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 to 17 U.S.C. § 1201(a), which prohibits the circumvention of technological measures deployed to limit access to copyrighted works.
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 copyright management systems such as digital rights management technologies, or whether it extends to the removal or alteration of copyright information that is affixed to or associated with works by more traditional means. For example in IQ Group, Ltd. v. Wiesner Pub., LLC, 409 F. Supp. 2d 587 (D.N.J. 2006), the court ruled that section 1202 was intended to cover “copyright management performed by the technological measures of automated systems,” but not “copyright management performed by people.” But several other courts addressing the issue have disagreed, including Associated Press v. AllHeadline News Corp., 608 F. Supp.2d 454 (S.D.N.Y. 2009), in which the court concluded that there was no textual support in the DMCA for limiting the copyright management provision to technological copyright management systems.
In Wayne Cable v. Agence France Presse, et al., 2010 U.S. Dist. LEXIS 73893 (N.D. Ill. July 20, 2010), Cable, the photographer-copyright owner, authorized a realtor to display his photographs of a home on the realtor’s Web site with the proviso that the display include attribution of his authorship and a link to his own own Web site. The Web site included a credit line attributing the photographs to “Photos©2009 wayne cable, selfmadephoto.com.” The copyright notice was encoded as a link to Cable’s own Web site. Cable alleged that the photographs were subsequently copied by defendant Agence France Presse without his permission and displayed elsewhere without attribution. AFP moved to dismiss the DMCA claim, contending that Cable failed to allege that the attribution information functioned as a component of an automated copyright protection or management system and thus it did not constitute “copyright management information” within the scope of the DMCA.
Credit Card Services Firms with Knowledge of Sales of Infringing Merchandise May Be Liable for Trademark Infringement
In Gucci America, Inc. v. Laurette Co. No. 1:2008cv05065 (S.D.N.Y.), the luxury goods manufacturer succeeded in shutting down a Web site called "TheBagAddiction.com" through which the defendants sold counterfeit Gucci handbags. In fact, the defendants consented to the entry of judgment and admitted liability for trademark infringement. In a subsequently filed action, Gucci America, Inc. v. Frontline Processing Corp., 1:2009cv06925 (S.D.N.Y.) the manufacturer sought to hold firms that provided credit card processing services to the operators of TheBagAddiction.com site liable for trademark infringement as well. On June 23, the court in Gucci v. Frontline refused to dismiss Gucci’s complaint, finding that the two firms that processed credit card payments for transactions consummated on the site, as well as the company that brought the Web site operator and the processing firms together, may be liable for contributory trademark infringement.
What Can We Learn from the SCO Litigations?
Last week, the district court in SCO, Inc. v. Novell (D. Utah), the current act in the long-running drama of the SCO litigations aimed at the Linux operating system, refused to grant SCO’s motion to set aside the jury verdict rendered last March. The jury concluded that Novell owned the copyrights in the UNIX code that SCO claims is infringed by the Linux operating system. Once again, open source advocates were celebrating, and with good reason. The ownership of the UNIX code goes to the heart of all of the claims that SCO has raised in the other litigations, and if thet verdict stands, those litigations are effectively over. Although SCO’s long-standing fee agreement with its attorneys apparently includes another trip to the U.S. Court of Appeals, it will be up to the Bankruptcy Trustee and the Bankruptcy Court in Delaware to decide whether that trip is actually made. We will learn their decision in due time.
Meanwhile, there are many answers to the question of what can be learned from the SCO litigations, but one of them has nothing to do with the future of open source software, or the potential futility of high-stakes, bet-the-company litigation tactics. For attorneys who are engaged in the daily exercise of drafting and negotiating complex technology licensing deals, one lesson is this: When there is a communications or knowledge gap between the lawyers that give final shape to a business deal and the executives that will live with the deal over time, the result may be a fundamental and detrimental misunderstanding of just what the deal accomplished.
Massachusetts Data Security Regulations: Your Company May Not Be Located There, But If Your Customers Are, You Need to Comply
Newly effective regulations promulgated under Massachusetts’ recent data security law, Mass. Gen. Law ch. 93H, have raised the bar for data security compliance, and they have a long reach. The regulations are national and international in scope, as they apply to all companies – wherever located– using personal data
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. LEXIS 6976 (9th Cir. Apr. 5, 2010), the Ninth Circuit was faced with a dispute over ownership of the source code for a program that operated a digital audio device.
Michael Byce, the programmer who wrote most of the code in question, claimed to be an independent contractor and thus the author, and copyright owner, of the code. JustMed claimed that Byce was an employee and that the code was a work for hire, with copyright ownership vested in the company. The appeals court concluded that the well-established factors for making the intensely fact-sensitive determination of employee status should be weighed specially in light of the fact that the company involved was a technology start-up and the activity in question was computer programming.
Novell Prevails in Jury Trial on Ownership of UNIX Copyrights
The jury in The SCO Group v. Novell, Inc. litigation over ownership of the copyrights in UNIX source code has ruled in favor of Novell, the company announced on its blog this afternoon. Novell had previously prevailed on the issue of copyright ownership in a ruling by Judge Dale Kimball on
Internet Financial News Aggregator Enjoined under New York Hot News Misappropriation Law
Electronic technologies have greatly reduced the costs of distributing information, but for content owners, that’s been a mixed blessing. Just as their costs of content distribution have shrunk and their ease of distribution has increased, the same is true for parties who obtain and redistribute that content unlawfully, to the competitive disadvantage of the content owners. That equation has been repeated over and over, reflected in numerous litigation battles fought over the last several decades. One of those battles has been fought by major financial firms that have sought to regain control over the dissemination of the stock analysts’ research reports that are central to their business model.
No “Internet Exceptionalism” For the Second Circuit in Attorney Advertising Ethics Ruling
"Internet exceptionalism" is the notion that the Internet is a special and unique communications medium to which special rules should apply. In the legal field, that notion is manifested in legal rules that have been crafted by judges, legislatures and regulators for application in situations involving Internet communications.
In some
Jury Picked and Trial Commences in SCO v. Novell UNIX Code Copyright Ownership Dispute
The back story to the dispute between The SCO Group and Novell, Inc., over the ownership of copyrights to UNIX source code is lengthy indeed. But we’ll spare you the details and just say that the ownership of the copyrights is a critical issue because it is that very source