Our September newsletter brings news of success stories fighting DMCA abuse, a grant awarded by the California Consumer Protection Foundation, and our continuing efforts to stop the AT&T-Tmobile merger. 

You can also catch us in person at Media Law in the Digital Age in October, a conference coproduced by Harvard Berkman Center's Digital Media Law Project and the Center for Sustainable Journalism at Kennesaw State University, as well as Blogworld 2011 in LA in November.

Regardless of how one feels about the Digital Millenium Copyright Act (DMCA) as a whole, it’s clear that the Copyright Office's recent rulemaking process has appropriately further limited the DMCA's anti-circumvention provision. In February 2009, New Media Rights submitted comments in support of these changes that have now been enacted.

The Office's ruling attempted to clarify the DMCA's prohibition on “circumventing” digital rights management (DRM) and “other technical protection measures” -- a prohibition that, up until now, has given Apple the theoretical right to intimidate iPhone users with “jailbroken” phones with legal action. The Office ruled that this jailbreaking does not constitute violation of the DMCA. Although Apple has never prosecuted any iPhone jailbreaker under the DMCA, Apple did strongly object to any exemption to the anti-circumvention rule. This has led many general interest news sources to label these recent exemptions as a victory specific to iPhone jailbreakers which isn’t true.  The victory is a broader one, for cell phone users, video remix artists, documentarians, and educators, among others.

On the morning of July 16, my bros on Twitter noticed something totally un-chill: BrosIcingBros.com, the epicenter of the icing phenomenon, had been taken down. Instead of user-submitted photos of young brosephs and bro-ettes, on their knees drinking bottles of Smirnoff Ice, the website displayed an unceremonious, one-sentence farewell: "We had a good run Bros..."

At NewMediaRights, our pro-bono IP attorney Art Neill regularly deals with individuals being bullied by large copyright/trademark owners into taking down their sites, even when those sites don't actually violate copyright and trademark law. To bring this practice to light, we wanted to publicly discuss how strong/weak Smirnoff's legal arguments to take down BrosIcingBros.com really are, and whether Smirnoff had good faith when chose to take the site down.

By the end of our analysis, we’ll conclude that

(A) Smirnoff’s arguments for both copyright and trademark infringement are weak at best;

(B) Even though Smirnoff did have good faith to send a cease and desist letter to BrosIcingBros for some instances of infringement, it was not within reason for Smirnoff to require that the entire site to get taken down.

(C) If BrosIcingBros was, in fact, taken down because of legal problems with Smirnoff, then this is a classic example of a large brand’s legal department overreaching with cease and desist letters and bullying individuals into compliance without sufficient legal arguments to back their claims up.