So far, Google has only been found to have infringed upon 9 lines of rangeCheck code found in TimSort.java and ComparableTimSort.java – 9 lines out of the 15 million that comprise Android, which equates to one count of infringement. While Oracle asked Alsup to rule on fair use, Google likewise requested a mistrial. By statute, the 9 lines of code in question can only garner a maximum fine of $150,000, which Judge Alsup confirmed last week.

Yesterday, Oracle stated that if the APIs are ruled to be protected by copyright, it won’t go after Google seeking extensive damages related to the rangeCheck code. Alsup had called portions of Oracle’s argument a “fishing expedition,” and the legal team adjusted its tactics. Oracle lead counsel David Boies had argued that Oracle could still lay claim to infringer’s profits – Android makes about $3 million a day, and Oracle wanted a piece. But Boies agreed to forgo this sort of claim if Alsup ruled that the APIs weren’t protected.

Interestingly, Judge Alsup told the court that he’d learned to code Java specifically for the trial, and that he’d written some of the possibly infringing scripts a hundred times before the trial even began. Alsup stated, “I can do it. You can do it. It’s so simple.” Then, addressing Boies, Alsup added, “You’re one of the best lawyers in America — how can you make that argument?” Snap.

Alsup said he’d present a ruling on the APIs within a week, and Boies submitted Oracle’s stance – if the APIs are protected, they will seek damages, if not, they will likely get next to nothing. And so goes the once potentially $1 billion dollar case.

For a bit of backstory, Google’s trial against Oracle, who is suing over infringement regarding the use of Java in building the Android OS, finally commenced just weeks ago – 18 months after Oracle’s initial complaint. While the main point of contention is whether or not Google violated any copyrights, the trial was to be more about whether or not Oracle can to get a jury to agree that some portions of its Java APIs (application programming interfaces) can be classified as created works of art, and thus protected. The outcome of the trial could set a precedent regarding software developers’ use of open-source content.

(Coverage of the SMX Eastconference will continue at WebProNews Videos.  Keep an eye on WebProNews for more notes and videos from the event this week.)

In the session "Trademarks & Paid Search: How Thing Have Changed?" the panel discussed the issue of keywords, trademarks and infringement.

Deborah Wilcox
Baker & Hostetler, LLP

Deborah Wilcox, Partner, Baker & Hostetler, LLP, said, "Trademarks are all about brands." Just because a word is in a dictionary does not mean that the word is free to use.

A generic keyword is not trademarked. Descriptive keywords are not yet strong enough for a trademark.

Establishing trademarks right is usually associated with who is using the mark first.

Infringement occurs when someone is using another’s mark that is likely to cause consumers confusion or to cause a mistake or to deceive as to source.

Is the sale or purchase of a trademarked keyword constitute use in commerce? If the ad that is triggered has the actual keyword in the title or text, then yes.

Trademark law is established to protect consumers from being misled in purchasing decisions.

 Courts apply multi factor test

•  strength of the trademark.
•  Similarities in goods and services
•  wrongful intent to trade off of goodwill
•  actual consumer confusion

With keyword triggered ads, how might there be confusion?

- Are all the users typing in a search term, looking for the trademark owner’s site?

- Are users able to distinguish among all the different ads they are served within the results, or are they duped into thinking all the sponsored links are official links.

Permitted use of trademark:
- Descriptive fair use of mark in ordinary dictionary sense… (talking about apple the fruit)

- to identify the authorized product (resellers and making things that are compatible with the brand)

- providing information (writing or blogging about a brand)

- comparative advertising (can be very subjective — for example when you compare your product by name to your competitors name/brand) — very tricky and subjective..

Laura Covington, Associate General Counsel, Global Brand and Trademarks, Yahoo, said Yahoo’s trademark policy is premised on fair use. Competitors cannot bid on trademarked terms.

4 ways to raise trademark related questions from yahoo with search marketing:

Trademark complaint
Counterfeit complaint
False and misleading complaint
Copyright DMCA

Microsoft Trademark policy:

Limited range of advertisers that can bid on trademarked terms:
Resellers, information sites and dictionary terms.

Google’s Trademark Policy:

Google will launch a limited investigation. If the investigation fids infringement, they will take the trademark out of the ad, but leave the ad up.
 

WebProNews reporter Mike McDonald contributed to this article from SMX East.

Audioholics received permission from Kurt Denke, president of Blue Jeans Cable, to republish a long response to Monster Cable’s claims of infringement. Denke’s response is funny, detailed, and not above taking a swipe at Monster Cable for basing their operations in Bermuda:

Let me begin by stating, without equivocation, that I have no interest whatsoever in infringing upon any intellectual property belonging to Monster Cable. Indeed, the less my customers think my products resemble Monster’s, in form or in function, the better.

Further, on that point: one of the design patents you attached is closely related to a utility patent applicable to the same design, and you failed to point that fact out. I need to be able to rely upon the completeness and accuracy of the information you send to me and I find this sort of omission deeply disturbing because it is clear that the effect of this nondisclosure is to obscure the real significance of the patent features. Similarly, as I note further below, you omit reference to another patent Monster has held which appears, frankly, to be fatal to your position. If you expect to persuade me, you had better start making full, open and honest disclosures; I will find out the facts sooner or later in any event, but the impact upon your credibility will not be repaired.

Further, if any of these patents or trademarks has been licensed to any entity, please provide me with copies of the licensing agreements. I assume that Monster Cable International, Ltd., in Bermuda, listed on these patents, is an IP holding company and that Monster Cable’s principal US entity pays licensing fees to the Bermuda corporation in order to shift income out of the United States and thereby avoid paying United States federal income tax on those portions of its income; my request for these licensing agreements is specifically intended to include any licensing agreements, including those with closely related or sham entities, within or without the Monster Cable “family,” and without regard to whether those licensing agreements are sham transactions for tax shelter purposes only or whether they are bona fide arm’s-length transactions.

In plaintiffs’ practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am “uncompromising” in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds.

This might be one of the most beautifully written, extended middle fingers, I’ve ever seen.

eBay To Appeal Infringement Ruling

The decision regarding eBay’s use of the "Buy It Now" function on its auctions represents a setback since eBay’s earlier success in court this summer. MercExchange won a judgment this week that would have eBay pay about $30 million for infringing the patent related to Buy It Now.

However, eBay still faces the prospect of giving up a lot more money to MercExchange, which demanded eBay account for Buy It Now sales and the revenue those created. EBay announced it would continue fighting the case and appeal the District Court’s ruling:

"We are disappointed with the court’s order and we plan to appeal it. In its ruling, the court concluded that it did not have the legal right to consider the merits of our arguments concerning the ’265 patent, but rather was required to reject our motions based on the procedural posture of the case. We intend to appeal the Court’s ruling on the procedural issues and remain confident that after the appeal, the Court will consider our arguments on their merits.

"Additionally, our motion for summary judgment that our 2003 design-around was effective and there is no ongoing infringement of the ’265 patent, and that no further damages are due, also remains pending before the court."

Buy It Now will continue to be available on eBay. The company developed a work-around for the technology in 2005, following MercExchange’s opening lawsuit in 2003. Subsequent court decisions have knocked down proposed injunctions against eBay’s use of a Buy It Now function.

follow me on Twitter

Observations like that usually fizzle away – at least Jason Kilar, Hulu CEO, wishes it would. Yesterday, Lulu Enterprises confirmed that they have filed a law suit against N-F Newsite LLC (the operating company) for “trademark infringement, unfair and deceptive trade practices and for federal cyberpiracy” in a US District Court on August 22.

Lulu alleges that Hulu, as a result of their recent name and Internet domain announcements, have intentionally attempted to create confusion in the marketplace.
Hulu, in name, as a mark and in their business as a digital content distribution platform, represents a definitive encroachment.

Lulu.com opened it’s doors to the creative community in 2002 and claim 1.2 million registered users – publishing, buying and selling digital content across 700 interest groups. CEO Bob Young (previous co-founder of Red Hat) was force-full in his press release statement:

We have more than five years and tens of millions of dollars in investment successfully building the Lulu brand… It is clear we are required to move quickly to protect our intellectual property and defend ourselves

A comment from Soso Sazesh over at Techomical widened my smile even further:

Aren’t online video sites supposed to wait to be involved in litigation until they are up and running and have infringing content on their site?

Comments

“It

“Warner, the world’s fourth-largest music company, is claiming damages up to $150,000 for each copyrighted work infringed on the site,” reports Reuters.  Warner represents ultra-famous artists like Radiohead, Metallica, and Frank Sinatra – and Wikipedia lists 239 others – so the final, yet-to-be-determined sum could be nearly incalculable.

I’m sure the lawyers will find a way, though, and as they push their calculators into overdrive, all is quiet at the “online community where artists, fans & friends can promote their content, share their tastes, and discover new blogs, photos, music and video.”  By digging into the “Community Rules” section of Imeem, WebProNews did at least discover that the site regards copyright infringement as “just not cool.”

Oh, blast.  Imeem made the lawyers laugh and now they’ve got to start their calculations all over again; they’re certainly not buying that slacker excuse.  “Imeem is no innocent infringer,” states Warner in its suit.  “It invites Imeem’s millions of users to flock to its website to copy, adapt, distribute and perform unlicensed sound recordings and music videos.”

If Warner Music Group has its way, those millions of users could be left looking for somewhere else to “share their tastes” in the near future.  Maybe a lucky few will get to talk it over with their new instructor, Flea.

MySpace has several other copyright protection features already available, such as an audio filtering application which screens audio files to prevent people from uploading bootlegged music; a video filtering application, which screens video files to prevent illegal video uploads; and a Content Take Down tool, which allows copyright owners to request unauthorized content be taken down.

MySpace is owned by News Corporation, which owns 20th Century Fox film studios and the FOX TV networks, and it shows in their approach to copyrighted content. As a major internet site that is doing a lot more than Google to take this stuff down, they are going to make Google look bad in the coming lawsuits, and I wouldn’t be surprised if that’s exactly their goal. By fighting hard against this stuff, they defeat a number of Google’s primary arguements, and can just point at their own efforts as evidence Google isn’t doing enough.

Comments

"We have created this new feature to solve a problem that has long frustrated copyright holders and presented technical challenges to service providers – how to prevent copyrighted content from being re-posted by the same or a different user after it has been taken down by the copyright owner," said Michael Angus, EVP and General Counsel for Fox Interactive Media.

Angus added that MySpace is the first Web site to introduce a more effective tool to hinder copyright infringement. He called the Take Down Stay Down tool "ground-breaking and unprecedented benefit for copyright owners that re-enforces MySpace’s position as the leader in copyright protection on the Internet."

After a content owner tells MySpace that infringing content has been posted on MySpace Videos the content is removed. The Take Down Stay Down tool creates a digital fingerprint of the video content and adds it to a copyright filter. If a user attempts to upload the same content that has been removed, the filter will recognize the digital fingerprint and block the content from being uploaded.

MySpace’s other copyright protection tools include audio filtering which screens for unauthorized music uploads. Video filtering that block uploads of copyrighted video and a Content Take Down Tool that allows copyright owners to request the removal of infringing content.

Is Linking To Pirated Content A Liability?

Something like that, with its inherent sovereignty issues, will take longer to work out than the parameters of copyright and fair use. So rather than immerse ourselves in a concept so hairy, let’s consider more present issues.

With recent information suggesting that Viacom’s lawsuit against YouTube is a bit heavy-handed considering the relatively low occurrence of inadvertent copyright infringement on the site, it makes one seek clearer-cut, more intentional piracy. 

TechCrunch’s Michael Arrington points to smaller sites with their hands dipped deep into the piracy pool – sites like France-based Daily Motion. He also brings attention to Allsp.com, a British-owned site dedicated to the TV show "South Park," Viacom’s Comedy Central money tree.

Allsp.com, registered a Max Fret, allows visitors access to every "South Park" episode from every season. It’s access to the episodes because Allsp says they don’t actually host the shows, just provide "a link" to DailyMotion, from where the episodes are streamed.

But the show itself streams via a video viewer on the site itself. A request for comment was met with a simple email from a "Mr. Watson" (assumed because of email name) wordlessly directing to the Disclaimer portion of the website, apparently refusing to expand any further.

It would seem Allsp.com has been bombarded with accusations of illegality, as the disclaimer is more than a little testy in tone:

…ALLSP.com does NOT host any content, all ALLSP does is link to content that was uploaded to popular Online Video hosting sites like dailymmotion.com and Youtube.com. All youtube/dailymotion users signed a contract with the sites when they set up their accounts which forces them not to upload illegal content. By clicking on any Links to videos while surfing on ALLSP.com you leave ALLSP.com, ALLSP.com cannot take the responsibility for any content hosted on other sites.

ALLSP does not upload or even encourage the uploading of copyright protected material to sites such as Dailymotion or YouTube.

As a side note for those of you who wrongly believe that allsp is illegal, then you’ve effectively said that Google is illegal…

The author has drawn some interesting (if questionable) lines regarding his responsibility for copyrighted content on his site; especially interesting is the metaphysical claim that when watching a "South Park" episode at Allsp.com, you are "leaving" the site to do so – just like when a person meditates, they "leave" their physical bodies.

Google has prevailed so far with its fair use argument in the United States, claiming that indexing, linking to, and displaying snippets of content is acceptable practice. However, Google hasn’t been so lucky in other countries.

But it seems a bit of a stretch to compare Allsp with Google, as there is no Google frame around entire content selections, and Google doesn’t present copyrighted material to the searchers on its homepage, or even bring "links" to pirated material front and center. Note also all the copyrighted imagery used for the viewer skin.

In the US system, websites can be held liable for linking to infringing content. Eric Goldman, Assistant Professor and Director Santa Clara University’s High Tech Law Institute, wouldn’t comment on Allsp.com, but did provide some excellent perspective to website liability.

Here are four general principles (but not necessarily all principles) to consider when assessing the limits of third-party linking, fair use, and copyright enforcement:

1) In general, a website should not be directly liable for linking to infringing content.  First, a link by itself doesn’t infringe the linked site’s copyright (see, e.g., Ticketmaster v. Tickets.com).  Second, websites can be insulated from liability under 17 USC 512(d) if the website complies with various steps.
 
2) Having said that, there are some cases suggesting that websites can, in fact, be liable for linking to infringing content.  In one case (Intellectual Reserve v. Utah Lighthouse Ministry), the linking website was allegedly "contributing" to the infringement committed by the user when he/she downloaded the infringing content. 

In another case, streaming video was deemed an infringing display of the video (Live Nation Motor Sports, Inc. v. Davis).  And in some sense, the Napster case involved liability for linking to infringing content. 

Finally, there’s the Universal City v. Remeirdes case, which held that linking to DeCSS violated 17 USC 1201 because the link constituted "trafficking" in illegal technology.
 
3) While there are no clear rules about liability for linking to infringing content, many of the cases appear to turn on the good faith of the linking site–i.e., if the site clearly is designed to facilitate infringement, courts will be very unlikely to use legal formalities to protect the site.
 
4) On that front, site EULAs or disclaimers trying to claim ignorance about linking to infringing content have virtually no legal effect.