Mashable Consults Tim Bukher On Nimble TV Streaming Article

If HBO decided to monetize its app, NimbleTV’s fair use argument would not hold up, says Tim Bukher, a lawyer specializing in intellectual property and technology at Handal & Morofsky.

“Since HBO is the content owner, it is within their right to say, ‘No, you’re not going to provide something we’re going to provide that we’re trying to make money off of,” Bukher says. “At the end of the day, they are the copyright holders so they get carte blanche in the ways they want to exercise their copyrights.”


No Reason to Worry About the New gTLD Expansion

Internet LawLast week the Internet Corporation for Assigned Names and Number (ICANN) announced the latest expansion in available gTLDs (e.g., .com, .net, .gov are all “generic Top-Level Domains”). The internet is now abuzz with articles questioning whether this massive expansion of potential trademark infringement urls spells the end for brand owners as we know it!

It does not.

While it is true that, for example, the owner of the ACME trademark (and owner of the domain) may now have to worry about potential competitors registering, say, acme.widgets, this isn’t all that problematic for two reasons:

  1. The gTLD sunrise period gives trademark owners 30 days (as of the start of last week) to petition ICANN for the exclusive rights to any gTLDs that potentially infringe with their registered marks. So Mr. ACME can go ahead and secure the rights to acme.widgets, acme.products,, and anything else he feels might be used by potential infringers to dilute his products.
  2. It remains the case that the .com gTLD is still trusted by the vast majority of users as the “official” home for any given brand. As far as internet culture goes, users are just much more likely to go to and look for the “store” link than to assume that ACME’s official store would be at

The cultural norm in #2 could of course change, but this would be less and less likely in the event that gTLD-alarmists prove correct. Meaning, if these new gTLDs are in fact rampantly used by infringers then internet users are more likely to associate the .com gTLD with the only gTLD that they could trust for any given brand.


How Brazilian Jiu Jitsu Can Make You a Better Lawyer!

Ryan-DanzFor those of you who know me (or have read my bio), you know my obsession with the fine art of Brazilian Jiu Jitsu. And what do you know, I got an email from the American Bar Association today promoting a new book published by fellow attorney Ryan Danz entitled “How Brazilian Jiu Jitsu Can Make You a Better Lawyer.”

According to the press release:

Notable attorney, entrepreneur, and world-wide celebrity Ryan Danz discusses the martial art of Brazilian Jiu Jitsu and demonstrates how one of the most complete-yet still relatively unknown-martial arts disciplines in the world can make you a better lawyer! You’ll discover how to:

  • Transition from the “Lawyer’s Mind” to the “Jiu Jitsu Mind”

  • Become a better, more focused, less ego-driven professional

  • Grow into a more self-esteemed lawyer, professional, and person overall

Honestly, I have no idea if the book is any good but would certainly recommend that my colleagues grab a copy anyway and find out. BJJ really does seem to bring out the above three bullet points in all of the people I know who practice it. In any case, I’ll pick up a copy if only because (i) Mr. Danz preempted my idea, and (ii) it’s very cool to see the sport catch on in our professional circles.

P.S., the book cover image is too small to say for sure, but is that a bit of cauliflower I see on Mr. Danz? If so… bad-ass!

Google Books Decision Bursts Open Commercial Fair Use

internet lawyerThis week the Southern District of New York has widened the door for “for-profit” tech companies to stretch the boundaries of copyright protection by ruling in Google’s favor on summary judgment in the Author’s Guild v. Google class action. While the decision proceeds through a straight-forward fair use analysis, it joins a very small set of cases that hold that certain types of copyright infringement, even where the copying is motivated by for-profit interests, can constitute a fair use. The Author’s Guild v. Google Inc., 05-cv-8136 (DC) (S.D.N.Y., November 14, 2013).


The Author’s Guild sued Google back in 2005 for copying several million copyrighted works as part of its Google Books scan and search project. After several years of back and forth on procedural issues (there was a settlement that the Court tanked, then there was a class action certification the the 2nd Circuit sent back), Google moved for summary judgment on the basis of the fair use doctrine. Under fair use, certain unauthorized copying of works is not an infringement if done to fulfill the purposes of “criticism, comment, news reporting, teaching… scholarship, or research.” 17 USC 107.

In this case, Google argued that the scanning and digitizing of books where internet users could search and view limited snippets of text for research purposes, and where the donating libraries received full digital copies of the books, was a fair use fulfilling scholarship and research purposes.

The Analysis.

On the issue of fair use, the court considers four factors with respect to the unauthorized copying to see whether they, overall, favor fair use: (i) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount or portion of the work copied; and (iv) the effect of the use on the potential market.

I will not go into the details of the very thorough and straight-forward analysis made by the court (hit the link above for the full decision), but here’s the significance of this case: Fair use was found in Google’s favor despite the fact that Google Books is predominantly a for-profit commercial enterprise.

In 99% of fair use cases, the first factor (the purpose and character of the use) tends to prove dispositive against for-profit defendants. In this case the court went the other way due to what it saw as the overwhelming scholarly benefit that Google Books provided as well as the various security measures Google took to prevent general users from downloading full books by combining various snippets.

The Court noted:

[C]opying the entirety of a work may still be fair use. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984); Bill Graham Archives, 448 F.3d at 613 (“copying the entirety of a work is sometimes necessary to make a fair use of the image”).

Thus Google now stands among a minority of fair use decisions where the defendant made a commercial use and won.

Hulu Users Try to Maintain Class Action Despite Supposed Lack of Injury

Internet LawBack in October Hulu attempted to dismiss the class action brought against it by users whose information was allegedly shared with third-party advertisers by arguing that the Video Privacy Protection Act (VPPA) does not apply to plaintiffs who do not (or cannot) allege exact monetary damages. Now the users have responded by pointing out that Hulu’s reading of the VPPA makes no sense.

Brief Background (from MediaPost).

Hulu previously acknowledged in court papers that it discloses data to third parties, but says that it never linked users’ names to their movie-watching history. Instead, it assigns users a seven-digit User ID, and then transmits data about that User ID.

The consumers alleged in their lawsuit that third parties could figure out people’s identities from their User IDs, given that Hulu included the User ID in the Web page addresses of users’ profile pages. Hulu, which stopped transmitting User IDs two years ago, countered that there’s no proof that any third parties were able to figure out users’ identities.

Current Argument.

Hulu seeks to dismiss the VPPA-based class action with two arguments:

  1. The language of the VPPA only provides a right of action to those who are “aggrieved” — which Hulu argues should mean proof of actual pecuniary loss; and
  2. The language of the VPPA does not otherwise provide a right of action to those who cannot prove actual pecuniary loss (sort of the converse of the above).

With regard to #1, the users point out that Hulu’s definition of “aggrieved” is quite obviously self-serving and, relating this to #2, the VPPA in fact provides minimum liquidated damages of $2500 per violation which implies that actual pecuniary loss need not be shown to bring a VPPA lawsuit.

In other words, where liquidated damages are, historically, a means to redress harms that are difficult to calculate, Congress would not have included liquidated damages in the VPPA if it did not intend the law to be used by plaintiffs who would have a hard time calculating their actual financial losses from the violation.

I think the users’ argument makes sense. I cannot really see any situation where someone could easily attach an exact financial figure to having his video history shared with third-parties. Maybe someone’s boss finds out that they are into some sort of questionable video content and that person gets fired… but this is a stretch, and one that would not justify an entire Act to be passed by Congress.

Moreover, at the end of the day I am not so sure that actual damages in this case couldn’t be calculated: How much money did Hulu earn for selling users’ information?

This is not a good case for Hulu, and it highlights a positive trend in internet law: If you want to monetize on user info, get consent.