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Category Archives: Copyright

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The Righthaven Lawsuits: What is Fair Use of Online Publications?

** UPDATE March 22, 2011:  On March 18, the court dismissed Righthaven’s copyright action against the Center for Intercultural Organizing on the grounds of fair use.** Righthaven LLC is an intellectual property enforcement firm that was formed by a group of copyright attorneys and Stephens Media, the publisher of the Law Vegas Review-Journal. The company … Continue Reading

Ninth Circuit Says DMCA Anticircumvention Provision Gives New, Access-Prevention Right to Copyright Owners – MDY v. Blizzard, Part II

As we related in Part I of this post, Blizzard Entertainment, distributor of the World of Warcraft game software and the operator of the servers that enable online game play, sought to block the use of automated game playing software by deploying anti-bot software, WoW Warden. But MDY Industries, the distributor of the Glider bot … Continue Reading

Ninth Circuit Rules on License Conditions versus Contract Covenants in Dispute over World of Warcraft Bots – MDY v. Blizzard, Part I

Playing World of Warcraft, the world’s most popular massively multiplayer online role-playing game (MMORPG), can be, well, a drag. As the parents, teachers and spouses of gamers know all too well, playing through the 70 or more levels of the game in order to amass desired virtual currency, weapons and armor can be extremely time-consuming. … Continue Reading

Register of Copyrights Says “Who Knows?” on Ownership of Computer Program Copies

Who owns the firmware on a smartphone, the device manufacturer or the purchaser?  Ownership of copies of computer programs is a thorny issue with which the federal courts have grappled in numerous cases. The issue arose during the most recent round of triennial rulemaking that resulted in the promulgation of a new set of exceptions … Continue Reading

Logo, Copyright Notice and Link on Web Site Constitute “Copyright Management Information” under DMCA

The “copyright management” provision of the Digital Millennium Copyright Act, 17 U.S.C. § 1202, prohibits the provision or dissemination of copyright management information that is false, as well as the removal or alteration of copyright management information. An issue that has divided federal courts is whether the scope of this section is limited to digital … Continue Reading

In Assessing Employee Status in Copyright Ownership Disputes, Technology Start-Ups Are a Special Case, Says the Ninth Circuit

A technology start-up company can be an informal environment – both Apple Computer and Hewlett-Packard famously started out in garages, and Yahoo!, Google and Facebook were developed, initially at least, in college dorm rooms. But informality can, and frequently does, lead to legal disputes down the road. In JustMed, Inc. v. Byce, 2010 U.S. App. … Continue Reading

Jacobsen v. Katzer: Open Source Software Project Gains Key Rulings in Copyright Infringement Litigation

Jacobsen v. Katzer involves a dispute over rights in software code distributed pursuant to the open source Artistic License. Last year the case yielded one of the very few judicial rulings dealing with open source software. As we wrote at the time, the U.S. Court of Appeals for the Federal Circuit rejected the argument that … Continue Reading

Vernor v. Autodesk and the First Sale Doctrine: The District Court Has Nothing Further to Add, Judgment for Reseller

Vernor v. Autodesk, Inc. is a closely followed case in which an eBay reseller of software argues that his resales are protected by the copyright first sale doctrine, and software company Autodesk is arguing that because the AutoCad software Mr. Vernor is auctioning on eBay is licensed, not sold, Mr. Vernor is not an owner … Continue Reading

Facebook Takes a Page from Ticketmaster’s Playbook: Block Unauthorized Web Site Access with Carefully Drafted Terms of Use

In 2007, Ticketmaster brought a multi-count complaint against RMG Technologies, a software company that supplied ticket brokers with software that enabled them to automatically and rapidly access Ticketmaster’s Web site, to the detriment of ordinary users seeking tickets to popular events. The Ticketmaster v. RMG complaint was notable for stating a series of claims that … Continue Reading

Free Software Foundation Files First Copyright Infringement Complaint to Enforce its GNU Licenses

The Free Software Foundation has filed a copyright infringement complaint against Cisco Systems. The complaint alleges that Cisco’s Linksys products contain certain works in which the FSF holds the copyright, but Cisco has not complied with the requirements of the licenses pursuant to which the FSF makes the works available. This is the first copyright … Continue Reading

Let’s Go Crazy: What Does It Mean to “Consider” Fair Use?

Stephanie Lenz posted a homemade video on YouTube.com, depicting her toddler son dancing in his walker, with the song "Let's Go Crazy" by "the artist professionally known as Prince" playing in the background. Several months later, attorneys for Universal Music, owner of the copyright in the recording, sent a takedown notice pursuant to § 512(c) of the Digital Millennium Copyright Act, which requires that the notice include among other things "a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." The video was promptly removed. Lenz responded with a DMCA counter-notification, and the video was re-posted several weeks later. Lenz then instituted suit against Universal for damages and attorney fees under § 512(f) of the DMCA, alleging that in issuing the takedown notice, Universal lacked the statutorily required "good faith belief" that her use of the song was infringing. In the latest ruling in the action, Judge Jeremy Fogel in the Northern District of California ruled that the takedown provisions of DMCA § 512(c) require a copyright owner to "consider the fair use doctrine in formulating a good faith belief that 'use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.'" Lenz v. Universal Music Corp., No. 07-3783 (N.D. Cal. Aug. 20, 2008) (emphasis added). … Continue Reading

RAM Copying – An Issue of More Than Transitory Duration

In The Cartoon Network LP, LLP v. CSC Holdings, Inc., No. 07-1480 & 07-1511 (S.D.N.Y. Aug. 4, 2008), the Second Circuit considered several important issues on the way to concluding that Cablevision's proposed operation of a remote digital video recorder (RS-DVR) system does not infringe the rights of reproduction and public performance of its program providers. Perhaps the most important issue in the case for new media lawyers is the court's treatment of the issue of RAM, or buffer, copying. The Second Circuit concluded that while a copy in RAM may a "copy" under the Copyright Act, it is not a copy as a matter of law. In so ruling, the Second Circuit took on not only the oft-cited (and oft-criticized) Ninth Circuit opinion in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), it also took on the opinion of the Copyright Office, and arguably created a split in the circuits on the issue. … Continue Reading

Federal Circuit Says Open Source License Conditions are Enforceable as Copyright Condition

There are so few judicial opinions dealing with open source licenses that any single one is of great interest, but the pro-open source ruling of the Court of Appeals for the Federal Circuit in Jacobsen v. Katzer, No. 2008-1001 (Fed. Cir. Aug. 13, 2008) easily goes to the top of the charts of this small category. This is a highly significant opinion that will greatly bolster the efforts of the open source community to control the use of open source software according to the terms set out in open source licenses. … Continue Reading

Eleventh Circuit En Banc Rules in “Old Wine, New Bottles” Dispute Over CD-ROM Version of National Geographic Magazine

Greenberg v. National Geographic, in which photographers seek royalties for the inclusion of their works in the CD-ROM version of the National Geographic Magazine, is a case with legs, that’s for sure. First filed ten years ago, it has been argued at the circuit court level three times, with several trips back to the trial … Continue Reading
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