Fair use hearing testimony available

Posted on January 27, 2014 by rtushnet

House website here.  Written testimony from June Besek (fair use is too big, especially with respect to Google), Peter Jaszi (no, it’s not), David Lowery (music remixes and sampling etc. aren’t fair use; licensing is perfect),  Naomi Novik (transformative works are great and need protection; licensing is no substitute), and Kurt Wimmer (no congressional action is required even though some courts read “transformative” too broadly; licensing is better).

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TM claims in DMCA notice may lead to 512(f) liability

Posted on January 27, 2014 by rtushnet

CrossFit, Inc. v. Alvies, No. 13–3771, 2014 WL 251760 (N.D. Cal. Jan. 22, 2014)

CrossFit sued Alvies for trademark infringement, among other things, and Alvies counterclaimed for false advertising/unfair competition.  CrossFit moved to dismiss the counterclaims and partially succeeded.  CrossFit alleged that it developed a fitness training regimen and provides a nationally standardized certificate program to personal trainers who can become licensed CrossFit affiliates. It has several CrossFit registrations and ITU applications.  In 2011, Alvies launched a blog at “crossfitmamas.blogspot.com” and created a “CrossFit Mamas” Facebook page. She posted daily high-intensity interval training routines, and readers used the comments section to post and track their personal progress on certain exercises. She sold vitamin meal replacement shakes through the blog and added Google AdWords advertising.

In Spring 2013, a CrossFit paralegal demanded that Alvies stop using the CrossFit name on her blog and affiliated Facebook page, and also began communicating with at least one reader of Alvies’s blog about the quality of Alvies’s workouts. The paralegal stated that she had “assessed a few days of [Alvies’s] workouts,” that it was “bad programming,” and that a CrossFit trainer determined that Alvies’s workouts were “stupid and unsafe.”

CrossFit requested that third parties (possibly Google) remove Alvies’s blog and sent a DMCA takedown notice to Facebook.  Alvies allegedly reached an agreement to move to “califitmamas.com” and “califitmamas.blogspot.com,” though the paralegal allegedly asserted that Alvies could not use the term “CFMamas” because “CF” is a common abbreviation of CrossFit.  CrossFit continued to demand that Alvies disable Google AdWords and stop selling vitamin shakes.  It allegedly reneged on the deal and demanded that she stop using califitmamas.com; she moved to “hiitmamas.blogspot.com.” But then CrossFit repeatedly demanded that Alvies delete over two years of blog posts, allegedly as part of an improper attempt to remove evidence of her prior use in commerce of marks subject to CrossFit’s ITUs for nutritional shakes etc.

CrossFit argued that Alvies’s claim for violation of §512(f) should be dismissed.  The DMCA doesn’t provide trademark remedies, but CrossFit’s claims were based on trademark, not copyright.  CrossFit nonetheless argued that Facebook allows trademark takedown notices too.   The court responded: so what?  Alvies plausibly alleged a material misrepresentation of copyright infringement; “[w]hether CrossFit may have been able to convince Facebook to remove Alvies’s page on some other ground has no bearing on CrossFit’s compliance with the DMCA.” CrossFit argued that she wasn’t injured because if it hadn’t submitted a DMCA notice it would have submitted a trademark notice. The court refused to “hypothesize about what Facebook would or would not have done if it had received a trademark takedown notice regarding Alvies’s Facebook page.”

Alvies brought a California UCL claim on the theory that CrossFit was harassing her to eradicate all evidence of her prior use of marks for which CrossFit had filed ITUs.  CrossFit argued that Alvies lacked standing (of course) because she failed to plead economic injury.  Not so.  “Alvies alleges that her blog and affiliated Facebook page generated at least a modicum of revenue through the sale of vitamin shakes and Google AdWords, and that CrossFit wrongfully caused those pages to be removed.”  But UCL remedies for a private plaintiff are generally limited to injunctive relief and restitution, and Alvies’s prayer for relief was too vague; she didn’t seek injunctive relief and restitution requires that the defendant “acquired the plaintiff’s money or property by means of … unfair competition”; it was unclear how CrossFit could have received Alvies’s lost revenue.  The UCL claim was dismissed with leave to amend.

As for Lanham Act false advertising, CrossFit argued that Alvies lacked standing because they weren’t direct competitors.  It’s a large fitness training company and she’s a blogger.  Nope.  “Both parties offer fitness training services. Their business models differ, but they offer similar services to consumers. … [N]othing in the Lanham Act suggests that differences in size preclude a finding of competition.”  However, Alvies didn’t plead “advertising or promotion,” because the paralegal’s statements to at least one reader didn’t constitute “an organized campaign to penetrate the market.” Any amended pleading would need to identify CrossFit’s allegedly disparaging statements and explain how they were disseminated to the purchasing public.
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Mastercard v. Nader updated

Posted on January 27, 2014 by rtushnet

Seen in Arlington, VA, Jan. 2014:

Photo by Zachary Schrag.

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Congressional hearing on the scope of fair use

Posted on January 24, 2014 by rtushnet

Coming Tuesday to a streaming website near you.

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unfair competition in the news

Posted on January 24, 2014 by rtushnet

The facts described in this article about Uber’s alleged attempt to crush competitor Gett by booking and then cancelling rides seem like a pretty good candidate for application of the general unfair competition tort.  Hypo of the day: what causes of action would you allege on Gett’s behalf, assuming the facts as reported?

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Organization for Transformative Works gets a Hugo nomination

Posted on January 23, 2014 by rtushnet

For Best Related Work.  Awesome!  (I guess being Hugo-adjacent runs in the family.)

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FTC goes after advertiser and ad agency for false dramatization

Posted on January 23, 2014 by rtushnet

Read all about it.  One great feature: the complaint includes the challenged ad!  The FTC at least wants us to see for ourselves.

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Reading list: Without Copyrights

Posted on January 22, 2014 by rtushnet

Robert Spoo, Without Copyrights: Piracy, Publishing, and the Public Domain: An engaging, detailed account of trade courtesy in the US before the US recognized foreign copyrights (including the period when foreign authors could in theory get a US copyright but faced nearly insuperable barriers in practice, especially if they were new/risky for publishers), and the struggles of modernist writers—primarily James Joyce—to claim rights despite the lack of legal foundation. I was most interested in the chapter on Joyce’s lawsuit against Samuel Roth for violating Joyce’s right of publicity by publishing his uncopyrighted works under his name—turns out copyright owners have been trying to leverage other rights for a long, long time. (Also, as Spoo points out, it’s no accident that unauthorized reprinters of Joyce using copyright’s boundaries aggressively also were the source of key obscenity precedents, since they were pushing other boundaries for at least in part ideological commitments to freedom).

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false omission claim fails for insufficiently alleged facts about crib bumper risks

Posted on January 22, 2014 by rtushnet

Corral v. Carter’s Inc., 2014 WL 197782, No. 1:13–cv–0262 (E.D. Cal. Jan. 16, 2014)

Plaintiff sued Carter’s for basically the usual California claims in connection with Carter’s crib bumpers—“a strip of thin padding that is intended to affix to the inside perimeter of an infant’s crib by means of ties or other attachments to the slats that surround the crib. Crib bumpers are sold either individually or as bedding sets.”  The bumpers allegedly pose a significant risk of death or injury to infants, but Carter’s allegedly concealed this and left the false impression that they promote infant safety.

Carter’s does say on the label: “To prevent entanglement or strangulation, position ties to the outside of crib and be sure they are secure. Remove bumper when child can sit up unaided or can pull to a standing position.”  Also, it includes an information sheet that counsels parents to remove “pillows, sheepskins, pillow-like stuffed toys and products not intended as infant bedding from the crib when infants are sleeping,’ [but] it does not recommend removing the crib bumper when the baby is sleeping.” Instead, the sheet counsels avoiding “pillow-type” bumpers, the use of bumpers with ties that exceed nine inches, and bumpers that can’t be fastened securely. This allegedly conceals the serious risks posed even by properly installed bumpers.  (FWIW, the allegations of risk are consistent with everything I read as an expecting parent ninish years ago.)

The complaint alleged that crib bumpers became popular with old-style cribs that used widely set slats, which allowed a baby’s head to become trapped between them. Current cribs correct this flaw, though the complaint didn’t indicate how many old cribs remain.  A number of professional and infant health advocacy groups have advised against the use of crib bumpers, as has the FDA.  The complaint didn’t allege a clear causal connection between sudden infant death syndrome and crib bumpers, but did cite statements suggesting that rebreathing stale air may be contributory to SIDS in some cases and a 2007 study that attributed 27 accidental deaths of children between 1985 and 2005 to bumper pads.

The complaint didn’t allege any affirmative misrepresentation. “Nondisclosure or concealment of a material fact that a defendant was obliged to disclose can be actionable in four situations: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; or (4) with the defendant makes a partial representation but also suppresses some material fact.”  

The court first held that Rule 9(b) required Corral to identify with particularity the “fact” that Carter’s was obliged to disclose.  “[A] claim of fraud by omission cannot, as a practical matter, require the same degree of adherence to the ‘who what when and where’ standard imposed by Rule 9(b) on claims of affirmative misrepresentation. However, for a claim of fraud by omission to provide adequate notice to the defendant, there must be a fairly precise statement of what was required to have been disclosed that was not.” Here, Corral claimed that Carter’s was required to “disclose the significant risk that their crib bumpers may cause death, entrapment, and/or suffocation,” even if used as instructed.

The court wasn’t sure that was a “fact” within the meaning of the CLRA.  To establish that this was a risk, Corral needed to allege “at least some evidence that the use of Defendant’s product, as directed, increases the frequency with which the harm will occur.”  The evidence that bumpers caused accidental deaths didn’t specify the type/whether they were the same design as Carter’s, or the contribution, if any, of faulty installation.  The recommendation of safety groups wasn’t itself proof of the alleged substantial increase in risk, but appeared to result from a global assessment that included “the nonzero risk of injury, the lack of any verifiable benefit from the use of crib bumpers and the possibility the product will be installed or used improperly leading to injury.” While Corral’s allegations might establish a number of “facts,” the alleged omission (that Carter’s bumpers are inherently dangerous) wasn’t one of them.  Corral needed a more direct line to infant harm.
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Innovation and inequality

Posted on January 22, 2014 by rtushnet

Matt Yglesias in Slate suggests that, if only the top 1% has disposable income, innovation will be very different from innovation in a more egalitarian state, and the only way for a mass market product to succeed will be for it to be free/ad-supported.  (He also discusses the emphasis on branding/exclusivity of the expensive products made for the 1%.)  A useful reminder that IP’s standard monetary incentives story requires someone to pay; rights in themselves have no economic value.

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