Here is the First Circuit’s recent decision upholding a preliminary injunction in a copyright case out of D. Puerto Rico. The sole issue
on appeal was the holding on substantial similarity. The products were stuffed animals, specifically, frogs. Or, more specifically, the Puerto Rican tree frog, the Coqui. I’ve tried to find a picture of the defendant’s stuffed animal frog with no luck.
Great article by Steven Seidenberg in the February 2009 ABA Journal on the legal tensions between user-generated content sites (UGC, in the lingo) and the content owners under the “notice and take down” regime established by the DMCA.
Interesting fact from the article: On YouTube alone ten hours of video content are put online every minute of every day, more than 250,000 clips per day.
Cases and sites mentioned in the article:
Are business training materials sufficiently original to be protected by copyright law? The answer, of course, is “it depends.” First 
and foremost it depends on the materials themselves, but it also depends on the judge. In Situation Management v. ASP, Massachusetts U.S. District Court Judge William Young thought the training materials created by the plaintiff, Situation Management, were not entitled to copyright protection. (I posted on this case when Judge Young’s decisionwas issued – click here for earlier post).
Judge Young was not complimentary toward Situation Management’s training materials. In the process of holding that the materials were not entitled to copyright protection he described them as nothing more than “a summary of common-sense 
communication skills . . . “fodder for sardonic workplace humor” and as “aggressively vapid”. He observed that “the works at issue are so dominated by nonprotectable material that it is impossible to reduce the work to a copyrightable essence or structure.” He found that the materials were filled with generalizations, platitudes, and observations of the obvious” . . . [contained] “not-so-stunning revelation[s],” and taught “[a]t their creative zenith, . . . common-sense communication skills.” Not finished, he observed that “these works exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid — hundreds of pages filled with generalizations, platitudes, and observations of the obvious.”
The First Circuit disagreed and reversed. The heart of the decision is captured in the following quotation:
. . . the district court improperly denied copyright protection to large portions of SMS’s works because it, in an error of law, found “they focus on concepts and teach a noncopyrightable process.” . . . The fact that SMS’s works describe processes or systems does not make their expression noncopyrightable. SMS’s creative choices in describing those processes and systems, including the works’ overall arrangement and structure, are subject to copyright protection. . . . The district court’s analysis . . . lost sight of the expressiveness of the works as a whole by focusing too closely on their noncopyrightable elements.
Link to the First Circuit opinion here.
[Update: the FTC did file a reply brief. Link here]
All the briefs are in on the FTC petition for cert in its antitrust case against Rambus, (unless the FTC decides to file a reply brief, which is unlikely to change things much). I’ve added the Rambus opposition to the Rambus Group page on scribd.com, here. Now its time for the antitrust community to hold its breath and see whether the Court takes the case. Some knowledgeable commentators have opined that FTC/Rambus case has the best chance of any antitrust case obtaining review this year, but that plus a dime will get you …. well, nothing I guess. If the petition is allowed, it will be very exciting times for antitrust and standards setting law and policy wonks.
In federal court in Boston the Gatehouse Media v. New York Times case (described in these two (1, 2) earlier posts) has settled, as I suspected it would. The
settlement agreement (or a preliminary agreement which is binding in the event a “definitive agreement” is not reached), is on scribd.com, here. It appears that this agreement was not intended to be made public (at least not yet), but apparently someone leaked it, so it’s public now.
As I read this, Gatehouse prevailed, hands down over the NYT/Boston.com. Gatehouse will erect “technical solutions” to prevent Boston.com from copying the Gatehouse original content, and Boston.com will respect those “solutions.” If a “solution” proves ineffective, Gatehouse will notify Boston.com, and Boston.com will back off right away. Why the parties went about it in this manner (which implicates DMCA-like anti-circumvention) I’m not sure, but I appears to accomplish the same result as if the NYT/Boston.com simply said “we won’t copy your ledes.”
From what I can seek, Boston.com/yourtown has already dropped its ledes and links to the Gatehouse sites, at least based on a quick sampling.
[postscript: here is a link to the report of Gatehouse’s copyright expert, Douglas Lichtman, Professor of Law, UCLA. The report is an analysis of the case under copyright fair use principles, and a rebuttal of the NYT/Boston.com’s unclean hands argument]
!["Talkin ‘Bout My [Internet] Generation" and Gatehouse Media says, "Give Us A Break Judge, the Registration is in the Mail"](https://www.masslawblog.com/wp-content/uploads/2009/01/220px-My_Generation.jpg)
Some interesting goings on on the copyright front in D. Mass. are worth a brief mention.
First, U.S. District Court Judge Nancy Gertner has ruled that proceedings in the RIAA’s case against Joel Tenenbaum, alleging illegal downloading, may be “webcast” by the Berkman Center. Whether the actual trial will be webcast is undecided as yet, but upcoming in-court motions will be. The audio-visual will be streamed live by the Berkman Center at no charge to viewers. Tune in on January 22nd to see the circus. [Update: the First Circuit held that the trial could not be webcast].
I find the following quote from the decision to be quite humorous:
In many ways, this case is about the so-called Internet Generation — the generation that has grown up with computer technology in general, and the Internet in particular, as commonplace. It is reportedly a generation that does not read newspapers or watch the evening news, but gets its information largely, if not almost exclusively, over the Internet. . . Consistent with the nature of these file-sharing cases, and the identity of so many of the Defendants, this case is one that has already garnered substantial attention on the Internet.
While the Plaintiffs object to the narrowcasting of this proceeding, . . . their objections are curious. At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation.
Meanwhile, in the Gatehouse Media copyright case against the New York Times, Gatehouse has filed an unopposed motion, asking Judge Young to rule on whether the court has jurisdiction before the copyright registrations for the material in dispute have been issued by the Copyright Office. This is a frequent controversy, and one of interest to copyright lawyers representing plaintiffs whose unregistered works are the subject of infringement – may they proceed with suit, and perhaps a preliminary injunction, or are they bound to wait for the registrations to issue? Apparently, this issue was of enough concern to Gatehouse Media that it filed this brief, collecting and arguing the legal precedents on this issue.
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