IP Blog
Copyright
Copyrightability Clarified for Designs of “Useful” Articles
On March 22, 2017, the U.S. Supreme Court decided Star Athletica, L.L.C. v. Varsity Brands, Inc., ruling that decorative designs of cheerleading uniforms may be eligible for copyright protection.[1] In so deciding, the Court clarified the application of the copyright laws to designs of “useful” articles. Previously, as has been my experience in the registration and enforcement of designs of...
Volitional Conduct: an Element of Copyright Infringement
The Ninth Circuit Court of Appeals recently held in Perfect 10 v. Giganews, No 15-5550 (Jan 23, 2017), that an alleged copyright infringer can only be found directly liable if its “volitional conduct” actually causes the infringing activity to happen. Notably, the Court rejected Appellant’s argument that the Supreme Court’s ruling in American Broadcasting v. Aereo, Inc. removed this “volitional...
DMCA Safe Harbor Covers Content from Independent Contractors
The Tenth Circuit recently held that a website provider could not be held liable for copyright infringement for the unauthorized use of copyrighted photographs in content created by its contractors. BWP Media, USA v. Clarity Digital Group, 2016 U.S. App. LEXIS 7406 (10th Cir. Apr. 25, 2016). Defendant AXS owns and operates Examiner.com, a “dynamic entertainment, news and lifestyle network...
Cert. Denied in Google Books Copyright Case: Big Win for Fair Use Doctrine
The U.S. Supreme Court recently denied review of the Second Circuit decision in The Authors Guild et al. v. Google Inc., 804 F.3d 202 (2d Cir. 2015), finalizing a decision allowing Google to continue its mass digitization projects as fair use. This decision is a major victory for fair use – and for Google’s preservation efforts for university libraries. The...
A Reminder That Website Agreements Are Usually Enforceable
Long before the Internet, courts were not reluctant to enforce adhesion contracts. This willingness is one thing the Internet age has not changed. A good reminder – and lessons for parties seeking to enforce, as well as users wary of, website agreements – comes in a recent case in which a U.S. district court enforced a rather draconian transfer of...
Pleading Removal of Copyright Management Information Under the DMCA (and a Related Trademark Claim)
In Fischer v. Forrest, 14 Civ. 1304 (PAE); 14 Civ. 1307 (PAE) (S.D.N.Y. Jan 13, 2015), the court denied a Rule 12(b)(6) motion to dismiss a suit alleging copyright and trademark infringements. Of particular interest in this post is the pleading required to state a claim for remove of Copyright Management Information (CMI) under the DMCA. Also of interest is...
Action Brought Under DMCA and CFAA Dismissed (Part I)
In LivePerson, Inc. v. 24/7 Customer Inc., 2015 U.S. Dist. LEXIS 3688, No. 1:2014cv01559 (Jan. 16, 2015), the Southern District of New York dismissed a complaint alleging copyright infringement, a violation of the Digital Millennium Copyright Act (DMCA), and the Computer Fraud and Abuse Act (CFAA) for failure of the pleadings under F.R.C.P. 12(b)(6). This case thus provides good guideposts...
Use of Copyrighted Software's Output and Mere Downloading of Copy Held Not to Constitute Infringement
Neither using output from copyrighted software, nor downloading (but not installing or using) the copyrighted software, constituted actionable copyright infringement under the US copyright statute. Design Data Corporation v. Unigate Enterprise, Inc., No. 12-cv-04131-WHO (N.D. Cal. Aug. 6, 2014). Accordingly, the court in this case granted summary judgment in favor of the defendants on the plaintiff’s claims of direct as...
Ninth Circuit Affirms Inapplicability of Copyright First Sale Doctrine to Restrictive Software License
The Ninth Circuit has affirmed a district court decision (reported in this blog) holding that a restrictive software license is not a “sale” for purposes of the federal copyright laws, and that the license could not be used to assert a defense to copyright infringement based on the first sale doctrine. Adobe Systems Inc. v. Anthony Kornrumpf, No. 12-16616 (9th...
Third Party Affirmative Defenses to Software Copyright Infringement
A license, either express or implied, may be an affirmative defense to software copyright infringement. However, a recent case, brought by Oracle against a vendor who had provided services to Oracle’s customer, illustrates the limits of these defenses. Oracle USA, Inc. v. Rimini Street, Inc., No. 2:10-CV-00106-LRH-PAL (D. Nev. Feb 13, 2014). Perhaps more importantly, this case illustrates practices –...