Letter from AmeriKat

Yesterday the AmeriKat spent most of the 7 hours 20 minutes flying time from London Heathrow to New York’s JFK calculating the inordinate selection of intellectual property rights contained within the confines of the Boeing 777. The airplane’s mechanics itself are subject to hundreds of patents, while the in-flight entertainment magazines in “your seatback pocket” were subject to a variety of copyrights. The carrier’s various trade marks, from their name to their affiliated slogans, were plastered on everything from the Styrofoam cups to the red fuzzy throws. Besides the airline’s own intellectual property, they also seemed to be licensees of others’ intellectual property including licences to show movies and television programmes, as well as dissemination of sound recordings via their Bose® headsets. Essentially, the AmeriKat geekily giggled, she and her unwitting fellow passengers were in an IP-filled tube hurtling towards New York City at 37,000 feet.

“Your battles inspired me…” ~ James Joyce

Landing in New York City to a torrential downpour the Amerikat, unlike James Joyce’s character Leopold Bloom in Ulysses, found herself unable to wax lyrical about the wonders of such a deluge of water – especially when a waterfall unleashed itself upon her head as she disembarked the plane. The US has the Southern District of New York’s District Judge John M Woosley to thank for the publication in the US of Ulysses. In 1933, Judge Woosley held that the book was not obscene and should not be subject to a ban in the US. 76 years later, James Joyce has again been the subject of further controversy, this time in the copyright arena.

Joyce’s literary estate, controlled by his grandson and the estate’s sole beneficiary Stephen James Joyce, agreed last week to pay $240,000 worth of legal fees to settle a copyright lawsuit brought by Stanford University English professor and author Carol Schloss. Previously, the Joyce Estate tired to prevent Schloss from quoting Joyce family documents and works in her biography of Joyce’s daughter entitled Lucia Joyce: To Dance in the Wake and a companion website, the content of which Schloss began working on in 1988. Before publication of the book in 2002, Joyce threatened the book’s publisher, Farrar, Straus and Giroux, to delete material quoting the family documents and works from the book. Rather than fight a lawsuit, Farrar et al removed the material. Without the evidence to support her contentions, Schloss’s book received mixed reviews by the New York Times and San Francisco Chronicle. In response to these reviews, Shloss created a web-based supplement to the book available on a website accessible by only US Internet users which stated that the work on the site was covered by Fair Use. In response, the Joyce Estate subsequently issued Shloss with several threatening letters. So in June 2006, with the help of Stanford University’s Law School, Schloss filed suit for declaratory relief that her use was not an infringement of copyright.

Although a settlement was achieved in 2007 with the Estate, that enabled Schloss to publish the supplement in the U.S. (for online and print), until last week she had not achieved payment of her attorney’s fees. Shloss’s legal team argued that

“the cost of litigating this case, which was substantial, was a direct result of the Estate's assiduous and energetic efforts to prevent Shloss from exercising the rights the U.S. copyright laws encourage, and its 'scorched earth' approach to litigating the early stages of the case to see if it could bully Shloss into capitulation."

Larry Lessig, one Schloss’s lawyers on the case, stated at the 2007 settlement

"We will continue to defend academics threatened by overly aggressive copyright holders, as well as other creators for whom the intended protections of 'fair use' do not work in practice. I am hopeful that this is the last time this defendant will be involved in an action like this. But it is only the first time that we will be defending academics in these contexts."

Slesinger’s estate tries to get all of Pooh’s honey…sorry, money

Another estate that has been battling copyright law suits this week is that of Stephen Slesinger, the producer who first acquired licensing rights to A.A. Milne’s Winnie-the-Pooh and associated characters in 1930. The Estate sued the Walt Disney Company for over $700 million in unpaid copyright and trade mark royalties. Last Friday, LA Federal District Judge Cooper, ruled that Slesinger’s estate “transferred all of its rights in the Pooh works to Disney, and may not now claim infringement of any retained rights.” Disney is now free to exploit Pooh and the Hundred Acre Wood clan, as long as they continue paying royalties to the Slesinger family. As reported by the LA Times, Slesinger’s daughter Patricia stated

“Judge Florence Cooper provided a potential and elegant middle-ground solution that will allow us to go forward with our business relationship -- hopefully without more litigation."

Nothing like a happy ending...

Is filtering for copyright theft copyright theft?

In the Wall Street Journal this week, Geoffrey Fowler reported on the Scribd controversy which he states is a debate “raging in Silicon Valley over whether copyright law protects companies who make filters that screen for – of all things – copyright theft”. Scribd is a website that enables individuals to publish their own papers, books and other content online in order to share with other users. Last month Elaine Scott filed a copyright infringement law suit against Scribd after the website allegedly failed to do enough to protect her copyright when one of her book’s was uploaded by another user without her permission. Even though Scribd, when notified, removed the content, Scott is alleging that the website should have done more to protect the work from infringement.

The AmeriKat has previously reported on the status of US law that restricts websites from being held liable for infringing activities of its users, which is additionally applicable here. The interesting aspect of this case, however, is that when notified of infringing content Scribd adds that content to their database, which acts as filter in the event that the content is reposted. Scott contends in her suit that Scribd’s inclusion of her work in the filter is also an infringement of her copyright. The AmeriKat cannot see the logic in this argument: on one hand Scott is complaining that Scribd did not do enough to protect her copyright, but on the other hand once Scribd is alerted of the infringement and institutes mechanisms to prevent further infringement Scott complains that they should not be doing this either! Scott explains this by stating that

“Scribd doesn’t have the authority to ‘help me’ with anything. The filtering system is Scribd’s way of asking for forgiveness, rather than permission.”

Scribd’s attorney Brian Mendonca stated that Scott’s lawsuit was unmeritorious in that the filtering system “doesn’t exploit the filtered works for commercial purposes and isn’t replacing or diminishing the value of the filtered works.” Scott’s attorney is Kiwi Camara who, AmeriKat readers will recall, was Jammie Thomas Rasset’s trial attorney.

Nothing comes between the US Government and its addiction to its BlackBerrys

IPKat readers will surely recall the extensive litigation both in the US and in the UK that took place between Research in Motion (RIM), creators of the BlackBerry, and Visto Corporation. As reported by the AmeriKat back in July, the two reached a settlement following a 2006 patent law suit brought by Visto for $267.5 million. Before the Visto suit was a 2005 injunction, brought by NTP Inc. against RIM for infringement of one of their patents. RIM paid NTP $612.5 million to settle the matter. This past week it was revealed that the Justice Department had, according to Law.com, “secretly entered into a common-interest agreement with RIM to advance government interests in the patent infringement dispute.” In a Freedom of Information Act lawsuit initiated by one of the firms that represented NTP , Hunton & Williams is seeking to obtain information regarding the government’s actions.

Between two rulings issued in December 2004 and August 2005 respectively, RIM’s counsel approached the Justice Department in order to convince them to take a public interest position in the dispute given the government’s continued use of BlackBerrys. A common-interest agreement was apparently reached between RIM and the U.S. Government. Subsequently, the Government was then permitted to intervene in the case by filing a statement of interest and argued that a shutdown of the BlackBerry service would “hamper communications during emergencies.” NTP lawyers did not discover the existence of this agreement until after the settlement was finalized in Spring 2006. Depending on whether the court grants the FOIA request, there may be a possibility of a change to the law regarding common-interests agreements and the possibility that NTP could pursue the case and RIM further. However the AmeriKat is unsure whether the court will grant the request, given Judge Wilkinson’s statement that even the government is "surely entitled not to be put in a disadvantageous position… How would you like to litigate without attorney-client or work-product privilege?"