Tag Archives: infringement

The age of copyright trolls?

Robert Zelnick, an attorney at McDermott Will & Emery, recently wrote an interesting article on Righthaven LLC, a company that buys up copyrights and then licenses them to, or threatens legal action against, organizations and individuals that post them on the web. This article about the new “copyright troll” is interesting and illuminating. There are, however, a few oversimplifications and at least one point overlooked. First, “don’t copy” is just too simple a solution. As an expert witness in copyright litigation, I know that things can look the same without being copied. Also, there are the fair use exceptions that leave lots of wiggle room. So even if someone doesn’t copy at all, there’s a chance of being hit with a lawsuit because two texts are surprisingly similar. And not copying at all means society will lose important works of commentary, satire, and news.

Second, Zelnick doesn’t foresee the possible ultimate business model of Righthaven. While I don’t agree or disagree with Righthaven’s motives, I believe I see where they’re going. Jerome Lemelson was perhaps the first patent troll, but definitely the first to reach $1 billion in personal fortune from his effort. My understanding is that he started by bringing actions against small companies that could not easily defend themselves and Japanese companies that didn’t understand U.S. patent law. These companies saw his royalty fees as small compared to the costs of hiring lawyers to study and defend the patent infringement suits he brought. After amassing a huge war chest, Lemelson went after bigger and bigger companies and sought bigger and bigger payments. The more capital he had, the easier it was to win these battles.

While Righthaven will probably never collect the multimillion dollar awards that Lemelson did, consider that nearly everyone in the world writes. There are thousands of novelists, thousands of journalists, thousands of researchers, and millions of bloggers. And copyright also applies to artists, filmmakers, and computer programmers. Righthaven, and companies like it, can potentially collect more than Lemelson even hoped for, and at less expense.

I believe that Righthaven and its business model should not be underestimated. The solution to protecting yourself is more complex than simply not copying. The exciting part is that this new business model will create new areas of legal effort and will require the best technology to allow the protection of both copyrights and free speech.

The Report Generator (RPG)

The Report Generator (“RPG”) is a new program from SAFE that automatically generates draft expert reports and declarations for litigation. Reports have several generic sections such as an expert’s experience and descriptions of the technologies involved in the examination, which can be shared amongst reports. By automating the compilation of the generic information into a formatted and structured draft report, the expert can focus on performing the analysis and writing the case-specific arguments.

When using the RPG, an expert selects the type of case, type of report, types of technologies involved, types of tools used, and expert background profiles from a GUI. Then a Microsoft Word draft report is generated that includes all of the selected generic information intermixed with blank sections where case-specific information should be filled in manually.

Currently, many experts either dig through their prior works to find specific descriptions or write them from scratch each time. Maintaining a library of generic report elements is a challenge, especially when multiple experts are involved. RPG acts as a version control system between multiple experts who can upload and download detailed descriptions of experts, technologies, and tools from a central server. The reports are generated according to specific formats, so an entire team of experts can easily produce reports that are consistently formatted with the most up-to-date descriptions.

RPG also keeps synced descriptions of CodeSuite, so it can include the most up-to-date descriptions and pricing of the tools without having to search the S.A.F.E. website or CodeSuite help files.

If you’re interested in trying out RPG, contact our Sales Department.

North Face v. South Butt

Jimmy Winkelmann, a freshman biomedical engineering student at the University of Missouri, decided to create his very own line of sportswear and called his company The South Butt (motto: Never Stop Relaxing). The North Face, a San Leandro, California-based outdoor products company, was not amused and smacked Winkelmann with a cease-and-desist order that Winkelmann read and promptly ignored. Then came the trademark infringement lawsuit. South Butt’s reply, filed in court, is pretty funny. Among other things it defines the company name as “being the soft undercarriage of the non-mountain climbing human anatomy, commonly known and referred to in non-salacious form as, among others, rump, bootie, bottom, buttocks, posterior, rear, saddle thumper and butt.” In a similar vein it describes “Little Jimmy” himself as “a handsome cross between Mad Magazine’s Alfred E. Newman of ‘What me Worry’ fame, and Skippy the Punk from the Midwest” If anyone knows who Skippy the Punk from the Midwest is, please let me know.

The North Face didn’t get the joke. Their lawyers scheduled a deposition of Winkelmann’s father, James Winkelmann Sr. That didn’t go too well. It turns out that Winkelmann Sr. was once a partner at the St. Louis brokerage firm of HFI Securities where partner Don Weir Jr. pleaded guilty a year ago to charges he stole more than $10 million from clients (Winkelmann was never implicated in any wrongdoing).

I suggest you download the reply and the deposition when you want to have a good laugh at the expense of the legal system. The reply is pretty sarcastic and it’s not clear to me who it’s supposed to appeal to (except readers like us, but not necessarily the judge). The deposition reads like a Marx Brothers skit and is every bit as funny. Litigation has never been so much fun.