Well, here we go again. In this circumstance, we have an infringement case involving Marvel Comics — and comic books, almost by design, use common ideas and themes all the time. In a recent complaint, we have essentially a claim based on the “three point landing”. See Horizon Comics Prod. v. Marvel Ent., LLC, No. 15-11684 (Mass. Apr. 23, 2015).
Horizon Comics, owned by the Lai brothers who also happen to be employees of Marvel, asserts that Marvel’s reinvention of the Iron Man character in its 2013-2015 theatrical releases infringes upon and undermines their copyright in characters from the Horizon comic Radix, originally released in 2001. Horizon claims that Marvel, without permission, took its (grey, mind you) fully armored suits and fitted them for the new Iron Man (red and gold) look, as “ the comic typically depicted Iron Man wearing simple spandex-like attire and minimal armor.” Id. at 11. Horizon further contends that it claims copyright on the three point landing. Perhaps in the future they would narrow this to the three-point landing specifically while wearing armor and leaning on their left hand , though that certainly wouldn’t be original enough either. In any case Horizon seeks redress against Marvel’s theft of the “fully mechanized suit of body armor” and the three-point landing depicted in the Iron Man Movie Poster.
Neither mechanized body armor nor the three-point landing are new to the comic world. For armor, characters of note may include Master Chief from Halo, Batman, Transformers, and perhaps the Pacific Rim comic release that coincided with the movie in 2013. Horizon seeking to profiteer here would mean that they could, I suppose, seek redress against DC for Superman’s occasional adaptation of the pose, or other places in the Anime realm including characters from Kuogane Pukapuka Tai and Naruto (which has been around since 1997). Although one may think to consider that three-point landings of note include Black Widow and Spiderman, both Marvel characters begs the question does Marvel favor the three-point stance, and did this fancy come about after Lais’ involvement?
Either way, the three-point stance and the armored wardrobe cannot so simply be claimed by the Lai brothers. We should reflect on this as an example of how not to use our lawyering super powers to crush the comic realm into copyright compliance. Copyright indeed should, though it doesn’t always, cover creative and novel characters in comics, books, and movies, though we must draw the line at common tropes used to further artistic invention.
The Three Point Landing is such a cliché at this point that I hardly think it could be deemed copyrightable. See, e.g., Herzog v. Castle Rock Entertainment, 193 F.3d 1241 (11th Cir. 1999) (holding that plaintiff failed to establish substantial similarity between two films portraying detectives investigating murder in small town. The court reasoned “scenes a faire, ‘sequences of events which necessarily follow from a common theme,’ are not protectable.”)
Category: Copyright
MPAA Pirated Clips From Google Commercials To Make Its Own MPAA Propaganda Videos
And here’s another one from the Sony archives, this time noticed by Parker Higgins. It involves an email thread between Sony TV’s Chief Marketing Officer Sheraton Kalouria and the company’s top intellectual property lawyer Leah Weil (with top TV exec Steve Mosko included in the cc: field). In the email, they’re discussing a new “reputational initiative” by the MPAA. From other emails, it appears that the MPAA finally realized that its reputation was toxic, and figured that rather than, maybe, figuring out why that is, it would put together a marketing campaign to improve the public’s view of the MPAA. Here were the four goals of the campaign:
- Fill the knowledge gap about our industry
- Change consumer perceptions
- Claim our rightful position as innovators
- Reframe our consumer message in a positive tone
I note that “stop suing our customers and biggest fans” and “stop trying to censor parts of the web or destroy innovations that challenge our business model” didn’t make the list. That’s too bad, as either of those steps might actually, you know, help improve the MPAA’s reputation.
But the really amazing thing about the campaign? Apparently at least some of the video involved unauthroized copying of content from… Google. The same Google that the MPAA and studios had dubbed “Goliath” and who they were hell bent on destroying because of the misleading belief that Google helped people infringe on their copyrights. Here was Kalouria’s email to Weil:
Also, I was somewhat horrified that their creative shop used footage from Google commercials in their “Swipe-o-matic”. I kid you not…some of those scenes of people being “moved” by movies are from a current Google campaign…!
Weil only responded with a single word:
Yikes!!!
Yes. If you’ve been following along with the home game, you know that the MPAA is really, really against copyright infringement (or at least that’s what it would have you believe). And it believes that Google is the single-biggest problem in the copyright world these days. And yet, when it’s time for the MPAA to put together some of its own propaganda to put some spit and polish on its down in the dumps reputation, what does it do? Make use of Google’s footage and pretend that the people being “moved” are actually being moved by the MPAA’s movies.
Apparently, infringing on the works of others is okay for the MPAA when it does it itself. And that’s leaving out the extreme irony of using Google’s ad footage as well. It’s unclear if this MPAA film ever saw the light of day, but it would be fascinating to see if anyone has it…
HBO Cracks Down on Paying VPN “Pirates”
In an effort to gain more subscribers HBO launched its standalone “HBO Now” service earlier this year.
The subscription allows Americans to access HBO’s content, including Game of Thrones, without the need to have a television subscription.
With the offer HBO hopes to drive people away from pirate sites, but it also created a new form of unauthorized use. As with Netflix and Hulu, many people outside the U.S. signed up for the service through VPNs and other geo-unblocking tools.
Although they are paying customers, using HBO Now from outside the U.S. is not permitted under the company’s terms of use.
While Netflix is still fairly lax about geo-unblocking, HBO is now cracking down on the practice. A few days ago thousands of VPN and proxy “pirates” started to receive worrying email warnings.
VPN and Site Blocking Attacked By Consumer Group
After Attorney-General George Brandis and Communications Minister Malcolm Turnbull asked the Australian Cabinet to approve the development of a new legal mechanism allowing rightsholders to obtain site-blocking injunctions, legislation was introduced to parliament last month.
What followed is a still-current six-week consultation period for additional submissions, with various groups invited to voice their opinions and concerns.
While the site-blocking elements of the Copyright Amendment (Online Infringement) Bill 2015 are likely to please rightsholders, concerns remain that not only will the legislation fail to achieve its aims, but may also have unintended consequences that could stifle consumer choice.
In its submission the Australian Communications Consumer Action Network (ACCAN), the body that represents the interests of consumers on communications issues including broadband and emerging Internet services, three key issues are raised – VPN use, efficacy and cost of blocking, plus consumer interests.
The VPN problem
ACCAN is concerned over some of the wording employed in the amendments. Instead of referencing “website blocking”, the legislation speaks about “online locations”. While this appears to be an effort to future-proof the Bill, it also has the potential for additional consequences should rightsholders decide to exploit the ambiguity.
“Our first concern relates to the scope of activities that may be picked up by an interpretation of an ‘online location’ which ‘facilitates an infringement’ of copyright,” ACCAN writes.
“Without clear legal precedent, there is ambiguity under the Copyright Act about what constitutes infringement in relation to the use of a Virtual Private Network (VPN) to gain access to geo-blocked products and services. If this ambiguity is not cleared up, this amendment may have the unintended consequence of blocking these services and in turn harm competition and consumer choice.”
And confusion does exist. On his website Minister for Communications Malcolm Turnbull says that the Copyright Act does not make it illegal to use a VPN to access overseas content. On the other hand, the Australian Copyright Council believes that using a VPN to download content licensed overseas is “likely to be an infringement of copyright in Australia.”
While it was previously reported that the Bill had been delayed due to modifications aimed at protecting VPN-like services, ACCAN says that it would prefer clarity on the matter.
“While this ambiguity exists there is a risk that rights holders will attempt to use this injunctive power to block VPN websites and limit consumer access to paid content overseas,” the group writes.
And the threat is real. As reported last week, New Zealand based media companies report that they are on the verge of suing local ISPs who provide VPN services designed to unlock overseas content. Avoiding the same thing Down Under is a priority for ACCAN.
How copyright troll Mary K Schulz deceived the court… 600+ times
Mary K Schulz, an Illinois local stooge for Keith Lipscomb’s shakedown empire, not only thinks that certain judges are assholes, but seemingly assumes that all of them are idiots, who deserve to be lied to. Since 10/10/2014 Schulz filed at least 135 copyright and patent trolling cases (Malibu Media — 120, Millionaire Media — 11, Hawk Technologies — 4). Every filing was signed as
The latest notice of appearance also indicates “Schulz Law” as Ms. Schulz’s law firm.
There is one small problem with it. According to the Illinois Secretary of State portal, “Schulz Law, P.C.” was involuntarily dissolved on 10/10/2014:
(Screenshot was taken on 4/19/2014)I would understand a case when a law firm was dissolved for not paying proper fees on time (which was the most likely reason here), but diligent steps were promptly taken to correct the problem. Unlike a voluntary dissolution, this kind of situation is mendable. I waited for the correction to happen for six months, but it seems that Ms. Schulz simply doesn’t care.
Note that in every case she filed at least five documents, all signed as “Schulz Law, P.C.,” so essentially she deceived the court more than 600 times.
These people are not only evil in their assault on the productive population, but also sloppy and disrespectful to the tribunal.
MPAA Wants Private Theaters in U.S. Embassies to Lobby Officials
In an effort to get foreign policy makers onside, the movie group asked its member studios to help fund an upgrade of the screening rooms in various U.S. embassies around the world.
In an email from Sony Pictures Entertainment Head of Worldwide Government Affairs Keith Weaver to CEO Michael Lynton last March, Weaver explains that the studio had been asked for rather a sizable contribution.
“I wanted to make you aware of a recent MPAA request, as Senator Dodd may contact you directly,” Weaver’s email begins.
“Essentially, the request is for the member companies to consider upgrading screening rooms at U.S. Embassies in various countries (Germany, Spain, Italy, UK, and Japan)…”
These rooms could then be used by the ambassadors to show off Hollywood content to invited high-level officials.
“…the idea being that these upgraded screening rooms would allow American ambassadors to screen our movies to high level officials (and, thus, inculcate a stronger will to protect our interests through this quality exposure to our content),” Weaver adds.
In other words, the MPAA wants to pay for an upgrade of the embassies’ private theaters, to indirectly protect the interests of U.S. movie studios abroad.
It’s a rather interesting lobbying effort and one that doesn’t come cheap. The estimated cost for the project is $165,000 per studio, which means the total budget for the project is close to a million dollars.
Unfortunately for the MPAA, Weaver suggested giving the project a miss and in a reply Lynton agreed.
“While studios have supported efforts like this in the past, my inclination is that we pass on this financial commitment at this time (of course, applauding the idea/effort),” Weaver noted.
In an email a few months later the issue was addressed again with additional details.
In this conversation Weaver notes that the request is “not unusual” and that the studio supported a similar request years ago. “Apparently, donations of this kind are permissible,” Weaver writes.
Again, Lynton replied that he was not inclined to support the project. It’s unclear whether any of the other members chipped in, or if the plan has been canceled due to a lack of financial support.
TV Companies Will Sue VPN Providers “In Days”
As Internet users demand more freedom online alongside an ability to consume media in a manner of their choosing, tools allowing them to do so are gaining in popularity.
Notable has been the rise of VPN services, which not only provide an increased level of privacy but also allow users to appear in any country they choose. This opens up a whole new world of content availability – such as better service from Netflix – often at better prices than those offered on home turf.
While popular with consumers, this behavior is frowned upon by distribution companies that spend huge sums of money on content licensing deals specific to their regions of coverage. Losing customers to overseas providers isn’t part of their plan and now some are doing something about it.
Earlier this month media companies SKY, TVNZ, Lightbox and MediaWorks told several Kiwi ISPs that if they don’t stop providing VPN services to their subscribers, legal trouble would be on the horizon.
Within days one of their targets, Unlimited Internet, pulled its VPN service after receiving a letter from a lawfirm claiming breaches of the Copyright Act. However, CallPlus and Bypass Network Services have no intention of caving in to the media giants’ demands.
“To receive without warning a grossly threatening legal letter like that from four of the largest companies in New Zealand is not something we are used to,” wrote Bypass CEO Patrick Jordan-Smith in a letter to the media companies.
“It smacks of bullying to be honest, especially since your letter doesn’t actually say why you think we are breaching copyright.”
Pulling no punches and describing his adversaries as a “gang”, Jordan-Smith likens the threats to those employed by copyright trolls in the United States.
“Your letter gets pretty close to the speculative invoicing type letters that lawyers for copyright owners sometimes send in the US ‘pay up or shutdown or else were are going to sue you’! Not fair,” he writes.
“We have been providing the Global Mode facility for 2 years. In all that time, none of your Big Media Gang have ever written to us. We assumed they were OK with Global Mode and we continued to spend money innovating the facility and providing innovative NZ ISPs with a service that their customers were telling them they wanted – a service that lets people pay for content rather than pirate it.”
The response from Bypass hasn’t been well received by the media companies who now say they will carry through with their threats to sue over breaches of copyright.
“Our position has not changed and unless they remove the unlawful service we will begin court action in the next few days,” says TVNZ chief executive, Kevin Kenrick.
“Each of our businesses invests significant sums of money into the rights to screen content sourced legitimately from the creators and owners of that copyrighted material. This is being undermined by the companies who profit from promoting illegitimate ways to access that content.”
Claiming that the action is aimed at defending the value of content rights in the digital world, Kenrick says that the legal action is not consumer focused.
“This is not about taking action against individual consumers or restricting choice, indeed each of our businesses are investing heavily in more choice so New Zealanders can have legitimate access to the latest TV shows and movies,” the CEO concludes.
While the commercial position of the TVNZ chief is understandable, his claim that this legal action isn’t aimed at reducing choice simply doesn’t stack up. Kiwis using Netflix locally get access to around 220 TV series and 900 movies, while those using a VPN to tunnel into the United States enjoy around 940 TV series and 6,170 movies, something which Bypass Networks believes is completely legal.
“[We provide our service] on our understanding that geo-unblocking to allow people to digitally import content purchased overseas is perfectly legal. If you say it is not, then we are going to need a lot more detail from you to understand why,” Jordan-Smith informs his adversaries.
“Simply sending us a threatening letter, as frightening as that may be, does not get us there and is not a fair reason for us to shut down our whole business.”
Indiana judge goes extra mile in striking down Malibu’s motion for sanctions and fees
Malibu Media v. Tashiro (INSD 13-cv-00205) is an eventful case (228 documents so far), one of the few “cases to watch” — mostly copyright shakedown lawsuits in which defendants didn’t succumb to extortionists’ threats and decided to hire competent attorneys to fight back. Some of these cases (and this case in particular) have all the prospects to end up in front of a jury in the first trial of this kind.
I wrote about this case in the past: a sad story in which morally dead attorneys “on behalf” of jaded pornographers tried to extort money from an Indiana resident by threatening to destroy her life. Ironically, the defendant Kelly Tashiro is a nurse — a profession dedicated to saving lives.
Tashiro retained Jonathan Phillips and always maintained her innocence.
After the trolls realized that their case against Kelley is weak, they pointed their finger at her husband Charles, adding him as a defendant on 5/15/2014. Phillips began representing Charles too, and the newly added defendant also maintained his innocence since then. No evidence of XArt’s smut was ever found on the household hard drives by the Malibu’s expert.
As in virtually every case, when it turned out that the trolls had neither facts nor law to pound, they universally played the spoliation/perjury card, dangerously moving into the criminal law domain. Apparently, alleging criminal actions has more leverage in wrestling defendants into submission than does weaponizing the stigma attached to “barely legal” hardcore pornography.
On 1/29/2015 a big milestone — an evidence hearing — was set to happen. Not trusting his stooge Paul Nicoletti to handle the matters, Keith Lipscomb himself (with an associate) flew to Indianapolis.
On the eve of this hearing, seemingly sensing the gravity of the accusations of potentially criminal conduct, Charles Tashiro rather unexpectedly invoked the Fifth Amendment right to avoid testifying about certain matters. As a result, the hearing was essentially cancelled.
The trolls went postal. A motion to sanction both Charles Tashiro and Jonathan Phillips was filed shortly thereafter. Lipscomb and Co accused Phillips of orchestrating the “sabotage” of the hearing and wanted more than $15,000 from the defendant and his former counsel.
After the botched hearing, citing the conflict of interest, Phillips withdrew as Charles Tashiro’s attorney. Erin Russell appeared on behalf of Charles shortly after.
On 3/16/2015 Phillips responded, calmly explaining the rationale behind the events that pissed off the trolls so much.
On 4/1/2015 Erin Russell also filed a short and stern response complementing Phillips’s one (this motion was even noticed by a legal media outlet).
Russell’s straightforward response resulted in a pure hysteria: it is hard to read 4/13/2015 Malibu’s reply in support without experiencing pain from rolling eyes exceedingly hard. As Raul put it in 140 characters or less,
Seen this drink before, a Malibu Media Crybaby: equal parts vitriol, hysterical accusations and clearly inadmissible evidence. 226 of 205.
I didn’t elaborate the details of the original Malibu’s Motion for Sanctions. In short, the trolls threw everything they could at the wall in a hope that something would stick. They demanded sanctions based on FRCP 37, 28 U.S.C. § 1927, the court’s inherent authority, FRCP 16, you name it…
We anticipated that the motion would be denied as meritless, but in today’s Report and Recommendations, Magistrate Dinsmore exceeded our hopes: he denied each and every claim, sometimes harshly (“This argument borders on the absurd”), and his thorough arguments didn’t leave a lint of hope for success of possible trolls’ objections to this R&R and/or Bar complaints against Phillips.
Music Industry Wants Cross Border Pirate Site Blocks
In recent years blockades of “pirate” websites have spread across Europe and elsewhere. In the UK, for example, more than 100 websites are currently blocked by the major ISPs.
In recent weeks alone several new countries adopted similar measures, Australia, Spain and Portugal included.
Opponents of this censorship route often argue that the measures are ineffective, and that people simply move to other sites. However, in its latest Digital Music Report music industry group IFPI disagrees, pointing at research conducted in the UK.
“Website blocking has proved effective where applied,” IFPI writes, noting that the number of UK visits to “all BitTorrent” sites dropped from 20 million in April 2012 to 11 million two years later.
The key to an effective blocking strategy is to target not just one, but all leading pirate sites.
“While blocking an individual site does not have a significant impact on overall traffic to unlicensed services, once a number of leading sites are
blocked then there is a major impact,” IFPI argues.For now, however, courts have shown to be among the biggest hurdles. It can sometimes take years before these cases reach a conclusion, and the same requests have to be made in all countries.
To streamline the process, copyright holders now want blocking injunctions to apply across borders, starting in the European Union.
“The recording industry continues to call for website blocking legislation where it does not already exist. In countries where there is already a legal basis for blocking, procedures can be slow and burdensome,” IFPI writes.
Megaupload Canada Servers Battle Reignites
The dramatic events of January 2012 in which the gigantic Mega empire of Kim Dotcom was brought to its knees are now more than three years old. Legal argument has dogged the case from day one, with each passing month presenting yet more points of contention.
One of the oldest issues surrounds the hardware seized as part of the global operation to close down what was once the world’s largest centralized file-sharing operation.
The U.S. Government seized 1,103 servers at Carpathia’s hosting facility in the United States, equipment that is currently gathering dust in a Virginia storage facility. Also at issue is a lesser-discussed batch of servers seized in Canada.
On January 18, 2012, a judge in Ontario issued a warrant to seize the 32 servers located in an Equinix datacenter. As the case continued to build against Megaupload, Kim Dotcom and his associates, the U.S. government asked Canadian authorities to hand the hardware over, claiming that an internal Megaupload email revealed them to be “database / number crunching machines.”
A year later in January 2013, Megaupload protested the handing over of the hardware to U.S. authorities claiming that the servers contained a lot of information irrelevant to the case. Megaupload said an independent forensic examiner could examine the servers and determine their contents before any handover.
An Ontario court sided with Megaupload and refused to send the servers’ data to the United States. Instead, both sides were ordered to find a way to filter out irrelevant content.
Now, more than two years later, the issue of just how much of this seized content can be sent to the United States remains an issue. The matter reappeared before a Toronto court Monday, with fresh ideas on how progression can be made.
Crown attorney Moiz Rahman, acting on behalf of the U.S. government, suggested the appointment of an independent group of forensic examiners to inspect the data and determine which data is relevant to the case, CBC reports.
However, Megaupload lawyer Scott Hutchison raised concerns that once back in the United States, the so-called “clean team” might disclose non-relevant information they’d discovered on the servers. Any ruling in Canada to seal their lips would not be enforceable in the U.S., Hutchinson said.
“Once they return to the United States, that’s nothing more than a promise,” the lawyer said.
While conceding that the “vast majority” of the data was likely to be media uploaded by Megaupload’s users, Hutchinson suggested that it would be preferable to hire an independent Canada-based investigator to carry out the work.
But speaking for the Crown on behalf of the U.S., Rahman said that a U.S. team could present the results of its investigation to a Canadian court, which could then decide what information would be allowed back to the United States under current treaty protocol.
“That’s a little bit of cold comfort to me,” said Justice Michael Quigley.
After Rahman claimed that an independent Canadian investigator would prove too expensive, the Judge ordered the parties to present their respective costings to the court before any decision on the fate of the data is made.