Author Sues Google For Copyright Infringement For Copying His 'Philosophy' In A TV Ad

from the living-life-to-the-max dept

Tue, Mar 8th 2016 8:25am — Mike Masnick

Yeah, by now, we get it. The legacy copyright folks have spent decades beating into the minds of the public that every idea and concept and philosophy is "owned" and that you need to get permission for just about everything that it's no surprise to see crazy, nutty copyright lawsuits pop up every here and there. At least, usually, the really nutty ones are filed pro se (i.e., without a lawyer) and quickly dumped. However, it's doubly amazing when you get a lawsuit that feels like a pro se lawsuit, but is actually filed by a real lawyer. In this case, the lawyer is Joel D. Peterson, whose website lists "intellectual property" as one of his specialties. If that's the case, he may want to demand a refund from his law school.

Peterson has filed a lawsuit on behalf of author Erick DeBanff, who appears to be trying to build some sort of "self-help" empire around living your life "to the max." The lawsuit is against Google for copyright infringement, because it appears that Google used a kind of trite message in a commercial about making every moment matter -- and it was the same way that Debanff subtitled his book. DeBanff's book is called "Vie Max" which also seems to be the name of the movement/fad/concept/something that he's selling. But the subtitle is "How to live the next 2 billion heartbeats of your life to the max."

Meanwhile, a few years back, Google put out a commercial for its Google Play store, which you can see here: It feels a little overly sentimental considering what it's advertising, but whatever. Still, at the end, you'll notice that it says "there are about 2 billion, 500 million heartbeats in a lifetime. You should feel every one of them."

And that according to DeBanff/Peterson (and basically no one else) is copyright infringement:

These words are essentially a direct copy of the words and philosophy in Mr. DeBanff's book and is a violation of the U.S. Copyright Act.

Except they're not. Yes, it sort of marginally conveys the same idea -- that there are ~2 billionish heartbeats in a standard lifetime and that that number means something, but... uh... that's not copyrightable. It's an idea and as any first year law student should have learned, ideas and philosophies are not copyrightable. Just the specific expression of the idea and a throwaway line that barely has any detail at all is not going to cut it. The fact that there are ~2 billionish heartbeats in a lifetime is also factual information and you can't copyright facts (also kind of something you're supposed to learn early on about copyrights).

In short, there is nothing here that is even remotely copyright infringing, and suggesting that there is is laughable. Such a lawsuit should get tossed out quickly.

Anyway, no, just because multiple people come up with the same kinda sappy/kinda silly concept around the same time (and express it in very different ways), that's not copyright infringement. And a lawyer with any knowledge in "intellectual property law" should know that.

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Filed Under: copying, copyright, erick debanff, heartbeats, joel peterson, philosophy, vie max
Companies: google

32 Comments

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That One Guy (profile), 8 Mar 2016 @ 6:31am

Well yes, but...
Anyway, no, just because multiple people come up with the same kinda sappy/kinda silly concept around the same time (and express it in very different ways), that's not copyright infringement. And a lawyer with any knowledge in "intellectual property law" should know that.

At the same time, anyone with any knowledge in 'intellectual property law' is also likely well aware that with the insane fines in the wings for copyright infringement(not to mention how much it costs to go to court on it's own) most people and companies settle rather than fight back, which means it doesn't matter how strong or weak your case is, because a lot of the time it never even makes it that far.
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Roger Strong (profile), 8 Mar 2016 @ 8:42am

So Erick DeBanff's definition of "living your life to the max" is to use it to file nutty copyright lawsuits.

I must admit, I never would have thought of that. Now I'm wondering what else his book can teach us.
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AnonCow, 8 Mar 2016 @ 8:47am

Ok, Eric DeBanff, please show us your work where you determined the exact number of heartbeats in a human life. Oh, wait, you didn't do the actual research? You just READ it somewhere?

You might be hiring Joel D. Peterson to defend against a copyright suit yourself.
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Anonymous Anonymous Coward, 8 Mar 2016 @ 8:49am

No Refund Required, Compensation on its Way...
I beg to differ. In my opinion Joel D. Peterson does not need a refund from his law school. First of all, all those law books about copyright were copyrighted by his law professors who wanted so much money to read them (required burning party at the end of the semester) that he could not afford to read them. Second, he learned everything there is to know about billable hours.

Therefore, in my opinion, he knows about copyright, his professors taught him how to mine copyright to its depth, and he know how to represent a client, do what your told and send a bill.
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sophisticatedjanedoe (profile), 8 Mar 2016 @ 8:54am

If it is possible to sue for "copying philosophy," I'm afraid that Timon and Pumbaa's lawsuit against me is imminent.
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Anonymous Coward, 8 Mar 2016 @ 8:56am

My thoughts
This is too short to be copyrightable, I think.

And does this lawsuit even allege that damage was caused? Are people going to see this ad and then not buy his book? I guess they could still go for statutory damages.

"Defendant Google has created a national commercial and ad campaign for Google Play, Google's online electronics and digital media store, that is confusingly similar to excerpts from Mr. DeBanffs book."

You know what else is confusingly similar, at least to this attorney? Copyright law and trademark law. Unless that's some weird theory of actual damages.

"Mr. DeBanff believes that using the idea, words and philosophy of his book in the Google Play advertising campaign infringes the Copyright Act."

What is this, some sort of weird way for the lawyer to get in a legal claim without actually claiming it? Like, the lawyer knows that copying a "philosophy" isn't infringement, but the statement that his client believes this is technically true so he can say that? Why else would you mention what your client believes about a legal conclusion about infringement?
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Anonymous Coward, 8 Mar 2016 @ 8:58am

Re:
...I'm wondering what else his book can teach us...

Now I'd like to read that book so I'll know what not to do.
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Anonymous Coward, 8 Mar 2016 @ 9:14am

Paragraph 12:
The Google video and television advertisement and the Google Play campaign uses the words "Play Your Heart Out" and states, "There are about 2 billion 5 hundred million heartbeats in a lifetime. You should feel every one of them." These words are essentially a direct copy of the words and philosophy in Mr. DeBanffs book and is a violation of the U.S. Copyright Act (17 USC
§101 et seq. — the "Copyright Act").
Paragraph 18:
Defendant has, without the permission of Mr. DeBanff, copied, duplicated, and distributed words and excerpts from Mr. DeBanffs book in violation of his exclusive rights as a copyright owner.
Emphasis added.

I propose the filing lawyer be strapped into a chair and be beaten on the head with a long green vegetable until he understands the essential difference between a cucumber and a pickle. Or, at the very least, the meaning of the word "essential" in a legal setting.
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Roger Strong (profile), 8 Mar 2016 @ 9:18am

Re: Re:
I was hoping for sound business advice. Something like:

- Scan the newswire for recent lottery winners.

- Wait until they repeat some vapid pseudophilosophy like "Wherever you go, there you are!", or "Live the next 2 billion heartbeats of your life to the max!" that you've written down ahead of time.

- Sue!
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kallethen, 8 Mar 2016 @ 9:34am

Hey now. He's just trying to max out his royalty payments.

... I'll see myself out.
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Not an Electronic Rodent (profile), 8 Mar 2016 @ 9:48am

Re: Well yes, but...
most people and companies settle rather than fight back,
A good point, but trying an obviously dumb argument on Google, who can afford more lawyers than, well, anyone is pretty dumb...
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Not an Electronic Rodent (profile), 8 Mar 2016 @ 9:51am

Re: Re: Re:
Hmmm that business plan was in my book "Don't be a don't be, be a do be do be do", but I got sued by the Sinatra family.... So I guess you're safe.
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Anonymous Coward, 8 Mar 2016 @ 9:59am

Re:
Yeah, what does "essentially a direct copy" mean? Does that mean it was NOT a direct copy? If they're comparing the book subtitle to the ad, then the comparison is:

"How to live the next 2 billion heartbeats of your life to the max"
vs.
"There are about 2 billion 5 hundred million heartbeats in a lifetime. You should feel every one of them."

Gee, I guess it wasn't a direct copy. The only words copied are "2 billion" (which doesn't even really count because 2 billion 500 million is not the same as 2 billion), "heartbeats", and "of".

And why specify "copied" and "duplicated"? Do those words mean different things? Surely he's not being paid by the word; the complaint is only 4 pages long.
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Chronno S. Trigger (profile), 8 Mar 2016 @ 10:30am

The Google commercial says "there are about 2 billion, 500 million heartbeats in a lifetime." Part of the Book's subtitle is "the next 2 billion heartbeats of your life". Since the author is insisting Google directly copied his subtitle, then we can assume he agrees with the numbers.

So if there are 2,500,000,000 heartbeats in a lifetime and the book is for your future 2,000,000,000 heartbeats, does that mean it's a children's book? That cover doesn't look like it would draw too many five year olds.
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Ninja (profile), 8 Mar 2016 @ 10:47am

Re:
2.500.000.000 COPYRIGHTS FOR YOU!
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Ninja (profile), 8 Mar 2016 @ 11:01am

Re:
Well, I read you and considering the music is now stuck in my head and I'm whistling aloud, a Disney lawsuit against me is almost certain (unfortunately I'm not in the shower, which is both kind of shameful and a public performance). Ahem.
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Anonymous Coward, 8 Mar 2016 @ 11:04am

Masnick grabs low hanging fruit. Internet goes wild.

Snore.
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Anonymous Coward, 8 Mar 2016 @ 11:23am

Re:
You've just never understood, have you, that copyright is low hanging fruit all the way down.
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Anonymous Coward, 8 Mar 2016 @ 1:11pm

Re:
One pump Trump shows up to blow his load of snark, Internet hits snooze button.
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Keroberos (profile), 8 Mar 2016 @ 1:14pm

This lawsuit has nothing to do with copyright, and everything to do with publicity. Google his name--the entire first page is nothing but his website and social media links, links to his book, some random dentist who shares his last name (who has the 2nd link), and this story on Techdirt. Sounds like someone is sad 'cause his get rich quick self-help scheme isn't taking off
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Anonymous Coward, 8 Mar 2016 @ 5:03pm

Re:
If your side is staffed with idiots, it doesn't suddenly make the other side responsible.
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Esk, 9 Mar 2016 @ 2:26am

This is so obviously dumb, I have to wonder if these guys didn't come up with the Reverse Streisand Effect. Filing bogus legal claims just to garner more attention to your product on purpose.
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Ron, 9 Mar 2016 @ 4:33am

Re: beating the lawyer with a long green vegetable until he learns the *essential* difference between a pickle and a cucumber
Hit the man with a zucchini!
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John85851 (profile), 9 Mar 2016 @ 10:44am

My idea, my copyright
I think any lawyer who brings an obviously poorly thought-out trademark or copyright suit into the court system should be disbarred.
And since I came up with this idea, I have now copyrighted it and I'll sue anyone who uses this trademark without my permission.
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Wendy Cockcroft, 10 Mar 2016 @ 2:30am

Re: Re: Well yes, but...
One presumes he's hoping to play the David V Goliath angle.
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That Anonymous Coward (profile), 10 Mar 2016 @ 3:26am

Re: My idea, my copyright
I was thinking along the same lines though in my mind it might have been executed not disbarred.

There needs to be a penalty for lawyers who do these stupid things as well as the copyright holders who twist and stretch to try and find a way to make people pay them. Copyright has become this amazing thing that can do anything, its time we outline the actual limits and force them to work inside the lines.
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Anonymous Coward, 10 Mar 2016 @ 4:12am

To the max
http://www.urbandictionary.com/define.php?term=to+the+max

Shouldn't IMAX corporation be interested in someone copying the sound of their name?

http://www.yamaha-motor.eu/eu/products/motorcycles/sport-heritage/vmax.aspx

http://www.vim.org/s cripts/script.php?script_id=300

etc to the max. It's not like anyone was using the phrase "to the max" in the 1980s
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Anonymous Coward, 10 Mar 2016 @ 4:21am

Do the math
According to the "Moody Blues", 22 000 days * 24hrs * 3600 seconds/hr * 1 beat per second = 1,980 million beats.

Push it out to 76 years, and you have 2,500 million beats @ 60 beats/minute.
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John Fenderson (profile), 10 Mar 2016 @ 7:09am

Re: Do the math
So, 2.5 billion. But technically, that's far too low.

For simplicity, let's ignore that the heart rate increases with exertion and pretend that everyone maintains the average resting human heart rate at all times. This means that my new estimate will still be far too low, but at least within the realm of physical possibility.

The average resting human heart rate for someone in average physical condition is considered to be 60-100BPM, with a skew toward the higher end. Let's call it 80BPM for simplicity. Also, I'll ignore leap days in my calculation for the same reason.

76 * 365 * 24 * 1440 min/hr * 80BPM = 76,695,552,000 beats in a lifetime.
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Anonymous Coward, 10 Mar 2016 @ 1:17pm

Re: Re: Do the math
Those annoying keyboard leprechauns were dancing on your fingers. You were correctly thinking of 24 * 60 to get 1440, but the numbers came out differently :)

76 * 365 * 24 * 60 min/hr * 80BPM = 3,195,648,000 beats in a lifetime.
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Anonymous, 25 Apr 2017 @ 6:18pm

Re: ok Erick debanff
This man did not read this information somewhere, he did all the math himself. Understandably this whole philosophy is not an amazingly unique concept, but he did copyright certain statements that have not been expressed or protected by anyone else. He is not suing Google for stealing his idea, he is suing because the excerpts are alarmingly similar. I also find it interesting that the people making unnecessarily ignorant comments would never have the audacity to take on Google so they sit behind a computer and make stupid comments about people because their own lives are nothing short of a pathetic existence. He isn't suing to win, he's suing to make a point, something none of you would ever be brave enough to do.
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Beni, 20 Jun 2017 @ 1:06am

Re: Super Power Men
It is a pride to be able do it more than an hour. Just give a WOW!
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