Google’s Payload Data Sniffing Activities Snagged by Wiretap Act

Google’s Street View feature provides street-level photographs of places shown on Google Maps.  Google acquired these photographs by sending camera-mounted Street View cars out on public roads to take photographs.  Google also equipped the Street View cars with Wi-Fi antennas to collect data transmitted by Wi-Fi networks in homes and business located along Street View car routes.  In addition to collecting network data, such as the name of the network and the router’s unique number, the Street View cars collected “payload data,” such as emails, usernames, passwords, videos and documents, sent over unencrypted Wi-Fi networks.  Google collected this data between 2007 and 2010, has discontinued the practice, apologized, and made the personal data collected inaccessible. 

Several class action lawsuits were filed against Google as a result of its collection of payload data from the unencrypted Wi-Fi networks.  The class actions were consolidated to a single class action in the Northern District of California.  The class actions plaintiffs claim that Google violated the federal Wiretap Act (18 U.S.C. §2511) in collecting the data from the Wi-Fi networks.  Google moved to dismiss the complaint, arguing that it lawfully intercepted “electronic communications” that are “readily accessible to the general public.”  The district court denied Google’s motion to dismiss.  The Ninth Circuit Court of Appeals affirmed the district court’s ruling.

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Village People Cop Morphs into Copyright Grant Terminator

September 13, 2013, was the effective date for Victor Willis’ termination of copyrights granted to Scorpio Music (Black Scorpio) S.A. and Can’t Stop Productions, Inc. for Willis’ hit songs YMCA, I’m a Cruiser, Hot Cop, Ups and Downs, My Roomate and The Women.  Willis was the original lead singer for the group, the Village People.  He appeared onstage with the Village People dressed as either a cop or a naval officer.

These songs and others with lyrics written by Willis were registered with the U.S. Copyright Office in the late 1970’s in Willis’ name and the names of his co-authors.  Willis transferred his interest in the songs to Can’t Stop, the exclusive U.S. sub-publisher and administrator for Scorpio, a French corporation.  After Willis notified Scorpio and Can’t Stop in early 2011 that he was terminating the transfer of his copyrights, Scorpio and Can’t Stop sued Willis, challenging the validity of the termination and seeking a declaratory judgment that Willis has no rights in the copyrights to the songs.  The district court ruled in Willis’ favor on the three major motions filed by Plaintiffs Scorpio and Can’t Stop to date.  Early in the litigation, Scorpio and Can’t Stop claimed that Willis created the lyrics under a work made for hire agreement, but later abandoned that claim.

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Copyright Infringement Not Always Enough to Satisfy Long-Arm Statute

Troma Entertainment, Inc., produced and owns the distribution rights for the spoof films Citizen Toxie, Toxic Avenger Part IV and Poultrygeist: Night of the Chicken Dead.  Lance Robbins and King Brett Lauter represented to Intravest Beteiligungs GMBH, a German company, that Robbins and Lauter owned the distribution rights to the films.  Intravest paid Robbins and Lauter for the right to distribute the films on pay per view channels in Germany.  Troma did not authorize the distribution and was not compensated for the distribution of the films.

Troma, a New York corporation, sued Robbins and Lauter for copyright infringement in the Eastern District of New York.  Troma did not allege that the events giving rise to the copyright infringement occurred in New York.  The district court granted Robbins’ and Lauter’s motions to dismiss for lack of personal jurisdiction.  The only issue on appeal to the Second Circuit Court of Appeals was whether the district court lacked personal jurisdiction over Robbins and Lauter under the New York State long-arm statute.  The Second Circuit affirmed the district court’s ruling that it lacked personal jurisdiction over the defendants. The Second Circuit’s ruling does not mean that Troma cannot sue Robbins and Lauter. It simply means that Troma cannot sue Robbins and Lauter in New York. The district court gave Troma the option of transfering the case to the Central District of California, which Troma refused.

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Validity of Copyrights for Mannequins Requires Discovery

To what extent is the creation of mannequins to model clothing copyrightable?  Copyright law does not protect useful articles, i.e., articles that have an intrinsic utilitarian function.  Useful articles can receive copyright protection if their design incorporates pictorial, graphic, or sculptural features that can be separated from the utilitarian aspects of the article.  Are mannequins always useful articles?  Evidence on the design process and the nature of the work must be presented to determine whether the designer exercised artistic judgment independent of functional influences.

Animal mannequins, such as those used in taxidermy, can be protected by copyright, if they reflect such things as gestures, poses, attitudes, muscle structure, facial expression and skin wrinkles that represent the artists’ expression and are not required by the function of mounting the skin to the mannequin.  But when expression of an idea is limited to a few ways, the merger doctrine prohibits copyright protection.  The expression is said to merge with the idea.  Copyright does not protect ideas.

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