Monthly Archives: June 2011

Former Khmer Rouge Leaders Face Trial in Cambodia

No Comments
June 30  |  Headlines  |   david

On Monday, a Cambodian court began proceedings against four former leaders of the communist Khmer Rouge regime of the 1970s.  The four defendants, now elderly, are the first to face trial.  They are charged with crimes against humanity, war crimes, genocide, religious persecution, homicide and torture.  They have pleaded not guilty.  The UN-backed court was established in 2001 to investigate and try those responsible for the Cambodian genocide that resulted in the death of approximately 1.7 million people, one-third of the Cambodian population, between 1975 and 1979.

Apple Awarded Broad Patent on iPhone – Files Suits

No Comments
June 29  |  Headlines  |   david

Apple has finally been awarded a key patent related to the iOS user interface as implemented on the original iPhone.  The patent is written broadly enough it may also apply to such other devices as tablets and touch screen media players.  Apple has already filed suit against competitors including HTC and Samsung.  As Sanford would say:  “This is the big one Elizabeth.”

Supreme Court Rules That Second Amendment Applies to States

No Comments
June 28  |  Headlines  |   david

On June 28, 2010, the US Supreme Court ruled in McDonald v. Chicago that the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right to bear arms applicable to the states as well as the federal government.

Apple Files Suit in Seoul Against Samsung

No Comments
June 27  |  Headlines  |   david

Apple filed suit Friday in the Seoul Central District Court claiming that the Samsung “Galaxy” line of products copies its iPhone and iPad technology. This follows similar suits by Apple in the US and suits by Samsung filed in South Korea, Japan and Germany.

Shock Jocks Get Zapped – Digital Millennium Copyright Act Violated

No Comments
June 26  |  Newsletter  |   david

On June 14, 2011, in the case of Peter Murphy v. Millennium Radio Group, LLC, Craig Carton and Ray Rossi, the United States Court of Appeals for the Third Circuit handed down the first appellate decision construing certain key provisions of the Digital Millennium Copyright Act.

 In 2006, a professional photographer was hired by a magazine to take a photo of two radio shock jocks who the magazine had just designated as “best shock jocks” in New Jersey.  (That there is any value in shock jocks, let alone a purported “best,” is worthy of discussion; but not to the point here.)  The photo depicted the two shock jocks standing, apparently nude, behind a sign with the radio station’s call letters.  The photographer created the image and retained the copyright to it.

The magazine, which had the copyright owner’s permission to use the photograph, ran it in their “Best of New Jersey” issue, along with a notice crediting the photographer.  The photo credit appeared in the gutter of the magazine alongside the photograph.

So far so good.  The radio station and the shock jocks were getting the publicity they wanted.  But then things took a turn.  Soon the shock jocks found themselves on the receiving end and,  I’m guessing, things weren’t as funny that way around.

Without seeking permission from the photographer, an unknown employee of the radio station scanned the photographic image appearing in the magazine article and posted the scanned image to the radio station’s web site and also to

The photographer took exception and hired a lawyer, a move we always appreciate.  His lawyer sent a cease and desist letter.  The shock jocks responded by escalating the trash talk, allegedly stating that people should not do business with the photographer because he would probably sue his partners.  They also, apparently intending a derisive comment, allegedly implied that the photographer, who identifies himself as a married heterosexual and the natural father of children, was a homosexual.  The opinion does not indicate whether the Internet images were taken down in response to the demand, and does not address a separate provision of the DMCA whereby a take-down demand can be made to the Internet Service Provider of the offending sites.

The photographer proceeded to file suit in the United States District Court for the District of New Jersey for violation of the DMCA, copyright infringement, and state law defamation.  The District Court found for the defendants and dismissed all claims on summary judgment.

On appeal, the Third Circuit vacated the District Court’s summary judgment order on all counts.  The Court analyzed the defendant’s “fair use” assertion to the infringement claim and found that since all that was done was post the image, there was no fair use exception to infringement.  This was not a case, such as a news organization using an image in the context of news reporting or opinion, where the fair use exception might apply.

The case is significant, however, not for its analysis of fair use, but because of its statutory construction analysis of two key provisions of the DMCA.

The Digital Millennium Copyright Act was enacted by Congress in 1998 to make the laws of the United States consistent with two 1996 treaties of the World Intellectual Property Organization, to which the United States is a signatory.

The Court’s technical analysis of the DMCA is important to lawyers, but most likely not of much interest to others.  I’ll abbreviate.  It involved whether one provision of the DMCA limited the language of another section.

Section 1202 of the DMCA prohibits any person from altering or removing any “copyright management information,”  and also prohibits any person from distributing any work knowing that the copyright management information has been altered or removed.  Remember that the copyright notice in the magazine appeared in the gutter of the magazine alongside the image, rather than being part of the image itself and the radio station did not post the separate copyright notice that appeared in the magazine.  Remember also that we’re talking now about a violation of DMCA, not infringement.

The photographer argued that by not including the copyright notice that appeared in the magazine, the “copyright management information” of the image was thus altered, and by posting the image to the Internet the image was distributed knowing that the copyright management information was altered.  Thus, it argued, by the plain language of Section 1202, a violation of DMCA occurred.

The radio station attempted to limit the application of Section 1202 by the language of Section 1201.  Section 1201 provides that no person shall “circumvent a technological measure that effectively controls access to the work.”   The defendants’ argued  that this should limit the scope of the definition of “copyright management information” in Section 1201.  They argued that the chapter as a whole protects various kinds of automated systems which protect and manage copyrights.  Therefore, they argued, information like the name of the author of a work is not “copyright management information” unless it also functions as part of an automated copyright protection or management system.  Thus, to remove the printed credit appearing alongside the magazine photograph when it posted only the photograph to the Internet, would not violate Section 1202 because the credit was not part of an automated system.

The radio station did have support for that argument.  Federal trial courts have split on the issue.  However, in this first federal appeals court case dealing with the matter, this court didn’t buy the defendants’ argument.  The unanimous three-judge panel referred to the photographer’s argument as “straightforward.”

 In a detailed statutory construction analysis, the court found that Sections 1201 and 1202 address different issues, and that the radio station and the shock jocks violated the DMCA.

 It would be an interesting factual situation if, unlike this case, a defendant had in its possession the original digital photo, but instead of posting the original to the Internet instead posted a scanned copy.  What’s the difference?  A digital photograph can contain an embedded digital tag such as a copyright notice, that would be seen if the original image had been uploaded to the Internet.  It would not be seen in a scanned image which was uploaded.  We’ll leave that issue for another day.

Since this decision was by a three-judge appellate panel, the radio station and shock jocks could move to have the case reconsidered by all the judges.  My guess is that the shock jocks won’t have anything more to say.  It’s probably time to open the wallet wide and settle the case.

It does seem the court reached the right result, although the analysis needed to reach that conclusion doesn’t seem to me as straightforward as this panel considers it to be.  Look for this issue to live on in other circuits and perhaps one day reach the Supreme Court.

In perhaps a fitting ending to this case, by the time the case was argued on appeal the shock jocks were no longer together and were no longer employed by the radio station.  And it all seemed like so much fun at the time.

Copyright 2011, David G. Harrison.  All rights reserved.

To receive our newsletter “On the Brief” (sm), visit our website www.TheHarrisonFirm.comand do any of the following:  “Like us on Facebook,” “Recommend us on Linkedin,” Follow us on Twitter,” “Subscribe to RSS Feed,” or Join Our Mailing List” by entering your e-mail address.  The mailing list is an opt-in e-mail list, so we cannot enter your e-mail address for you.

South Carolina House Passes Immigration Bill

No Comments
June 24  |  Headlines  |   david

The South Carolina House of Representatives voted 69-43 on Tuesday to enact legislation aimed at reforming the state’s immigration laws. The immigration reform bill allows police officers to check a suspect’s immigration status during a lawful stop, seizure, detention, or arrest, and mandates businesses to participate in the E-Verify system.  The Bill now heads to South Carolina Governor Nikki Haley for signing.  Several civil rights groups have announced they will challenge the consitutionality of the law in court.

Supreme Court rejects states’ global warming suit

No Comments
June 22  |  Headlines  |   david

Eight states and three private land trusts brought an action invoking the federal common law of public nuisance seeking to create an annual declining cap on greenhouse gas emissions.  The EPA does not presently regulate such emissions.  The US Supreme Court on Monday ruled in American Electric Power v Connecticut that a claim regarding greenhouse gasses cannot be brought under the legal framework of nuisance.  The court held that to challenge greenhouse gas emissions the plaintiffs may file petitions for rule-making with the EPA to set emissions standards.   By the time this case reached the Supreme Court, the EPA had already begun the rule-making process on the issue and is set to issue new standards by May 2012.

Wal-Mart Wins Gender Discrimination Class-Action Argument

No Comments
June 20  |  Headlines  |   david

The US Supreme Court today in Wal-Mart v. Dukes that a group of women seeking to recover damages from Wal-Mart failed to meet the requirements for class certification. The case, a Title VII gender discrimination lawsuit including more than 1.5 million women, argues that Wal-Mart’s nationwide policies result in lower pay for women in comparable positions and longer waits for management promotions.

Apple Computer sued over icloud trademark

No Comments
June 18  |  Headlines  |   david

Apple Computer has been sued in Arizona U. S. District Court by by ICloud Communications over Apple’s trademark applications for marks using the name “iCloud.”  ICloud Communications never registered a mark for it’s asserted prior use of the term “iCloud.”  Trademark rights arise from use, not registration; however, proving prior use is much more difficult without registration.  Some other benefits of registration are the availability of monetary damages because a defendant could not raise a defense of innocent infringement, as well as the ability to obtain an award of attorneys fees which are available by statute for registered marks.  This case will most likely settle.  The settlement value for iCloud Communications would have been significantly greater if had taken the simple step of properly registering its mark.  Oops.  Live and Learn.

House Republications vote to cut funds to implement food safety

No Comments
June 18  |  Headlines  |   david

House Republications voted to cut funds for food safety law approved by the last Congress.  The law, which received bipartisan support, followed years of cutbacks at the FDA and a series of food-borne illnesses linked to foods as varied as spinach, peanuts and cookie dough.  The amount by which the cuts in food safety enforcement would increase health care costs is unknown.