JD Scoop : JD Supra’s Blog : Content Publishing, Document Sharing, Expertise Marketing for Legal Professionals

This just in from the Electronic Frontier Foundation (EFF) - the amicus brief in support of defendant BlockShopper.com's motion to dismiss the lawsuit filed by Jones Day against the real estate news site. Jones Day has alleged that BlockShopper's use of the trademark "Jones Day" to refer to the firm in a headline and linking to the Jones Day website could lead to confusion over the sponsorship of the site.

The brief, filed by EFF and Public Citizen, joined by Public Knowledge and Citizen Media Law Project, urges the federal judge in Chicago to dismiss Jones Day's claims, on the ground that they are  aimed at quashing speech by an online news site.

According to the Amici:

If Jones Day’s trademark theory were correct, no news site or blog could use marks to identify markholders, or links to point to further information about the markholders, without risking a lawsuit.

Other hot docs in from EFF:

Electronic Frontier Foundation and Public Knowledge v. Office of the United States Trade Representative  - Complaint for Declaratory and Injunctive Relief

EFF and Public Knowledge filed suit on September 17, 2008 against the Office of the United States Trade Representative (USTR), demanding information about a secret intellectual property enforcement treaty that the government has put on a fast track to completion. more...

Jewel, et al., v. National Security Agency, et al.-  Complaint for Constitutional and Statutory Violations, Seeking Damages, Declaratory, and Injunctive Relief

In Jewel v. NSA, EFF is suing the National Security Agency (NSA) and other government agencies on behalf of AT&T customers alleging illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. more...

Here's a quick look at the latest JD Supra Hot Doc - this one a complaint filed by EFF, which claims the Professional Rodeo Cowboys Association (PRCA) fraudulently induced YouTube to remove videos created and posted by Showing Animals Respect and Kindness (SHARK) by falsely claiming that the videos infringed PRCA's copyrights.

SHARK is a non-profit organization that videotapes and photographs rodeos in order to expose animal abuse, injuries, and deaths. PRCA successfully convinced YouTube to remove these videos for a period of two weeks, after which SHARK was able to convince YouTube to reinstate the account.

Though the SHARK videos are now available on YouTube, according to the EFF, this lawsuit is part of EFF's No Downtime for Free Speech Campaign, which works to protect online expression in the face of baseless copyright claims.

EFF has seen people and organizations increasingly misusing the DMCA to demand that material be removed from the Internet without providing any proof of infringement. Furthermore, service providers -- fearful of monetary damages and legal hassles -- often comply with these requests without double-checking them, despite the cost to free speech and individual rights.

"We must stop the abuse of the DMCA," said EFF Intellectual Property Fellow Emily Berger. "Those bringing meritless copyright claims must be held accountable so that free speech can continue to flourish online."

Of interest, a new HOT DOCS from top contributor Electronic Frontier Foundation:

The case in question (Capitol Records, Inc., v. Jammie Thomas) is, by itself, interesting for anyone following the ongoing story of copyright infringement and file sharing. And yet equally striking for us is that this is a story of a retrial - in other words, a story of checks and balances in the legal system.

From EFF's document summary:

... Jammie Thomas was found liable for copyright infringement for file sharing, and hit with a $222,000 judgment. Thomas' case was the first file sharing lawsuit to reach a jury verdict.

On May 15, 2008, Judge Michael Davis requested briefing on whether Thomas should receive a new trial. The court said it was concerned that it might have made a mistake by instructing the jury that Thomas could be found liable if she simply made copyrighted songs available in a shared folder. There's good reason for this concern — as EFF noted at the time, and several courts have since affirmed, "making available" is not a cause of action under copyright law.

The system at work:

• Capitol Records, Inc., a Delaware Corporation, et al., v. Jammie Thomas: Order Re: Motion for New Trial

The New Jersey Supreme Court has ruled that Internet users have a constitutionally protected privacy interest in the disclosure of their identities when surfing the web. (This from a case in which JD Supra contributors EFF and EPIC jointly filed an amicus brief.)

The Court based its decision on the state Constitution - which the New Jersey courts have interpreted to provide greater protection than the federal Constitution - and the factual finding that "Internet users today enjoy relatively complete IP address anonymity when surfing the web." (Read the entire decision here.)

Interestingly, the Court also noted that "if one day new software allowed individuals to type IP addresses into a 'reverse directory' and identify the name of a user . . . today's ruling might need to be reexamined." 

Is the Court saying that companies can eliminate the right to privacy recognized by this decision simply by finding ways to violate it? This seems a bit circular to me. What are your thoughts?

Recent filings from two important cases in which the EFF is involved are now available on JD Supra:

1) EFF's suit against the Office of the Director of National Intelligence and the Department of Justice demanding information about telecommunications companies' efforts to get off the hook for their role in the government's illegal electronic surveillance of millions of ordinary Americans. EFF's suit sought the immediate disclosure of the agencies' telecom lobbying records, including any documents concerning briefings, discussions, or other contacts officials have had with representatives of telecommunications companies or members of Congress. On April 4, 2008, the Court granted EFF's request for an order requiring the defendants to produce the records sought, which is available here, along with the other filings in the case.

2) Universal Music Group's suit against an eBay seller based on claims of copyright infringement. EFF and the San Francisco law firm of Keker & Van Nest LLP are representing Troy Augusto, whose online auctions included sales of promotional CDs distributed by Universal. Universal claims that CDs marked as "promotional use only" remain the property of Universal and thus can never be resold.  Augusto's position is that the copyright law's "first sale" doctrine makes it clear that the owner of a CD is entitled to resell it without the permission of the copyright holder, and further, that Universal violated section 512(f) of the Digital Millenium Copyright Act (see Answer & Counterclaim).  Last week, EFF and Keker & Van Nest filed a motion for summary judgment on behalf of the defendant and counterclaim plaintiff, available here.