Another Day, Another Bogus Set Of DMCA Takedowns Based Solely On Keywords (This Time Hiding Legit GitHub Projects)

from the collateral-damage dept

For many years we've seen DMCA takedowns that were clearly based on little more than quick keyword searches. There are so many of these cases that it's difficult to keep track of them, but a few examples: Fox demanded a takedown of an article on the SF Chronicle's website... because Fox owns the rights to the movie Chronicle. Some companies, like LeakID seemed to specialize in sketchy takedowns based on just keywords and not actually looking at the content. A story getting attention on Headline News (with followup from TorrentFreak) details just the latest example.

The company Takedown Piracy (very subtle there!), working for porn company Wicked Pictures, sent a DMCA notice to Google to delist thousands of links that Takedown Piracy/Wicked Pictures insists are infringing. Yet, many are not. In fact, they've clearly been caught up in some poorly designed automated keyword search. And the unfortunate part is that it resulted in the delisting of a bunch of perfectly legitimate GitHub projects that have nothing to do with the copyrighted content in question.

Two URLs targeted – github.com/yahoo/pure and github.com/yahoo/pure/releases/ belong to the Pure.css project. Described as “a set of small, responsive CSS modules that you can use in every web project”, Pure.css is owned by Yahoo.

Apparent reason for takedown: Wicked has a movie titled Impure Hunger

Other mistakes? Taking down two GitHub projects named "Rebound" because there's a movie called Rebound. Or taking down Netflix's open source project Lipstick. Or openSUSE's network configuration tool wicked, because obviously that must be infringing on Wicked Pictures' copyrights, right? And, surely, Wicked Pictures is the only one to use the word "Pushover" so all GitHub projects must be infringing:

Wicked Pictures’ 1999 movie Pushover has a lot to answer for too.

Takedown Piracy hit Google with demands to delist the main URLs for no less than ten Github projects simply because they had the word ‘pushover’ in their titles.

https://github.com/Thibauth/python-pushover

https://github.com/tcnksm/vagrant-pushover

https://github.com/substack/pushover

https://github.com/sps/pushover4j

https://github.com/qbit/node-pushover

https://github.com/laprice/pushover

https://github.com/kryap/php-pushover

https://github.com/danesparza/Pushover.NET

https://github.com/jnwatts/pushover.sh

https://github.com/dyaa/Laravel-pushover

https://github.com/erniebrodeur/pushover

In the past, the EFF has argued that these sorts of automated takedowns based on little more than a keyword search clearly violated 512(f) of the DMCA, because they misrepresent things in the takedown. Unfortunately, courts haven't been all that interested in that argument, and copyright holders keep getting away with just saying "oops, my bad" and moving on to issue another set of bad takedowns.

Still, looking at the actual DMCA notice, it doesn't even seem legitimate. It doesn't actually name the works in question. It just says:

The materials reported in this notice are the copyrighted DVD/videos of Wicked Pictures. A representative list of these works is available at http://www.wickedpictures.com

And for the "original URL" it just lists the Wicked Pictures URL again. You're supposed to show what actual copyright is being infringed -- not generally say "there's a representative list here."

Either way, this highlights (yet again) the absurdity of both the DMCA takedown process and the focus on blaming Google for everything. As TorrentFreak notes, if these DMCA notices had actually gone to GitHub, then Takedown Piracy might have been told more quickly that the demands were bogus. But these days, everyone wants to just hit Google with as many takedowns as possible, as a sort of negative "SEO" (Search Engine Optimization) technique, and thus even less care is put into takedowns than usual.

Filed Under: copyright, dmca, keywords, takedowns
Companies: github, takedown piracy, wicked pictures

Court: Buying A Personal Name As A Keyword For Advertising Is Not A Publicity Rights Violation

from the good-result,-bad-ruling dept

We've covered tons of lawsuits where companies were sued over claimed trademark infringement for buying ads based on trademarked keywords. While there are still some such lawsuits under way, for the most part, the courts have made it clear that just buying ads on a trademarked keyword is not a trademark violation. However, in the ever changing world of so-called "intellectual property" laws, things change all the time. We've been noting the dangerous rise of a hodgepodge of questionable state laws that create "publicity rights" for individuals, and now we've got a case where someone was sued for buying keyword advertising based on someone's name, with the plaintiff claiming that this was a privacy rights violation. The good news: the court didn't buy it and dismissed the lawsuit. The bad news, the court seemed confused and the reasoning isn't great. Eric Goldman explains:

The legal novelty of the ruling makes it an important early precedent, but the opinion is not especially persuasive. To me, the judge seemed overwhelmed by both the challenging legal doctrines and technology at issue in this case. In response, the judge issued one of the most citation-free opinions of its length that I have ever seen. This is not a scholarly opinion, and that makes less likely to influence other courts. It also means that an appellate court will likely give this opinion relatively low deference.

The fact that the court dismissed the lawsuit is, on its face, good news for both search engines and advertisers. However, I thought the judge's arguments were questionable and, at least at one crucial juncture, internally inconsistent. The ruling turned on a specific word in the Wisconsin publicity rights statute, and courts applying other statutes can easily distinguish this opinion if they want to rule for the plaintiffs. Therefore, this ruling could morph from a defense win into a plaintiff's friend depending on how future courts rely on and interpret it.

I'm sure we'll start to see more such lawsuits pretty soon, and hopefully some better, clearer rulings in response.

Filed Under: ads, keywords, publicity rights
Companies: amazon

Finally: Clear Ruling That Realizes That Just Buying Ads On Trademarked Keywords Is Not Infringing

from the nice-to-see dept

For the better part of a decade, there have been a ton of lawsuits about keyword advertising, and whether or not it's a trademark violation to buy an advertisement on a competitor's trademark. All along, we've argued that this is not, at all, a trademark violation. The main purpose of trademark law, of course, is to prevent consumer confusion -- and advertising a competing product when people are looking for one brand is not a trademark violation. Just think of supermarkets where they have those little coupon dispensing machines that pop out competitor's coupons all the time. Keyword advertising is basically the same thing. Tragically, despite a large number of these cases, the courts have really skirted the issue. Some of the cases have blamed Google, but thankfully there have been a growing number of cases that have ruled Google clearly has no liability here as a third party. But the company buying the ads? Well, we've been waiting for a clear ruling... and we're getting closer.

Eric Goldman points us to the ruling in the 9th Circuit appeals court in a case involving Network Automation Inc. and Advanced Systems Concepts Inc. Network bought some ads on Google and Bing based on searches for "ActiveBatch," which is one of Advanced System's products. The key question: is there a likelihood of confusion? We've argued no for years, and the court here seems to agree. It goes through all of the factors that the lower court should have considered in determining whether or not there was likely to be confusion, and seems to indicate that Google and Microsoft clearly marking things as ads reduces the likelihood of confusion.

Here, even if Network has not clearly identified itself in the text of its ads, Google and Bing have partitioned their search results pages so that the advertisements appear in separately labeled sections for "sponsored" links. The labeling and appearance of the advertisements as they appear on the results page includes more than the text of the advertisement, and must be considered as a whole.

Even more importantly, the court finally seems to recognize that beyond just the limited list of "factors" previous courts have set out, it's important to actually look at the context and bigger picture. That's a key point that makes this ruling significant, and why many legal scholars are suggesting that this ruling is a defining ruling that will be cited and mentioned frequently in the future.

On top of this, hopefully it leads to an even clearer lower court ruling, but it seems clear that just buying an ad shouldn't be considered confusing. The text of the ad could make it confusing, but just buying the ad should not be.

Filed Under: advertising, keywords, trademark

French Supreme Court Says Buying Adwords On Trademarked Terms Is Not Trademark Infringement

from the about-time dept

Well here's some good news. For many, many years there have been lawsuits around the globe accusing Google of violating trademarks of companies by selling ads based on the trademarked keywords of others. Thankfully, most courts around the world recognized that trademark law is not about giving total control over the words to one party, but about protecting consumers from confusion -- and thus ruled that it was perfectly legal to have ads on trademarked keywords (so long as those ads were not presented in a confusing manner). The one exception was France, which bizarrely ruled against Google. The case was appealed up to the European Court of Justice, who earlier this year said that selling ads on trademarked keywords is not infringement. With that ruling in hand, the French Supreme Court has now ruled in favor of Google and said that Louis Vuitton and others, who were complaining, have no infringement to complain about. This is a good ruling, though not a huge surprise after the EU ruling earlier.

Filed Under: ads, france, keywords, supreme court, trademark
Companies: google, lvmh

French Courts Fine eBay For Buying Typo Keywords

from the oh-come-on dept

For years, various luxury brands have been furious that others can buy text keyword advertising based on their trademarked terms, leading to a series of lawsuits. In most place, the courts have realized that just buying a trademarked term as a keyword alone is not infringing on someone's trademark. France, however, is the one exception, having ruled against Google. Now, it's also ruled against eBay for supposedly having ads that pointed to eBay whenever anyone searched on a typo/misspelling of any of LVMH (Louis Vuitton Moet Hennessy). Apparently, in France, you're not even allowed to misspell a trademarked brand name without official permission...

Filed Under: france, keywords, trademarks, typos
Companies: ebay, lvmh

European Court To Review Whether Google Can Sell Ads On Trademarked Terms

from the hopefully-a-little-sanity dept

While US courts have (mostly) finally realized that simply selling search terms based on someone else's trademarked name should not make Google liable, French courts haven't been so enlightened. The huge fashion retailer Louis Vuitton won a lawsuit against Google, because some advertisers had purchased search ads on the term "Louis Vuitton" to advertise "Louis Vuitton Fakes" and "Louis Vuitton Replicas." It's hard to see the common sense reasoning to support LV in this case. In fact, the ruling seems problematic on two separate accounts -- both on the question of whether this was a trademark violation and whether it's Google who should be liable even if it is a trademark violation.

On the trademark question, a trademark is not about ownership of the mark itself, but it was designed to prevent customer confusion (i.e., telling someone that they were buying a Louis Vuitton product when it really wasn't). While the name is being used to sell counterfeit products, there shouldn't be any customer confusion here since the advertisements make it quite clear that the products for sale are fakes. No one will click on such an ad and think they are buying a legitimate item. So it's difficult to see how that leads to any sort of consumer harm.

On the liability question, even if you do believe that this is trademark infringement, the infringement is on the part of the advertiser, not Google. It's the advertiser that caused the confusion with the advertisement. Suing Google for such things is simply an attempt to shift the liability from the party who actually did something, to the company with a ton of money (funny how that works).

It appears that this case is now back up for discussion, as the case now moves out of France and into the European Court of Justice. Hopefully that court will be more reasonable in its approach to dealing with this particular issue.

Filed Under: eruope, keywords, search ads, trademark
Companies: google, louis vuitton

Can Companies Use Trademark Lawsuits To Find Out What Keywords Competitors Are Buying?

from the sneaky,-sneaky dept

We've been covering many ridiculous attempts by companies to sue Google because competitors buy keyword ads based on trademarked terms. As we've pointed out, over and over again, this shouldn't be illegal (trademark law doesn't mean a competitor can't use your brand in an ad), and even if the ad does violate trademarks, it shouldn't be Google's issue, but the advertiser's. However, one company is apparently trying to use just such a lawsuit not just to make Google pay up, but to get Google to reveal all sorts of information on who else had bought ads based on its trademark -- which would seem to be pretty valuable information for any company. Google, thankfully, is resisting the request, but the company is still demanding it. As Eric Goldman notes in the link above, if this is allowed, you can expect to see many more of these lawsuits, not to try to squeeze money out of Google, but to find out how much their competitors are spending on keyword ads.

Filed Under: keywords, trademark
Companies: google