We were a bit surprised last summer when the major music publishers piled on to the bandwagon and sued Limewire. After all, the major record labels (who own most of the major publishers anyway) were already involved in a lawsuit with Limewire and had won a pretty complete victory over the file sharing system. Having the publishers sue as well seemed like just a way to try to squeeze even more money out of a dead shell. Apparently, the publishers just figured that whatever they got out of this was easy money. What they didn't expect was that Limewire, dead as it is, would fight back pretty hard and during discovery demand actual evidence that the publishers really hold the copyrights they claim to hold (something that isn't always clear once you dig into the details). So it's interesting to see that a settlement has been reached, and the publishers' portion of the lawsuit is effectively over. Many reports seem to be assuming that Limewire gave up here, but there's a good chance that it was the publishers who backed out, realizing they had no interest in opening up a discovery process that might prove a large segment of their business is based on pure fiction. In the meantime, they'll leave it to their parent companies to continue the battle to try to get whatever cash they can out of Limewire.

Remember Evan Stone? The anti-P2P lawyer (not the porn actor), who has been filing a ton of mass infringement lawsuits on behalf of porn companies. Like all of these lawsuits, the real intent is to frighten people into paying up prior to any trial. It's using the judicial system as a business model. In one of the lawsuits Stone filed for Mick Haig Productions, the judge wisely asked Public Citizen and EFF to act as counsel for the John Does who had been sued, to represent their interests before allowing Stone to move forward with the discovery process (which would allow him to subpoena ISPs to get the names associated with various IP addresses). Public Citizen and EFF filed motions concerning some of the problems with the overall case and the judge refused to allow discovery while considering those motions. However, Paul Levy at Public Citizen discovered that Stone had gone ahead and sent out subpoenas anyway, and some ISPs had already started turning over the info.

As Levy noted in a letter to Stone, this appeared to be a gross violation of legal ethics. A couple days after receiving this letter, Stone dropped the case with a petulant letter to the judge, blaming the judge for appointing lawyers who actually stood up for their clients' rights, rather than rolling over and allowing discovery. However, in the initial letter, Levy also asked Stone to provide details on all of the subpoenas that he issued, along with the cover letters to ISPs and details of any other communication with those ISPs. Finally, he wanted to know if anyone whose identity had been revealed through these questionable means had paid up and how much they had paid.

It turns out that Stone has refused to respond to these requests (including multiple phone calls to try to reach him), obviously hoping that Public Citizen and EFF would go away. Knowing Paul Levy, he's not the sort of person who gives up easily. Public Citizen and EFF have now filed a motion with the court asking the court to order Stone to provide this info, and then, once the info is provided, to determine whether the fault is Stone's or his clients, and to then either order attorneys' fees, sanctions or both. I've included the motion below, but here's the key part:

Mr. Stone surreptitiously issued unauthorized subpoenas to an unknown number of internet service providers ("ISPs"), demanding the disclosure of the identities of anonymous Defendants so that he could pressure the alleged downloaders of pornography into settlement. Incredibly, months later Mr. Stone participated in the briefing of the very question of whether he should be allowed to issue discovery... all the while allowing ISPs to process the improperly issued subpoenas. Plaintiff's counsel's behavior demonstrates blatant contempt for the rule of law and the authority of this Court.

Moreover, the full extent of Mr. Stone's actions is not yet known because he refuses to meet and confer. Accordingly, rather than requesting a specific form of relief, Defendants instead ask this Court to order Mr. Stone to fully account for his actions so that the Court and Defendants can be made aware of the harm inflicted and so that they may respond accordingly. Once the Court has ascertained the full extent of Mr. Stone's actions, and the extent to which his client should properly bear responsibility for his actions ostensibly performed on his client's behalf, the Court can then decide whether an award of attorney's fees under 17 U.S.C. § 505, discovery sanctions under the Federal Rules, or some other relief is appropriate. Defendants ask this Court to impose some sanction for Mr. Stone's conduct to send a message that should hardly be necessary: abusing the Court's authority to improperly investigate and push settlements onto litigation opponents will not be tolerated.

John from the soon-to-be-gone-from-the-internet site DeadliestCatchTV.com, alerts us to the news that lawyers from The Discovery Channel are taking down the site. Now, let's get the basics out of the way: the lawyers probably do have a trademark claim here. Certainly from the domain name, you might think it's an official website for the show. The site does have "not affiliated..." text, but it's hidden all the way at the bottom. If you were trying to avoid a "likelihood of confusion" problem, I would imagine it would help to make it very, very clear at the top of the page that the site is a fan site and not the official site. That said, there are a lot of problems with the way Discovery is treating this situation.

First of all, in the past, The Discovery Channel actively supported John, and he's reposted an email he received not so long ago from someone at the Discovery Channel offering him free content and happily celebrating the site. Here's a couple excerpts from the email:

From: DiscoveryChannel
To: Admin
Hi Editors @ DeadliestCatchTV ,

My name is Soumik Pal, I work at Discovery Channel and I'm writing to offer you free preview content and assets from the new season of Deadliest Catch! We feel that the show is a great fit with your site (and especially your readers) and would love to get the word out about some exciting new Catch initiatives this season!

[...]

To get your readers ready for the new season, I've included the official press release, high-quality preview videos, exclusive photography, brief episode descriptions and much more...

[...]

I'm happy to act as your point of contact for any additional requests and we hope your readers might like some of the content we've provided! Please let me know if there's anything more we can provide you with to help get geared up for the new season of Catch.

Thank you!

Soumik Pal
Digital Media, Discovery Channel
Discovery Communications

That certainly makes it sound like Discovery and the folks involved with the TV show are quite happy with the fan site and community that John put together. In fact, that seems like a great way to encourage and nurture a fan site. Actually, the folks behind the show have gone much further. On the official site for The Deadliest Catch, the show actually lists & links to fan sites including DeadliestCatchTV.com. They even set it up so that if you click on the link, it loads the fan site, with the official Deadliest catch "dashboard" (see below). And, as of right now, you can even see a wrapped version of John's site on the official Discovery channel page. That certainly looks like a show that wants to support its fan sites: So, again, this is clearly a show that has long supported this site with direct emails, sending them content, encouraging them to share it with other fans of the site, linking to the site from the official site and wrapping the page with its own "Deadliest Catch Network" Dashboard. You would think, at the very least, if the company decided to change its policies, that it would send over a friendly note -- rather than sending a legal nastygram. No such luck.

John asked the lawyers who contacted him about Soumik Pal's email:

When I questioned this with Discovery I was told only the employee no longer worked at Discovery and they "were looking in to this". The second lawyer I spoke to from Discovery stated that they had a change of heart and have now decided they wanted to police any sites using their material (Although previously they were providing it for promotion purposes).

Again, a change of heart is fine -- but sending the lawyers to deliver it with threats? That seems ridiculous. It's a way to turn a bunch of fans into people who will never want to have anything to do with The Discovery Channel again. It's a case study in exactly how not to deal with social media.

Oh, and it gets worse. Beyond the basic trademark threat of the domain name, Discovery's lawyers claimed that John was committing copyright infringement by embedding official videos from the show's YouTube account on his website. I'm not kidding. The Discovery Channel has an official YouTube channel, where it uploads videos and has embedding turned on. So, not surprisingly, John has embedded some of these official clips on his site. I'm about to do the same. This is the last video that John posted: It's from the official Discovery Channel YouTube feed, and embedding is turned on. But... according to Discovery's lawyers, this is copyright infringement. John asked the lawyer about this, and the guy insisted that while this might be "confusing" -- that embedding the official videos was still copyright infringement. Someone might want to tell the marketing guys who enabled embedding.

The one issue that I really question is that part of the claim made by Discovery was that my "...display of and/or provision of access to unauthorized copies of our client's copyrighted material infringes Discovery's copyrights..." The material in question were actually videos that were posted BY DISCOVERY on YOUTUBE where the embed code was made available for all to use. I spoke to one of the lawyers briefly on the phone today and he understood how this could be confused but maintained that even though the code is there you are NOT ALLOWED TO USE THE EMBED CODE ON ANY WEBSITE.

Frankly, this whole thing screams of some seriously mistaken or confused lawyers associated with The Discovery Channel, who not only seem to be completely out of touch and clueless as to how the internet works, but aren't even talking to the marketing people involved. These lawyers are actively undermining the show's own marketing efforts, pissing off fans, and closing down a large and popular fan group of the site with highly questionable legal claims.

Unfortunately, it looks like John is giving in to the lawyers. He's said that the site will disappear as of August 11th, and the Discovery Channel will take over the domain. Again, I can understand the potential for some confusion with the domain name, but there were much better ways for Discovery to handle this. Perhaps The Discovery Channel is taking the concept of its famous Shark Week way too far, and turning its lawyers into sharks. They should watch out, as when you let the sharks loose on your biggest fans, they can come back to bite you.

We just wrote about questions concerning subpoenas on Facebook profiles and it looks like the judge in that particular case has come up with something of a novel solution to the issue. Venkat Balasubramani, who's been following this case closely, notes that the (somewhat frustrated) magistrate judge has offered to set up a special temporary Facebook account, and "friend" the witnesses, so that the judge can see the photos that are at issue in the case, before closing down the account. The case itself involves a lawsuit against a bar by a woman who fell while attempting to dance on the bar.

Defendant subpoenaed Facebook for plaintiff's Facebook information, including photos of plaintiff and her friends dancing on the bar. The court quashed the subpoena to Facebook, and in response, defendant issued a subpoena to plaintiff's friends, who are witnesses in the case. The defendant sought photos posted by plaintiff and her friends that depicted the events on the night in question. The court finds that the subpoenas issued to these witnesses cannot be enforced by the district court in Nashville, and if defendant wants to move to compel, it must do so in Colorado and Kentucky, the districts where the subpoenas were issued out of.

The magistrate judge chastises both parties for their failure to cooperate in the discovery process, and specifically calls out the defendant for its "mishandling of the Facebook subpoena." The judge then offers to create a Facebook account "for the sole purpose of reviewing photographs and related comments in camera . . . and disseminat[ing] any relevant information to the parties." Assuming the non-party witnesses (who will be located/contacted via email (!)) will accept the judge's Facebook friend requests, the magistrate judge agrees to review their Facebook information, provide any relevant information or photographs to the parties, and then close the Facebook account. (It doesn't seem like the court will store copies of the non-relevant portions of the Facebook pages, even under seal.)

Seems like a creative way to get around some of the privacy issues in the case, though, you do wonder what happens if none of the witnesses wish to participate or share those images.

Back in May, when a court shot down yet another of porn publisher Perfect 10's lawsuits against web search engines, we wondered if the publisher would finally realize that Google is not liable for what its image search engine finds. Yet, the company doesn't seem interested in giving up. It's claiming that Google abused the discovery process and failed to hand over important materials, including its "DMCA log." At issue is the fact that some people out there had used unauthorized images from Perfect 10 on their own websites, and Google's image search found them. Perfect 10 first tried to claim Google itself was guilty of copyright infringement for displaying those images, but eventually the courts realized that displaying a thumbnail of an image from another website in a search result is not, nor should it be, considered copyright infringement.

Of course, this particular statement is pretty amusing:

"Google appears to have the view that it is above the law," says Perfect 10 President, Dr. Norm Zada.

That's a funny comment for someone who's been losing pretty much every lawsuit. It seems that the courts have thought all along that Google was very much within the letter and spirit of the law.

In this case, Perfect 10 is now trying to stretch what the DMCA requires of a recipient of a DMCA notice, saying:

"Under the DMCA, a search engine such as Google may receive limited immunity from monetary damages for copyright infringement if it complies with the requirements of the DMCA," Zada says. "The search engine must act expeditiously to remove or disable access to infringing material upon receiving notice of infringement from the copyright owner, and it must adopt a procedure so that copyright holders will not have to provide the search engine with notices about the same infringing material or the same infringers over and over."

The first part is true. The latter part is not true. However, it's the latter part that Perfect 10 seems to be relying on, demanding its "DMCA log" which is apparently "a spreadsheet-type document summarizing DMCA notices received, the identity of the notifying party and the accused infringer, and the actions (if any) taken in response." Considering Google has a pretty long history of quickly responding to DMCA complaints, it's difficult to believe that it would somehow not adhere to the DMCA in this case. Once again, it seems likely that Perfect 10 is going to end up on the losing side of a court battle. If only it actually put this much effort into actually building a business.

Michael Scott points us to an interesting discussion among some lawyers trying to grapple with the implications of a rise in "cloud computing." For example, they note that courts usually don't take kindly to excuses such as "the hard drive ate my documents" when certain documents are unable to be found during the discovery process. But, if people are using a cloud computing solution such as Google Docs, this could actually be an issue. Google's terms of service allows it to cancel accounts and delete documents -- and someone who relies on a system like that only to find out later that he or she needs to hand over documents as a part of a court case may be in trouble. Of course, I don't see how this should be any different than any other "out of my hands" issue. What if a fire destroys paper documents? Or should the problem be that the user didn't make backup copies? The problem here isn't necessarily cloud computing itself, but the way the law views the discovery process.

For the past 50 years, 47 countries have been a part of the 1959 Antarctic Treaty, which was used to establish Antarctica as a peaceful science outpost where scientists from many nations could work together and share their discoveries. And it may now all be coming to an end. Why? Because (as Will Klein alerts us) all this discovery and sharing is going on mostly without patenting! This has greatly upset a bunch of companies who want to hoard any such discoveries and want to be able to patent "Antarctic organisms or molecules." Beyond the rather serious question of why either organisms or molecules can be patented, this is a microcosm of what's wrong with patents. Patents are supposed to be used to encourage research (promoting the progress, remember). And this treaty has done a great job promoting progress without patents. As the article notes, products already "derived from Antarctica include dietary supplements, anti-freeze proteins, anti-cancer drugs, enzymes and cosmetic creams." In other words, all of that happened mostly without patents. The only reason to break up this treaty, stop the sharing, and start allowing patents is to slow down the discovery, hoard the results and limit the progress to single companies who get a monopoly on that work.