Technically Legal

Technology and the law. Done right.

Righthaven sues Eriq Gardner, an Ars Technica writer, then withdraws

This case is a real head scratcher. 

Eriq Gardner, who writes The Hollywood Reporter ESQ blog and occasionally contributes legal commentary to Ars Technica, recently found himself at the business end of a Righthaven copyright lawsuit.

The story begins last December, when Gardner wrote an article for Ars Technica that Described Righthaven’s copyright claims in a lawsuit against the DrudgeReport.  In that case, Righthaven alleged that the DrudgeReport had reposted a photograph of a TSA Agent giving an airport traveler a pat down without authorization.  In Gardner’s Ars Technica article about the DrudgeReport lawsuit, he reposted the photograph as it had appeared in the court filing:  as a black and white, grainy image that (probably) had been printed out and attached to the complaint as an exhibit and then rescanned for the Ars Technica article.

Last Friday, Righthaven filed a complaint against Gardner claiming that his use of the photograph from the court filing in the Ars Technica article was an infringement of copyright(!).  According to Ars Technica, which has a detailed post about the incident, Righthaven voluntarily dismissed the suit this morning, stating to Ars that the filing was the result of a “clerical error.”

It’s hard to imagine a set of facts that is a better candidate for a fair use defense.  Aside from the fact that the image in question wasn’t even the original photograph, Gardner’s Ars Technica piece is a news article, with commentary on the DrudgeReport lawsuit.  News reporting and commentary about ongoing cases has a long history of public policy support in the courts.  Moreover, those activities are among the few explicitly mentioned as examples of fair use in the Copyright Act (use of a work “for purposes such as criticism, comment, news reporting … is not an infringement of copyright”).  This lawsuit looks bad for other reasons too, as one could seemingly perceive it as an attempt by Righthaven to quell commentary about its litigious activities.

Even more confounding, however, is that the majority of Righthaven’s lawsuits (that I am aware of, at least) come from its newspaper clientele.  If we take a momentary trip to upside down world, where this lawsuit wasn’t dismissed and the fair use argument failed in court, Righthaven would have obtained a ruling that is rather antithetical to the same principle that its client-newspapers rely on for commentary and reporting in their own publications.

Comments Off on Righthaven sues Eriq Gardner, an Ars Technica writer, then withdraws Posted in: Commentary, Links on March 29, 2011

Episode 94: AT&T&T-Mobile

AT&T and T-Mobile Merger, Apple Sues Amazon over the appstore, Federal Judge puts the Kibosh on Google Books Settlement.

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The (proposed) AT&T and T-Mobile Merger

AT&T wants to use T-Mobile’s AWS spectrum for LTE buildout
DOJ and FTC Horizontal Merger Guidelines

Apple Sues Amazon over Amazon appstore

Apple Sues, Claiming It Improperly Uses ‘App Store’ Trademark
The Complaint

Judge Rejects Google Books Settlement

The SDNY opinion

Comments Off on Episode 94: AT&T&T-Mobile Posted in: Podcast on March 29, 2011

Weekly Links: March 20-26th, 2011

Every week, Ben, Dominik, David Lu, and I share technology, law, and policy news stories in an e-mail thread.  Then, we select 2 or 3 stories for discussion on our weekly podcast and, time permitting, stories worthy of a blog post.  More often than not, there are more stories in our e-mail thread than we have time to cover on the podcast or in blog posts.  And, this was the busiest week we’ve seen in awhile!

This is the first post in a new weekly series where we will share “what’s on our radar” in a blog post each Saturday or Sunday with links to the stories in our e-mail thread.  If we missed any stories, please feel free to note them in the comments.


AT&T / T-Mobile agree on acquisition deal for $39B. [via New York Times]

Amazon shuts down “Lendle,” but now it’s back up. [via Daring Fireball and]

Apple sues Amazon over “AppStore” trademark. [via technically legal and Bloomberg]

Microsoft sues Barnes & Noble over Nook/Android. [via GrokLaw]

Appeals court Revives FISA lawsuit from 1983. [via Ars Technica]

Google was fined for collecting wifi data in France. [via Mac World]

Fair use wins the day in a Righthaven lawsuit. [via EFF]

Court orders Steve Jobs to answer questions in an antitrust case. [via The Loop]

Master Arts sues Google over instant results. [via TechCrunch] [Compliant @ Scrib’d]

The Federal Circuit Court of Appeals rejects narrow interpretation of the “analogous arts” test. [via Patently-O]

The USPTO granted Google a patent (# 7,912,915) for doodling. [via Slashdot] [the patent]

NY Federal District Court rejects Google Book Settlement. [SDNY Opinion]

The new New York Times’ paywall uses javascript — could “NoScript” be a circumvention under DMCA § 1201? [via Tech Dirt]

The New York Times tells Twitter to shutdown a retweeting stream. [via Slashdot]

After hacker posts his crime to YouTube, goes to jail. [via Slashdot]

Senators ask Apple to remove DUI checkpoint mapping App. [via The Loop]

Record companies sue Limewire for trillions. [via]

Updates in the GeoHot/Sony case. [via Ars Technica]

HDD search and seizure: should there be more limits? [via Ars Technica]

A victory for plaintiffs (copyright) in class action P2P lawsuits? [via Ars Technica] [D.C. District Court Opinion]

1 Comment Posted in: Links, Weekly Links on March 27, 2011

Episode 93: Po-Po-Po-Poker Bot

Poker Bots, Amazon Scuffles Over Taxes, and an Image Gets Hijacked for an ad on Facbeook

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Poker Bots

Poker Bots Invade Online Gambling

Amazon Scuffles Over Taxes

Amazon Takes Action in Illinois as War on Sales Taxes Continues

Image Hijacked to Facebook Ad

So What Can You Do When a Company Steals Your Photograph And Uses It For An Advertisement On Facebook?
The picture

Comments Off on Episode 93: Po-Po-Po-Poker Bot Posted in: Podcast on March 21, 2011

Apple sues Amazon over usage of “App Store” mark

Bloomberg is reporting that Apple has filed a compliant against Amazon for using “App Store” in the context of the “Amazon Appstore Developer Program,” (as of 10:42 EDT, Amazon still hasn’t taken down the reference) which will apparently be some kind of Android app stor… err, online market for, well, “apps.”

You may recall that we discussed the issues associated with Apple’s application for the “appstore” trademark in some detail on Podcast 92. In sum, Microsoft thinks this mark is generic (and is separately challenging it before the Trademark Trial and Appeal Board).  I think there is a better argument that this mark is merely descriptive, without a strong secondary meaning.  On the other hand, there are only so many ways to describe a online marketplace (a “store”) of software applications (“apps”) without implicating those two words together.  So, it’s quite possible that a judge may hold Apple’s claimed mark to fail both for genericide and descriptiveness.  Either way, it seems like a tough claim for Apple to defend.

Just about every major tech blog and news site is now carrying this story; but, I’ve yet to see the actual compliant.  Once I find that I will post it back here.

3/22 update: Apple v. Amazon compliant added.

1 Comment Posted in: Links on March 21, 2011

AT&T Offers $39 Billion for T-Mobile USA

AT&T made big news this weekend when it announced that it intends to buy T-Mobile for $39 billion dollars. The blogosphere lit up with talk about how this was going to be terrible for consumers, and how this is already a done deal.

Before the purchase can go through, it will have to be approved by the Federal Communication Commission (FCC), Federal Trade Commission (FTC) and Department of Justice Antitrust division. In 2010 the FTC and DOJ published guidelines for horizontal mergers.

I’m just going to concentrate on one of the factors the DOJ and FTC rely on in determining whether they’re going to block the purchase of a company: market concentration.

The first step is defining the market. In this case I don’t think there is much doubt that the market is wireless carriers. A CDMA carrier is a good enough substitute for a GSM carrier that I doubt it would make a convincing argument that GSM is its own market. Plus, it is relatively easy to switch between carriers, even with the early termination fees.

The DOJ measured market concentration using the Herfindahl-Hirschman Index (HHI). The index is determined by summing the squares of the market shares of all the participants. The four major carriers make up about eighty percent of the market, with the smaller carriers, Boost, Virgin, Tracphone, etc. making up the remaining 20%. Right now, the HHI index for the mobile carrier market is a little over 1900 (Verizon’s 31.3^2 + AT&T’s 25.2^2 +T-Mobile’s 12^2 and Sprint’s 12^2). I’m leaving out the smaller brands, because I can’t find accurate numbers for them.

The DOJ defines this as a moderately concentrated market, and state:

Mergers resulting in moderately concentrated markets that involve an increase in the HHI of more than 100 points potentially raise significant competitive concerns and often warrant scrutiny.

This merger would raise the HHI to over 2500 (31.1^2 + 37.2^2 [AT&T plus T-Mobile] + 12^2, plus the minor players). That is so significant as to move the mobile carrier market into the “Highly Concentrated” bracket. In fact, the guidelines state that:

Mergers resulting in highly concentrated markets that involve an increase in the HHI of more than 200 points will be presumed to be likely to enhance market power. The presumption may be rebutted by persuasive evidence showing that the merger is unlikely to enhance market power.

AT&T is going to start out this battle with a big hill to climb. They need to show that their merger won’t increase their market power.

Now the DOJ could choose to try to block the merger, or just impose substantial restrictions on AT&T as a result of the merger.

On a side note, I’m amazed at how negative the reaction has been to this proposed purchase. In fact, I’ve yet to hear from a single person who supports this sale.

Comments Off on AT&T Offers $39 Billion for T-Mobile USA Posted in: Analysis on March 21, 2011

Episode 92: Zombie Copyright

Slow news week as far as technology and the law goes.  SCOTUS grants certiorari on an important copyright case and Fox sends a DMCA takedown notice to take down a takedown notice (confused yet?).

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

SCOTUS to hear Golan v. Gonzales

Supreme Court Agrees To Hear Important Copyright Case: Will Review First Amendment vs. Copyright Issue
Supreme Court to Hear Challenge to Law That Removes Works from the Public Domain
Copyright: Supreme Court to Hear Constitutional Challenge to Copyright Restoration
10th Circuit Opinion

Fox Sends DMCA Takedown Takedown

Fox Sends DMCA Takedown To Google To Remove Link To DMCA Takedown Sent By Fox
Initial Takedown Notice
Second Takedown Notice

Comments Off on Episode 92: Zombie Copyright Posted in: Podcast on March 14, 2011

Episode 91: SCOTUS Says AT&T is Not a Person

AT&T is (not) a person, Apple and MSFT fight over the “App Store” trademark, and ICE goes after a TV re-streamer.

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

AT&T Is Not A Person Under FOIA

Supreme Court: AT&T can’t keep bad behavior a secret

Apple and Microsoft Battle Over the App Store trademark

If App Store’s Trademark Is Generic, So Is Windows’

ICE Goes After Re-Streamer

Illegal TV streamers, here’s how the feds will hunt you down

2 Comments Posted in: Podcast on March 8, 2011

Episode 90: Smurfberry recession? Pffft.

Sorry for the late post — I’ve been out of the country and Ben has been busy sharing the flu with Boston.  This week we cover the Wisconsin Statehouse, some Smurfs apps and kids (dangerous combination), and the International Music Score Library Project.

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

Wisconsin Statehouse Accused of Blocking Access to Website

Does this smell right? Wisconsin Governor’s “new website” blacklisting

The FTC is Worried About Kids Buying Smurfberries Using their Parents’ iPhones

FTC is reviewing Apple’s in-app-purchase system

The International Music Score Library Project — pretty cool.

Free trove of music scores on web hits sensitive copyright note

Comments Off on Episode 90: Smurfberry recession? Pffft. Posted in: Podcast on March 2, 2011

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