As anticipated, on September 25th, the President nominated Victoria Espinel to the position of Intellectual Property Enforcement Coordinator (IPEC).  The position, which is often referred to as the IP Czar, was created last year as part of the “Enforcement of Intellectual Property Rights Act of 2008” (Public Law 110-403; S. 3325).  By law, the position was to be located in the Executive Office of the President, but it took some time for the Administration to determine exactly where the position would be.  Ultimately, it was decided that the IPEC would reside in the Office of Management and Budget.  Once she is confirmed (which appears likely), Espinel will chair an interagency intellectual property enforcement advisory committee, comprised of representatives from the Office of the U.S. Trade Representative (where Espinel previously worked as an Assistant USTR for Intellectual Property and Innovation, as well as Deputy Assistant USTR for Intellectual Property and Associate General Counsel at USTR), the Patent and Trademark Office, the Copyright Office, and other agnecies, that will develop a Joint Strategic Plan.  The plan is supposed to be submitted Congress no later than October 13, 2009 (12 months after the law’s enactment), but with Espinel not yet confirmed this deadline is certain to be pushed back. 

Espinel brings a deep experience in negotiations with other governments, as well as a strong record of working with all the key agencies that are on the front lines of enforcing IP laws.  She is the founder and President of Bridging the Innovation Divide, a not-for-profit foundation focused on addressing the “innovation divide” and empowering all Americans to obtain the full benefit of their creativity and ingenuity.  She has advised the Senate Judiciary Committee, Senate Finance Committee, House Judiciary Committee and House Ways and Means Committee on intellectual property issues and is a member of the Brain Trust of the Global Innovation Forum.  Most recently, Espinel served on the faculty of George Mason University School of Law.  She has also worked at the law firms of Covington & Burling and Sidley, Austin, Brown & Wood.  She has an LLM from the London School of Economics, a JD from Georgetown University Law School, and a BS in Foreign Service from Georgetown University's School of Foreign Service.

SIIA’s new music video “Don’t Copy That 2,” the sequel to its 1992 classic “Don’t Copy That Floppy,” has had a dramatic, worldwide impact on anti-piracy awareness.  Since its September 9th release, SIIA’s “Don’t Copy That 2” music video has been viewed more than 255,000 times on YouTube, where more than a thousand people have posted comments about the video and its message, “It’s not just a copy. It’s a crime.”  The video has also been a favorite of bloggers and Twitter users around the world, who have made it the subject of hundreds of tweets and postings over the last two weeks.

People either love it or hate it, but either way Don’t Copy that 2 is having a powerful impact.  And that is exactly our goal – to deliver our anti-piracy message to audiences around the world. The criminal consequences of piracy are significant, but we can’t expect to deliver that message simply through reports, press releases and run-of-the-mill educational materials.  Don’t Copy that 2 is reaching young and engaged audiences that need to understand that pirating copyrighted works is a serious crime.”

People have called it ‘hysterical,’ ‘genius,’ ‘contemporary drama at its finest,’ and my favorite – ‘the worst anti-piracy ad ever.’  Whatever you want to say about it, one thing is clear:  ‘Don’t Copy That 2’ has gained the attention of both those who obey – and those who violate – copyright laws.  The video is fun to watch, and perhaps even more fun to critique, but it has unquestionably been a successful means for delivering a serious message.

Microsoft is bundling anti-piracy tracking software with routine updates.  The updates include a validation process that allows Microsoft to determine whether the operating system and productivity software installed on the user’s computer are genuine.  This is part of Windows Genuine Advantage Program (WGA) and Office Genuine Advantage Program (OGA).  These global anti-piracy efforts began in 2004 and 2006 respectively and have been slowly rolled out to more than forty countries worldwide.  Microsoft says that these programs “are part of Microsoft’s on-going effort to protect its customers and partners from counterfeit software and to increase customer awareness of the value of genuine Microsoft software.”

WGA currently has the capability to check the validity of Windows XP, Vista, Windows 2000 Professional and some versions of Windows 7.  OGA checks the validity of Office XP, Office 2003 and Office 2007.  But it is a controversial move by the software giant that is garnering criticism and legal action.  Lawsuits have been filed in the United States and China alleging that the anti-piracy measures violate privacy, anti-trust and product liability laws.  It also has been criticized for producing false positives – invalidating legitimate software.  Microsoft stresses that these cases are rare and can easily be resolved by visiting their technical support website.  Microsoft also claims that these “automatic updates” are optional and can be rejected by users before installation.

Users that are operating legal software will not see any alerts or messages and can install all available updates.  However, users who are using pirated software will be alerted either by a pop up dialogue box, a black screen or a message in their system tray that says: “This copy of Microsoft Office is not genuine.”   The message directs the user on how to obtain a legitimate copy of Microsoft product.  They will not be allowed to install any available updates.

Some have criticized the programs as the heavy handed tactics of a software giant.  However, it is important to realize the impact piracy has on the software industry including contributing to unemployment rates.   Piracy also impacts computer users.  People that use counterfeit software forfeit the benefits that come with the purchase of legitimate software like technical support, updates, patches, user manuals.  You also risk the possibility of being infected with a computer virus.  So get your piracy check-up!

House of Bryant, the administrators for the song “Rocky Top,” sued A&E Television Network for copyright infringement of the song based on an authorized clip of the song included in an episode of the television show “City Confidential” featuring a crime that took place in Knoxville, TN. 

The City Confidential episode aired on December 11, 2004 and included a 12-second clip of the song “Rocky Top.”  The song is included in a scene of a University of Tennessee football game as performed by the school’s marching band.  Defendant’s Memorandum in Support of its Motion to Dismiss states: “During this brief sequence, and as part of the actual noise occurring within the stadium, the UTK marching band can be heard playing an instrumental version of the musical composition “Rocky Top.” The song is audible for a total of approximately twelve seconds; however, the tremendous noise of the crowd and the narration of the documentary obscure the song for approximately six of the twelve seconds. Therefore, the song “Rocky Top” can be heard on its own for only six seconds of the Program.”

A&E, citing the 2008 court ruling regarding the use of the song “Imagine,” argues the usage was “fair use” which is a defense to copyright infringement. In the “Imagine” case, Yoko Ono -- the plaintiff, was denied an injunction for an unauthorized use of the song “Imagine” in the film Expelled, with the court holding the defendant/alleged infringer was likely to prevail on a fair use defense.  A&E, like the defendant in the “Imagine” case, is relying on the transformative nature of the use.  The Defendant’s Memorandum in Support of the Motion To Dismiss argues the use of “Rocky Top” is transformative in that it is used to portray the atmosphere around Knoxville and the lyrics, used in context with the subject matter of the murder mystery, are a commentary on what life should be like in Tennessee.

The first air date of December 11, 2004 does not seem to be contested by either party. The episode has continued to air.   The Complaint was filed June 3, 2009.  I am wondering why A&E has not raised the defense of statute of limitations because the three year statute of limitations found in 17 U.S.C. sec. 507(b) should apply.  The section states that “no civil cause of action may be brought later than three years from the date the claim accrued.”  It is possible the parties had a tolling agreement while they attempted to resolve the matter outside of the court house.

You can read the complaint here.  House of Bryant Publications, L.L.C. v. A&E Television Networks, Middle Dist. Tenn., Civil Cause No. 3:09-cv-00502.

You can read the Defendant’s Brief In Support of the Motion to Dismiss here.

The long-running case of Solers, Inc. v. Doe in the District of Columbia raises the interesting dilemma of balancing significant free speech rights with the interest of an alleged "victim" to pursue claims against an alleged anonymous defamer.  Usually, this issue arises in the context of an online message board poster's public diatribe against someone or something, made under a pseudonym.  The alleged victim then sues the poster under the name "John Doe" and immediately subpoenas the web site host or publisher to try to discover the real identity of the poster.  Thus far, courts have acknowledged the transcendental importance of free speech and, for the most part, blocked disclosure of the posters' identities.  A collection of some of those cases is described here.  In Solers, there is a twist.  An informant ("whistleblower") made a private report to the SIIA via a piracy reporting link on the SIIA's web site, and Solers subsequently embarked on a quest to unmask that informant.  The latest appellate ruling in the case is a mixed bag for Solers, establishing significant hurdles that make it unlikely for Solers to acquire the identity of the informant, but giving Solers one more shot to try.  More significantly, the decision adds to a body of case law addressing when an alleged claim of wrongdoing may overcome the First Amendment right to make anonymous speech.

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Many more stories and blogs were published about the new Don't Copy That 2 video. Here are a few more:

• Don’t Copy That Floppy Dusts Itself Off for the 00’s—Wall Street Journal Digits Blog
• Don't Copy That Floppy 2 released; piracy sure to be greatly impacted—Examiner
• Does ‘Don’t Copy That Floppy 2′ have Rage screens in it?—The IT Chronicle
• The Return of Don’t Copy That Floppy--GameSpy
• “Don’t Copy That Floppy” Returns! - Technologizer
• 'Don't Copy That Floppy' Sequel Warns of Piracy; Includes id Software Cameo, Klingons—ShackNews
• Dept of Awesome: Don't copy that 2: released today--ZGeek
• The Triumphant Return of Pirate Hatin’ Rapper DP—Copyright Alliance
• Don’t Copy That 2—Video Game 2 Play
• Tell yo momma: 'It's not just a copy, it's a crime!'—Noob Galore
• Don’t Copy That 2—Artistically Chill
• The Ruler's Back: DP Returns For Don't Copy That Floppy Sequel—Game Set Watch
• Don’t Copy That 2--VideoSift
• Antipiracy PSA to leave Pirate Bay running scared
• The Web Hostess Live Q&A-The Washington Post

Today, SIIA launched its new anti-piracy video - “Don’t Copy That 2”. The video is a sequel to the 1992 “Don’t Copy That Floppy”video, which was a huge success in schools throughout the country and eventually became a cult phenomenon on YouTube. You can view the video on the Don’t Copy That Website or search for it on YouTube. (You can also download a copy of the video in podcast form on iTunes. Just search for “Don’t Copy That Floppy 2”.)

The video is intended to be fun to watch while also conveying the message that pirating software and content carries stiff penalties and can ruin your life. We hope “Don’t Copy That 2” will prevent piracy by helping people make better choices when it comes to downloading or purchasing copyrighted works. The video even concludes with an appearance from convicted software pirate Jeremiah Mondello, who issues a warning about the consequences of software piracy from a federal prison in Oregon.

An extended and modified educational version of “Don’t Copy That 2”  will be released for distribution to classrooms early next year.

See what others are saying about the video:

Wall Street Journal -- http://blogs.wsj.com/digits/2009/09/08/dont-copy-that-floppy-dusts-itself-off-for-the-00s/?blog_id=100&post_id=6373

CNNmoney -- http://money.cnn.com/2009/09/09/news/piracy_floppy/?postversion=2009090914

Technologizer - http://technologizer.com/

http://www.escapistmagazine.com/news/view/94574-Dont-Copy-That-2-Hits-the-Tubes

http://www.examiner.com/x-20129-Denver-Games-Gadgets--Technology-Examiner

6IW.com - http://www.6iw.com/

Popular Fidelity - http://www.popfi.com/

Overclock.net - Overclocking.net - http://www.overclock.net/

UFies.org - http://ufies.org/

CodyDelzer.com BLOG - http://www.codydelzer.com/

The Games News - http://thegames-news.com/

Last Friday, August 28th, a jury in the Northern District of California, awarded French luxury goods maker, Louis Vuitton Malletier (part of LVMH), $32.4 million in statutory damages for its claims of contributory copyright and trademark infringement.   The amount awarded -- $31.5 million for contributory trademark infringement and $900,000 for contributory copyright infringement -- was certainly newsworthy standing alone.  But really what pushes this case to the top of the IP headlines is that the defendants held liable here -- Akanoc Solutions and Managed Solutions Group, Inc -- are Internet Service Providers (ISP) (and their primary -- Stephen Chen). 

Many a case has been brought against an ISP by a plaintiff trying to hold that ISP liable for the acts of its users.  I could be wrong, but I believe this is the first case where an ISP was held liable for the acts of its users.  For one reason or another these other ISPs and hosting sites have been able to escape liability.  But that was not to be the case here.  Through internal emails, Plaintiff LV was able to demostrate that the ISPs knew of the counterfieting taking place on the sites they hosted but took no action.  The jury agreed with LV that the ISP defendants should be liable because they knew of the large amounts of counterfeiting of LVMH product taking place on their sites and failed to take proper action to stop it.

The case began with a complaint filed back in 2007 in which LV claimed that "most if not all" of the sites hosted by Akanoc were trafficking in counterfeit goods.  About two years later, the jury awarded almost all of $1 million in damages requested for each of LV's fifteen trademark infringement claims against each of the three defendants. The copyright award was $150,000 for each of two copyrights against three defendants for a total of $900,000.

Although motions are still pending in the case, the amount of damages ordered by the jury should send a strong signal that ISPs must actively enforce their terms of use and effectively disable or remove content the subject of abuse notices from rights owners.  This case proives that an ISP that knows of an infringement and fails to take quick and effectuve action to remove the infringement from its site runs the risk of incurring a large damage award and serious damage to its business reputation as a result.

This month’s blog revisits the pending lawsuit filed by Joe Satriani against Coldplay for copyright infringement.  Some background in copyright law is necessary to evaluate the merits of Satriani’s case.  Let’s start with the basics of copyright law.

Under Section 106 of the Copyright Act,  copyright owners are granted certain exclusive rights.  A copyright owner has the right to reproduce, distribute, perform, display or prepare derivative works.  A claim for copyright infringement arises under Section 501 of the Act when someone violates the owner’s exclusive rights.  In order to prove a claim of copyright infringement, the copyright owner must prove two things: ownership of the copyright and proof that defendant copied the work. 

Ownership can be proven by providing a copy of the registration on file with the Copyright Office.  Proof of actual copying is very difficult to prove unless you are a fly on the wall in the musician’s rehearsal studio.  Courts recognize that eyewitness testimony rarely exists.  Thus, in order to prove that copying occurred, a plaintiff must demonstrate that the defendant had access to the work and that there are substantial similarities between the two works.  This legal analysis will be the crux of Satriani’s case. More...

In July, the terms of the recent agreement on royalty payments reached between performers and record labels, on the one hand, and "pureplay" webcasters, on the other hand, were published in the Federal Register (the publication in which federal regulations are documented).  This marks the beginning of a 30-day period in which webcasters can opt-in to participate in this deal, as opposed to pay the rates for webcasters established by the Copyright Royalty Board.  This news drives home the fact that a clear regime is being established to compensate labels and artists for playing their recordings on digital services, while there is no such payment regime for playing the recordings on broadcast radio.  There is currently proposed legislation, called the Performance Rights Act, to change this by requiring broadcasters to pay a royalty for playing records.  Webcasters, labels and a number of artist representative groups (like SoundExchange, which represents labels and performers) are for it.  Radio broadcasters are against it.  Looking at the blogs out there, a lot of people appear to think this is yet another money grab by the labels that will put small radio stations out of business.

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