Righthaven's Aggressive Legal Tactics

We have written about trends in mass-copyright-infringement suits previously, but what's happening with the Righthaven suits in the United States is an entirely different set of legal problems altogther.

Righthaven LLC is the "copyright enforcement partner" of the Las Vegas Review-Journal and the Denver Post, which sues alleged copyright infringers of and on behalf of those newspapers.

Righthaven has launched approximately 250 lawsuits for copyright infringement as of this writing, with the overwhelming majority of them commenced since March 2010.

Of late, each individual suit has demanded as much as $150,000 in damages for the infringement, plus surrender of the infringer's website/domain name.

Righthaven's suits have been launched against everybody from individual bloggers to The Toronto Star. (The Star, at present, has not made answer to Righthaven's suit.)

Some of Righthaven's targets have had success with fair use defenses, although Righthaven has appealed in these decisions. Critics of Righthaven allege that its business model is one designed to harass and intimidate the company's targets.

Righthaven's legal tactics are reportedly quite aggressive - Defendants frequently state that they received no demand letter or notice before Righthaven proceeded with civil action, and that Righthaven's six-figure requested damages are extremely high for the types of copyright violations alleged.

More recently, however, at least one of Righthaven's targets is alleging even more aggressive behaviour on the company's part:

"Since December 2010, Righthaven, and more specifically Mr. Mangano, have engaged in continuously unprofessional behavior in an attempt to take advantage of my pro se status and squeeze a settlement out of me," Neveau complained to the court. "Mr. Mangano even had the audacity, after being provided with documentation from my doctor, to grant a discovery extension for two months if I dismissed my counterclaim. In other words, he tried to blackmail me into dropping my countersuit."

An email attached to his complaint from Mangano to Neveau notes: "Please keep in mind that YOU filed a counterclaim against Righthaven LLC and a third-party complaint against Stephens Media LLC. As such, this is not a case where you were merely defending claims brought against you. Rather, you have chosen to seek affirmative legal recourse against Righthaven and Stephens, both of which have incurred and will continue to incur legal fees defending your baseless claims."

The Jan. 14 e-mail indicated Righthaven offered to stay litigation in the case for 60 days if Neveau would drop his counterclaim against Righthaven and his complaint against Stephens Media with prejudice, meaning they could not be re-filed.

I query how our own Law Society's "civility regulators" would look upon this sort of conduct. Not fondly, I suspect.

- Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Conservatives, CBC and the Limits Of Fair Dealing

The Conservative Party of Canada and the CBC have recently found themselves in confrontation, as the Tories have seen fit to use CBC news footage in constructing their most recent round of political advertisements attacking their opponents, particularly Michael Ignatieff.

The CBC immediately complained about the use of their footage in the advertisements, arguing that their journalistic integrity had been compromised.

The Conservatives responded that they felt their use of the footage in the advertisements fell within fair dealing doctrine in Canada, pointing out that when they ran an advertisement in 2009 using footage from C-SPAN, the director of C-SPAN responded to the Liberal Party's notification by saying that the Conservative use of their footage fell within fair use guidelines.

The problem with the Conservatives' response is that in many ways it's not really relevant to the legal issue at hand. Ignoring for the moment that C-SPAN and the CBC both have the right to determine what their own response should be when their footage is used without permission (regardless of whether that response is legally correct), it is worth remembering that Canada and the United States operate under differing copyright regimes.

There is no explicit exemption for political speech in either Title 17 of the United States Code (the statutory source of copyright in the United States) or in the Copyright Act in Canada. From a statutory standpoint, Canada only allows fair dealing exemptions for use of copyrighted material when the intended use is for research, public study, criticism/review, or news reporting.

Unlike the United States, which explicitly outlines other factors by which a given use of copyright material could be considered a fair use, in Canada most people accused of copyright infringement and pleading a fair dealing defense must rely on CCH v. Law Society of Upper Canada, which outlines a set of similar factors, including among others the purpose of the dealing, the character of the dealing, the nature of the original work and the effect of the dealing on the original work. Although this common-law precedent has been used in Canada for much the same purpose as the statutory fair use provisions in place in the United States, a common-law precedent is by definition more transient than a statute.

Which then leads one to the other problem with the Conservative Party's response to the CBC, which is not simply that they are claiming a fair dealing right that does not exist under statute, but that they're claiming a fair dealing right which the Conservatives specifically did not include in Bill C-32, the bill updating outdated provisions copyright law - which they wrote.

- Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Transformative Work Enthusiasts Bolstered By "Yogi Bear" Parody Reaction

Today, a rare instance of Hollywood failing to overreact when defending its copyrights:

A video parody of “Yogi Bear” that’s much darker than your average episode of that vintage Hanna-Barbera cartoon – not to mention the coming Warner Brothers film adaptation – isn’t a viral marketing campaign gone awry. But the studio said on Monday that it wouldn’t try to take down the Web satire, either.

The video, posted on December 13th, is a well-made parody which sets Yogi and Boo Boo in a story that mirrors the end of the film The Assassination of Jesse James By The Coward Robert Ford. It has already generated almost two and a half million views since it was posted.

Many other viral Youtubes featuring corporate-owned properties like these are often taken down on the basis of copyright violation (which has led to amusing bits of confusion such as Sony temporarily forcing Youtube to remove access to Beyonce songs - from Beyonce's own channel). Indeed, takedowns for copyright infringement range across all the creative industries, from comic-book scan sharers having their Livejournal accounts nuked to the Department of Homeland Security shutting down hip-hop sites.

Although many have argued that owners of copyrighted work should consider a more liberal approach to dealing with infringement of that copyright - or that they should reconsider their distribution models to make on-demand access to the material easier to discourage infringement - this argument has been going on since the age of bootlegged music in the 70s and 80s.

What makes Warner Brothers' action worthy of note is that this action is not in response to copyright infringement through basic reproduction of the work, but in response to a transformative use of the work; copyright reform advocates have long argued that transformative use and "remix culture" should be considered protected under fair use/fair dealing law, since they use existing elements of copyright works to create new works which should then receive their own individual copyright.

Warner's statement that taking action against the short's creators would be difficult under existing fair use law is, in that light, an admission that they believe transformative works stand a good chance of ultimately being found allowable as a fair use of existing copyright. That should be encouraging for those of us who want to make parody Youtube videos - and those of us who enjoy watching them.

-Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Standing and Bittorrent: What Next?

Earlier this year the US Copyright Group prepared a list of 20,000 potential defendants in a suit regarding copyright infringement by illegal distribution of five films: Steam Experiment, Far Cry, Uncross the Stars, Gray Man and Call of the Wild 3D.

(If you haven't heard of any of these movies, this is because the action is considered by many to be a trial run for an eventual mass-infringement lawsuit over a more lucrative major property.)

They eventually wound up submitting 4,577 to the district court, but District Judge Rosemary Collyer demanded that they only list those defendants who would reasonably be in her court's jurisdiction.

And the result?

That ruling was a dramatic blow to the US Copyright Group’s hopes of a single lawsuit that would help expedite the process and reduce the cost of litigation.

That list now stands at a mere 140, comprised of 139 Does and just one named defendant – Adrienne Neal. That’s down from the initial 4,577 it submitted to the court.

Apparently even the revised list of 140 contains defendants who are outside of the D.C. District Court's jurisdiction (the list of John Does includes downloaders in Honolulu, Chicago and California).

This is an interesting twist, because most copyright infringement lawsuits up to this point have been about filesharing through networks like Kazaa or Limewire, where participation in infringement is both obvious and immediate: you download a song, you allow the song to be uploaded, and thus you are infringing from a specific geographic location.

However, if you instead participate in a Bittorrent transfer, where you are only uploading parts of the data of a song via the Bittorrent swarm, where does the infringement take place?

The lawyers for the US copyright group seem to argue, in their amended complaint, that infringement happens at each individual point of upload, but also at point of download: there seems to be no other way around the question of standing to allow them to proceed, in a D.C. court, against someone living and committing an act of infringement in Honolulu.

The judge has not yet accepted the amended complaint; her decision in this matter may be quite important as a precedent.

If she does not accept the complaint on grounds of standing, it will potentially make future Bittorrent lawsuits extremely expensive and lawyer-intensive to conduct. Such claims will require multiple lawyers nationwide or even worldwide to initiate actions in all relevant territories and demand defendant lists in the tens of thousands to justify costs.

- Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

U.S. Supreme Court Won't Hear Music Downloading Case

Under American statutory copyright law, the "innocent infringer" defense is available to individuals being sued for copyright infringement who were unaware they were infringing copyright.

Some American citizens being sued by the Recording Industry Association of America for copyright infringement have previously tried to avail themselves of the defense. Most notable among these was Whitney Harper, whose innocent-infringer defense (she shared songs on Limewire when she was a minor) was upheld at trial level but overturned on appeal.

She then turned to the Supreme Court of the United States.

Unfortunately for Ms. Harper, she's not going to get her chance with the American Supremes:

In September, the justices showed some interest in the case, asking the RIAA to respond to Harper’s appeal. But in the end, Monday’s action by the high court means, for the moment, the Supreme Court will not review any aspect of the RIAA’s five-year litigation campaign targeting individual music file-sharers.

This is a fairly important denial of leave for copyright defenders.

It leaves the Fifth Circuit Court's decision against the use of the innocent infringer defense as the highest precedent in American law in this regard. In that ruling, the Fifth Circuit held that even minors could be found liable for copyright violation - regardless of whether or not they understand copyright law - so long as the works in question make their copyright obvious to the user.

In the context of Canadian murky statutory copyright law - so woefully out of date that even the legality of using a VCR is still technically uncertain - the Harper appellate ruling could present an influential, if not binding, precedent.

Should the Copyright Act ever be modernized - complete with punitive treatment for infringers of copyright - people who are caught downloading media without permission may be left with a greater uphill battle to fight in the courts.

- Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Palin Publisher Sues Gawker Over Alleged Copyright Infringement

This is a brief update on Chris Bird's post yesterday, Did Gawker Violate Sarah Palin's Copyright?

Associated Press reports today that Ms. Palin's publisher, Harper Collins, commenced legal action against Gawker Media yesterday in a Manhatan federal court.

According to AP, the Harper Collins complaint alleges copyright infringement over Gawker's publication of 21 pages of images from the new Palin book prior to the book's official release date:

...The lawsuit asks that Gawker be banned from what it terms "further copyright infringement" and that Gawker deliver the source material to the publisher so it can be destroyed. HarperCollins is also seeking financial damages.

Gawker did not immediately respond to e-mails seeking comment Friday evening, but an item published the day before and titled "Sarah Palin Is Mad at Us for Leaking Pages From Her Book" defended the blog's actions and linked to websites defining the fair use doctrine of copyright law.

The blog was not the first site to publish excerpts from the book, which has been billed as a tribute to American values, but it refused to take them down after receiving a letter demanding that it do so, the lawsuit said. The Associated Press bought a copy of the book ahead of its Nov. 23 release date [emphasis added].

Note the last sentence of the AP excerpt carefully - its inclusion in the article is not accidental - with this commentary from Chris Bird on the U.S. law of fair use in mind:

Under American common-law rules of fair use, publishing excerpts of a work before its publication date actively harms the case for fair use, as you are considered to be obliviating the creator's rights in publication of the work. The best example of this in American caselaw is Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), which is largely analagous to the Palin/Gawker incident given that both instances involve an unauthorized excerpt of not-yet-published writing by a public political figure - in Harper it was a memoir by Gerald Ford, excerpted without permission by The Nation magazine. In Harper, the publisher won specifically because the Supreme Court determined that a creator's right of first publication was an important right and any fair use defence would have to be extremely compelling to override it.

If advance copies of the publication were already for sale at the time of the November 17th Gawker publication, had the Palin book already been "published," within the meaning of the Harper test described above?

Interesting.

- Garry J. Wise, Toronto

Update: November 21, 2010

Associated Press reports:

A federal judge on Saturday ordered Gawker Media to pull leaked pages of Sarah Palin's forthcoming book "America by Heart: Reflections on Family, Faith and Flag" from its blog.

- GJW

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Did Gawker Violate Sarah Palin's Copyright?

Noted gossip/news website Gawker posted photographic excerpts from Sarah Palin's new book, America By Heart, on Wednesday. On Thursday, Palin complained on Twitter. Gawker's response was to snarkily refer to fair use rights regarding copyrighted works and suggest that one of her lawyers would "walk [her] through it."

Unfortunately for Gawker, they're very likely in the wrong.

Fair use under American statutory and caselaw covers many uses, and if Palin's book were already a published work Gawker's republication of parts of it would be more defensible as an act of fair use. The purpose of their republication of the work was clearly informational with editorial comment, as Gawker would likely be recognized in any lawsuit as a journalistic enterprise and the piece was one of critical opinion, albeit one with a fair amount of brevity. However, the amount republished - twenty-six pages - is certainly towards the large end for a fair use argument, given that it is nearly ten percent of the original work's 304 pages. Further, Gawker's critical comment is restricted to brief and meanspirited summaries of Palin's writing, so the purpose of its use is questionable.

All of that, however, is possibly irrelevant given that Palin's book is not yet technically a published work, since a book is not considered to be published until its release date. Under American common-law rules of fair use, publishing excerpts of a work before its publication date actively harms the case for fair use, as you are considered to be obliviating the creator's rights in publication of the work. The best example of this in American caselaw is Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), which is largely analagous to the Palin/Gawker incident given that both instances involve an unauthorized excerpt of not-yet-published writing by a public political figure - in Harper it was a memoir by Gerald Ford, excerpted without permission by The Nation magazine. In Harper, the publisher won specifically because the Supreme Court determined that a creator's right of first publication was an important right and any fair use defence would have to be extremely compelling to override it.

(It's worth noting that the online fair use summary Gawker linked to when they sarcastically mocked Palin's legal knowledge actually refers to this case specifically in discussing when something is and is not fair use.)

Interestingly, were this incident to occur in Canada, fair dealing (the Commonwealth equivalent of fair use) a finding of fair dealing might be more likely, given that under Canadian caselaw - specifically CCH Canadian Ltd. v. Law Society of Upper Canada, which sets out most of the modern common-law rules for fair dealing in a Canadian context - excerpts from an unpublished work are more likely to be considered fair than excerpts from a published work, given that an unauthorized reproduction could potentially lead to a wider public dissemination of the work, which is ostensibly one of the goals of creation in the first place. This is one of the major differences between Canadian and American law on fair use/fair dealing.

- Christopher Bird, Toronto

Update: November 20, 2010

See today's update on this story: Palin Publisher Sues Gawker Over Alleged Copyright Infringement

- GJW

November 22, 2010 - Welcome Politico readers.

- GJW

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

I'll Copyright My Voice In Bollywood

Amitabh Bachchan, a Bollywood star, is attempting to use intellectual property law to protect the use of his voice:

Expressing his angst over the alleged use of his voice for tobacco promotion, [Bachchan] posted on his blog, “Not only is this unethical and wrong, it paints me in bad light as well... For someone that does not smoke or propagate smoking or any kind of intoxicant... it is most disgusting to find someone conflagrating the law of the land.”

...Bachchan particularly voiced his concern against caricatured images that are used for commercial gain without our permission and something which he completely detested. Hence, the decision to protect his voice.

The idea that a distinctive voice can be copyrighted seems to be a misapplication of the general principle of copyright. Copyright, like all forms of intellectual property law, is meant to protect ideas, not personal characteristics. Bachchan's voice may be distinctive, but it's not an original idea.

A better route for Bachchan - given that the article seems to suggest he's primarily upset about imitations or cariacatures of him - would be to argue that the advertisements that bother him violate his right of publicity or personality rights. Even in the case of parodies and cariacatures, other jurisidictions have found that personality rights still apply - for example, the famous "Vanna White case," White v. Samsung Electronics, wherein the cohost of Wheel of Fortune sued when Samsung put out a series of advertisements featuring a Vanna-like robot turning letters for a futuristic game show, and won when the Ninth Circuit Court of Appeals agreed that the ads violated her personality rights.

A brief survey of Indian case law seems to indicate that courts there seem to highly value the right to personal privacy. Bachchan would probably be better advised going this route rather than advancing a claim through copyright, which would be tenuous at best.

- Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Sorry: the Web Is Not Public Domain

Recently, a writer's web-published (and appetite-inducing) article about apple pie was reprinted in Cooks Source magazine. The only problem was that the author hadn't given permission for the article's reproduction, so the author contacted the magazine and requested an apology and a small donation to the Columbia School of Journalism.

The editor's response is probably destined to become one of those Classic Internet Moments (tm):

But honestly Monica, the web is considered "public domain" and you should be happy we just didn't "lift" your whole article and put someone else's name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me... ALWAYS for free!

A few points should be made here.

1.) The web isn't "public domain." It never has been, despite the availability of much public domain work on the web. In order for a work to fall into the public domain, the creator's intellectual property rights - generally copyright in the case of written works - have to be either expressly forfeited or must expire over time. "Putting it on the web" satisfies neither of these requirements.

2.) Although copyright can be registered, you don't need to register copyright for it to exist: you just need proof of original authorship, preferably with a date stamp. (Although it's fallen out of favour with the advent of better technology, mailing yourself a copy of a manuscript and then keeping the sealed letter is the classic "homemade" proof of copyright, since the postmark will date when the work was created.) In this case, the automatic date-stamps generated when the author created the web page are good enough.

3.) Even if the work was in the public domain - which it wasn't - the creator's moral rights would have remained intact, chief among which is the right to claim authorship of the work. This is elementary knowledge for anybody working in publishing, which is why the editor's suggestion that they would have been entirely justified if they chose to "put someone else's name on it" is shocking.

4.) Now, some might point out that a recipe cannot have copyright, as copyright does not protect lists of ingredients or sets of directions. However, copyright can protect the expression of the recipe if the expression is distinct enough, and certainly in this case the expression of the recipe as part of a larger non-fiction article qualifies for copyright.

5.) "Just because other people might offer you free labour doesn't mean everybody has to" should be one of those things that should be obvious as a matter of course, but apparently in this case it was not. Certainly the comments on Cooks Source' Facebook page is giving them a firm schooling in this regard.

- Christopher Bird, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Nevada Lawsuit: Blogs, Copyright and News Excerpts

A Nevada lawsuit, considering whether copyright is infringed by the widespread practice of blogs to excerpt short snippets of news items, has enormous implications for the blogosphere, as a whole. Via Raw Story:

The practice of excerpting news and linking to its source is what drives the blogosphere, engages millions in political discussion and aides the dissemination of information the world over.

However, if [the Planitiff] is successful, a vibrant political forum for American progressives could be shut down, all thanks to a five sentence excerpt from the Las Vegas Review-Journal that caught the paper's attention.

The forum Democratic Underground (DU) which frequently reposts news excerpts for users to discuss, was sued in August for quoting and linking to the Nevada paper. Backed by Internet freedom advocacy group Electronic Frontiers Foundation (EFF), DU filed a counter-suit on Monday, accusing the paper and Righthaven of engaging in copyright fraud.

See: Progressive political forum fights lawsuit over five sentence news excerpt

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

$1.92 Million Damages for Illegal File Sharing

A Minnesota jury has ordered a Minneapolis woman to pay damages to the music industry of $1.92 million for willful copyright infringement.

Jammie Thomas-Rasset had illegally shared 24 songs online. She was ordered to pay damages of $80,000.00 per song.

Thought you'd like to know....

More here from CNET

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Don Henley Sues Congressman Over Unauthorized Song Use

I guess it's never too early for lawsuits over the 2010 U.S. election cycle to begin.

CNN reports that Eagles drummer and frontman Don Henley has filed a copyright infringement suit against Republican Congressman Charles DeVore, alleging unauthorized use of two Henley hit songs by DeVore in the congressman's campaign to unseat California Senator Barbara Boxer in 2010:

The suit filed Friday in federal court in California claims Charles DeVore is using Henley's hit songs "The Boys of Summer" and "All She Wants to Do Is Dance" without authorization.

The suit comes from two campaign videos that DeVore posted on YouTube that used Henley's music, according to the lawsuit.

In one of the videos, DeVore's campaign changed the words of "All She Wants to Do Is Dance" to lyrics that attacked Sen. Barbara Boxer, the lawsuit alleges.

The CNN article quotes Henley's position:

"Don Henley and Mike Campbell brought this action to protect their song, 'The Boys of Summer,' which was taken and used without their permission," Henley's spokesman said. "The infringers have vowed to continue exploiting this and other copyrighted works, as it suits them, to further their own ambitions and agenda. It was necessary to file a lawsuit to stop them."

The Congressman's campaign blog responds:

Rocker Don Henley’s legal threats have shut down our rough cut April Fool’s music video Obama lampoon based on “The Boys of Summer” on both YouTube and on Orange County’s alternative newspaper, the O.C. Weekly. We’re responding with a counter-claim, asserting our First Amendment right to political free speech in parody based on the Supreme Court ruling of Campbell v. Acuff-Rose Music, Inc.

While the legal issues play out, it’s time to up the ante on Mr. Henley’s liberal goon tactics. By popular request, I have penned the words to our new parody song, an expose of Senator Barbara Boxer’s new cap-and-trade energy bill that will operate as a hidden tax that will also enrich a few people.

More on this litigation from the very thorough Copyrights and Campaigns blog - see All he wants to do is .....get himself sued?

The impugned DeVore video has apparently been removed by YouTube, replaced by the site's now-ubiquitous copyright infringement claim notice. TMZ has the details:

Henley demanded that YouTube take the video down and You Tube removed it, but YouTube reposted it after DeVore insisted it go back up. YouTube contacted Henley and said they would take it down only if Henley filed a lawsuit. Hence, the lawsuit.

....

Jackson Browne v. John McCain

In a related story, a U.S. District Court has allowed singer-songwriter Jackson Browne to continue his copyright infringement suit against John McCain over the former Republican Presidential candidate's use of Browne's classic, Running on Empty, in last year's unsuccessful election campaign. Music News reported on the February 2009 ruling:

The US District Court for the Central District of California has denied the motions of Senator John McCain and the Republican National Committee to stop the lawsuit filed by singer/ songwriter Jackson Browne for the unauthorized use of Browne's voice and song Running On Empty in a presidential campaign commercial. ...In a series of rulings on February 20, 2009, Judge Gary Klausner, rejected McCain's/RNC arguments that the First Amendment or copyright's fair use doctrine allows their unauthorized use of Browne's voice and song because the use occurred in a political campaign commercial.

Browne's attorney, Lawrence Iser,said; "The Court's decision is a solid victory for songwriters and performers and reflects an affirmation of their intellectual property rights and their freedom from being conscripted as involuntary endorsers of political candidates and campaign messages. We are happy that the Court recognized that persons and parties running for office are not entitled to violate an individual's intellectual property and publicity rights simply because they are engaged in political campaigns. We look forward to presenting Jackson Browne's case to the jury." You can read the Court’s Orders denying the RNC's motions here, here, here and here.

Also see the Washington Post on the Browne-McCain litigation.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG