The Winklevii really are working extra hard to make sure that their names are synonymous with "losers" aren't they? Having already lost in court again and again in their attempts to claim ownership of Facebook, the Winklevoss twins have now lost in their attempt to get out of having to pay their original lawyers $13 million. In case you haven't followed the story (and didn't see The Social Network), the Winklevii came to a settlement agreement with Mark Zuckerberg and Facebook, which has made them fantastically more wealthy than they already were. But they got greedy, and after the settlement was signed, tried to back out of it, claiming that they were misled in the negotiations. The courts have rejected that argument (links above), and so they also sued their lawyers, insisting that it was all their fault. It kind of makes you wonder if they have any idea how badly they're trampling on their own reputation with these lawsuits.
While we still think that the new patent law that was signed by the President last week won't do much to make a difference, it does appear that a bunch of trolls who were at least a little concerned about the "joinder reform" part decide to sneak in as many cases against as many defendants as possible before the law went into effect. As you may recall, one of the few useful parts of the law was that it made it harder for patent holders to lump together totally unrelated companies into a single lawsuit. Doing so was popular for a variety of reasons: it's cheaper, obviously, but also because it made it easier to justify an East Texas (or other preferred) jurisdiction.
Groklaw noted a bunch of last minute patent troll lawsuits being filed right before the bill was signed into law, naming three such trolls that brought 12 cases against 222 companies, but also noting that this didn't represent all such cases. In fact, the folks at RPX contacted us with more data on this, noting that 85 cases against over 800 defendants were filed in the two week period before the bill was signed into law... and that includes 51 cases against 680 defendants the day before the bill was signed into law. This is in comparison to an average of about 160 companies sued in a "normal" week for infringement.
People keep telling me that I might like the books of Harlan Ellison, but I won't go near them, since the man appears to be a total and complete wackjob when it comes to intellectual property. The guy likes to sue everyone, often without much understanding of the law. He famously sued AOL a decade or so ago, after he discovered some random people online had posted some of his content on Usenet. Yes, he sued AOL because of content he found posted on Usenet. But since he found it via AOL, somehow it must be AOL's fault. A judge had initially determined that, as per the DMCA, AOL had no liability, but after another court ruled that AOL lost its DMCA safe harbors for being too slow, AOL decided to simply pay Ellison to drop the suit.
In a video from a few years back that has made the rounds time and time again, and which we've posted before, Ellison discusses how "I don't take a piss without getting paid" and bitches about all those damn amateurs undercutting his rates by giving stuff away for free.
A few years ago, Ellison went legal again, suing Paramount over Star Trek. He'd written an episode of the show in 1967, and was upset that some Star Trek book included elements from that show. Oh yeah, also there was a Christmas tree ornament that was sold, and he felt he deserved a cut of the profits. As he said at the time:
It ain't about the 'principle,' friend, its (sic) about the MONEY! Pay Me! Am I doing this for other writers, for Mom (still dead), and apple pie? Hell no! I'm doing it for the 35-year-long disrespect and the money!
So it's not surprising that he's suing again. This time, he's suing 20th Century Fox and trying to stop the release of a new sci-fi movie, In Time, which he claims is a pure copy of one of his most famous works, "Repent, Harlequin! Said The Ticktockman" Of course, as we've discussed plenty of times, copyright is only supposed to cover specific expressions, and not ideas... and the "similarities" he lists certainly sound like ideas, not expressions:
Both works are said to take place in a "dystopian corporate future in which everyone is allotted a specific amount of time to live." In both works, government authorities known as a "Timekeeper" track the precise amount of time each citizen has left.
The complaint goes on to list similarities in the features of the universe as well as the plot surfaces -- the manipulation of time an individual can live, the type of death experienced by those whose time runs out, rebellion by story protagonists, and so forth.
Of course, as Julian Sanchez points out, there are lots of sci-fi stories that have a very similar storyline (perhaps even more similar), including Logan's Run and The Quantum Thief. Maybe Ellison will sue over those too.
Unfortunately, these days, courts have really blurred the line between what's an expression and what's an idea, so perhaps something comes of this. But, once again, this really is just about money... and competition. It turns out that Ellison recently sold the rights to "Repent Harlequin" and another movie is being made. So, Ellison would like to censor this competition. But, really, it's pretty ridiculous for Ellison to think that no one else could have possibly come up with similar ideas on their own. And even if they were built off that bit of an idea from his work, is it really such a problem that people created a different version of it? Does Ellison really believe that none of his work was built off ideas influenced by others?
I jumped over to Ellison's website to see if he'd put up any more colorful statements about the lawsuit (not that he'd want me to use them without paying him), but instead I find a splash page that just says:
"Why do people keep insisting that I join the 21st Century? I *LIVE* in the 21st Century! I just don't want to be bothered by the shitheads on the internet!"
Lawyers filing lawsuits on their own behalf are always interesting specimen. Witness the case of Gregory Berry, a recent graduate of UPenn's law school, who got a job at big law firm Kasowitz, Benson, Torres & Friedman. Like most first year associates, he was given work that wasn't all that interesting, but that's the life of a first year associate at a big law firm. Mr. Berry decided to take it upon himself to shake things up and sent an email to some partners talking up his "superior legal mind," compared to others at the firm and asking for more important work to focus on. This came a few months after he had already been reprimanded over a separate incident concerning his (perhaps reasonable) inability to work on a particular case (he claimed he was too busy on other cases). Either way, the firm decided that Mr. Berry was best suited elsewhere, gave him a severance package and even let him hang onto his work email, voicemail and secretarial answering service for a while. Hell, to make it easier for him to find another job, they even told him he could keep his bio on the website.
The email that pushed the firm over the edge read, in part:
It has become clear that the only limiting factor on how much value I am to a case is how much responsibility I am given: the
more responsibility I am given, the better the outcome. I am in
kind of an uncomfortable position at the firm because although I
am a “first year,” I have 15 years business and real world
experience, as much as many senior associates. When I first got
here I did not know what to expect, but after working here for
several months now it has become clear that I have as much
experience and ability as an associate many years my senior, as
much skill writing, and a superior legal mind to most I have met.
A partner explained to Berry that this email had "upset" some partners and that it had "burned bridges" at the firm. A few days later, he was fired.
Reading the case itself is hilarious and highly recommended. Basically, it sounds like any very typical office situation where there's a minor dispute, but Berry plays up each action. He also plays up his own abilities. My favorite line is this one:
After conquering Silicon Valley, he decided to take his talents in a new direction, and in 2007 began law school at the University of Pennsylvania Law School in Philadelphia, PA
I also like how he portrays a pretty standard move. After he told an (more senior) associate that he probably was too busy to work on her project, she forwarded his email to a partner. But, look at the way Berry tells the story:
Mr. Berry’s communications were, as Ms. Conroy knew, entirely
proper under the duties of his employment. Upon information and belief, refusing her project nonetheless angered Ms. Conroy and she lashed out by maliciously
"reporting" Mr. Berry's e-mail to Mr. Marks.
Such vindictiveness is outside the scope of Ms. Conroy’s employment.
Complaining to Mr. Marks had no purpose other than to harm Mr.
Berry and interfere with his employment.
Can you imagine what kind of world we would live in if every time an employee complained about another employee, it was deemed to have "no purpose other than to interfere" with someone's employment? And, I'm now planning to use "such vindictiveness is outside the scope of your employment" as much as possible in future conversations.
Oh, and after he got fired and went through all of this, he still wrote the partners at the firm to ask for a letter of recommendation.
While he's now set up his own law firm, where he advertises "creative and cutting-edge legal strategies," he claims in the lawsuit that the firing will cost him $2.55 million in "lost income." Then there's an additional $25 million for "emotional distress" and the harm to his career and reputation. Finally, another $50 million in punitive damages. Just because.
I am curious, of course, which thing people think will damage his reputation more. Getting fired by a big law firm... or then turning around suing that firm for $77 million?
Some lawyers from UK law firm Davenport Lyons really pioneered the copyright trolling shakedown scheme. Davenport Lyons got out of the business after questions were raised about its activities, though it passed on the effort (and documents it used) directly to ACS:Law, the law firm that really took the practice to a new level. We had noted that Davenport Lyons lawyers were being investigated by the Solicitors Disciplinary Tribunal for their actions, which has now concluded with the two lawyers being fined £20,000 each and barred from practicing law for three months. Part of the issue was that the tribunal determined that the lawyers knew they were targeting innocent people with the scheme.
We were somewhat stunned a few months back when notoriously overly-litigious movie studio Summit Entertainment absolutely freaked out and went legal against some fans of the Twilight movies by filing John Doe lawsuits against people for tweeting some photos from the next film in the saga. Remember: these are photos. And the reason they're getting passed around is because these people are fans. Nothing in these photos takes away from the marketability of the movie itself. If anything they do the exact opposite.
Summit Entertainment simply doesn't know when to give up. It apparently went out and spent money to hire Kroll Inc., a famed corporate investigations company who is not cheap, to track someone down to Argentina, and discover that they had shared the images... and then commenced legal action against the person in both the US and Argentina, including criminal charges in Argentina (thanks to DandonTRJ for sending this in).
Remember, this is a fan who was sharing photos of a film that would only serve to get people more interested in the film. Step on up, Summit Entertainment, because you just won the award for the absolute worst entity at treating fans right.
Grooveshark has been involved in a series of lawsuits from the recording industry and, as with the Limewire lawsuits, it looks like the music publishers are piggybacking on the labels by suing later. We've already explained why Grooveshark appears to follow the rules set out by the DMCA, but I would imagine that Grooveshark is the sort of site where judges simply won't like the idea of it, and will thus figure out a way to rule against it. That could be very problematic.
To make their case, the publishers are trying to claim that Grooveshark is not a service provider for the purpose of the DMCA. It's going to be difficult to have that claim stick, as courts have generally (correctly, in our opinion) deemed a wide spectrum of offerings to meet the "service provider" hurdle. And then the lawsuit gets even sillier. It claims that Grooveshark itself is doing everything that its users are actually doing. It's as if the publishers wish to simply pretend that the DMCA doesn't exist and that liability automatically applies to the service provider.
I think it's difficult for anyone to argue that Grooveshark is any different technically from YouTube, but when it comes to these sorts of things the industry isn't known for actually understanding what these offerings are really about, preferring instead to leap straight to the freak-out-that-must-be-illegal stage...
Butcherer79 points to even more problems for Sony in the aftermath of the massive hacking of the PlayStation Network. It seems that Sony was expecting its insurance provider, Zurich American Insurance, to cover any costs. Zurich American Insurance apparently has other ideas:
Zurich American Insurance has now gone to court in New York seeking a declaration that it does not have to help Sony with current or future legal action related to the data breach.
Legal papers filed by Zurich reveal that 55 separate class action lawsuits are pending in the US because of the breach.
Sony has indicated that it expected Zurich to cover any such fees, but Zurich is saying no way, no how. Apparently, Zurich says that its contract with Sony doesn't even cover the parts of the business that were hacked, and other clauses in the deal show that this isn't Zurich's problem at all.
Stephens Media and Righthaven have been involved in an important legal battle (mainly in the case involving the Democratic Underground, but it's popping up in other Righthaven cases) concerning who really are the parties of interest in the Righthaven lawsuits. Plenty of the defendants (and now three different judges) have said that Righthaven is really just a Wizard of Oz style front for a legal campaign by Stephens Media and its key publication, the Las Vegas Review-Journal. In fact, the basic argument is that the whole setup of Righthaven was simply a sham to try to isolate Stephens Media from potential liability. In the Democratic Underground case, the judge has even dismissed Righthaven from the case, but is allowing DU's counterclaims against Stephens Media to move forward (Righthaven is trying to beg its way back into the lawsuit).
One of the more entertainingly clueless players in this whole charade has been Sherman Frederick, the former publisher of the LVRJ, who was a majorpublic supporter of Righthaven from the beginning, whose own words keep coming back to haunt both Stephens Media and Righthaven. Frederick appears to have a bit of a reckless overly-confident cowboy attitude, which is the kind of thing that gets people like him into a lot of trouble. We've already noted the rather blatant hypocrisy of Frederick multiple times. Originally he insisted that copying content from the LVRJ -- even small amounts -- was no different than stealing a corvette out of his driveway. And, yet, he's been caught posting infringing content, copying content from Techdirt and other blogs -- sometimes failing to even make it clear that he was quoting someone else.
But Frederick's biggest problem with his big mouth concerning Righthaven has been his habit of occasionally talking about Righthaven as if he controls it... because that's kind of the whole key issue here. Is Righthaven really a separate company... or is it merely a pawn for Stephens Media (or, worse, a law firm that is not licensed to practice law in Nevada)? You would think that sooner or later someone higher up in the ranks of Stephens Media (who demoted Frederick from publisher to mere columnist late last year right after the election) would tell Frederick to close his trap on these things, because he's only making it worse.
No luck. Frederick wrote a blog post on July 14th, blasting critics of the failed Nevada Senate candidate Sharron Angle, of whom Frederick had been a big booster during the election. In the comments to that blog post, some commenters challenged Frederick on certain points. And in a comment at 1:30 pm, Frederick directly noted, with regard to Angle: "I even sued her for lifting our material." He is, of course, referring to the fact that Righthavensued Angle. We actually found it amusing that Frederick's "little friend," Righthaven would sue Angle at the same time that he, as publisher, endorsed her as a candidate. Would Frederick endorse a candidate who stole the corvette out of his driveway? Apparently.
Still... in that comment he directly claims that he was the one who sued Angle. That's a pretty big problem for Stephens Media when it's trying to claim that it's not the one suing, but it's Frederick's "little friend," Righthaven. And, indeed, it took all of about a day for at least one of the defendants in a Righthaven lawsuit to point this comment out to a court. I would imagine it does not look good for Stephens Media, in these cases where it's claiming that it's not the one suing, for its former publisher, who was intimately involved in the Righthaven plan, to come out and state publicly that, yes, in fact he was responsible for one of Righthaven's most high profile cases.
Back in May, the big record labels settled with Limewire for $105 million. We questioned how much of that money would make it to artists... but there's a separate question too: what about the indie labels who weren't a part of the lawsuit. Apparently, the labels had asked indie labels to stay out of the lawsuit, and Limewire made a promise that it would offer similar settlement terms to those indies. Apparently, that hasn't happened.. and so the indies are suing Limewire as well. I'd be surprised if this didn't settle relatively quickly.
