Sunday, February 9, 2014

Playboy Sues Over Kate Moss Photographs

Magazine sues for copyright infringement over unauthorized use of photographs
Kate Moss (By Michel Haddi)
What better way to celebrate your 40th birthday than by having naked pictures of yourself shared on the Internet?  Famed fashion photographers Mert Alas and Marcos Piggott have captured the naked essence of Kate Moss for Playboy magazine.

Harper's Bazaar publisher, Hearst Communications, has been sued for the unauthorized distribution of several images that were scheduled to come out in the 60th anniversary issue of Playboy magazine. Lots of celebration was planned and expected. 

Then, out of the blue, apparently Harper's posted on its website a clothed photo of Kate Moss with a link to another website showing the good stuff:: nude and partially nude photos of the 40-year old super model.

Woo hoo.

Of course, there's nothing new about nude pictures of Kate Moss.  Just use Google and you can have all the nude pictures you want. But this is different.  This is a 40-year old super model. A woman with a couple years under her belt who still looks almost as good as when she was 18; some would say better. 

This case is really about stealing Playboy's thunder.  They wanted to celebrate their 60th birthday by demonstrating to the world that when you're good, age is just a number. Then Harper's steps in and practically ruins the whole thing. What good is a surprise party when the guest of honor has already been tipped off?  Sure, it's still a party; but it's not a surprise party.

And that's what we have here.  Playboy got pissed because Harper's largely eliminated all the hype and anticipation of seeing a 40-year old model in a 60-year old magazine. There's a lot of intangible value to that.  Just ask any soldier or policeman about the element of surprise. Dropping something on someone before they know about it is a huge benefit.

And that's why we have these silly things called "laws" to guard against things like this. I actually had a potential client call me the other day and ask me if I thought it was "ethical" for a rights-owner to try and protect its intellectual property rights. I didn't know what to say. Is it ethical to get an advance copy of highly secretive images and publish them to the Internet just to garner some pre-publicity for yourself?

Propriety aside: There are laws to which society must adhere. What happens when someone decides that silly "murder" law shouldn't be complied with? What happens when someone likes your stuff more than theirs? We are a nation of laws; they should be respected and enforced even-handedly.

People should be no more persecuted for minor indiscretions than they should be for the willful disregard of the rights of others. Is it right to demand $100,000 from everyone who made an unauthorized use of your copyrighted material?  Not always, but sometimes yes. Undeniably, yes.

Good luck to Playboy in this case.  I hope they make Harper's pay.

Wednesday, January 22, 2014

Judge Rice Dismisses Elf-Man's "Indirect" Theory of Liability

Well, you can't win them all. The other day I wrote about Judge Lasnik's ruling that an IP address alone was insufficient to sustain a complaint for direct or contributory copyright infringement. Today, Judge Rice ruled exactly the opposite.

To recap, some of the defendants in the Elf-Man case in Eastern Washington filed the same motion that was filed in the Western Washington Elf-Man case. Actually, Mike Matesky prepared and filed the same motion on behalf of several of his clients who happen to be in both the Eastern and Western Districts.

So now the layperson gets to see how the sausage is made.  Two different judges in two districts that sit right next to each other are both presented with the same motion filed against the same complaint by the same plaintiff.  One judge grants the motion, the other judge denies most of it.

Why you ask?  Who knows!

The point is there is no clear cut answer in litigation.  One of the most frustrating things for me when speaking with new clients is that they seem to think the law is cast in stone, unbendable and absolute--all the answers must be clear-cut.


I don't care how well you think you know the facts and the law, I guarantee you cannot predict what a judge or jury will do; I don't care what you read on wikipedia.  After all, these are human beings with their own experiences and mindsets. Everyone is different.

So if you call me and ask "what's going to happen with my case," maybe you can understand a little better why the answer is always "I don't know."  I can give you an educated guess, but there is no way to know for certain what will happen.  In litigation, you just have to accept the uncertainty and roll with it.

Monday, January 20, 2014

IP Address Alone Not Enough To File Suit

So Friday, Judge Lasnik of the Western District of Washington, right here in good ole' Seattle, held that an IP address alone was insufficient to state a claim for copyright infringement against the ISP subscriber.

What does this mean? Plenty.

I'm struggling a little with how much to say about this case, because it means different things to lawyers than non-lawyers. For now, I'll just describe it in terms that most people reading this blog will appreciate.

In order for a copyright owner to have the right to file a copyright infringement lawsuit, the copyright owner has to do a bunch of things first. One thing is to actually register the copyright with the Copyright Office. You don't have to register the copyright before the infringement began, but you do have to register it before the court system will let you file a suit.

Another thing the copyright owner must do first is allege sufficient facts that make it "plausible" that the person being sued is the actual one who did wrong. In other words, the federal court system doesn't let you maintain a lawsuit against just anyone without demonstrating that you actually have a case against that person.

Let's assume for the sake of argument that a copyright owner did, in fact, identify an IP address that was observed downloading a copyrighted work without authorization.  Classic copyright infringement. Many, many people have argued that an IP address alone is not enough evidence to identify the actual person who downloaded the work.  In other words, even if you have the IP address, you still don't know who the person is that might have done it.  But that's all the copyright owners have when they file these bittorrent lawsuits.

So the argument goes that since the copyright owner can't identify the actual person who downloaded the movie, they don't have enough facts to maintain a lawsuit against the Internet subscriber.  The person who downloaded it could be anybody (again, we're assuming that someone did actually download the movie at this IP address). This argument has been made before, but it usually fails.

But on Friday, Judge Lasnik here in Seattle held that an IP address alone was not enough.  He likened the IP address to a telephone number, and said that just because someone pays the phone bill doesn't mean me made a specific call.  There's a certain compelling logic to that position.  Judge Lasnik went on to say that an IP address was actually less likely to identify a specific person than a telephone number because random strangers can squat on your unsecured WiFi, unlike your telephone line.

So to those of you who want to know if a copyright owner can actually file a lawsuit against you--an Internet subscriber--with no evidence other than your IP address, then the answer is YES, they can file it.  But they can't maintain that action, at least not here in Seattle.

Judge Lasnik's order is just below, and under that is a different order by Judge Hegarty of the District of Colorado who held exactly the opposite.

For more on the legal analysis, visit FightCopyrightTrolls. Also, a big congratulations to Mike Matesky who successfully brought and argued this motion.

Tuesday, November 5, 2013

Read Your Kindle On the Plane!

Not exactly copyright news, but it's still pretty exciting.  The Federal Aviation Administration just rescinded its long-time ban on the use of electronic devices during take off and landing.  Yeah!

In hindsight, it was a stupid ban, really. There was no way a cell phone or your e-reader were going to take down a jet airliner.  But out of an abundance of caution, the FAA imposed the ban back in the early 90s just in case.  Fine.

But why did it take 20 years to lift the ban? 

Here in Seattle, it appears that Amazon is pretty happy about the news.

So am I.

Friday, August 30, 2013

Who Is Really Responsible For Excessive Legal Bills?

Litigation is expensive, and federal litigation is especially so.  In cases we file, defense counsel frequently make reference to the fact that we represent our clients on a contingent fee basis and that is why the litigation is so expensive--because the plaintiff does not have to pay any legal bills and therefore the defendants bear a disproportionate financial burden.  Even Judge Rader, Chief Judge of the Federal Circuit Court of Appeals, said so in an op-ed piece in the New York Times.  Judge Rader's opinion suggests that contingent fee lawyers bring meritless cases, thus causing defendants to incur substantial legal bills unnecessarily. 

Thankfully, some developments in a dispute between Adam H. Victor and his (hopefully former) law firm belies the myth being advanced by so many who should know otherwise.  It's not the contingent fee lawyers who cause excessive legal fees; excessive legal fees are caused by the lawyers who bill those excessive fees. 

So in a nutshell, here's what happened:  
  • Mr. Victor engaged his firm for a legal project on April 22, 2010
  • The firm's initial estimate for the project was $400,000
  • Less than one month later, on May 20, 2010, the firm's bill was already at $600,000
  • Mr. Victor refused to pay the firm's bill, claiming it was too high
  • The firm sued Mr. Victor for the unpaid bill
Those are operative facts; now let me put a little more meat on the bone. . .

Friday, July 5, 2013

R&D Film Cases Dismissed in WA

If you are one of the Does in the R&D Film cases here in Seattle, you should know that Judge Lasnik dismissed all those cases today. All the subpoenas were quashed earlier, and today Judge Lasnik put the final nail in R&D Film's coffin. Check my Seattle copyright cases page for the status of your case.

Read the order below...

Thursday, June 13, 2013

Bellwether Trial: Why It Was A Bust

So there have been a number of good opinions given about the recent bellwether trial in Malibu Media v. Does, Case No. 12-cv-02088 (PAED). For what it's worth, here's mine.

This wasn't a real trial.

If anyone continues to labor under the delusion that the trial was actually contested, just take a look at this post by Jordan Rushie. In it, Mr. Rushie says things like:
Porn is copyrightable. Period. 
[K]udos to Malibu Media’s counsel, Keith Lipscomb and Chris Fiore, who demonstrated that they are exceptional litigators and trial lawyers. It was a hard fought battle among worthy adversaries. 
So, if you have been targeted in a bittorrent lawsuit, there is an exceptionally high chance that the material was infringed on using your internet. 
Even though an IP address isn’t a person, evidence that infringement occurred via that IP address is enough to get into court. 
I know you’re not going to want to hear this, but if you downloaded a copyrighted work off of bittorrent and got caught, you should probably consider a settlement very seriously.
If you read that article, you could pretty easily conclude that Mr. Rushie was one of the Plaintiff's lawyers (like I did). Problem is, he actually represented one of the defendants!

What?!?!? Are you serious?!?!?

I've had several trials. I'm not bragging, but there was only one which I would legitimately say we lost. What I will tell you this: The day after that trial, the absolute last thing on my mind was writing an article about how great a job the other side did and how my own client had no chance of ever winning.

What?!!? Seriously?!?!

This illustrates my point. Even the lawyer for one of the defendants is making things up about how well it went for the plaintiff. It feels like everyone involved was on the same side.

So let's examine the reality.

The parties all agreed to waive their right to a jury. Who does that? People afraid of a jury, that's who. In a case where the thrust of your case is relying on the common sense and decency of common folk to say "this just ain't right," you don't waive a jury. Ever.

Mr. Lipscomb told Judge Baylson at the June 6 hearing that Malibu Media had already settled with two of the defendants (including Mr. Rushie's) but wanted the judge to enter a "final judgment" against them. Then Mr. Lipscomb told Judge Baylson that Malibu Media and Bryan White (Doe 16) had already reached a so-called high/low agreement so Mr. White wouldn't be paying the whole damages amount anyway, regardless of what the judge said.

In sum, all of the defendants stipulated to liability before the trial. Plaintiff had already agreed not to seek damages against two of the three defendants. The third defendant stipulated to liability. Malibu Media and the third defendant asked the judge to enter a finding on damages, even though they had already agreed on what he would pay.

So there was absolutely nothing at issue during the trial. Not liability. Not damages. Nothing.

Then there was the 'trial' itself. The only party to actually put on a witness was Malibu Media. None of the defendants even cross-examined a witness. Really?

What kind of trial is it where the defendant doesn't challenge any of the plaintiff's witnesses or even put on any witnesses of its own? A sham, that's what.

So why was there even a trial? I have no idea.

Actually, I do have an idea. It was all about Malibu Media trying to get Judge Baylson to write a document that Malibu Media could use in all its demand letters from now on. I'll point out that, to his credit, Judge Baylson had to tell Lipscomb numerous times that he would not be Lipscomb's advertising spokesman. I think what he said was he wasn't interested in writing anything that was "commercially valuable" to Malibu Media.

So what does this case mean for those of us who legitimately defend innocent people wrongfully accused of downloading unauthorized stuff by bittorrent?

Absolutely nothing.

In fact, after listening to most of the proceedings, I feel even more confident that my clients have nothing to worry about from Lipscomb's machine.

I have strong feelings about how this case went. It showed a lot of promise early on, but in the end, it was nothing but a bust. None of the defendants actually contested any of the relevant facts; they all admitted liability in order to settle; and we still don't know how an actual bittorrent trial will go.

My hope is that a defendant who gets one of these letters will have the fortitude to stand up for what is right and push the issue all the way to a real trial in front of a real jury. Only then will we know how strong the plaintiff's case really is.

But one this is certain: We still haven't had a real bittorrent trial.

Tuesday, June 11, 2013

$112,500 Verdict For Copyright Infringement in Bellwether Case

So the so-called bellwether trial started and ended today. It really was sort of a bust after essentially everyone settled before trial and all the defendants stipulated to judgments. End of the day, the case was a huge disappointment.

All that said, the judge entered a verdict against the one final Doe (Brian White, I think was his name) for his role in the matter. I should point out that Mr. White made the monumental mistake of lying under oath and forcing Lipscomb to prove it. The judge really, really didn't like that. I've said it many times before, if you lie in federal litigation, someone will eventually prove it and you will be in much deeper trouble than before.

Back to the verdict. Judge Baylson entered a verdict against Mr. White for $112,500. Here's how the judge got at that number:

$750 is the statutory minimum.

He trebled that number based on essentially the nature of the infringement (kind of willful) for $2,250 per infringement.

Mr. White was charged with five infringements for a total of $11,250.

But here's the kicker: Judge Baylson multiplied that number by ten because Mr. White lied under oath about the infringement. So his perjury turned an $11,250 verdict into a $112,500 verdict.

What is the moral of this story? Well, first, don't infringe someone's copyrights! That should be the first lesson. The second lesson? Don't lie under oath!

I'm really embarrassed that I even have to say that last part, but really? What was Mr. White thinking? Breaking Bad, maybe?

I may try to make the audio recordings available, but it's late and I don't have the energy right now.

Tuesday, June 4, 2013

Alston & Bird Disqualified as Trial Counsel

I know this blog is typically about copyright issues, but this one is really just a general litigation issue which could, theoretically, apply even in copyright cases. This post is about a lawyer's duty of loyalty to former clients.

The law firm of Alston & Bird originally represented Malico, Inc. in some patent prosecution matters that ended about 2010. At about the same time, Malico had brought suit against Cooler Master USA, Inc. for patent infringement. The patent-in-suit was not one that Alston & Bird had worked on. Cooler Master was represented first by a different firm. But after a couple of firm changes, Cooler Master ultimately hired Alston & Bird to represent it in the suit that was brought by Malico.

Malico objected that Alston & Bird could not represent Cooler Master against Malico because Alston & Bird had an ongoing duty of loyalty to Malico. Malico moved to disqualify Alston & Bird, and Cooler Master naturally objected. Cooler Master argued that Alston & Bird's representation of Malico was long over and it didn't really have access to any confidential information of Malico. Besides, the lawyer who represented Malico was in North Carolina, not California where the law suit was pending.

Judge Seeborg disagreed.

Finding Malico's argument persuasive, Judge Seeborg concluded that because the patents that Alston & Bird had worked on for Malico in the past were substantially similar to the patent-in-suit, Alston & Bird was required to have obtained a written conflict waiver from Malico, which it did not. Accordingly, Judge Seeborg disqualified Alston & Bird from representing Cooler Master against Malico.

I point this out to illustrate the serious issues that can arise from failing to respect the ongoing duty of loyalty to former clients. All too often, a lawyer's desire to bring in that new, big client clouds his judgment and causes him to do things that he shouldn't. But sometimes, the left hand just doesn't know what the right hand is doing. I think this case is more like the latter, but the result is the same.