Litigation – Page 2 – Attorney Evan Brown

October 22, 2014 Right of Publicity

Court denies request of plaintiffs in right of publicity suit to exhume the body of Aunt Jemima

The great-grandsons of Anna S. Harringon, whose image formed the basis for Aunt Jemima, sued Quaker Oats Company and others for $2 billion claiming that defendants failed to pay royalties to Harrington’s estate after her death in 1955. One of the allegations in the case is that defendants played a role in Harrington’s death. Apparently, in an effort to support those allegations, plaintiffs sought an order from the US District Court for the Northern District of Illinois (where the matter is pending) allowing them to exhume the body of their great-grandmother for evidence of this malfeasance.

The court denied the request. Apart from it being just a bizarre ask, it turns out the “evidence” upon which the defendants’ role in Aunt Jemima’s death was based on a parody article from Uncyclopedia. In denying the motion, the court found the following:

The motion is primarily based on statements purportedly made by Quaker Oats executives about the death of the woman who had been identified as “Aunt Jemima.” But the source of the information is an uncyclopedia.wikia.com article, which is a parody website of Wikipedia. Uncyclopedia proudly bills itself as “an encyclopedia full of misinformation and utter lies.” See uncyclopedia.wikia.com/wiki/Uncyclopedia:About.

The court also threatened the pro se plaintiffs: “Plaintiffs must take greater care in their submissions to the Court, or else face sanctions and, if litigation abuse continues, outright dismissal of the case.”

Hunter et al. v. PepsiCo Inc. et al., No. 1:14-cv-06011 (N.D. Ill. October 21, 2014)

BTW: Some info about Anna Harrington’s grave.

Evan Brown is an attorney in Chicago advising clients on matters dealing with technology, the internet and new media.

January 22, 2014 First Amendment

Hulk Hogan sex tape redux: Another court holds Gawker had First Amendment right to publish video excerpts

Evan Brown is a Chicago attorney helping businesses and individuals identify and manage issues dealing with technology development, copyright, trademarks, software licensing and many other matters involving the internet and new media. Call him at (630) 362-7237 or email ebrown@internetcases.com.

As we discussed here on internetcases back in November 2012, someone surreptitiously filmed Hulk Hogan engaged in sex acts with someone other than his wife. When Gawker posted an article and video excerpts about that, Hulk sued in federal court for invasion of privacy. The federal court denied the preliminary injunction, holding that to bar Gawker from publishing the information would be an unconstitutional prior restraint on speech.

A few weeks after the federal court denied his motion for preliminary injunction, Hulk voluntarily dismissed the federal case and filed a new case in state court. Unlike the federal court, the state court granted a preliminary injunction against Gawker publishing the information and the video excerpts. Gawker sought review with the Court of Appeal of Florida. On appeal, the court reversed the lower court’s order granting the preliminary injunction.

The state appellate court’s decision closely tracked the federal court’s reasoning from 2012. The court observed that where matters of purely private significance are at issue, First Amendment protections are often less rigorous. But speech on matters of public concern is “at the heart of the First Amendment’s protection.”

The court found that the sex tape excerpts and information that Gawker published were matters of public concern. Much of this was from Hulk’s own doing — he injected himself into the public spotlight not only as a professional wrestler, but also through books detailing his sexual indiscretions, radio interviews, and other public pronouncements about his “conquests.”

In arguing that Gawker’s speech was not of public concern, Hulk looked to Michaels v. Internet Entertainment Group, Inc., 5 F.Supp.2d 823 (C.D.Cal.1998), a case that dealt with the infamous sex tape that Bret Michaels and Pamela Anderson made. In that case, the court found defendant’s redistribution of the video was not protected by the First Amendment, in part because the distribution was purely commercial. The court didn’t buy it.

But wasn’t Gawker’s use commercial as well? The court drew a distinction:

We are aware that Gawker Media is likely to profit indirectly from publishing the report with video excerpts to the extent that it increases traffic to Gawker Media’s website. However, this is distinguishable from selling the [Hulk] Sex Tape purely for commercial purposes.

So the court found that despite his brawn, Hulk failed to carry his “heavy burden” of overcoming the presumption that a preliminary injunction would violate the First Amendment in this situation.

Gawker Media, LLC v. Bollea, 2014 WL 185217 (Fla.App. 2 Dist., January 17, 2014)

July 25, 2013 Copyright, Litigation

Court slaps Prenda client with more than $20,000 in defendant’s costs and attorney’s fees

AF Holdings, represented by infamous copyright trolls Prenda Law, voluntarily withdrew its copyright infringement claims against the defendant, an alleged BitTorrent infringer. Defendant sought to recover his costs and attorney’s fees pursuant to the Copyright Act, which provides that:

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

The court found that all factors for an award of costs and attorney’s fees weighed in defendant’s favor:

Degree of success: There was no dispute that defendant completely prevailed in the case.
Frivolousness/Objective Unreasonableness: Plaintiff’s case was frivolous and objectively unreasonable in that it never presented any evidence (although it had the opportunity to do so) to support its claim that it had standing to assert a claim for copyright infringement. Moreover, the court found that plaintiff did not do a proper investigation to determine defendant was the one in the household who committed the alleged infringement. Instead, it simply alleged that he fit the best demographic of one who would infringe.
Motivation: The court found that it did not appear plaintiff was motivated to protect the copyright at issue, but merely to coerce settlements.
Compensation/Deterrence: The court awarded fees as a deterrent to copyright trolls everywhere: other persons or entities that might contemplate a similar business model that is not intended to protect copyrighted work but instead designed to generate revenues through suits and coerced settlements.
Furthering the Purpose of the Copyright Act: The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public. But here, the court found, plaintiff had not acted to protect original expression but rather to capitalize on coerced settlements.

Based on these factors, and after considering the number of hours spent and the hourly rate of defendant’s counsel, the court ordered plaintiff to pay $19,420.38 in attorney’s fees and $3,111.55 in costs (mainly for electronic discovery and deposition costs). Copyright trolls be warned.

AF Holdings LLC v. Navasca, 2013 WL 3815677 (N.D.Cal. July 22, 2013)

May 9, 2013 Copyright

Ninth Circuit affirms that Righthaven had no standing to sue as a copyright owner

Righthaven LLC v. Hoehn, No. 22-16751 (9th Cir. May 9, 2013)

The copyright holder in certain newspaper articles granted to Righthaven the awkwardly-articulated rights “requisite to have Righthaven recognized as the copyright owner of the [articles] for purposes of Righthaven being able to claim ownership as well as the right to seek redress for past, present, and future infringements of the copyright . . . in and to the [articles].”

After the district court dismissed some of Righthaven’s cases for lack of standing, saying that Righthaven was not an owner of an “exclusive right” as required by the Copyright Act to maintain the suit, Righthaven sought review with the Ninth Circuit. On appeal, the court affirmed the lower court’s holding that Righthaven lacked standing.

The court found that the language used to grant rights to Righthaven did not in itself prove that Righthaven owned any exclusive rights. It held that the language in an assignment agreement purporting to transfer ownership is not conclusive. Instead, a court must consider the “substance of the transaction.” Since a separate agreement between Righthaven and the copyright holder placed limits on what Righthaven could do with any copyright assigned to it, Righthaven did not actually possess the required exclusive rights under the Copyright Act, and therefore lacked standing to sue.

May 8, 2013 Copyright, Litigation

Are courts wising up to BitTorrent copyright trolls?

BitTorrent copyright trolling continues despite Prenda Law’s self-implosion. But there is hope that courts are coming to their senses.

Earlier this week Judge Wright issued a Hulk smash order lambasting the tactics of notorious copyright troll Prenda Law and finding, among other things, that the firms’ attorneys’ “suffer from a form of moral turpitude unbecoming an officer of the court.”

Though Prenda Law’s copyright trolling days may be numbered, it is still too early to announce the death of BitTorrent copyright trolling. Copyright plaintiffs are still filing lawsuits against swarms of anonymous accused infringers, and courts are still allowing those plaintiffs to seek early discovery of John Does’ names.

But there is reason to believe that courts are recognizing the trolls’ disingenuous efforts to join scores of unknown defendants in a single action. Last week, a federal court in Ohio (in Voltage Pictures, LLC v. Does 1-43, 2013 WL 1874862) expressly recognized the concern that some production companies have been “misusing the subpoena powers of the court, seeking the identities of the Doe defendants solely to facilitate demand letters and coerce settlements, rather than ultimately serve process and litigate the claims.” Likewise, the court recognized that other BitTorrent plaintiffs have abused the joinder rules to avoid the payment of thousands of dollars in filing fees that would be required if the actions were brought separately.

So the court issued an ominous warning. Though it found that at this preliminary stage it was appropriate to join all 43 accused swarm participants in a single action, the court noted that “[s]hould [it] find that plaintiff has abused the process of joinder, the individual John Doe defendants may be entitled to — in addition to a severance — sanctions from plaintiff, under [the applicable rule or statute] or the Court’s inherent powers.” The court went on to warn that “[w]hile the Court will not automatically hold plaintiff responsible for the alleged abuses of others in its industry, it will not hesitate to impose sanctions where warranted.”

Though it has taken several years of abusive and extortion-like litigation brought by BitTorrent copyright trolls, we may be entering an era where courts will be more willing to require these trolls to show the courage of their convictions. No doubt we have Prenda Law and its possibly-unlawful tactics to thank mostly for this crackdown. Prenda had a good thing going (from its perspective, of course). Too bad it did not abide by the timeless maxim, “pigs get fed, hogs get slaughtered.”

April 17, 2013 First Amendment, Litigation

Company sued by university can continue emailing that it will not hire students

University of Illinois v. Micron Technology, Inc., No. 11-2288 (C.D.Ill, Order dated April 11, 2013)

The University of Illinois sued Micron for patent infringement. Micron sent an email to several professors that read in part:

Because Micron remains a defendant in a patent infringement lawsuit that [the University] filed against Micron in Federal court in Illinois on December 5, 2011, effective immediately, Micron will no longer recruit [University] students for open positions at any of Micron’s world-wide facilities.

The University asked the court for a preliminary injunction barring future harassing communications from Micron to any University employee. The court denied the motion, holding that:

the term “harassing” was vague and therefore the requested injunction would violate Rule 65(d)’s requirement that the injunction describe in reasonable detail the acts to be restrained
the prior restraint of speech would likely violate Micron’s First Amendment rights
the sought after preliminary injunction did not pertain to the injury alleged in the complaint

Though the court sided in favor of Micron on the question of whether to enter an injunction, it questioned the company’s motives. It found Micron’s decision to be “without tact,” and was “very concerned” that Micron was trying to interfere with the litigation. But there was not sufficient evidence for the court to draw such a conclusion.

November 19, 2012 Electronic Discovery, Litigation, Privacy

Trial court erred in ordering defendant to turn over his iPhone in ediscovery dispute

AllianceBernstein L.P. v. Atha, — N.Y.S.2d —, 2012 WL 5519060 (N.Y.A.D. 1 Dept., November 15, 2012)

Plaintiff sued its former employee for breach of contract alleging he took client contact information on his iPhone when he left the job. The trial court ordered defendant to turn the iPhone over to plaintiff’s counsel so plaintiff could obtain the allegedly retained information.

Defendant sought review of the discovery order. On appeal, the court reversed and remanded.

The appellate court found that the lower court’s order that defendant turn over his iPhone was beyond the scope of plaintiff’s request and was too broad for the needs of the case. Ordering production of defendant’s iPhone (which, the court observed, has built-in applications and internet access) “was tantamount to ordering the production of his computer.” The iPhone would disclose irrelevant information that might include privileged communications or confidential information.

So the court ordered that the phone and a record of the device’s contents be delivered to the court for an in camera review to determine what, if any information contained on the phone was responsive to plaintiff’s discovery request.

November 4, 2009 Evidence, Litigation

Robbery conviction overturned because prosecutor played YouTube video during closing argument

Miller v. State, 2009 WL 3517627 (Ind. App. October 30, 2009)

Appellant Miller and his dad robbed Wedge’s Liquor Store in Logansport, Indiana back in November 2007. During the robbery Miller pulled out a shotgun and pointed it at the clerk’s face.

Get your grubby paws off my YouTube image

During closing argument at trial, the prosecutor showed the jury a video from YouTube to illustrate “how easy it was to conceal a weapon inside clothing.” The video was not admitted as evidence but was used merely as a demonstrative aid. The jury convicted Miller and the court sentenced him to 18 years in prison.

Miller appealed his conviction, arguing that the trial court made a mistake in letting the jury see the YouTube video. The court agreed with Miller and reversed.

The court noted that experiments and demonstrations may be permitted during trial if they will aid the court and jury. But in this case the court of appeals found that the YouTube video showing how weapons could be concealed could not possibly provide such aid. The state conceded in its appeallate brief that Miller’s defense theory was mistaken identity. So “the whole issue about the ability to hide weapons under clothing was ultimately unimportant.”

Moreover, before showing the video to the jury, the prosecutor said that the video “[had] nothing to do with this case.” The court of appeals agreed with Miller’s argument that the video “[brought] alive the passions of the jury . . . and suggested Miller was not only the robber but that he also . . . intended to . . . cause injury or death.” The video “was irrelevant, prejudical, and confused issues. . . .”

YouTube evidence picture courtesy Flickr user PIAZZA del POPOLO under this Creative Commons license.

This case is not off to a good start

Windy City Marketing, Inc. v. Places Advertising, Inc., No. 07-6401 (N.D. Ill., filed November 12, 2007) [Download the complaint]

Windy City Marketing, a Chicago company, has filed a federal lawsuit against a startup competitor, Places Advertising, Inc. The suit alleges infringement of copyright allegedly owned by Windy City Marketing in certain bound marketing pieces called “inside chicago”. Windy City Marketing claims that Places Advertising has wrongfully copied the marketing materials and is distributing those to Windy City Marketing’s customers.

The big problem with the complaint is that there is no allegation that Windy City Marketing owns a registration in the works at issue. A quick read of Section 411 of the Copyright Act will reveal what’s wrong with this picture. You gotta have a registration before you can file a lawsuit for copyright infringement. For the plaintiff’s sake, thank goodness for Fed. R. Civ. P. 15.