Tiffany's has lost its bid to hold eBay liable for trademark infringement of Tiffany's brands taking place on eBay. After a lengthy bench trial (i.e. a trial where the judge, rather than the jury, decides the factual questions), Judge Richard J. Sullivan has issued a 66-page decision (PDF) carefully analyzing the facts and legal principles, ultimately concluding that 'it is the trademark owner's burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites'.

New JonesBlog update. C-130 Hercules

New JonesBlog update. POTUS in town

New JonesBlog update. San Antonio, Texas

Check out the lightning!

New JonesBlog update. Burning the Midnight Oil

According to commentator Therese Polletti at Dow Jones MarketWatch, "the RIAA's tactics are nearly as bad as the actions of mobsters, real or fictional. The analogy comes up easily and frequently in any discussion of the RIAA's maneuvers." Among other things she cites the extortionate nature of their 'settlement negotiations' pointed out by Prof. Bob Talbot of the University of San Francisco School of Law IP Law Clinic, whose student attorneys are helping private practitioners fight the RIAA, the illegality of the RIAA's use of unlicensed investigators, the flawed evidence it uses, and the fact that the RIAA thinks nothing of jeopardizing a student's college education in order to make their point, as support for the MAFIAA/Mafia analogy.

Recommended reading for all interested in the RIAA's litigation war against p2p file sharing is the amended class action complaint just filed in Oregon in Andersen v. Atlantic. This landmark 109-page document (pdf) tells both the general story of the RIAA's campaign against ordinary folks, and the specific story of its harassment of Tanya Andersen, and even of her young daughter. The complaint includes federal and state RICO claims, as well as other legal theories, and alleges that "The world's four major recording studios had devised an illegal enterprise intent on maintaining their virtually complete monopoly over the distribution of recorded music." The point has been made by one commentator that the RIAA won't be able to weasel its out of this one by simply withdrawing it; this one, they will have to answer for. If the relief requested in the complaint is granted, the RIAA's entire campaign will be shut down for good.

New JonesBlog update. Wolf Spider

Although based in San Francisco, and only an amicus curiae in the Phoenix, Arizona, case of Atlantic v. Howell, the Electronic Frontier Foundation is sending its senior intellectual property lawyer Fred Von Lohmann to Phoenix to argue the Howell case, on behalf of the defendant, who is not represented by counsel. Due to the RIAA's attempt to take advantage of Mr. Howell's being undefended to try to convince the judge that merely 'making files available for distribution' -- i.e., just having them on one's computer in a manner that is accessible to sharing -- and that copying files from one's cd onto one's computer in mp3 format is itself "unlawful", EFF filed an amicus brief in January. Now it's taking the unusual step of actually sending someone to the courthouse to orally argue the motion.

A technology battle is raging in UMG v. Lindor in Brooklyn over whether the RIAA's investigator, SafeNet (formerly known as MediaSentry), which has produced certain *txt printouts, now needs to disclose its digital files, validation methodology, testing procedures, failure rates, software manuals, protocols, packet logs, source code, and other materials, so that the validity of its methods can be evaluated by the other side. SafeNet and the RIAA say no, the information is "proprietary and confidential". Ms. Lindor says yes, if you're going to testify in federal court the other side has a right to test your evidence. A list of what is being sought is here (pdf). MediaSentry has produced 'none of the above'. "Put up or shut up" says one commentator to MediaSentry. What do you say?

New JonesBlog update. New Eyes

A federal judge in Connecticut has rejected the RIAA's "making available" theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion (pdf), Judge Janet Bond Arterton held that the RIAA needs to prove "actual distribution of copies", and cannot rely -- as it was permitted to do in Capitol v. Thomas -- upon the mere fact that there are song files on the defendant's computer and that they were "available". This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior.

New JonesBlog update. Creech AFB UAV operations

New JonesBlog update. MacBook Air

New JonesBlog update. Super Tuesday plus a bonus, lunch with Dylan and Paul