April 2010 – Attorney Evan Brown

April 21, 2010 DMCA

Pro-DRM decision under DMCA

Actuate Corp. v. IBM Corp., No. 09-5892 (N.D. Cal. April 5, 2010) [Scroll down for opinion]

Distribution of software license keys on the internet may constitute trafficking in circumvention technology, which is prohibited under the Digital Millennium Copyright Act (“DMCA”)

Plaintiff software licensor sued defendant for, among other things, violation of the anticircumvention provisions of the DMCA found at 17 USC 1201. Plaintiff alleged that defendant posted license keys on the internet, which purportedly would enable plaintiff’s software to be “installed on an unlimited basis.”

Defendant moved to dismiss, pointing to a line of cases including I.M.S. Inquiry Management Systems, Ltd. v. Berkshire Information Systems, Inc. and Egilman v. Keller & Heckman, LLP [see this old blog post about Egilman].

The I.M.S. line of cases hold that the use of a password issued by the copyright holder does not amount to “circumvention” under the DMCA. Under this thinking, the use of an issued password, even if done without authority, does not result in the “avoiding, bypassing, removing, deactivating, or otherwise impairing [of] a technological measure.”

But another line of cases, headed by 321 Studios v. MGM Studios, Inc. suggests differently. The court in 321 Studios reasoned that unauthorized use of a decryption code (the same one issued by the manufacturer) to bypass the encryption on a DVD served to avoid and bypass the encryption.

In this case, despite both parties’ attempts to show the compatibility of the lines of cases, the court found them to be irreconcilable. It sided with the thinking behind the 321 Studios line, finding no support for a distinction between passwords and other types of code that might be used for decryption.

Here’s the opinion:

Skeleton key photo courtesy Flickr user theogeo under this Creative Commons license.

April 20, 2010 First Amendment

Ohio internet obscenity statute constitutional

American Booksellers Foundation for Free Expression v. Strickland, — F.3d —, 2010 WL 1488123 (6th Cir. April 15, 2010)

Court holds that statute prohibiting distribution of material harmful to minors directly via the internet is not overly broad and therefore not unconstitutional.

Ohio has a statute that criminalizes sending juveniles material that is harmful to those juveniles (ORC 2907.31). Section D of that statute specifically addresses communications “by means of an electronic method of remotely transmitting information.”

A group of booksellers and publishers challenged this statute on First Amendmendment grounds, arguing that the provisions are overly broad. After a complex procedural journey that began in 2002, the Sixth Circuit Court of Appeals has held that the statute is not unconstitutional.

The court held that the statute was not overly broad because it only apllies to personally directed communications. For that reason, the plaintiffs were unable to demonstrate from the text of the statute that a “substantial number of instances exist in which the law cannot be applied constitutionally.”

Unlike a typical First Amendment case, the court did not apply the “strict scrutiny” test for constitutionality, because the statute does not affect protected speech among adults. But the court noted that even if that test applied, it would have survived strict scrutiny, given the compelling interests in protecting children from predators.

(Photo: Derived from an image licensed under a Creative Commons Attribution Share-Alike (2.0) from iboy’s photostream)

April 16, 2010 Uncategorized

Video: This Week in Law Episode 56

Recording today’s episode of This Week in Law was super fun. I enjoyed the conversation with Denise Howell, Carolyn Wright and Merlin Mann. Neato discussion about copyright, Twitter, Creative Commons and other awesome stuff. And you can even hear Denise rap at about the 47 minute mark. Here’s the video:

Watch past episodes of TWiL over at http://twil.blip.tv.

April 15, 2010 Copyright

How Twitter’s grant to the Library of Congress could be copyright-okay

Twitter is giving a copy of the archive of all tweets from the beginning of time to the Library of Congress. The inevitable outrage has ensued. One big concern is privacy. You gotta admit it’s creepy (and evokes Big Brother) to know that all your tweets will belong to the feds.

The other outrage-catalyst is copyright, and the possible violation of the license that one grants to Twitter via the terms of service.

Venkat and I exchanged some email earlier today on this topic. What if you delete your tweets? Doesn’t that terminate the license you gave to Twitter to store and share your content? How can the Library of Congress still keep its copy if the original license has ended? Fred Stutzman has also asked these kinds of questions.

These objections seem to presume that if one were to remove his or her tweets from Twitter, the license would be revoked, and any subsequent display by Twitter would be an infringement. I imagine that’s true in relation to Twitter, but I’m not so convinced when it comes to the Library of Congress. They’d likely fall under Section 108 of the Copyright Act.

Section 108 (17 USC 108) says that it’s not an infringement for a library to make a copy or distribute a work if (1) it’s not for commercial advantage, (2) the collections of the library are open to the public or available to all researchers in a particular field, and (3) the notice of copyright in the original work remains intact or if no notice can be found, there’s a legend stating that it may be protected under copyright.

You see what I’m saying? The Library of Congress would appear to have the right to archive one’s Twitter stream regardless of any assitance on Twitter’s part. In other words, by providing the archive, Twitter is just helping the LOC do something it’s entitled to do anyway.

What do you think?

April 15, 2010 Cybersquatting, Trademarks, Uncategorized

UDRP loser did not commit fraud on USPTO by saying it was exclusive user of mark

Salu, Inc. v. Original Skin Store, Slip Copy, 2010 WL 1444617 (E.D.Cal. April 12, 2010)

This is kind of a wonky trademark/domain name case. So if that’s not in your wheelhouse, don’t strain yourself.

Plaintiff sued defendant for infringement of plaintiff’s registered trademark. Defendant moved for summary judgment, claiming that the asserted trademark registration was obtained by fraud on the United States Patent and Trademark Office. Specifically, defendant argued that plaintiff misrepresented when it told the USPTO that its SKINSTORE mark had “acquired distinctiveness” (i.e., was not merely descriptive of the goods and servcies) by means of “substantially exclusive” use in commerce.

The court denied the motion for summary judgment.

Defendant had argued that plaintiff committed fraud by saying its use was exclusive. It pointed to a case under the Uniform Domain Name Dispute Resolution Policy (UDRP) that the plaintiff had brought against the user of the domain name eskinstore.com. The WIPO panel in that case refused to find a clear case of cybersquatting.

In this case, defendant argued that plaintiff’s earlier unsuccessful UDRP challenge to a similar mark showed there were third parties using the mark and therefore the claim of exclusivity was fraudulent.

The court rejected this argument, noting that the plaintiff had undertaken significant efforts to protect its exclusive rights in the trademark. (It had sent out an astounding 300 cease and desist letters in the past couple of years alone!)

Moreover, and more importantly, the court noted that the WIPO panel hearing the UDRP complaint specifically declined to determine cybersquatting had occurred, finding it to be a question of infringement better addressed by the United States courts.

April 12, 2010 Uncategorized

Wife posts pics with boyfriend on MySpace, loses child custody

And you should have heard what the judge said in open court!

Lipps v. Lipps, 2010 Ark. App. 295, 2010 WL 1379803 (Ark. App. April 7, 2010). [Read the opinion]

This is one of those cases that’d do well as a movie on Lifetime Television for Women. Unlike other cases I talk about on this blog, this one only kind of deals with the internet Here the husband (an Iraq war veteran) saw pictures on MySpace of his wife in bed with another man, so he filed for divorce and sought child custody.

What’s worth paying attention to in this case is the “disparaging and intemperate remarks” made in open court by the judge.

At a hearing where the judge entered a temporary order granting joint custody of the couples’ infant son, the court admonished the wife/mother, characterizing her situation as “a nightmare every parent faces . . . when you have got a child that acts like a slut, quite frankly, a slut.”

Later in the case the judge granted sole custody to the husband. The wife sought review with the Arkansas appellate court. On appeal, that court affirmed the trial court’s order on custody.

The wife had argued that the trial court judge was biased, and asked for a new trial with an impartial judge. Although the appellate court was “deeply troubled” by judge’s rude remarks, it held that because the wife had not raised that argument in the trial court, and had not asked the judge to recuse himself, the court could not consider that question on appeal.

So the court affirmed the foul-mouthed judge.

The appellate opinion is embedded below:

2010-04-07_lipps_v_lipps