Austin Technology Law Blog : Texas Technology Lawyers & Attorneys for Copyright, Trademarks & Software Licensing in Houston, Dallas & Austin TX

This notice did not appear on our site (yet), thankfully, but about 70 sites were hit with this over the holiday weekend.

We recently posted on the pending legislation called COICA and noted that the forces that be were quickly drawing lines in the sand and standing rather firmly on their side of the line.  Interestingly, Homeland Security and Immigration and Immigration and Customs Enforcement supposedly obtained warrants and seized the domain names of these sites that they alleged are infringing, either by committing copyright infringement or selling counterfeit items.  As noted by this article in Techdirt, the seizure was only of the domain names and not of the equipment or other assets so some of the sites merely changed their high level domains (e.g. .com to .info), put out the word on Twitter and continued business.

Some people are worried by the apparent lack of due process in this matter and the potential for abuse.  Others are worried by the level of infringement and counterfeiting and the loss of revenue as a result.  This would call into question the need for COICA if HSA and ICE already possess these powers.  There should be a serious discussion of this whole process as the COICA legislation progresses.

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Last week, the Senate Judiciary Committee, in an unusual show of bipartisanship (obviously caused by the evident and overwhelming support of the electorate in the midterm elections for more copyright legislation), voted unanimously to refer out of committee the "Combating Online Infringement and Counterfeits Act" ("COICA").

So, is this merely a tool to give prosecutors an expedited process to combat the evils of online infringement and piracy or is it seeking to censor the internet and create a blacklist of websites and consequently stifle the free expression of ideas?

Opting for the first view are the owners and protectors of copyrighted material, like the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA),
Major League Baseball, the NFL, Nintendo, Viacom and the U.S. Chamber of Commerce.

Coming down on the other side of the fence are most of the bloggers in this area of the blogosphere, the Electronic Frontier Foundation and a group of law professors who wrote this letter to the Judiciary Committee warning that the legislation was potentially unconstitutional.
 

What are the controversial provisions of  this alternatively praised and vilified legislation? (If your Ambien prescription has run out, you can read this and achieve the same result.).  For those of you who have Ambien, this is the "short" version:

• If an internet site is otherwise subject to forfeiture under statutes prohibiting infringement, or
• Is "dedicated to infringing activities" (primarily designed to, is marketed as or has no real use other than to offer infringing or counterfeit goods or services), and
• the internet site engages in such infringing activities and when taken together, such activities are central to the activity of the site or the sites accessed through a specific domain name, then
• the Attorney General can commence an "in rem" action against the site, get an injunction and require the domain name registrar to suspend operations of the domain name and the internet service provider to "take technically feasible and reasonable steps...to prevent a domain name from resolving to that domain name's Internet protocol address".
• The in rem action can be brought in any judicial district where the domain name registry for at least one of the involved sites is located or in D.C. if the domain name is not registered domestically.
• Notice of this action is sufficient if notice is sent to the postal and e-mail address that the registrar has for the web site and notice is published as directed by the court (no indication as to what this might be).  It is therefore possible that the web site owners would not have any notice of the action until it is well under way.
• The Attorney General may then obtain an order, which can be served on the domain name registrar or the registry and the domain name registrar or registry can suspend operation of and may lock the domain name.
• The injunction may also be issued against any internet service providers who can then suspend the operation of any transmission to or from the subject website.  The act provides them legal immunity for doing so.

The Act seems to be suspect in that it could amount to prior restraint of free speech and could be issued before a final court determination of actual wrong doing is obtained.  Or, it could be that the courts find that this is a necessary tool in the battle against internet anarchy and lawlessness.

There is much yelling and cursing and accusing yet to be done before this becomes law.  Stay tuned.

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It didn't take long.  You will recall that we discussed Lamebook's filing against Facebook here in an Austin court last Friday.  Yesterday Facebook struck back with a suit in the Northern District of California. 

Facebook will hope to get Lamebook's declaratory judgment action dismissed here and then proceed with their suit in California.  There will be much maneuvering and it will rapidly get expensive, particularly for Lamebook. 

As we said before, stay tuned.

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The Cowboys can't seem to do anything right.  They have started the season with one win and seven losses after being picked pre-season to be a Super Bowl contender.  Their starting quarterback is injured.  They've fired their coach and now, they forgot to renew their domain name registration.  Their website dallascowboys.com went off line for a few hours early in the week after the registration period expired on Sunday.  I'm not sure how this is even possible.  The registration entities are very aggressive about notifying you to renew and they start many months in advance.  You might even get some bogus notifications from China.  You would have to studiously ignore them in order to actually forget. 

May be time to punt.

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Recently, Zeke MacCormick reported that the Texas Department of Public Safety (TDPS) infringed on photographer David K. Langford right's to a photo titled "Days End 2". The photo in question, a silhouette of cowboy shouldering a saddle (as seen above), was used by the TDPS as a backdrop to Texas vehicle inspection stickers throughout several Texas counties. Mr. Langford is now suing for damages relating to the estimated 4.5 million reproductions of his photo. (Photo: Left: According to photographer D.K. Langford, this is the Texas vehicle inspection sticker designed from his photograph.Right: This photograph is exhibit A in Langford's suit vs. the Department of Public Safety and the Texas Department of Criminal Justice. Courtesy photos)

Mr. Langford, a very talented photographer, apparently shot this photo in 1984, and later published the photo in a Texas Parks and Wildlife magazine. Turns out, in Texas, the graphic design for vehicle inspection sticker is performed by prisoners of the state. One of the prisoners (with a pretty good eye for photos) scanned the photo into the system and was somehow later used in the sticker production. Although likely VERY boring in reality, I'd bet it would be great to hear not only how the graphic design department at the Texas Department of Criminal Justice got its scrappy start (would probably be the worst made-for-TV movie ever created), but how this picture ended up getting imprinted on the back of roughly 5 million stickers.

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We have been chronicling the "cyber-bullying" of Facebook (see here and here) in its quest to dominate western civilization.  Facebook has sued Teachbook and Faceporn and asked for damages and ownership of the domain names. 

Facebook has been making noises about doing the same thing to a local parody site, Lamebook.  Attorneys for Facebook and Lamebook have been discussing the issues for a while and when an apparent impasse was reached, Lamebook adopted the approach of another famous Texan and launced a preemptive strike.  It seemed evident to everyone that Facebook possessed weapons of mass distraction.  (Sorry. Should have, but couldn't resist.) 

Lamebook has filed for a declaratory judgment (a copy of the complaint and a good description in found here on TechCrunch) alleging that Lamebook is not a social site like Facebook and is a parody of Facebook and as such, is not infringing on Facebook's trademark.  For good measure, Lamebook throws in some First Amendment constitutional issues, claiming that it is engaging in protected free speech.  A declaratory judgment action just asks the court to rule (i.e. declare its position) on certain issues without necessarily providing any other remedies.

This seems like a pretty good move on the part of Lamebook.  It keeps the suit in a Texas court, at least for a while, it is great publicity for Lamebook and everybody loves a David vs. Goliath story.

If this works out well for Lamebook, look for Facebook to begin talking less and filing more suits.  Stay tuned.

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First off, thanks to everyone who came to listen to Stanfield Hiserodt speak on Data Privacy and Security at the Innotech Conference last week.  It was a solid turn out and a good discussion. 

In keeping with the theme, we came across this story via Businessweek.com about the Indiana Attorney General's office suing insurance company WellPoint for $300,000.  Apparently, WellPoint allowed sensitive customer information, including health records and credit card data, to sit on an unsecured server for several months.  WellPoint discovered this back in February, but apparently took its sweet time in notifying the affected customers.  They didn't give the required notice until June.

There are currently 45 states with breach notification laws.  If you handle sensitive customer data, make sure you have a plan in place to notify your customers as quickly as possible or you will feel the wrath of the Attorney General. 

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You may recall that we recently discussed that Facebook had unleashed the dogs of war on a website called Teachbook, a social network for teachers.  Messing with teachers is one thing, but now Facebook has stepped up their game a notch and has filed a similar action against something called Faceporn.  Until recently, Faceporn unpretentiously called itself "the number one socializing porn and sex network".  Now, it just calls itself down due to "unforeseen circumstances".  Like the suit against Teachbook, Facebook is asking for all of Faceporn's revenue and ownership of its domain name.  Faceporn says it is redesigning its site and will come back with the "best porn site the world has ever seen".  It's nice to know that Faceporn retains its humility through trying times.

Look for more of these suits from Facebook and maybe from others.  YouTube is yet to take on YouPorn, but that may just be a matter of time.   

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