Bob Uecker is the radio broadcaster for the Milwaukee Brewers. In June 2006, Mr. Uecker petitioned the Milwaukee County Circuit Court for an injunction against Ann E. Ladd alleging that Ms. Ladd, a self-described “devoted fan,” had continually harassed and stalked him for a period of years.

Mr. Uecker filed an affidavit in support of his allegations. According to Ms. Ladd, Mr. Uecker and/or the Milwaukee Brewers posted his affidavit to a website called thesmokinggun.com, on June 2, 2006. On September 8, 2008 Ms. Ladd filed a complaint alleging, among other things, that Mr. Uecker and the Brewers defamed her by posting the affidavit to that website.

An action to recover damages for a defamatory communication is barred if not commenced within two years after the cause of action accrues. WIS. STAT. § 893.57. After a hearing, the circuit court concluded that Ms. Ladd’s claims for any matters occurring before September 7, 2006 were barred by this statute of limitation. She appealed, arguing that her cause of action renewed every time someone accessed the information online.

The Wisconsin Court of Appeals disagreed. Said the court:

We hold that “republishing” the allegedly defamatory information about Ladd on the Internet is not actionable. Accepting as we must on this review that Uecker or the Brewers were responsible for the initial publication to thesmokinggun.com on June 2, 2006, that act is outside the statute of limitations. Uecker and the Brewers have no control over other websites’ use or dissemination of the same information on the World Wide Web. We reject the notion that each “hit” or viewing of the information should be considered a new publication that retriggers the statute of limitations.

 This decision brings Wisconsin in line with other jurisdictions that have adopted the single publication rule. The rest of the decision is not particularly ground-breaking, but does serve as a useful outline of Wisconsin law regarding defamation and invasion of privacy, and the various privileges and defenses to such claims.

In the world of sports and entertainment, the celebrity is usually the party claiming to have been defamed – so in that sense this is not a decision about which artists and athletes are likely to be cheering. In today’s online world, however, the decision makes eminent sense.

CNET NEWS reports that Judge Denny Chin of the U.S. District Court for the Southern District of New York issued the extension order yesterday in response to a request by several authors. Google had asked for an extension of only 60 days.

If you haven’t heard about the Google Book Settlement, visit the settlement website and get up to speed. Do this sooner rather than later, as important deadlines are approaching.

Here’s a quick summary about what has happened.

Google scanned in-copyright books and displayed excerpts from them as part of its Google Book Search service. Google did this without permission of the copyright owners, in the belief that its actions qualified as fair use. The copyright owners (authors and publishers) sued for copyright infringement.

Two years of negotiations followed, until October 2008 when the parties announced a settlement agreement. The proposed settlement affects all members of the class: authors and publishers of “Books” or “Inserts” that were published or distributed in hard copy format on or before January 5, 2009, and which have been registered with the US Copyright Office.

It’s very likely that most book authors and publishers are members of the class.

The settlement terms have to be approved by the court, and a hearing for that purpose has been set for June 11, 2009. However: two important deadlines come before then, on May 5, 2009.

• If a class member wishes to opt out entirely, and preserve his/her right to sue Google individually, they must do so by May 5, 2009.
• If a class member wishes to comment or object to the settlement, they must do so by May 5, 2009.
• If a class member qualifies for a cash payment, they must file a claim by January 5, 2010.

This is a very big deal. Learn all you can, understand that your clients have decisions to make, and help spread the word to other authors and publishers.

WIS. STAT. § 895.05(2) contains five requirements for valid pre-suit notice. It must:

(1)  be in writing;

(2)  be directed to those alleged to be responsible or liable;

(3)  specify the article and statements therein which are claimed to be false and defamatory;

(4)  contain a statement of what are claimed to be the true facts; and

(5)  be given before any civil action is commenced.

At issue in DeBraska was whether the plaintiff had or had not properly delivered a statement of what he claimed to be the true facts. Plaintiff attempted to satisfy the “true facts” requirement by referencing the actions of a third party; plaintiff also tried to shift responsibility to the defendant, citing the “reasonable diligence” requirement of WIS. STAT. § 895.05(2). Neither argument prevailed, and the Court of Appeals directed the trial court to enter jugment on the pleadings dismissing plaintiff’s complaint with prejudice.

As the concurrence in this matter demonstrates, a § 895.05(2) analysis is extremely fact-sensitive and vulnerable to conflicting interpretation. Attorneys would be well-advised, therefore, to craft pre-suit libel notices with the utmost care and clarity.

As an example: if you enter the .tel domain of a local business from your mobile phone, you will receive the business’ phone number, email address, physical address and even GPS coordinates without having to wade through a website. You’ll get that information even if there is no website.

Registering .tel domains is occurring in three phases. The “Sunrise” period, for trademark owners only, closes on February 2, 2009. The “Landrush” period, during which .tel domains will be available for premium prices, extends from February 3 - March 23, 2009. The “General Availability” period begins on March 24.

In 2001, Mr. W. sued the government for infringing his copyright in the calendars. The lawsuit was initially dismissed because he had not registered his copyright with the US Copyright Office. (Remember: registration is a prerequisite to bringing suit [17 USC sec. 411(a)].

Mr. W obtained counsel, registered, and tried again in 2005.

This time, the suit was dismissed (United States Court of Appeals for the Federal Circuit, January 8, 2009) under a provision of law that prohibits copyright suits against the government by certain persons. The statute in question is 28 USC sec. 1498(b), and the provision that ultimately kicked Mr. W out of court states:

this subsection shall not confer a right of action on any copyright owner …with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as a part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used

Mr. W said this statute shouldn’t apply to him, since it’s been clearly established that prisoners are not “employees” of the US government. The court acknowledged that in other contexts (e.g., the Clean Air Act and the Fair Labor Standards Act), prisoners are not employees. Nonetheless, the court noted, “[i]t does not automatically or necessarily follow, however, that prisoners are not ‘employees’ under [section] 1498(b) for purposes of suing the United States for copyright infringement.” Having raised it, the court then sidestepped that question, finding that whether or not he was an “employee,” Mr. W was indisputably in the “service” of the United States.

Mr. W argued that “employment” and “service” mean the exact same thing in this statute, in part because the second clause (after the clause highlighted in red, above) refers to “the employee.” The Federal Circuit disagreed, reminding us that, “[w]hen Congress uses different parallel words in the alternative in the same statutory provision, it is reasonable to assume that the words have different meanings.”

So the court concluded that Congress intended the two terms (”employment” and “service”) to have “different, although related, meanings.” Mr. W was clearly in the “service” of the United States; therefore his lawsuit failed.

OK, so not good news for prisoners — but what effect might this decision have on artists and others who perform work for the United States as contractors?

The intent of this court, clearly, is to limit infringement suits against the government. The door is now wide open for a future holding that prisoners are, in fact, “employees” in the copyright context. As for non-prisoners, this decision drops a one-sentence bomb that similarly leaves the door open for limiting one’s right to sue the government for infringement: on page 5 the Federal Circuit states, “[o]ne may have a ’service’ relationship with the federal government that does not constitute an ‘employment’ relationship.”

Danger, contractors. Danger.

US Copyright Law defines an “architectural work” as: the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings. The
work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features. (17 U.S.C. § 101)

So: Individual standard features and architectural elements classifiable as ideas or concepts are not themselves copyrightable. However, an architect’s original combination or arrangement of such elements may be.

In Intervest Construction v. Canterbury Estate Homes (No. 07-12596, December 22, 2008), the 11th Circuit Court of Appeals commented that the definition of an architectural work closely parallels that of a “compilation” under the Copyright Law, that is: “[A] work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”

And copyright protection for compilations is “thin.” That means, it’s more difficult to prove infringement when the work in question is a compliation than it is when the work consists of completely original material.

Intervest Construction was a dispute between the copyright owners of certain floor plans for single-family homes. Floor Plan #1 was entitled to copyright protection, but primarily as a compilation. Accordingly, when the owners of Floor Plan #1 complained that Floor Plan #2 infringed, they faced a very high standard of proof. Ultimately, it was a standard they could not achieve, and their infringement claim failed.

Not all copyrights are created equal. If your client’s is “thin,” your burden for establishing infringement against another will be more difficult than if the work in question enjoyed a thicker veil of protection.

It appears that the recording industry will be seeking alternative ways to combat illegal filesharing, by “working” with internet service providers. That could be code for: making sure the ISPs restrict service to those allegedly engaged in illegal filesharing, else risk being sued themselves. From a public relations point of view, it’s much more palatable to hear about an RIAA campaign against corporate internet service providers, than against grandmothers, middle school students and (as occurred in at least one instance) the deceased.

So the anti-piracy landscape is changing. An end to this 5-year reign of terror is of course a positive development. Whether the next phase represents a reasonable approach to enforcement of the industry’s copyright rights, however, remains to be seen.

Others sure to be following this development are Ray Beckerman at Recording Industry vs. The People , P2PNET.net and Techdirt.

Said the court: “We conclude that the colors, content, and context of the offending t-shirts are likely to cause confusion as to their source, sponsorship or affiliation.”