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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 leveraged the allegation that RMG’s access to the Web site for the purpose of creating its software, as well as the subsequent use of the software, violated the Ticketmaster Terms of Use and was thus unauthorized. Ticketmaster’s claims included breach of contract, copyright infringement, violation of the anticircumvention provisions of the Digital Millennium Copyright Act, and violation of the Computer Fraud and Abuse Act. Based on these claims, Ticketmaster succeeded in obtaining a preliminary injunction against the distribution of the software and a $18.2 million default judgment against RMG.

In December 2008, Facebook filed a similarly framed complaint against Power Ventures, the operator of Power.com, an online service that allows social networking users to access all of their accounts through one interface. In Facebook, Inc. v. Power Ventures, Inc. (N.D. Cal. May 11, 2009), Judge Jeremy Fogel denied Power Ventures’s motion to dismiss Facebook’s claims of copyright infringement, violation of the anticircumvention provisions of the DMCA, and violation of federal and state trademark infringement laws for failure to state a claim. Judge Fogel acknowledged the similarity of Facebook’s copyright claims against Power Ventures to the claims in Ticketmaster’s litigation against RMG. Slip op. at 5.

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 infringement action ever filed by the FSF, according to the press release announcing the filing of the action. The filing of the lawsuit follows on the ruling by the United States Court of Appeals for the Federal Circuit last August in Jacobsen v. Katzer that open source licenses are enforceable under copyright law.

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).
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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.
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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.
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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 court and at least one petition for certiorari to the U.S. Supreme Court. Only a few weeks after the first Eleventh Circuit court ruling in the case, the U.S. Supreme Court rendered its opinion in New York Times Co. v. Tasini, 533 U.S. 483 (2001), finding that freelance writers of newspaper articles are entitled to royalties for the inclusion of their works in an electronic database. Subsequent proceedings in Greenberg have sought to grapple with the applicability of the Tasini ruling that the disaggregation of the articles in an electronic database was outside the privilege provided in § 201(c) of the Copyright Act for a “revision” of a collective work under.

 In the latest opinion in Greenberg, the en banc ruling on June 30, the majority held that the CD-ROM version of the National Geographic Magazine is a privileged “revision” under § 201(c) because the CD-ROM presentation, unlike the electronic database in Tasini, replicated the “contextual fidelity” of the original collective work. That means, of course, that the plaintiff photographers whose works were included in the original, print version of the magazine, unlike the freelance writers in Tasini, are not entitled to royalties for the inclusion of their works in the CD-ROM version. There are two vigorous dissents.

Some commentators on the ruling of the District Court in Vernor v. Autodesk [citation] are touting it as a victory for the applicability of the copyright first sale doctrine to licensed software, and while that is literally true in terms of the result in the case, it may not remain in the “win” column in the long run.  In ruling on the issue, Judge Richard A. Jones sent a clear signal, something like a really loud shout, to the parties and to the appellate court to the effect that precedents in the Ninth Circuit on the copyright first sale doctrine are conflicting and need to be reconciled.