Arkansas IP Litigation Cases for the Week of November 24, 2007

The U.S. District Court for the Eastern or Western District of Arkansas was chosen as the forum for litigating the following case(s), as published by Justia:

  • Nelson Design Group LLC v. Puckett et al; No. 3:2007cv00177 (07-117); Filed: November 21, 2007; Court: Arkansas Eastern District Court; Office: Jonesboro Office; County: Craighead
    Not much to see here. Nelson Design Group filed a lawsuit for infringing the copyright in their home designs. The complaint alledges that Richard Puckett, a former employee, copied designs and gave them to his codefendants, Barry Phillips, Brent Phillips, State Development, LLC, and Phillips Investments & Construction Company, Inc., to use in their home building business. The Complaint alleges eight counts of copyright infringement (that would be eight houses, not eight designs) and that Puckett breached his employment contract. Nelson Design seeks a preliminary injunction and other remedies. In the complaint Nelson Design Group states:
  • Plaintiff immediately contacted the defendants, Richard Puckett and Barry Phillips, and asked how the house plans had been obtained. Both defendants asserted that the house was built from hand drawn prints. Upon further investigation, numerous plans owned and copyrighted by plaintiff are being used by the defendants to build homes. . .

    I would like to see what kind of investigation was needed. I imagine a 2 minute trip to one of the worksites and finding CAD drawing printouts was it took. Puckett had worked for Nelson Design since 2001 before being let go in 2006, and even presented his computer to Nelson Design to show he had none of their CAD drawings on his way out. I imagine, as the housing crisis heats up (oh, there is a long way for it to fall before it hits bottom) we will see more people cutting corners like this.

UMG v. Lindor: a minor victory

Ray Beckerman, attorney for defendant in UMG v. Lindor, an RIAA filesharing lawsuit, had a minor victory this week. Recording Industry vs. The People The judge in the case, Magistrate Judge Robert M. Levy, gave a partial grant to defendant’s motion to compel discovery. At issue is one of the defendants affirmative defenses, that the damages sought, $750 per song shared, are an unconstitutional violation of due process. As a result, the record labels, UMG Recordings, Warner Bros. Records, Interscope Records, Motown, and SONY BMG, must disclose and submit to deposition on the cost to the record company per song legally downloaded (at a cost of $0.99). While the $750 is a permissable statutory mininum, the Supreme Court held in State Farm Mutual Automobile Insurance Co v. Campbell et al. 538 U.S. 408 (2003) that a punitive damage award greater than 10 times actual damages creates a presumtion of a violatoin of due process. Here then, the actual damages of $1, and punitives of $749, would be over that limit. This is obviously not information (the actual cost of production) that the labels want out. They previously filed a motion for a protection order to seal these records.

Copy of Grant of Motion to Compel Discovery

Copy of Defendant’s Motion to Compel – a good piece of lawyering needs to be recognized.

If anyone in Arkansas has been sued for file sharing, I would love to defend one of these cases. If you are an attorney who needs an expert witness, I am also available. See my resume.

Court dismisses Tur v. YouTube/Google suit

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Over a year ago, Robert Tur was the first person to bring suit against Youtube for copyright infringement. At issue, video coverage Tur shot of the 1992 Los Angeles riots (search Youtube for L.A. riot video). This week at Tur’s bequest, a Los Angeles federal court judge dismissed the suit.a copyright infringement lawsuit against YouTube in order to allow the plaintiff — a Los Angeles video news service — to join a proposed class-action lawsuit pending in New York against the site.

The dismissal, requested by Robert Tur and his Los Angeles News Service, was granted last Friday. YouTube opposed the dismissal arguing, among other things, that the class-action suit will proceed at a slower pace than the Tur case, which could result in increased liability for the site if an adverse judgment is entered against it

Capitol Records, et al v. Jammie Thomas – Full text of jury instructions

As there has been much talk about the validity of the jury instructions in Capital Records v. Thomas, especially instruction no.s 14 and 15 , I thought it would be nice for everyone to see them in their entirety. I think that jury instructions should be taken and evaluated as a whole, as the jury see’s them, not piecemeal. While each must be a correct statement of the law on its own, the effect on the jury is as a whole. All documents related to this case can be found at Justia.

Continue reading

Capitol Records, et al v. Jammie Thomas – Jurors wanted maximum fine

Jurors from Capitol Records, et al v. Jammie Thomas are talking, and what they are saying is going to make a lot of people very angry. Several of the jurors wanted to give the maximum penalty of $150,000 per song for each of the 24 songs ($3.6 million total). In the end, they compromised at under $10k per song, for a total of $222,000.

[Juror] Reinke said she wasn’t sure at first how much Thomas should pay. The jurors wrote on unsigned slips of paper the amounts they thought were right, Reinke said. They piled the papers on a table, and the foreman read off the amounts.

“A few said we could go up to 150 (thousand), and then other people said, ‘No, that’s way too high,”‘ she said. “We just all discussed it and gave our views and came up with an agreeable amount.”

In short, the jurors wanted to both punish Thomas and deter others. Read the full story at “Juror: Some on music sharing jury wanted maximum $150,000 per song, $3.6M total”

Bourne Co. v. Twentieth Century Fox Film Corporation, et al. – “When you wish upon a Weinstein” lawsuit filed

family_guy_jew.jpgFiled last week in the Federal District court, New York Southern District Court was Bourne Co.  v. Twentieth Century Fox Film Corporation, et al, Case Number:  1:2007cv08580, Filed:  October 3, 2007. The owner of the copyright of the song “When You Wish Upon a Star” is suing 20th Century Fox (and others including Seth McFarlane personally) for their song called “I Need a Jew” included in an episode of Family Guy. The original episode, “When you wish upon a Weinstein,” debuted in 2003 (though created in 2000), so they are primarily concerned about reruns and DVD sales. Honestly, this episode is one of the funniest Family Guy episodes, second only the epic episode “Stewie loves Loise.”  

I would represent 20th Century Fox (or any of the other defendants) for free on this one. The U.S. Supreme Court said parody is protected in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), seems like a good place to start. I did like how the complaint (pdf) describes the original songs lyrics as “beautiful and heartfelt” and characterizes The Family Guy as an inferior rip-off of The Simpsons.  Articles about this at The Associated Press, MSN, and Undercover.

Capitol Records, et al v. Jammie Thomas – Guilty verdict.

A reprint of the AP newswire can be found at CNN Money: “Guilty verdict in music file-sharing case”. The bottom line is exactly what you thought it would be when you first heard about the case: guilty. The case focused on 24 songs, for which Thomas will now have to pay damages of $9,250 each for a total of $222,000. This is of course much better than it could have been, the plaintiffs had alleged she shared 1,702 songs online and the $9,250 is far below the statutory limit of $30,000 per infringment (see 17 U.S.C. 504(c)(1)). As the jurors found the infringment was willful, the actual statutory limit was $150,000 per infringment. Throughout Thomas denied sharing files or having a Kazaa account, a statement had to believe givent he account was setup using the same online handle, “tereastarr,” that Thomas had used for many years. The IP addresses matched. She replaced her hard drive after the infringment had taken place. In short, all evidence pointed to her (or her kids) and she may have destroyed evidence. I don’t see how, in a civil case, they had a chance to win this one on the arguments made.

Capitol Records, et al v. Jammie Thomas – Sony BMG’s lawyer says “Copying music you own is stealing.”

I was wondering when this bit of revisionism would take hold. I do not have a side in this battle (or a stake in it, when is my phone going to ring?), and for me it is purely an academic issue which should be framed thusly: “Whether format-shifting music (such as ripping a CD to your iPod) by a consumer for personal use or as a backup is a fair use under the Copyright Act.” For years the RIAA said yes, it was. For instance, during oral arguments in Grokster, the RIAA’s attorney stated to the U.S. Supreme Court:

The record companies, my clients, have said, for some time now, and it’s been on their website for some time now, that it’s perfectly lawful to take a CD that you’ve purchased, upload it onto your computer, put it onto your iPod.

Apparently, however, this was not a use that would fall under any fair use analysis, according to the RIAA, et al, but simply a license they were granting to do so. At least that is how it looked after the music industry filed a joint reply with the government as part of the triennial of the effectiveness of the DMCA. In the reply (pdf), the companies said in one footnote:

Nor does the fact that permission to make a copy in particular circumstances is often or even “routinely” granted, see C6 at 8, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case, is simply a statement about authorization, not about fair use.

Now, in this case which should be a fairly routine one, the subject of fair use arose and here is what Sony BMG’s counsel had to say:

[Judge] Gabriel asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy. [Sony BMG 's attorney] replied, “When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ‘steals just one copy’,” she said.

For more on today’s arguments, see Sony BMG’s chief anti-piracy lawyer: “Copying” music you own is “stealing”

The content industry, however, should pick its battles better. There is a good case to be made that, under current fair use analysis, content-shifting is not a fair use, and this is a case that they should easily win. Any of the software manufacturers making CD ripping software would fail both the tests of Sony and Grokster. And why did no one sue Apple for the “Rip. Mix. Burn.” ads?

(note: I do seem to remember that both Roxio www.roxio.com and Apple www.apple.com, which make a majority of the CD ripping/burning software had a deal with EMI to create “secure CDs,” but I am sure that deal died a horrible corporate slow death.)

Capitol Records, et al v. Jammie Thomas – First P2P file sharing jury trial begins

Excite News – Music Download Trial Starts in Minn.

Her trial offers the first chance for both sides in the debate over online music sharing to show a jury its version of the facts. Opening statements were expected Tuesday morning. Am amateur musician was among the jurors seated.

Arkansas IP Litigation Cases for the Week of September 29, 2007

The U.S. District Courts for the Eastern or Western District of Arkansas was chosen as the forum for litigating the following case(s), as published by Justia:

  • Virgin Records America Inc et al v. Does, Case Number 4:2007cv00863, Filed:  September 20, 2007, Court:  Arkansas Eastern District Court 

    Virgin Records America Inc, Atlantic Recording Corporation, BMG Music, Capitol Records Inc, Elektra Entertainment Group Inc, Interscope Records, LaFace Records LLC, Motown Record Company LP, Priority Records LLC, Sony BMG Music Entertainment, UMG Recordings Inc, Arista Records LLC, Warner Brothers Records Inc and Zomba Recording LLC  have sued multiple Does for copyright infringement under 17 U.S.C. § 101 et seq. for online file sharing (I have a few novel defenses for these cases I need to try out).

  • Lewis & Clark Outdoors, Inc. v. L. C. Industries, Inc., Case Number:  5:2007cv05164, Filed:  September 26, 2007, Court:  Arkansas Western District Court 

    Lewis & Clark Outdoors, Inc.  has sued L. C. Industries, Inc. for trademark infringment under the Lanham Act, 15 U.S.C. 1051 for fraudulently obtaining a federal registration for “Lewis N. Clark.”

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