The Trademark Blog: Get The Knack Of Copyright Statute of Limitations

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I have been sitting on this one for a while. I remember Run-DMC from way back in the day, along with others from the Queens hip hop scene. And in 1985, I was one of those kids in flyover country wearing parachute pants getting down to “It’s Tricky.” These days I only hear the song as the background music for my XBox game, SST Tricky (recommended for max. fun factor).

 Long story short here, “It’s Tricky” sampled a riff from “My Sharona,” by The Knack (one hit wonders that they are, this was their only hit). Apparently, The Knack crawled out of their cave and finally noticed Run-DMC’s song, (I am guessing that they ran out of cash) and have sued for infringment – in the UK.  Like Marty Schwimmer of the Trademark Blog, I thought (and teach) that the 3 year statute of limitations runs from the last infringment. Given that, I am puzzled why the article says that the U.S. statute of limitations has ran. As iTunes still sells the song, I would say that infringment is ongoing.

Glover v. Austin – TLC suit

Glover v. Austin, 447 F.Supp.2d 357, 2006 U.S.Dist.LEXIS 62923 (S.D.N.Y. 2006).

TLC prevailed in their suit that claimed the TLC song “Unpretty” infringed the copyright to the plaintiff’s song “Make Up Your Mind.” Evidence showed that TLC recorded their song three weeks before the plaintiffs. The plaintiffs expert also failed to establish the required “striking similarity” between the songs.

Capitol Records v. Foster: RIAA case dismissed

Capitol Records v. Foster is another case against a monther who was sued by RIAA for haivng paid for internet access. The court dismissed this one with prejudice and awarded attorneys fees for the defendant.  The defendant’s answer to the original claim is a good read, as is the order dismissing the case.

See original story here.

Virgin Records v. Marson: RIAA case dismissed due to lack of evidence

See the write-up here. After 6 months of litigation, RIAA dropped the case because they could not meet the evidenciary standard for scientific evidence. Basically they claimed she paid for the internet and word the computer where they found the shared files folder. The defendant claimed that many others had access to her computer, others had access to her unsecured wireless internet connection, and that it could have been any of those people engaging in the illegal conduct. Instead of setting a bad precedent, the RIAA agreed to dismiss. Stipulation and Order of Dismissal.

So, that brings up the issue of what is sufficient evidence in these cases. Most of the evidence will be an IP address and some screenshots of a P2P application. The issues will be ones of timing: can you prove the time stamp of the screenshots to match with who was assigned the IP address by the ISP at the time. Can you prove the screenshots were unaltered, or that someone was not spoofing the IP address. Can you prove that someone else was not also using the IP address for access at the time? (I live in a dorm with 220 college freshmen (don’t ask), and keep an unsecured wireless hub in my office. Practically anyone in my building, or one of the 2 dorms across the street could be using my wiress at any moment…. and they probably do.) Other questions are, did they download the music from the defendant, and if not, can they prove that the files shared actually contained the music that is alleged? One common tactic a few years back was for the music companies themselves to seed the P2P networks with bad files with valid metatags.

This brings up whether any of the above evidence meets the standard for evidence in Federal tort cases set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert I”), on remand, 43 F.3d 1311 (9th Cir.) (“Daubert II), cert. denied, 116 S. Ct. 189 (1995). Daubert concerned the admissibility of expert evidence that was put forth to establish a link between the use of the drug Benedictin by pregnant mothers and a certain type of birth defect. The plaintiffs experts stated that the drug could cause the type of limb reductoin birth defect alleged, and the defendant challenged the admissability of the experts statements based upon the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye standard was the test then used to determine the admissibility of scientific evidence, particularly for novel scientific evidence. Under Frye, the court looked to see whether the novel evidence was “generally accepted in the relevant scientific community.” If so, it was admitted, if not, then it was inadmissible.

In Daubert, the Supreme Court stated that the Federal Rules of Evidence had displaced Frye, and that the goal of scientific evidence is to assist the trier of fact and, thus, must be evidentiarily reliable. “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.” Daubert, 509 U.S. at 595. Under the Daubert test, the inquiry focuses on the principles and methodology of the techniques used by an expert without regard to the conclusions reached. 

In adopting the Duabert test, the Court partially readopted Frye, or to be more exact, the Court incorporated Frye’s historical application into a number of non-inclusive factors it directed the courts to use when determining whether to admit scientific evidence. The factors include:

  1. Whether the scientific knowledge can be and has been tested;
  2. Whether the theory or technique involved has been subject to peer review and publication;
  3. The known or potential rate of error for the theory or technique; and
  4. Frye’s general acceptance inquiry.

Over the intervening years,a number of other factors have been added by the courts, including:

  1. The relationship of the technique to reliable, established methods;
  2. The expert’s qualifications;
  3. The non-litigation uses of the method; and
  4. Other relevant factors.

See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994), cert. denied, 513 U.S. 1190 (1995).  Also, over the years, Daubert has been come to be applied not only to novel scientific evidence, but all expert evidence. See. Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 n.8 (9th Cir. 1997). Pursuant to Federal Rule of Evidence 104(a), any party can move for an hearing on the admissibility of evidence or the qualifications of a person to be a witness outside the presense of the jury. It seems then, that even before filing a motion to dismiss, a defendant would be able to hold Daubert hearings on all of these evidentiary issues. Especially on the control of the computer issue in these cases, where a minor child or children may be in the house and have other children over, a Daubert hearing might blunt the plaintiff’s case enough to get them to agree to dismiss. 

If anyone has challenged the evidenciary value of an IP address or contents of a file in an RIAA lawsuit, please point it out to me as I would be very interested.

MGM, Inc. v. Grokster, Ltd. – summary judgment against Streamcast

The district court granted plaintiff’s motion for summary judgment Wednesday in MGM v. Grokster decision. EFF has a PDF of the decision on its site. In light of the U.S. Supreme Court’s decision, all other parties had settled except for Streamcast. Accordingly, this opinion concern’s only Streamcast as defendant.

The Court’s Conclusion:

For the foregoing reasons, this Court GRANTS Plaintiffs’ request for summary judgment as to Streamcast’s liability for inducing copyright infringement through MusicCity/OpenNap and Morpheus. This Court DENIES StreamCast’s Rule 56(f) motion for a continuance.

I am sure that more will be written about this; in light of the Supreme Court establishing the inducement standard and kicking it back for further consideration, this was the only possible outcome. I, for one, am surprised that it dragged on for as long as it did – nearly five years. One of Streamcast’s arguments against the motion was that it was seeking a continuance to buy more time for discovery so it could establish a Copyright Misuse defense. This 60 page summary judgment opinion is worth reading just for this discussion.

eBay, Inc. v. Savani, et al.

The Plaintiffs’ Lawyer Blogpoints out that eBay has filed a lawsuit in against the company running an auction site at http://www.worldauctions.com/, alleging 13 counts of trademark infringement. The lawsuit was brought because, apparently, the cease and desist letter to the owner of World Auctions, who apparently includes a nephew of Pakistan’s president, was not only not heeded, but was rebuked with threats. The complaint alleges that the two sites are confusingly similar because World Auctions “adopted” the same look and feel for its site as eBay’s http://www.ebay.com/. Decide for yourself.

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world auctions screenshot

The lawsuit also alleges a number of other violations, such as intentionally attempting to interrupt eBay’s message boards and copying user ratings. The Plaintiff’s Lawyer Blog was nice enough to parse the complaint and list the different alleged violates, which include the following:  Federal Trademark Infringement, Federal Trade Dress Infringement, Federal False Designation of Origin, Common Law Trademark Infringement, Trademark Dilution in Violation of California law, Federal Copyright Infringement, Violations of the Computer Fraud and Abuse Act, Violation of the Computer Crime Act, Intentional Interference with Contractual Relations and Prospective Economic Advantage, Unfair Competition, Common Law Unfair Competition, and Breach of Contract.

Jerry Gossett v. Republican National Committee

Remember the 2004 Bush reelection stickers on the back of all the Chevy Suburbans, oval with a W with an american flag waving from one of the uprights of the letter? Jerry Gossett claims he pitched the Republican National Committee with a very, very similar design and was rebuked. He is seeking $100 million in damages for copyright infreingement from the RNC and Spalding Group, the maker of RNC’s campaign material. A federal judge in Texarkana just greenlighted the trial and set a date of Nov. 7. The RNC denies the claims and a lawyer for Spalding said in a letter to Mr. Gossett’s lawyer that his design did not meet the legal test of being ”substantially similar” to Spalding’s.

National Conference of Bar Examiners v. Multistate Legal Studies, Inc. – PMBR hit with $12 million in damages for violating copyright

See Here, or Here, or Here

U.S. District Judge John P. Fullam ruled against Multistate Legal Studies Inc. (a.k.a. Preliminary Multistate Bar Review (PMBR)) and ordered it pay nearly $12 million in damages to the National Conference of Bar Examiners for copying questions from the Multistate Bar Examination. PMBR sent people to take the Multistate just to copy questions for its bar prep course. The defense was that both group’s writers use the same material in preparing their test questions.

According to the court, the evidence of direct infringement was too damning to ignore:

Mr. Feinberg and other PMBR employees regularly write down information about the fact patterns, prompts, and answer choices appearing on MBE examinations that they have taken.  Mr. Feinberg admitted that he uses these notes when writing PMBE questions.  In order tofacilitate this process, PMBR employees sought out the onlyjurisdiction that allowed test-takers to use scratch paper,taking (and in all but one case failing) the Alaska Bar Exam eight times from 2001 through 2003.  In February 2003, Mr.Feinberg was caught leaving the examination room with his scratch paper.  In addition, PMBR advertisements brag about how close its questions are to those on the actual MBE, and Mr. Feinberg hasmade similar statements.  Finally, many PMBE questions reproduce MBE questions nearly verbatim, and others contain trivialvariations that suggest awareness of copying.

You might also look to some history of this case from the 1980’s in National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 692 F.2d 478 (7th Cir. 1982), which held that the questions were protected under copyright.

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