IPLJ - Fordham Intellectual Property, Media & Entertainment Law Journal Blog

Feb. 03, 2012 // by Jacqueline McMahon

What’s All This About Pirates on the Internet?

IPLJ BLOG FEATURE: From the Desk of the Editor Each month, Editor-in-Chief Jacqueline McMahon weighs in on topics and legal issues covered in the IPLJ. This month Jacqueline looks back on the key stories the IPLJ focused on this past year.

Pirates are everywhere nowadays. Pirates in the Indian Ocean. Pirates in the movie theaters. Pirates on the web.

Some people define piracy as illegal copying of copyrighted materials from the Internet. But others label this definition of “theft” ludicrous. “[U]se of the word ‘piracy’ to describe pattern-copying is going too far. Real pirates storm boats, rape, loot, murder; they break things; they leave the victims dead, injured, enslaved or at the least missing many former possessions. Modern IP “pirates,” of course, do none of these things.”

So is it fair to call what happens online “piracy” and those who copy “pirates”? What is clear is that the term “pirate” has become such a buzz word for the news industry because of its popularity and the image it connotes. Pirates of the Caribbean: On Stranger Tides, the fourth movie in the Disney series, made $1,043,871,802 worldwide. People like pirates.

But the things pirates do are bad—really bad. Murdering. Enslaving. And downloading a movie off of BitTornado? The analogy doesn’t quite seem to fit, but people who use someone else’s property for their own purposes without proper permission or payment are certainly doing something bad.

The federal government sees it that way too. Congressmen struggle to pass stricter regulations of downloads, uploads, and searches. PIPA and SOPA have people on both sides of the debate up in arms. People face serious consequences—both civil and criminal—if they don the label “pirate.” If convicted, online pirates can be put in IP-prisons or sometimes even (potentially) real prisons. Civilly, willful pirates—and most people are aware that the content they are copying is protected—can be held liable for damages up to $150,000 per infringed work.

The odd part is that most anti-piracy advocates don’t believe that little Sally should be help accountable for significant damages for “illegally downloading” a song that costs $1 in the marketplace. And that does seem quite ridiculous, but the counterargument is, of course, there are thousands, maybe millions, of Sallys out there. When $1 is stolen by 1 million people, the significance of the damage of that $1 download becomes all the more apparent. Moreover, DVD piracy has been found to have a higher profit margin than the drug trade and is being used to fund organized crime and terrorism rings worldwide.

Because piracy is becoming such a commonplace and profitable occurrence, and efforts to contain it or prevent it have been agonizingly unsuccessful, some businesses are instead trying to turn piracy into a business practice. According to Mikael Hed, chief executive of Rovio Mobile, creator of the Angry Birds brand, “We could learn a lot from the music industry, and the rather terrible ways the music industry has tried to combat piracy. . . . Piracy may not be a bad thing: it can get us more business at the end of the day.” Adopting Hed’s philosophy, treating users as customers—focusing solely on the consumer’s financial contribution to the company—diminishes their association with the brand. Instead, users should be seen as fans, whether they obtain the merchandise through legal or illegal means; the more fans you have, the more successful your brand, and ultimately (hopefully) the fatter your wallet. In other words, “piracy” is “nothing more than a huge sampling exercise.”

If this is an option, if it is just as simple as business, those in the music industry, those game-makers, and all other creative geniuses who create something nobody appreciates until they can get it for free, then do we really need PIPA and SOPA or any other government regulation at all? Should these person-person or person-business, or business-business disputes even be brought into a court? Should we be creating precedent that says, especially during the “Occupy Wall Street” time we live in, that the big rich company gets to pick on the little guy who really wants that Angry Birds game, but can’t quite afford it?

On the other hand, one could argue quite persuasively that you can’t always get what you want. Which conveniently brings us back to the pirate idea that began this blog. Pirates take what does not belong to them, through whatever means necessary, because they want it. They want it now. (Pirates seem to share quite a bit in common with Veruca Saltin this regard.) The Internet makes information available at our fingertips at lightning speed. But only the information is available for free. Products—songs, games, movies, tv show, books, etc.—are not promised to us for free. These products are the product of the blood, sweat and tears of their creators. Why should we passive Internet users be able to obtain these products for free?

"Nah-a-ah, not so fast!'

While the analogy to pillagers may not be perfect, the idea behind the label is quite simple: If you take what does not belong to you, you are a pirate, the Internet’s (or copyright owners’) name for a thief.

0 Comments // Piracy

Feb. 02, 2012 // by Sasha Segall

A Victory for Privacy OR A Loss for Law Enforcement?

On Tuesday, January 23, the Supreme Court decided United States v. Jones, a case that set the tone for how the fundamental right to privacy will be protected in this digital age.

In 2004, the Government suspected that Antoine Jones, a former owner of Levels D.C. nightclub, was involved in drug trafficking. The Government had obtained permission to attach a GPS tracker to Jones’s Jeep in Washington, D.C. within 10 days. Instead, the Government attached the device on the 11^th day and in Maryland.

The Government obtained information that led to an indictment charging Jones with conspiracy to distribute and posses with intent to distribute five kilograms or more of cocaine and 50 grams of cocaine base.

The Court looked at whether the GPS device, monitoring Jones’ car, was a search or seizure within the Fourth Amendment. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . .”

The Supreme Court unanimously held that the installation of the GPS device on Jones’ vehicle was a search protected within the meaning of the Fourth Amendment. The Court distinguished a GPS tracker as being more intrusive that ordinary public surveillance methods. Justices Scalia, Roberts, Kennedy, Thomas, and Sotomayor joined in the majority opinion, although Sotomayor wrote a concurring opinion. Alito filed another concurring opinion in which Ginsburg, Breyer, and Kagan joined.

The difference between the Justices’ opinions is the approach used to get to the conclusion. Scalia found that the GPS device on a vehicle is a search protected within the meaning of the history of the Fourth Amendment, while Alito used a “reasonableness test” and argued that Jones’s reasonable expectations of privacy were violated.

This decision shifts power away from law enforcement officials and toward the privacy rights of those accused. Of course, this case’s outcome is not without its mixed reviews. Fox News called the decision a “rare defeat for law enforcement.” The Supreme Court was “rein[ing] in the police” according to the Wall Street Journal. Senator Patrick Leahy called the decision “a victory for privacy rights and for civil liberties in the digital age.”

The case is intriguing because the GPS tracker not only revealed evidence about Jones’s drug trafficking, but also about defects in the D.C. government’s administration of liquor licenses. Jones had two felony drug convictions when he applied for his Washington D.C. club liquor licenses, but received the licenses because D.C. did not look into his records from Virginia and Maryland.

As more advanced tracking technology is developed, and people’s electronic trails report more information about their habits, this decision will serve as guidance for law enforcement officials to be careful that their actions do not breach the Fourth Amendment protections, despite how egregious the accused actions may be.

0 Comments // Fourth Amendment, Privacy, United States Supreme Court

Feb. 01, 2012 // by Katherine DeStefano

Tweet at Your Own Risk: If You are a Student-Athlete, It Could Get You Expelled

The Sports Blawg with the Fordham Sports Law Forum

On January 18, 2012, the highly touted high school cornerback Yuri Wright was expelled from school for “sexually graphic and racial” tweets. Wright is currently ranked 40th in ESPNU’s Top 150 Football Recruits for the class of 2012. The Huffington Post has provided a link to view some of Wright’s tweets. Please be advised that they are sexually explicit.

Wright was a student-athlete at Don Bosco Prep High School, a Catholic school with a nationally recognized football program in Ramsey, New Jersey. While the University of Michigan backed off recruiting the US Army All-American Bowl participant after his expulsion, he has verbally committed to Colorado. In the meantime, Wright has deleted his twitter account and will have to search for a high school to finish his senior year.

Situations such as Wright’s are relatively infrequent in high schools, college and professional athletes have often had to face consequences as a result of their social media use. From Gilbert Arenas’ twitter rants to Rashard Mendehall’s controversial tweets about the death of Osama bin Laden, controversial views posted on social media will continue to draw widespread attention.

There are obvious First Amendment concerns implicated when an organization – especially a school – seeks to control online speech. However, the Supreme Court recently declined to enter the fray. Their most recent decision concerned a high school student, leaving the NCAA and professional leagues to be largely self-governing in their social media policies. It seems as though college athletes are under much greater scrutiny because the NCAA is a more highly regulated environment. However, unlike professional leagues, the NCAA has no set regulations for what is acceptable social media use for student athletes; instead, it leaves it up to the institutions to deal with Twitter or Facebook issues on a case-by-case basis. Additionally, many colleges and universities have implemented strict, uniform social media policies that apply to all students, athletes or not.

Left to their own devices, universities and professional sports leagues have taken different approaches to controlling athlete social media use. Most notably, several college football coaches banned the use of Twitter by their student-athletes this season. Most professional leagues, including the NBA, only ban social media during games and for a short time span before and after the game is played.

To some, schools and leagues may be violating one’s right to free speech. To others, especially coaches and league executives, athletes are abusing their right to free speech and the athletes deserve punishment when they harm a school or team’s reputation.

Yuri Wright’s predicament begs the question – is there any justification for potentially ruining a young student-athlete’s future by expelling them for violating social media policies? Arguments can be made either way. Wright had received numerous warnings from his school administration to cease tweeting such vulgar content. However, he is also a teenager given an unlimited platform to express himself. While this issue of social media use radiates throughout professional, college, and now high school sports, one can argue that we should seek to educate these athletes on how to make the most positive use of social media and not punish or completely take away their expression. Only time will tell how this area of sports will be regulated.

For further discussion surrounding this topic, consider attending the 16th Annual Fordham Sports Law Symposium at Fordham University School of Law on March 30, 2012.

The Fordham Sports Law Forum is dedicated to bringing interesting issues in sports law to the Fordham legal community. Each week, in conjunction with the Intellectual Property, Media & Entertainment Law Journal, members of the Fordham Sports Law Forum write posts about current sports law issues and events.

Katherine DeStefano graduated from Georgetown University where she also served as head team manager for the Georgetown women’s basketball team for four years. Katherine is the Vice President for the Fordham Sports Law Symposium taking place this spring.

0 Comments // FSLF, Social Media

Jan. 31, 2012 // by Andrew Eisenberg

“Saint” Paul

Recently, a YouTube video attacking ex-presidential contender Jon Huntsmen surfaced on the Internet. The insulting footage refers to Huntsmen as the “Manchurian Candidate,” while playing “Chinese style” music in the background; it shows Huntsmen doing Chinese activities (speaking Chinese, interviewing with the chinese media…) and asks whether the candidate’s true country of allegiance is the United States or China. The clip further proceeds to display a terribly doctored photo of Huntsmen wearing Maoist military garb and trashes Huntsmen for being a Mormon. The final scene of the video instructs voters seeking American values and liberty to vote for Ron Paul.

While attack ads are quite common in politics, Huntsmen was particularly offended by this one, because the ad used pictures of Huntsmen’s adopted children to argue that Huntsmen does not hold American values. In addressing the video, Huntsmen said, “[i]f someone wants to poke fun at me, that’s OK. . .[But] what I object to is bringing forward pictures and videos of my adopted daughters and suggesting there’s something sinister there.”

While everyone agrees that this video was tactless and offensive, the lingering question is: who is behind this distasteful advertisement?

The obvious initial reaction was to place the blame on Ron Paul’s campaign team. The clip’s final segment endorsed Paul and the video was uploaded on a YouTube account called “New Hampshire Liberty 4 Paul.” However, that evidence alone does not incriminate Paul. There is nothing actually linking the account to Paul’s campaign team and further, the “NH Liberty 4 Paul” YouTube account only contains this one uploaded video, which makes it seem like a farce. Even though Paul’s campaign team has started up with Huntsmen before, they maintain that they have never done anything this offensive. Putting to bed any remaining doubts as to whether Paul’s campaign was the originator of this ad, Paul’s team filed a defamation and trademark lawsuit against the party who uploaded the unauthorized attack video.

But the suit is unlikely to succeed for several reasons. The suit alleges false advertising and false designation of origin under the Lanham Act. The Lanham Act applies to “commercial advertising or promotion” and there seems to be no indication of sale of goods or self-promotion. Additionally, it is very hard to demonstrate that the advertisement actually defames Paul. Paul’s legal team must be able to prove that this video alone caused a public change in opinion of Ron Paul. Proving an opinion-shift about a public figure such as Ron Paul is highly difficult and thus unlikely.

Not only is this suit destined to fail, it also is just kind of odd. Since the identity of the uploader is unknown, this suit is a “John Doe” suit, where the plaintiff adds the defendant when the identity is revealed, even if it is after the suit is filed. The defendant is usually identified through a subpoena of on an Internet Service Provider (ISP). What makes this suit so weird is that Paul is a libertarian, primarily interested in individual liberties and freedom from government. But forcing an ISP to disclose the identity of a client definitely infringes on the ISP and its users’ right of privacy. Therefore, John Doe proceedings are not in-line with Paul’s main beliefs.

While the lawsuit is weak and strange, it still does make it quite clear that Ron Paul’s campaign is not the party behind the video. So our original question remains: who is responsible?

Some Paul supporters have accused Huntsmen’s own campaign team of uploading the video themselves and using it as a tactic to invoke sympathy. These Paul supporters support their position with an image showing that the first link to the video was at Huntsmen’s campaign site, jon2012.com. However, that is no proof at all, as anyone with a computer programming degree can arrange for such an image. Plus it would be quite the sleazy political move if Huntsmen were jeopardizing his family merely to inject sympathy into a dying campaign. It is highly unlikely that that is the case.

So, with few other options of potential culprits, it appears most likely that the video was posted by a Paul or Huntsmen supporter, (for the reasons mentioned above), not associated with either candidate’s official campaign.

While Paul’s lawsuit is unlikely to have any legal effect, the publicity resulting from the suit helps exhibit the disapproval for prejudice existing in our current society. The Internet’s reaction to the content of this video reveals that Americans do not endorse racism. On the YouTube page of the video clip, there were over 5,000 dislikes compared to fewer than 200 likes. Most blogs and reports of the ordeal have denounced the video as “tactless” or “offensive” or described it in some other negative light – no one has applauded the bigotry.

Consequently, Paul’s ‘losing’ suit is a real winner.

UPDATE: Paul’s request to unmask the identities of the video uploader has been denied.

0 Comments // General, News, Trademark

Jan. 29, 2012 // by Anne Reilly

Leno Sued Over Sikh Sketch

A California Sikh, Dr. Randeep Dhillon, has filed a lawsuit against Jay Leno, alleging that the Sikh community was the unfair butt of The Chin’s joke on the January 19^th episode of The Tonight Show. The joke at issue portrayed Mitt Romney, the uber-wealthy Republican presidential candidate, as the summer resident of the Golden Temple of Amritsar—the holiest shrine of the Sikh religion.

Seizing on the buzz created by the release of Romney’s tax records for 2010-2011—when he earned $42.5 million in income—Leno mocked the candidate’s wealth by showing Newt Gingrich’s and Ron Paul’s homes, saving “Romney’s” gilded temple for the final zinger. Romney’s net worth, an estimated $190 million to $250 million, makes him one of the all-time wealthiest candidates to ever run for the presidency, not to mention several zeros and commas ahead of the other Republican primary runners.

In the complaint, Dr. Dhillon seeks general and punitive damages for libel. He claims that the joke “clearly exposes plaintiff, other Sikhs and their religion to hatred, contempt, ridicule and obloquy because it falsely portrays the holiest place in the Sikh religion as a vacation resort owned by a non-Sikh.” For Dr. Dhillon to be successful on his claim, he must prove the five elements of libel—publication, identification, defamation, fault, and injury. Noticeably absent in the complaint, however, is any showing of how the clearly satirical dig at Romney has or will cause hatred, contempt, or ridicule towards Sikhs. Dr. Dhillon will be hard-pressed argue that Leno’s portrayal of Romney defamed the Sikhs and caused anyone to actually believe that the Sikh Temple is the Mormon candidate’s summer residence. Also, how many Tonight Show viewers would recognize the photo Leno briefly displayed as the Golden Temple of Amritsar or even connect it with the Sikh religion? Dr. Dhillon is arguing not just a claim of personal libel, but a claim alleging injury to the Sikh religion as a whole. Proving that Leno’s statements actually injured all Sikhs—in other words, that no one within the Sikh religion understood the true target of the joke—will be a nearly impossible hurdle.

Although the joke seems to have not yet hit the wall among the Sikh community, Leno’s satire has provoked international reactions. The Facebook group against Leno’s “libelous” comments now has over 4,000 members, and online petition against Leno’s “defamation of the Sikhs” is now taking names. India’s Minister for Overseas Indian Affairs, Vayalar Ravi, has called the joke “quite unfortunate and quite objectionable” and that India will take up Leno’s statements with U.S. authorities. India is home to both the Golden Temple and two-thirds of the world’s Sikh population. On Thursday, January 26^th, two members of the British Parliament even chimed into the condemnation: House of Commons members Virendra Sharma and John McDonnell filed a motion in Parliament calling on Leno to apologize to the Sikh, condemning the Tonight Show sketch, and asking Prime Minister Cameron to “make representations” to the U.S. that “there should be more understanding and respect shown to the Sikh faith.” Their motion has only received [their] two signatures thus far.

Neither NBC nor Leno has commented on the Sikh situation, but the U.S. State Department has. State Department spokesperson Victoria Nuland defended the comedian, saying, “I hope [Jay Leno] will be appreciative if we make the point that his comments are constitutionally protected in the United States under free speech and, frankly, they appeared to be satirical in nature.” What better amicus for Leno than the U.S. government?

Nuland’s comments, however, get to the heart of an overarching intellectual property issue currently broiling between the United States and India. Facebook and Google are fighting a lawsuit in India over content accessible through their websites that India deems offensive. India’s free speech laws allow the government to block sites that they deem unacceptable, particularly the websites the Indian government feels may provoke racial and ethnic violence, including satirical sites. In the United Stated, however, satire is protected by the 1^st Amendment. And Americans love satire—The Tonight Show grabbed the #1 spot in late night television last week, raking in just over one million viewers. However, it seems India does not agree, as Minister Ravi stated, “I wish this kind of thing is not shown by any media in the U.S.”

Leno’s sketch last week, unfortunately, offended many members of the Sikh community. But our laws [thankfully] permit a wide-range of freedom of expression, which means Leno will likely have the last laugh.

0 Comments // Celebrity, Censorship, Entertainment, International IP Law, Television