had tried to claim that the DMCA's anti-circumvention provisions prevented competitors from developing products that inter-operated with Chamberlain's garage door openers.
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Blackboard Erases Research Presentation with Cease-and-Desist, TRO

Jennifer Jenkins, Center for the Study of the Public Domain, September 30, 2003
Abstract: Two students' planned conference presentation on the insecurity of university campus physical security systems was blocked shortly before the talk by a cease-and-desist letter invoking the DMCA, along with trademark, trade secret, and computer hacking laws. Billy Hoffman and Virgil Griffith were scheduled to present their research on security flaws in the Blackboard ID card system at the Interz0ne II conference in Atlanta, until they and Interz0ne were served with a temporary restraining order (TRO) barring the presentation. The heavy-handed invocation of the law -- Blackboard obtained its TRO ex parte the day before the conference -- gave the students and conference organizer no opportunity to appear in court or challenge the order before the scheduled presentation had to be cancelled.
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Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands

Wendy Seltzer, Electronic Frontier Foundation, September 26, 2003
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The DMCA has been used to invade the privacy of Internet users, harass Internet service providers, and chill online speech. The subpoena and takedown powers of Section 512 are not limited to cases of proven copyright infringement, and are exercised without a judge's review. The following is a small sampling of abuse, overreaching, and mistakes in the use of Section 512(h) subpoenas, Section 512(c)(3)(A) notices, and equivalents. Judicial oversight could curb these abuses without interfering with copyright enforcement.

Protection of Non-U.S. Trademarks under U.S. Law

Mark Matuschak and Vinita Ferrera, Hale & Dorr Internet & IP Alert, July 21, 2003
Abstract: In an analysis of recent federal activity, Hale & Dorr's IP Alert announce that In International Bancorp, LLC, et al. v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, (May 19, 2003), a divided panel of the United States Court of Appeals for the Fourth Circuit held that the "use in commerce" requirement for trademark protection could be met by a non-U.S. company that owns and operates resort and casino facilities outside the United States, because of the combination of that company's extensive advertising of its services in the United States and its sale of those services to U.S. citizens - even if those services are provided in another country.
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Sixth Circuit Supports Sucks Sites

Martin H. Samson, Esq., Partner, Phillips Nizer LLP, Internet Library Case Upda, February 20, 2003
Abstract: The Sixth Circuit (which covers Tennessee, Kentucky, Ohio and Michigan) held that a domain name holder's use of another's trademark in a 'fan' site did not run afoul of Section 1114 of the Lanham Act because of the presence of both a prominent disclaimer on the site disavowing any affiliation with mark owner, and a link to plaintiff's official web site. The domain holder's use of the trademarks in conjunction with the word "sucks" in the domain names of non-commercial complaint sites did not violate Section 1114 of the Lanham Act because there was no likelihood of consumer confusion arising from that type of use, and because such speech is protected by the First Amendment of the US Constitution. The Taubman Company v. Webfeats, et al., Nos. 01-2648/2725 (6th Cir., February 7, 2003).
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Online Gamers Feel the Chill of Blizzard's DMCA Suit

Aaron Burstein, January 6, 2003
Abstract: Blizzard Entertainment, a division of Vivendi Universal Games, recently opened a new front in the battles being fought with online computer games: federal court. Blizzard has sued several individual users of Blizzard games as well as a small Midwestern ISP for writing a program, BNETD, that allows Blizzard users to compete against each other over the Internet. This legal confrontation not only raises traditional copyright and trademark claims, but may also provide a setting for a battle between the anti-circumvention and reverse engineering provisions of the Digital Millennium Copyright Act (DMCA).
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Bargain Shoppers Chilled by Retailers' DMCA Threats

Eddan Katz, Chilling Effects Clearinghouse, November 22, 2002
Abstract: As the holiday season approaches, bargain shoppers not only have to deal with getting through their gift lists and waiting in store lines, but this year they will also have to contend with the chilling effects of the Digital Millennium Copyright Act (DMCA). When major retail stores including Wal-Mart, Target, Best Buy, Staples, and Office Max learned that content from their upcoming "black Friday" sales circulars was being posted on the Web, they sent their lawyers to get the information taken down.
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Reseller wins right to use TM in domain name

Martin Samson, Phillips Nizer LLP Internet Library Case Update, October 31, 2002
Abstract: Holder of barginbeanies.com permitted to keep the domain name, against a challenge from Ty, Inc. Where domain holder's primary business was reselling authentic marked goods, the Seventh Circuit held that use of the mark as part of website title and domain name was not a violation of the Federal Trademark Dilution Act.
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Weather Reports

Chilling Effects Clearinghouse, February 25, 2002
Abstract: One of the key goals of the Chilling Effects project is to track the use and abuse of legal threats. We will do that by analyzing trends in the notices submitted. What areas (topics, legal categories, jurisdictions) are coolest to online conduct? What activities risk being frozen out altogether? What conduct gets the warmest reception?
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EFF and Law School Clinics Launch ChillingEffects.org

Chilling Effects Clearinghouse, February 25, 2002
Abstract: Project Aims to Educate Internet Users About Online Rights

San Francisco - The Electronic Frontier Foundation (EFF) and four major law school legal clinics announced the launch today of a project and website to empower Internet users with detailed information about their legal rights in response to cease-and-desist letters designed to restrict their online activities.
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