Easily digestible tech news... http://www.techdirt.com/ en-us http://www.techdirt.com/images/td-88x31.gifhttp://www.techdirt.com/ Tue, 22 May 2012 11:49:00 PDT Mike Masnick http://www.techdirt.com/articles/20120521/12223019004/real-estate-listing-services-use-questionable-copyright-claims-attempt-to-block-criticism-agents.shtml http://www.techdirt.com/articles/20120521/12223019004/real-estate-listing-services-use-questionable-copyright-claims-attempt-to-block-criticism-agents.shtml attacked web upstarts like Zillow and Redfin. The latest is that they've gone after NeighborCity, an offering from a company called American Home Realty Network (AHRN), who dared to make use of real estate data to actually rate real estate agents on their performance. As you might imagine, the real estate agents don't like that very much.

AHRN noticed that it suddenly received a flood of complaints and cease & desist letters conveniently timed exactly to the dates of the National Association of Realtors's (NAR's) annual meeting in November of 2011 -- and each of the letter seemed to include similar language. After responding to all of the complaints, two separate MLS providers sued AHRN. Amusingly, prior to the lawsuit, an executive for one of the MLS's (NorthStar, from Minnesota) appeared to accidentally cc AHRN on an email to its lawyer, complaining about "the bad fellow" (AHRN CEO Jonathan Cardella) not simply bending over and taking down NeighborCity in response to the complaints, and suggesting that filing copyright infringement lawsuits against AHRN/NeighborCity would be useful in bringing a "world of hurt" on the company. The email also discusses having various MLSs share the costs of litigation.

Indeed, NorthStar and a separate MLS, Metropolitan Regional Information Systems, Inc. (MRIS) appear to have followed through and sued for copyright infringement. You can see MRIS's filing embedded below. MRIS repeatedly insists that it holds a copyright on its database, completely ignoring fairly well-established law that you can't copyright facts, and that MRIS's copyright (if there is one) is limited to the creative works it added to the process. Instead, MRIS repeatedly claims to hold a copyright on the entirety of the database. It also claims to hold the copyrights on the photos uploaded by individual agents, saying that as part of that process, the copyrights are assigned to MRIS.

NeighborCity has hit back with its response (also embedded below), arguing that MRIS has no such copyright, and citing the litany of cases that establish you cannot copyright factual information, relying heavily (of course) on the important Feist ruling in the Supreme Court, which rejected "sweat of the brow" arguments for copyright, and said you cannot copyright a collection of facts, such as a telephone book.

It seems that the chance of succeeding on such a claim is slim to none. MRIS and its lawyers should be slapped around by the judge for even trying such an argument. MRIS clearly seems to recognize this by trying to use the photographs to make a separate argument. It claims that every photograph that is uploaded has its copyright assigned to MRIS (I'm actually a bit surprised that real estate agents would agree to this...) and thus it also alleges infringement on the photos. AHRN, however, points out that MRIS failed to register the individual copyrights on the photos, instead only registering a copyright on the "catalog." Here, AHRN notes (again) that there is widespread precedent limiting what sort of copyright can be applied to a catalog where little to no additional work was done by the party claiming copyright. Further, it points to the Muench case, which noted the "the registrant of a compilation copyright must list the names of the authors of the underlying works." That's just a district court ruling, so it's not clear how big an impact it would have.

AHRN also questions the claim that anything it has done creates irreparable harm to MRIS is completely baseless. MRIS's best argument is that outdated info on NeighborCity reflects poorly on MRIS, but AHRN points out that it would reflect much worse on NeighborCity itself.

The real issue, of course, is almost certainly that the real estate agents don't like the fact that they're being rated by the site. The fact that NeighborCity has operated for years without a problem... until it put up its agent rating service, makes that pretty clear.

The larger issue may be that AHRN is also alleging that the action confirms that real estate agents are violating the final judgment in the antitrust lawsuit the US government filed against the National Association of Realtors. The email that was sent to AHRN certainly seems to indicate plans for concerted action. Combined with the timing correlating to the NAR event... and there's at least a reasonable case for the DOJ to look into the activity here by real estate agents and MLS services.

In the end, though, this is the same story we've seen over and over again. Gatekeepers don't like being disintermediated by disruptive innovation. So, rather than adapt, they sue.

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]]> i've-got-a-feist-to-show-you http://www.techdirt.com/comment_rss.php?sid=20120521/12223019004 Fri, 30 Mar 2012 13:53:00 PDT Mike Masnick http://www.techdirt.com/articles/20120328/14591218281/major-league-soccer-abusing-dmca-to-censor-controversial-clip-player-misconduct.shtml http://www.techdirt.com/articles/20120328/14591218281/major-league-soccer-abusing-dmca-to-censor-controversial-clip-player-misconduct.shtml abusing the DMCA to take down video clips which it had absolutely no copyrights over (the event was not filmed or broadcast by MLS) because it didn't like the content (showing a fight that broke out at the soccer match). It appears that MLS has not learned that you cannot abuse the DMCA just because you don't like what the clip shows, as it appears to have done it again. Big time soccer fan (and big time free speech lawyer) Paul Alan Levy noticed recently that a YouTube clip showing Houston Dynamo player Colin Clark calling a ball boy a "faggot" for not throwing the ball to him properly, had been taken down via a DMCA copyright claim from MLS.

As Levy notes, the controversy around what happened resulted in a widespread discussion among fans about the incident, including comparisons to the recent controversy over racist statements by fans in the UK. It also resulted in a public apology from Clark. And yet, still, MLS took down the video.

Levy reached out to the guy who posted the video and sent a letter on his behalf, pointing out that MLS clearly broke the law in not considering fair use before issuing the takedown. The letter lays out why the 20-second video (from a 2-hour match) was clearly, without a doubt, fair use, and how the takedown violates the clear language of the DMCA. He notes that the guy who uploaded the video is a big MLS fan (as is Levy), and they don't want to burden MLS with a lawsuit, but would like MLS to take the following steps:

1. Explain how it made the decision to issue a DMCA takedown notice to YouTube.
2. Promptly inform YouTube that it is withdrawing its takedown notice.
3. Express regret to Mr. Vega for the takedown notice.
4. Put procedures into place to ensure that fair use receives full consideration before any takedown notice is issued.
5. Disclose publicly both what procedures have been adopted, and what standards MLS is providing to its representatives to ensure that they give proper consideration to fair use before issuing takedown notices in the future.

Seems like an easy way out, but who knows if anyone at MLS will even pay attention enough to care.

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]]> copyfraud http://www.techdirt.com/comment_rss.php?sid=20120328/14591218281 Wed, 16 Jul 2008 22:09:00 PDT Mike Masnick http://www.techdirt.com/articles/20080714/1625241674.shtml http://www.techdirt.com/articles/20080714/1625241674.shtml potentially violating the DMCA by issuing a takedown of footage for which it does not own the copyright. The details are a little confusing, and some parts aren't entirely clear -- but from the account at the link, two Major League Soccer teams participated in a separate tournament, called the U.S. Open Cup. The event was not televised at all, despite efforts among fans to provide a streaming webcast. Apparently, at the soccer match, a fight broke out, and the local news covered it, using footage from the game. Following this, some bloggers posted the news stations' story about the fight on YouTube -- at which point MLS sent a DMCA takedown notice. The question is whether or not MLS has copyright over the footage (MLS's trademarks are meaningless here, as the DMCA only refers to copyright).

What is not clear is who took the footage. Considering that the game was not televised and the event itself was not an MLS event, it's difficult to believe that it's MLS's footage, and thus, MLS wouldn't hold the copyright over it. However, even if it is MLS coverage, the fact that it was a newsworthy event, and the footage was used in a news report, it would suggest that this particular snippet was actually fair use as used in commenting on it for news purposes. And, if anything, the copyright on the overall clip of the newscast belonged not to MLS, but to the news company. Overall, it seems quite likely that this attempt to censor the clip from YouTube was illegal, as MLS is probably asserting copyright over content for which it does not hold the copyright. But, these days, that's just all in a day's work of misusing the DMCA.

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