FBI Shuts Down Major Android Application Piracy Sites

On August 21, the FBI announced that it had seized Applanet.net, SnappzMarket.net, and AppBucket.net with the cooperation of domestic and foreign governments, for offering illegally pirated android applications in violation of copyright laws.

Between the three sites, they hosted more than 50,000 cracked applications and games, and had collectively over 120,000 followers on Facebook and Twitter.

Prior to the execution of warrants and the seizure of the domain names, FBI agents downloaded thousands of "popular copyrighted mobile device apps" from the alternative online markets.

Apparently these applications were stored on web servers outside the U.S., which required the cooperation of Dutch and French law enforcement agencies.

Intellectual Property: The New Real Estate

Alexander Graham Bell's Telephone Patent

Intellectual property was once viewed as an interesting, quirky but relatively obscure area of legal practice limited to a select few lawyers and academics. Patent lawyers, who were also engineers or chemists, were valued by inventors and companies which had the incentive and ability to pay them to physically navigate the byzantine Patent Office in Washington, D.C., and leaf through musty documents to file patents.

With respect to trademarks, most recognizable household brands were displayed on products stocked on grocery store shelves, and advertised on a few television networks.

Copyrights were valuable to a few writers, musicians and movie studios that were fortunate enough to collect royalty checks from licensing their creative works.

Today, however, intellectual property concepts affect our daily lives in innumerable ways, and obscure legal doctrines such as "exhaustion," "nominative fair use," and "product configuration trade dress" are suddenly controversial.

These concepts affect how we communicate, how we shop, what we read, eat, the games we play and what medicines we take.  They affect our schools, our churches and our children.

Intellectual Property issues are no longer obscure, as they are seen daily in headlines like these:

•   Anti-CounterfeitingTrade Agreement Protests:  Thousands Take to the Streets Across Europe

•   Design and Drama Mark First Day in Apple Samsung Trial

•   US Athletes Protests London 2012 Olympic Trademark Rules

•   Mexico Signs Anti-Piracy Treaty, Setting Up Battle With Activists

So why did intellectual property suddenly become so controversial and important to our daily lives?

The primary reason seems to be connected to the exponentially growing technologies that have made ideas and information more valuable than land or gold:  a new form of real estate.

Indeed, as communication technology allows for the freer exchange of ideas, economic value has transitioned away from underlying physical objects and land, and toward abstraction.

By way of a concrete example, a century ago, virtually every one of the 25 largest companies were involved in shipbuilding, steel, coal and railroads. In other words, it was more valuable and important then to move people and things around.

In 2012, the majority of the top 25 most valuable brands in the world and the largest companies in the world, are engaged solely in the transport of ideas and information.  Examples include Apple, IBM, Visa, MasterCard, Google, Microsoft, AT&T, Verizon, Amazon and Facebook.

BlockShopper: Bona Fide News Reporting or an Invasion of Privacy?

Example of a BlockShopper "Local Real Estate News Story" from St. Louis

Beginning in 2011, law firms Gioconda Law Group PLLC and Balestriere Fariello began an in-depth investigation into BlockShopper LLC.  Collectively, we reviewed hundreds of pages of public documents, collected news articles, read blogs and newsgroups, printed out screenshots and researched applicable federal state and local laws.  The following represents a summary of our findings.  We have not been compensated by anyone for our investigation, nor have we included or considered any privileged or confidential communications in this discussion.  The following is presented solely for the public’s interest in this matter.

BlockShopper LLC owns and operates an interactive Internet website that was co-founded in 2006 by Brian Timpone, a brash one-time Chicago TV reporter turned entrepreneur.  The Chicago Tribune recently reported that the 39-year-old co-founder’s latest gambit Journatic LLC struck a deal in April of this year in which the Tribune Co. agreed to invest an undisclosed amount in his 6-year-old media content provider.  But less than three months later, the Chicago Tribune reports that the partnership has become an embarrassment after ethical breaches, including false bylines, plagiarism and fake quotations, were discovered.

The BlockShopper website has also been plagued by public criticism and even an intellectual property infringement lawsuit brought by a major law firm.  For those unfamiliar with the website, they may be shocked to discover that it offers an aggregate of detailed personal information about individuals, including their names, spouses’ and children’s names, street addresses, details of their residential real estate transactions including property taxes paid, home values, photographs of their home and/or neighborhood, maps and directions to their home, educational background, employer(s), and even photographs.  Some have characterized it as a stalker's dream come true, where personal information is gathered from multiple sources and presented in a comprehensive format.  Identity thieves might also find such helpful information handy.

BlockShopper has also displayed photographs that it has reproduced and copied from personal and business websites, seemingly without the prior authorization, permission or consent of the photographers’ and/or of the individuals depicted in many of the photographs.  BlockShopper has even copied and displayed images of individuals taken from their personal profiles on popular social networking sites such as Facebook^®, MySpace^® and LinkedIn^®, seemingly without the prior approval or permission of those individuals or companies.

The BlockShopper website is profit-driven, although it styles itself as a “local real estate news” reporting tool and does not charge for general access.  Despite its controversial nature (or perhaps in part because of it), the BlockShopper website receives nearly 1 million hits per month.  BlockShopper uses this substantial traffic to woo advertisers and real estate agents, bragging that it is currently operating in many geographic markets across the United States, and that its audience and reach is rapidly growing.

However, not everyone whose information and images are displayed on BlockShopper becomes a fan of the unexpected notoriety.  Indeed, Timpone was personally named in a lawsuit brought by Jones Day, a large national law firm in Cleveland, Ohio for his conduct, but he chose to settle and remove numerous images of that law firm’s attorneys to avoid the expense of further litigation.  To settle that case, BlockShopper’s management team agreed that “it will not use photographs appearing on the Jones Day website without the prior written approval of Jones Day.”

But news articles reported that the Jones Day lawsuit had no meaningful long-term effect on addressing BlockShopper’s overall approach: “The Jones Day lawsuit is not slowing the [BlockShopper] site down from expanding into new markets.  Last weekend, BlockShopper launched in three new cities--Cleveland, Washington, and Phoenix.  That’s on top of the company's recent expansion into Seattle, Philadelphia, New York, Los Angeles, and additional neighborhoods in Illinois.”  Since then, BlockShopper covers even more geographic areas.

Numerous blogs, including StopBlockShopperNow.com and "BOOM" (the "BlockShopper Opt Out Movement"), Facebook pages and public newsgroups have sprung up, reporting that hundreds of individuals have repeatedly complained to BlockShopper and unsuccessfully demanded that their personal information be removed from the website. Complaints have flooded consumer complaint boards, and State Attorney Generals’ offices have gotten involved. BlockShopper has even received complaints about dangerous individuals viewing the aggregated personal information that BlockShopper provides, in order to violate restraining orders.

Specific law enforcement-related complaints seem to have forced BlockShopper to remove at least some listings.  But in many cases, Blockshopper has received numerous, repeated complaints from individuals demanding that their personal information be removed from the website, but adamantly refuses to remove such placement, claiming that its conduct is fully protected by the freedom of speech and of the press.  


The BlockShopper website defends its stance in its“Frequently Asked Questions” section:

Public records are public for a reason. That is, your name isn’t on the title of the property you own—for all to see—to facilitate neighbor nosiness but because it is in the collective public interest. The most important charge of a local government is to guarantee land title; to keep accurate, timely records of who owns what. If we couldn’t learn the “who,” uncertainty would reign and land transactions would slow to a crawl. This would be bad for everyone’s house value. Furthermore, the prices we pay for our homes are public as they serve as the basis for local property taxes. Keeping this information like a secret would result in a lucky few paying too little, while the rest of us pay too much. In the spirit of fairness, we report public records as they are reported to us. We do not eliminate records on BlockShopper.com, as doing so compromises the integrity of our data.

But BlockShopper goes even further than just reporting real estate data, like Zillow.com does.  BlockShopper’s display has included hundreds of photographs taken wholesale from hospitals’ and physicians’ websites, colleges and universities’ sites, small businesses’ sites as well as directly from private individuals’ websites.

160+ Complaints and Negative Reviews of BlockShopper Appear on ConsumerAffairs.com

These people are not what the law would traditionally deem “public figures.”  In fact, BlockShopper has mostly appropriated images of otherwise private individuals such as secretaries, librarians, computer programmers, graphic designers, accountants, teachers, physicians, dentists, engineers, architects and photographers and others.  


Therefore, the core legal question presented by the BlockShopper model is whether the copying, reproduction and display of aggregated information about private individuals alongside their headshots are activities that constitute bona fide “news reporting” about real estate transactions that are protected by the First Amendment, or are really just an invasion of privacy cloaked in the guise of news.

For better or worse, from a precedential standpoint, BlockShopper may have the better of the legal argument when it comes to the legal standard of “newsworthiness.”  In the geographic markets where BlockShopper collects its data, the county clerks’ offices, the privacy statutes and the courts have consistently stated that the test for “news reporting” is liberally applied.  See, e.g., Illinois law (1075/§ 35 (b) (right to control one’s identity does not apply to “non-commercial purposes including any news, public affairs…”); see also Messenger ex rel. Messenger v. Gruner + Jahr Printing and Pub, 94 N.Y.2d 436, 727 N.E.2d 549 (New York Ct. of Appeals, 2000) (“where a plaintiff's picture is used to illustrate an article on a matter of public interest, there can be no liability … unless the picture has no real relationship to the article or the article is an advertisement in disguise”; Maheu v. CBS, 201 Cal. App. 3d 662, 675 (1988) (“even a tortious invasion of privacy is exempt from liability if the publication of private facts is truthful and newsworthy.”).


Nonetheless, many individuals and commentators have voiced concerns that a public policy that permits unrestricted and widespread conduct of the sort engaged in by BlockShopper would result in a substantially adverse impact on the actual and/or potential marketplace – but marketplace for what? 

Because the discrete information that BlockShopper aggregates is generally available from county clerk’s offices anyway, and Internet-posted headshots are not usually offered “for sale,” it is not clear what exact “marketplace” is being negatively affected.

In a broader sense, one could argue that BlockShopper’s unauthorized appropriation of images and information from social networking sites may serve to deter private individuals from engaging in socially productive interaction on the Internet.  In fact, Brian Timpone warned the public to this negative impact in a news interview:  “If you don’t want to be on BlockShopper,don’t promote yourself on the Web.”  

But private individuals and copyright holders making images of themselves visible on the World Wide Web could theoretically argue that they have not legally consented to BlockShopper’s appropriation of those images for BlockShopper’s commercial gain.  

Therefore, there is at most an unresolved legal question as to whether BlockShopper’s display of headshots is a legally-permissible “fair use” of those particular images in connection with bona fide news reporting about those individuals.

Finally, many individuals sincerely believe that BlockShopper’s conduct violates their individual right to privacy.  However, they may be surprised to discover that laws regarding the privacy of truthful facts are not as restrictive as one might think.  If BlockShopper has accomplished nothing else, it has contributed to a collective legislative push by some to get real estate data privacy laws toughened up at the county and local levels.

In conclusion, the thorny legal issues surrounding BlockShopper’s website, and other identity aggregators like it, remain mostly unresolved at a national level.  Those who remain disturbed and disgusted by BlockShopper’s approach and question the bona fides of its “news reporting” may best be served writing their local legislators about making the data surrounding their local real estate transactions private.

Who Owns Police "Mug Shots"?

Unless you are John Gotti or Robert Downey, Jr., if you have ever been arrested and had your police "mugshot" taken during routine booking procedures, you may find yourself staying up at night worrying about where that mugshot may someday end up. 

Depending on your level of notoriety, websites such as MugShots.com and TheSmokingGun.com are giving some people good reason to worry about just that.

MugShots.com calls itself a “search engine for Official Law Enforcement records, specifically booking photographs." While TheSmokingGun.com focuses on historical and "high profile" figures, some websites have been accused of "extortion" and "blackmail" for publishing mugshots of wholly private individuals who were -- at some point in their lives -- accused of crimes ranging from disorderly conduct to armed robbery.  Some of these sites will offer to remove your mugshot, for a fee of course.

Putting aside the thorny privacy issues involved, an intellectual property question has been raised:  "Are these mugshots in the public domain?"

The answer from an intellectual property practitioner's perspective is that mug shots are not necessarily in the public domain, and third party websites do not possess an automatic exemption from infringing otherwise validly owned federal copyrights.

According to the MugShots.com website, "originally collected and distributed by Law Enforcement agencies, Booking records are considered and legally recognized as public records, in the public domain." That site claims that it "republishes these Official Records in their original form ("as is") under the First Amendment to the United States Constitution, the freedom to publish true and factual information. Our intent is to provide a legitimate and useful service for both the private and public sectors."

MugShots.com goes on to say that "all information on the mugshot pages on Mugshots.com was originated [sic] with law enforcement agencies.  We publish the information "as is" and do not edit it."

There are several serious flaws with these legal arguments.

After 1976, the Copyright Act provided that copyright attaches automatically upon the creation of an original work that is fixed in a tangible medium of expression. After 1976, copyright protection is automatic and vests instantly in the photographer.

Therefore, after 1976, when a police officer or civilian photographer stood behind a camera and snapped a mugshot, it is that photographer who technically owned the copyright in the image the very instant it was created in tangible form.  Before that, much stricter copyright notice requirements applied, forcing many photographs published without notice into the public domain.

Elvis Presley in a 1956 mugshot/
Wikimedia Commons / Public Domain

If the photographer was an employee of the U.S. federal government, then the legal analysis ends.  The U.S. federal government has openly disclaimed any and all copyright ownership in its documents, including mugshots.  Therefore, such mugshots, once released, are freely in the public domain for copyright purposes, and can be reproduced, altered or used in any form without violating federal copyright laws.  (It is worth noting that a federal appeals court recently ruled that there is no Freedom of Information Act obligation for the feds to release mugshots).

However, thousands of the mugshots that appear on these sites appear to have been taken by photographers that were employed by state and local police and sheriff’s departments, and who took the photographs in the course of their duties.

In those cases, the individual photographers who took the mugshots presumably entered into an employment agreement assigning ownership of the photographic work product to their employers.  So whatever copyright inhered in the mugshots when they were first taken by the photographer would be assigned to the police department or municipality.

Further, each local municipality and police department has its own laws, policies, regulations dictating who now owns copyrights to the mugshots, and who can use or distribute them, and for what purpose.

Some local jurisdictions take the approach that mugshots are valuable to law enforcement only during ongoing investigations, and restrict access to them until the case is resolved.  Others take a more open approach similar to the federal government, and waive any copyrights they might otherwise have owned in these images, regardless of how they are subsequently used or exploited.  Others go even farther, and encourage the public viewing of these images as a deterrent.

So, if a local police department has not otherwise waived its copyrights to the mugshots, as a technical matter, for a website to display, reproduce them or alter them for commercial gain would likely constitute a prima facie case of copyright infringement.

Indeed, it is worth noting that such a site would arguably infringe upon every single aspect of the copyright statute – the right to display, reproduce and even modify/alter the images. For example, despite its own claim that the images are reproduced verbatim from government files, it appears that every single mugshot on MugShots.com contains an embedded watermark, which was obviously added later.  Such conduct could violate the federally-recognized copyrights of local police departments which have not otherwise disclaimed their copyrights in and to control how these images are altered or used to create derivative works.

What about Fair Use?

Fair use is a defense to infringement, not an automatic exemption.  Indeed, the Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.  This means that, in litigation involving allegations of copyright infringement, the defendant squarely bears the burden of raising and proving that his use was "fair" and not an unauthorized infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement.  If the work was not copyrightable, if the term had expired, or the defendant's work borrowed only a very small amount, for instance, then the plaintiff cannot even make out a prima facie case of infringement, and the defendant need not even raise a fair use defense. However, as discussed above, a prima facie case of copyright infringement could theoretically be asserted by a municipality or police department that had not otherwise waived its copyright to control the commercial exploitation of these images.  Whether or not such a case will ever be filed is currently unknown.

Unfortunately, for those arrested for disorderly conduct outside a bar twenty years ago, and who were mortified to discover their faces displayed on a commercial website and want to demand legal action under intellectual property laws, you will have to wait.  Under current federal copyright law, you probably don't have standing to sue on behalf of the copyright holders.

Sanctions Against "Rogue" Porn-Copyright Attorney Upheld by 5th Circuit

A federal appeals court has affirmed monetary sanctions assessed against an Intellectual Property lawyer who represents a maker of adult films in a series of copyright-infringement-by-downloading cases.

U.S. District Court Judge David C. Godbey in Dallas had ruled in January that attorney Evan Stone of Denton, Texas had abused the discovery process, and termed him a “rogue attorney" with "staggering chutzpah" in a blistering decision.

In a July 12 ruling, the 5th U.S. Circuit Court of Appeals  affirmed the District Court's sanctions levied against Stone.

Stone represents Germany’s Mick Haig Productions E.K. against a large number of unnamed "John Doe" Defendants who stand accused of downloading Haig’s “Der Gute Onkel” film without authorization. 

Stone, no stranger to controversy, was depicted strangling pirates near scantily-clad porn stars in a recent Dallas Observer article.

The District Court had appointed attorneys from Electronic Frontier Foundation and Public Citizen as "ad litem" attorneys to represent the interests of the John Doe defendants and it was these lawyers who had sought the sanctions in District Court. The sanctions included attorneys' fees of more than $22,000, and $500 per day for each day Stone failed to comply with a court order.

Stone filed an appeal to the 5th Circuit, arguing the sanctions were unjustified and that the court-appointed attorneys lacked standing to seek them.

The appeals court flatly rejected Stone's argument.  It specifically held that “no miscarriage of justice will result from the sanctions” that were imposed “as a result of Stone’s flagrant violation” of court rules.

The appeals court said Stone committed the violations by using the subpoena power of the court to find the identity of anonymous Internet users “then shaming or intimidating them to settle for thousands of dollars” each.

The appeal is captioned Mick Haig Productions E.K. v. Does 1-670, 11- 10977, U.S. Court of Appeals for the Fifth Circuit (New Orleans). The District Court case is Mick Haig Products E.K. v. Does 1-670, U.S. District Court, Northern District of Texas (Dallas).

The tactic of using the threat of John Doe subpoena discovery against pornography downloaders has come under recent fire in high-profile class action litigations against a number of adult film companies.

Kate Spade on Receiving End of Infringement Complaint

The estate of the late artist Vera Neumann has filed a federal copyright infringement suit in the Southern District of New York against designer Kate Spade. According to the complaint, the estate owns the copyright to a design entitled “Poppy Field" created by Neumann in 1978. The complaint claims that Kate Spade admitted that she had been inspired by Neumann's designs: "Kate Spade has indicated, at least several years ago, that among the items and products that have inspired her designs are the silk-screened scarves of Vera," which Spade referred to in her book “Style by Kate Spade.”  

The estate is seeking "an amount not as yet known, but believed to be in excess of one million dollars plus interest" in damages. This amount purportedly represents "all gains, profits and advantages derived by Spade's use of the infringement of Neumann's copyright."

Neumann's "Poppy Field"

Kate Spade's alleged infringement