Can a Google Adwords Campaign Constitute Evidence of Copyright Infringement?
Happy Friday!
By now you have probably heard about the Recording Industry Association of America’s (RIAA) big win against file-sharing service, LimeWire. If not, you can check out excellent coverage of Judge Kimba Wood’s summary judgment decision, issued on May 11, via the New York Times, CNET, The Wall Street Journal, and Wired.
While reading the 59-page opinion, one nugget that caught our eye was that one of the factors that persuaded Judge Wood that LimeWire had “purposefully marketed” to folks known to be copyright infringers, was the company’s selection of terms for Google AdWords campaign such as: “napster mp3″, “napster download”, kazaa morpheus”, and “mp3 free download” .
We know that Google AdWords has been a battle ground in the arena of trademark infringement. Google has historically allowed companies to purchase keywords for AdWords campaigns even if the trademark to the keyword is owned by a competitor (albeit with a number of restrictions). This has made Google and its AdWords advertisers frequent targets of trademark suits. Interestingly, Google recently scored a victory on this front in a suit filed by language software company, Rosetta Stone. In the suit, Rosetta Stone, alleged that Google was liable for trademark infringement for selling its trademarked keywords to third parties. The suit was dismissed by Judge Gerald Lee of the United States District Court for the Eastern District of Virgnia. [Rosetta Stone Press Release] [CNET]
Could the LimeWire suit be the first time that a party’s selection of terms for an AdWords campaign has been used as evidence of copyright infringement? If it’s not, we are sure you will set us straight.
Write to us at info@fastcase.com if you know of an earlier copyright suit in which AdWords keywords were an issue.
Library of Congress Creates One-Stop Resource on Elena Kagan
SCOTUS watchers, the Library of Congress just made your job much easier.
cc licensed flickr photo shared by Harvard Law Record
To serve congressional and public requests for resources pertaining to this historic nomination, the Law Library of Congress has developed an incredibly thorough web presentation on Elena Kagan on its Supreme Court Nominations site.
The LOC site is a one-stop shop for Kagan resources: you can browse Kagan’s law review articles, Supreme Court oral argument transcripts, news stories, and watch clips from YouTube and C-SPAN.
[Click here to visit the site.]
Bonus: With all the chatter out there about Elena Kagan’s qualifications, experience, and positions, here’s one story you might have missed: the nominee’s batting stance received high marks from MLB players. What on earth are we talking about? Get the full story at MLB.com.
Updates to the Federal Rules, Coming this December to a Courthouse Near You
It’s official. The Supreme Court, on April 28, 2010, approved proposed changes to the Federal Rules of Appellate Procedure, Federal Rules of Bankruptcy Procedure, Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure and the Federal Rules of Evidence. Now that they have been approved by the Supreme Court, the changes will be effective December 1, 2010.
Here’s a list of the rules that were amended/added:
-Appellate Rules: 1, 4, and 29
-Bankruptcy Rules: 1007, 1014, 1015, 1018, 1019, 4001, 4004, 5009, 7001, 9001 and new Rule 5012
-Civil Rules: 8, 26, and 56
-Criminal Rules: 12.3, 21, and 32.1
-Evidence Rules: 804
The Administrative Office of the U.S. Courts has a terrific website with information on the rule-making process, copies of the amended rules, and a summary of the proposed changes.
Among the changes that caught our eye, were:
Fed. R. Civ. P. 26 — the amended rule extends work-product protection to the discovery of draft reports by testifying experts.
Fed. R. Civ. P. 56 — the amended rule requires party asserting that a fact cannot be genuinely disputed to provide a pin-point cite to the summary judgment record.
Fed. R. Crim. P. 21 – the amended rule requires the court to consider the convenience of the victims as a factor when a party moves to transfer a case to a more convenient forum.
Lawsuit of the Day: The hat that launched a thousand knock-offs
R-E-S-P-E-C-T.
That is just part of what is at stake in milliner, Luke Song’s, lawsuit filed in the U.S. District Court for the Eastern District of Michigan on Friday, May 7. You may not know who Luke Song is, but chances are, you are familiar with one of his recent masterpieces — the hat that Aretha Franklin, wore at President Obama’s inauguration on January 20, 2009.
This is not Aretha's hat.
cc licensed flickr photo shared by howieluvzus
The hat has become so iconic that there at least three Flickr groups devoted to images of various people and cuddly pets “wearing” the hat (presumably courtesy of photo editing programs like Adobe Photoshop).
Song is suing Brasseur Inc., King Ting Millinery Co., and S&S Hat Company, Inc. for selling unauthorized copies of his creation. You can read excerpts of the complaint at The Smoking Gun and a complete copy is available via Courthouse News. Song’s complaint includes claims for trademark infringement, common law unfair competition, and breach of warranty.
Judging from the complaint, the iconic status of the hat is not lost on its creator, Mr. Song.
According to Song’s complaint, his original creation, “gained instantaneous fame and notoriety, attracting much more media attention than even Aretha Franklin’s performance itself . . .”
Ouch. We don’t doubt the hat’s cultural impact, but we would not be surprised if Ms. Franklin is not inclined to purchase any more hats from Luke Song.
Bonus: You may be interested to learn that Song’s lawsuit is not the first trademark suit filed over an iconic hat. In 1996, Dr. Seuss Enterprises L.P. sued Penguin Books USA, Inc., over a “Cat in the Hat”-styled parody that tells the story of the O.J. Simpson trial. Among the marks that Dr. Seuss Enterprises claimed were infringed was, “the design of the cat’s stove pipe hat.” Dr. Seuss Enter. L.P. v. Penguin Books USA, Inc., 924 F. Supp. 1559 (S.D. Cal. 1996).
Where do you network online?
There’s a host of social networks online these days. Some are mainly social, like Facebook. Others are for your professional networks, like LinkedIn. But these lines are easily blurred. On LinkedIn, many folks’ initial connections are their personal friends. And on Facebook, companies–law firms included–have a vibrant presence, helping them market to and engage with future clients (ahem, check out Fastcase’s Facebook Page here). Other sites are industry specific. Take Avvo for example, which compiles information about attorneys–even those who haven’t signed up. By registering with Avvo, you have some control over your profile.
There’s no shortage these services, or of news about the proliferation of these networks, but we’d like to know which social networks lawyers and other legal professionals find useful. This is the first step. Feel free to add comments or email us your feedback. In the coming weeks, we’ll highlight the most valuable online networks and services for lawyers, so make sure to check back.