Maryland Intellectual Property Lawyer & Attorney : Brian Wm. Higgins : Serving Baltimore, Columbia, Frederick

     Below are summaries of recent IP-related lawsuits filed in the the U.S. District Court for the District of Maryland in 2008 (source: Justia).

• Emerson Electric Co. v. John Does 1-10, No. 1:2008cv00734; filed March 20, 2008; assigned to J. Blake

     Plaintiff Emerson Electric, a Missouri company, states "This is a Complaint for an injunction, damages, and other appropriate relief to prevent unknown Defendants from engaging in a widespread fraudulent internet scheme that involves the infringement and misappropriation of Plaintiff’s trademarks. In this scheme, Defendants have impersonated Emerson and its chairman David N. Farr in emails and on internet job boards to trick unsuspecting internet users into believing they have obtained jobs with Emerson. In their supposed capacity as Emerson employees, these victims have – on instruction from Defendants – unwittingly cashed fraudulent United States Postal Service money orders or certified checks on behalf of Defendants. Defendants’ scam has caused Emerson irreparable harm, damaged its reputation, damaged its [EMERSON] mark, caused confusion in the marketplace as to the origin of the job offers and Emerson’s role in the scam, and caused Emerson to incur significant expenses and utilize significant resources in an effort to halt the scammers and stop the fraud."

     Plaintiff alleges trademark infringement under the Lanham Act (15 U.S.C. § 1114), false designation of origin under the Lanham Act (15 U.S.C. § 1125(a)), unfair competition/false advertising under the Lanham Act (15 U.S.C. § 1125(a)), Maryland common law unfair competition against all defendants.

• VTran Media Technologies, LLC v. Antietam Cable Television, Inc., No. 1:2008cv00739; filed March 21, 2008; assigned to J. Garbis

 

• Almo Music Corporation et al v. Three Pols, LLC, No. 1:2008cv00747; filed March 25, 2008; assigned to J. Motz 

     This copyright infringement case was filed by plaintiffs Almo Music Corporation, Mighty Underdog Music, Sony/ATV Tunes LLC, Odnil Music Limited, Fifty-Six Hope Road Music Limited, Get Jet Music, Inc., Cherry Lane Music Publishing Co., Inc. and Dimensional Music of 1091 against defendants Three Pols, LLC, Joshua E. Gursky and Grant R. Gursky.  

• Broadcast Music, Inc. et al v. Carullo Steele, Inc., No. 1:2008cv00824; filed April 2, 2008; assigned to J. Bennett

     This copyright infringement case was brought by plaintiff Broadcast Music, Inc. (BMI), the licensee of copyrighted works owned by co-plaintiffs EMI Blackwood Music, Inc., House of Cash, Inc., Songs of Universal, Inc., EMI Virgin Songs, Inc., Elijah Blue Music, Unichappell Music, Inc., ABKCO Music, Inc., EMI Algree Music Corp., Wayne Hodge, Sony/ATV Songs, LLC, Leon E. Brooks, III and Ronnie Gene Dunn.

     Plaintiffs allege that defendants Carullo Steele, Inc., owner/operator of Freddies Bel Air (Bel Air, MD), and Stephen J. Carullo, Jr., an alleged officer of Carullo Steele, Inc., publicly performed copyrighted works owned/licensed by plaintiffs.

     Max Stadfeld of Offit Kurman, P.A. (Owings Mills, MD) filed the complaint on behalf of the plaintiffs.

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     In 2007, the major music recording companies, led by the Recording Industry Association of America (RIAA), filed more copyright lawsuits in the U.S. District Court for the District of Maryland than any other group or individual. RIAA accounted for 16 of the 30 copyright lawsuits filed last year (53%). In 2006, RIAA accounted for an estimated 22 of 54 copyright lawsuits (41%). All of the RIAA lawsuits involved individual defendants accused of illegally downloading or sharing copyrighted music. The 30 copyright lawsuits involved a total of 168 plaintiffs (64 unique entities/individuals). Of those 168 plaintiffs, 85 were RIAA members, including the following:

• Sony BMG Music Entertainment (plaintiff in all 16 of the RIAA lawsuits);
• UMG Recordings (plaintiff in 14 of the RIAA lawsuits)
• Arista Records (plaintiff in 12 lawsuits)
• BMG Music (12 lawsuits)
• Virgin Records America (9)
• Capitol Records (9)
• Warner Brothers Records (8)
• Interscope Records (8)

     Twelve U.S. District Court Judges presided over the 30 copyright lawsuits in 2007: Bennett (3), Blake (2), Chasanow (1), Cullinane (1), Davis (4), Dorr (1), Garbis (2), Legg (2), Messitte (6), Quarles (2), Titus (3), and Williams (3). All 6 of Judge Messitte's cases involved RIAA lawsuits (in 2006, Judge Messitte presided over an estimated 21 of the 22 RIAA lawsuits).

     On January 10, 2008, RIAA announced on its website that it had sent a new wave of 407 pre-litigation settlement letters to 18 universities nationwide as part of its "ongoing campaign against online music theft" (none of the targeted universities involve Maryland institutions, so perhaps 2008 will see fewer RIAA lawsuits in Maryland).

Notes:

• Source: Justia.com and PACER

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Summary:  Congress has been busy targeting copyright infringers this summer and fall, introducing three bills that would make prosecution of copyright law violators easier, make the attempt to infringe another's copyrighted work a criminal act, and place new burdens on colleges to police music file downloaders.

• The Intellectual Property Enhanced Criminal Enforcement Act of 2007

H.R. 3155-IH was introduced to the House of Representatives on July 24, 2007, by Rep. Steve Chabot (R-OH) (see related post here). The bill would make the attempt to commit copyright infringement a crime, just as much as the actual completed crime itself. On Aug 10, 2007, the bill was referred to the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security.

• The Intellectual Property Enforcement Act of 2007

S.2317 (also here) was introduced in the Senate on November 7, 2007, by Sen. Patrick Leahy (D-VT) (co-sponsored by Sen. John Cornyn (R-TX)). Sec. 2 of the Act would grant the Attorney General power to commence a civil action against any person who engages in conduct constituting an offense under section 506 of the Copyright Act (related to criminal copyright infringement). Sec. 506 currently requires a showing of willful copyright infringement. In contrast, the burden of proof in a civil action under the new law would be by a preponderance of the evidence, which presumably would make it easier to find liability.

Sec. 14 of the Act would add civil and criminal forfeiture, destruction, and restitution provisions to 18 U.S.C. 113.

In his statement about the so-called PIRATE ACT, Sen. Leahy said:

"This legislation is a simple bill that would give the Department of Justice the authority to prosecute copyright violations as civil wrongs. The PIRATE Act has passed the Senate on three separate occasions; this should be the Congress in which it becomes law."

Status: Senate Judiciary Committee hearing, November 7, 2007.

• College Opportunity and Affordability Act of 2007

H.R.4137 was introduced in the House on November 9, 2007, by Rep. George Miller (D-CA) (co-sponsored by Ruben Hinojosa (D-TX)). Sec. 487 of the Act would amend 20 U.S.C. 1092(a)(1) to include a new provision entitled "Institutional Policies and Sanctions Related to Copyright Infringement," which would include an annual disclosure requirement by educational institutions that

• Explicitly informs students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to civil and criminal liabilities, 
• Provides a summary of the penalties for violation of Federal copyright laws, 
• Provides a description of the institution's policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in unauthorized distribution of copyrighted materials using the institution's information technology system, and 
• Provides a description of actions that the institution takes to prevent and detect unauthorized distribution of copyrighted material on the institution's information technology system.

Sec. 494 of the Act, entitled "Campus-Based Digital Theft Prevention," would require colleges to:

• Make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copyrighted materials required to be disclosed under section 485(a)(1)(P); and
• Develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.

Status of bill: Nov 15, 2007: House Education and Labor: Ordered to be Reported (Amended) by the Yeas and Nays: 45 - 0 (GovTrack).

     Below is the University of Maryland's open letter to the University Community on illegal file sharing over University networks:

     "The university is greatly concerned about the potential effects of illegal file sharing on our information technology networking infrastructure and on the personal liability of our students. This letter summarizes actions the university will take over the next few days to protect our community.

     "Effective Monday, October 8, 2007, the university will block use of two peer-to-peer (P2P) file sharing programs on its network -- Ares and LimeWire. Recognizing the accelerating demands on bandwidth from educational commitments of greater priority, we are unable to justify supporting P2P programs that are instrumental in the sharing of music and movies in violation of copyright law. In the competitive allocation of computing resources, the university may not responsibly support activity that places students in serious legal and financial jeopardy. To do otherwise would also compromise a fundamental social value: respect and acknowledgment of the creative achievements of others.

     "In addition to blocking Ares and LimeWire, the university will expand enforcement of university network rules against facilitating illegal file sharing. One example is the campus DC++ hub, which has been featured recently in The Diamondback. The operators of DC++ hubs will be offered an opportunity to demonstrate that their network usage conforms to the University of Maryland Policy on Acceptable Use of Information Technology Resources and the Student Guidelines for Network Acceptable Use. Should a specific operator’s network usage not be shown to be in conformance, that operator will be asked to bring the usage into compliance. Failure to do so will subject the operator to administrative action, including revocation of access to Internet resources through the university network system and/or referral to the Office of Student Conduct.

     "We regret the inconvenience that these actions will cause for those using the university network services and file sharing software legally and responsibly. However, we must implement these measures to protect our community from the effects of illegal file sharing.

Jeffrey C. Huskamp
Vice President and CIO"

     Peggy Noon, scholarly communication librarian and special assistant to the provost for copyright administration at North Carolina State University, equates the College Opportunity and Affordability Act of 2007 to Shooting Fish in a Barrel, and questions why it has become higher education's role to correct student's illegal file sharing behavior:

     "Although it is inarguably part of the university's role to urge their students to comply with the law, behave in ethical manners, and teach that by example, we are only their teachers.

     "We are not their parents and we are not the police. We had no role in instilling or molding their characters or their ethical or religious belief system. In fact, we didn't even teach them the computer skills necessary to accomplish P2P sharing. They came to us with these behaviors and skills fully set and continually reinforced by their peers.

     "So when did we become responsible (in a legal and money sense) for the students P2P file sharing? If a student uses dormitory phones to conduct drug deals or extortion, is the university responsible? Should phone access be terminated? What if our students steal cable TV service" Should Congress pass a bill that withholds federal funding from our schools until the cable TV companies are financially satisfied? Since when did higher education become responsible for the profit margin of the entertainment industry?"

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Summary:  Maryland residents are latest targets of record industry lawsuits aimed at stopping digital music file sharing

     Last week, the Recording Industry Association of America (RIAA) sent 403 pre-litigation settlement letters to 22 universities, including the University of Maryland - College Park, alleging illegal copying and distribution of RIAA-member copyrighted sound (music) recordings. In addition to the letters, the RIAA filed 24 copyright infringement lawsuits against previous recipients of pre-litigation letters who allegedly ignored "settlement opportunities." According to an RIAA statement, the lawsuits were filed in federal courts against students, including students reportedly attending the University of Maryland. As shown below, two of the lawsuits were filed in the District Court for the District of Maryland by Matthew J. Oppenheim, Esq., RIAA's lawyer (and a Maryland resident himself, according to public property records).

     One of Mr. Oppenheim's lawsuits, BMG Music et al v. Norwood, 07cv02480 (D. Md. 2007), was served on Sarah Norwood, a St. Leonard, MD (Calvert County), resident (according to RIAA's complaint).  The suit is predicated solely on a claim that on April 28, 2007, Ms. Norwood distributed 377 audio files over the Gnutella peer-to-peer network from a computer having the IP address 69.251.74.83 (which is a Comcast.net IP address: click here to see for yourself).

     The Record Industry vs The People blog describes what happens during RIAA-initiated litigation, which could best be described as somewhat heavy handed. Here's how the authors of the blog describe the "settlement opportunities":

"After getting the name and address of the person who paid for the internet access account, they then send him or her a letter demanding a "settlement".

Their settlement is usually for $3750, non-negotiable, and contains numerous one-sided and unusual provisions, such as a representation that peer to peer file sharing of copyrighted music is a copyright infringement (a representation that is far too broad, undoubtedly there are 'sharing' behaviors with digital files, as there are with cd's, that are not copyright infringements). Even certain innocuous provisions, worded in a way to make them obligations of the defendant but not the RIAA, are deemed 'non-negotiable'. At bottom, the settlement is cold comfort to the defendant, because it does not speak for the other potential plaintiffs -- the owners of the copyrighted work, or the other record companies not represented by the RIAA litigation fund. That this omission is significant is illustrated by the new wave of copyright enforcement actions by music publishers against guitar tablature sites. There is nothing to prevent them from suing the individuals who have settled with the RIAA over the sound recording rights.

The newest wrinkle in the RIAA's pre-litigation settlement strategy is to encourage "early settlements" prior to commencement of a litigation. The RIAA has even set up a web site where people can go to make these settlements. The RIAA has stated that the settlements will be for a $1000 or more less than otherwise. However the first such settlement we have heard of is for $3500, which is only $250 less. We have heard of $3000 settlements being "offered" to college students. The RIAA has opened this initiative on two fronts, (1) the ISP's, and (2) colleges and universities. Some colleges have cooperated, forwarding the RIAA letters to the students, some have not. It remains to be seen how the ISP's will react.

     The other Maryland lawsuit initiated by the RIAA and Mr. Oppenheim is captioned Warner Bros. Records et al v. Nwosu, 07cv02479 (D. Md. 2007), which pits RIAA members against Ms. Nnenna Nwosu, who, according to RIAA's complaint, is a College Park resident.

     What continues to intrique many who follow the RIAA's legal blitz, which has reportedly targeted close to 23,000 individuals over the last four years, is how unresponsive downloaders are to the industry's threats on the one hand, and how slow (reluctant?) the recording industry is to create a new paradigm for generating revenues from its copyrighted sound recordings in the face of continued file sharing on the other.  Kevin Robillard's recent article entitled "University Network Still the Wild, Wild West," published in the University of Maryland's The Diamondback, is reflective of the attitudes among college students: they remain devotees of illegal file sharing, many of whom say it's unlikely they will ever purchase legal copies of music. What does that say about the relationship the RIAA's litigation arm has created with one of the music industry's largest consumer groups?

Comments:

• See Prof. Mike O'Donnell's (University of Chicago) comment here on the assumptions made by the RIAA about IP addresses being associated with a particular defendant.  Another related post can be found at p2pnet.

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If, like 99.9 percent of the world, you eagerly fast-forward through the previews and warnings on your DVDs to get to the main feature, you may never have given much attention to the following criminal copyright infringement warning under the FBI’s anti-piracy logo:

"Warning: The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to 5 years in federal prison and a fine of $250,000."

Despite those warnings, and similar warnings on other copyrighted works, it comes as no surprise that piracy of media and other commercial goods continues to cause significant losses to artists, corporations, and other parts of the U.S. economy each year, with consumers paying the price through higher retail sales prices. 

The Intellectual Property Enhanced Criminal Enforcement Act of 2007, H.R. 3155-IH, introduced to the House of Representatives on July 24, 2007, by Rep. Steve Chabot (R-OH), may cause many to rethink the criminal copyright infringement laws, because now, like many other criminal statutes, an attempt to commit copyright infringement will land you in just as much hot water as the actual completed crime itself:

“17 U.S.C. 506 (a) Criminal Infringement. * * *

(3) ATTEMPT AND CONSPIRACY.—

(A) ATTEMPT.—Any person who attempts to commit an offense under paragraph (3)(1) shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt.  

(B) CONSPIRACY.—If two or more persons conspire to commit an offense under paragraph (1) and one or more of such persons do any act to effectuate the object of the conspiracy, each shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the conspiracy.’’

The new law, if enacted in its present form, would further amend current U.S. copyright laws to give the government more power to investigate and prosecute criminal infringement cases regardless of whether the copyrighted work has been registered with the Copyright Office. The law would also stiffen certain penalties, including doubling prison terms in some situations and adding life terms for those who knowingly or recklessly cause or attempt to cause death in connection with specified conduct.  The bill follows the White House's criminal copyright legislative proposal, dated May 14, 2007, which was sent by DOJ to Rep. Pelosi and is signed by Richard Hertling, Principal Deputy Assistant Attorney General.

Comments:

• Thomas/Library of Congress version of H.R. 3155-IH introduced in the House of Representatives on July 24, 2007
  
  
• DOJ’s Federal Criminal Intellectual Property Statutes

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