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This case arises from a copyright dispute revolving around the Usenet. Giganews owns and operates several Usenet servers and provides its subscribers with fee-based access to content stored on its own servers as well as content stored on the servers of other Usenet providers. Livewire provides its subscribers with access to the Usenet content stored on Giganews’s servers. Perfect 10, owner of exclusive rights to tens of thousands of adult images, filed suit against Giganews and Livewire, alleging direct and indirect copyright infringement claims as well as trademark and state law claims. The copyright claims are at issue in this appeal. The court concluded that the district court did not err in requiring Perfect 10 to satisfy the volitional conduct requirement as an element of a prima facie case of direct infringement, and agreed with the district court that Perfect 10 failed to prove volitional conduct with respect to either Giganews or Livewire. The court concluded that the district court did not err in dismissing much of Perfect 10’s direct infringement claim at the pleadings stage, nor did it err in granting summary judgment in favor of Giganews and Livewire on the direct, vicarious, and contributory infringement claims; concluded that the district court did not abuse its discretion in awarding fees to defendants and denying defendants’ supplemental fee request; and held that the district court did not clearly err in refusing to add Perfect 10’s sole shareholder and founder, Norman Zada, to the judgment against Perfect 10. Accordingly, the court affirmed the judgment. View “Perfect 10, Inc. v. Giganews, Inc.” on Justia Law

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Ultraflo filed suit against Pelican, asserting an unfair competition by misappropriation claim under Texas law. Ultraflo alleged that Pelican stole its drawings showing how to design valves and then used them to make duplicate valves. The court previously held that copyright preempts this Texas cause of action when the intellectual property at issue is within the subject matter of copyright. Ultraflo contends that its claim escapes preemption because its valve design, when separated from the drawing itself, is afforded no protection under the Copyright Act, 17 U.S.C. 101 et seq. Determining that Ultraflo did not waive its preemption challenge, the court concluded the district court correctly found that the state claim is preempted because copyright preemption prohibits interference with Congress’s decision not to grant copyright protection just as much as it protects a decision to provide protection. Accordingly, the court affirmed the judgment. View “Ultraflo Corp. v. Pelican Tank Parts, Inc.” on Justia Law

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Ultraflo filed suit against Pelican, asserting an unfair competition by misappropriation claim under Texas law. Ultraflo alleged that Pelican stole its drawings showing how to design valves and then used them to make duplicate valves. The court previously held that copyright preempts this Texas cause of action when the intellectual property at issue is within the subject matter of copyright. Ultraflo contends that its claim escapes preemption because its valve design, when separated from the drawing itself, is afforded no protection under the Copyright Act, 17 U.S.C. 101 et seq. Determining that Ultraflo did not waive its preemption challenge, the court concluded the district court correctly found that the state claim is preempted because copyright preemption prohibits interference with Congress’s decision not to grant copyright protection just as much as it protects a decision to provide protection. Accordingly, the court affirmed the judgment. View “Ultraflo Corp. v. Pelican Tank Parts, Inc.” on Justia Law

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Plaintiffs filed a copyright infringement suit against MP3tunes and its founder and CEO, alleging that two internet music services created by MP3tunes infringed their copyrights in thousands of sound recordings and musical compositions. The district court granted partial summary judgment to defendants, holding that MP3tunes had a reasonably implemented repeat infringer policy under section 512 of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. 512. A jury returned a verdict in favor of plaintiffs, but the district court partially overturned the verdict. The court vacated the district court’s grant of partial summary judgment to defendants based on its conclusion that MP3tunes qualified for safe harbor protection under the DMCA because the district court applied too narrow a definition of “repeat infringer”; reversed the district court’s grant of judgment as a matter of law to defendants on claims that MP3tunes permitted infringement of plaintiffs’ copyrights in pre‐2007 MP3s and Beatles songs because there was sufficient evidence to allow a reasonable jury to conclude that MP3tunes had red‐flag knowledge of, or was willfully blind to, infringing activity involving those categories of protected material; remanded for further proceedings related to claims arising out of the district court’s grant of partial summary judgment; and affirmed the judgment in all other respects. View “EMI Christian Music Group, Inc. v. MP3tunes, LLC” on Justia Law

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In this copyright infringement suit, plaintiffs challenged the district court’s determination that defendants’ verbatim use of a portion of Abbott and Costello’s iconic comedy routine, “Who’s on First?,” in the recent Broadway play “Hand to God,” qualified as a non‐infringing fair use. The court concluded that defendants’ entitlement to a fair use defense was not so clearly established on the face of the amended complaint and its incorporated exhibits as to support dismissal. In this case, defendants’ verbatim use of the routine was not transformative, defendants failed persuasively to justify their use of the routine, defendants’ use of some dozen of the routine’s variations of “who’s on first” was excessive in relation to any dramatic purpose, and plaintiffs alleged an active secondary market for the work, which was not considered by the district court. The court concluded, however, that the dismissal is warranted because plaintiffs failed to plausibly plead ownership of a valid copyright. The court found plaintiffs’ efforts to do so on theories of assignment, work‐for‐hire, and merger all fail as a matter of law. Accordingly, the court affirmed the judgment. View “TCA Television Corp. v. McCollum” on Justia Law

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EA, creator of The Sims, contracted with a production company called Lithomania to produce a USB flash drive shaped like a “PlumbBob,” a gem-shaped icon from the computer game, to promote a “Collector’s Edition” of The Sims. Lithomania in turn contracted with DT to produce a prototype of the PlumbBob-shaped flash drive. After DT settled breach of contract claims with Lithomania, DT sued EA under the federal Copyright Act, 17 U.S.C. 101 et seq., and the California Uniform Trade Secrets Act (CUTSA), Cal. Civ. Code 3426–3246.11. The district court granted summary judgment to EA. The court held that the district court erred by concluding as a matter of law that the flash drive was not copyrightable, and that there is a genuine issue of material fact as to whether DT’s cut-away design for removing the USB flash drive from the PlumbBob object is sufficiently non-functional and non-trivial to warrant copyright protection. In this case, a reasonable jury could decide these questions in either party’s favor. Therefore, the court reversed as to this claim. The court affirmed the district court’s grant of summary judgment to EA as to the CUTSA claim and held that DT’s design for the flash drive’s removal from the PlumbBob object does not derive independent economic value from not being generally known to the public. The court rejected EA’s cross appeal and held that the district court did not clearly err or otherwise abuse its discretion in denying attorneys’ fees for this claim. View “Direct Tech. v. Electronic Arts” on Justia Law

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Plaintiff suit against Live Nation asserting claims for copyright infringement under 17 U.S.C. 101 et seq., and removal of copyright management information (CMI) under 17 U.S.C. 1202. Live Nation stipulated in the district court that it infringed plaintiff’s copyrights when it used his photos of Run-DMC without his authorization on t-shirts and a calendar. The district court granted summary judgment for Live Nation on plaintiff’s claims. The court concluded that, drawing all inferences in plaintiff’s favor, the evidence in the record gave rise to a triable issue of fact as to Live Nation’s willfulness. Therefore, the court reversed the grant of summary judgment as to this issue. The court also reversed the district court’s dismissal of plaintiff’s claim under section 1202(b) of the Digital Millennium Copyright Act, 17 U.S.C. 1202(b). In this case, the court concluded that the record creates a triable issue of fact as to whether Live Nation distributed plaintiff’s photographs with the requisite knowledge. How Live Nation came to possess plaintiff’s photographs – and thus whether it had knowledge that the CMI had been removed – is a fact “particularly within” Live Nation’s knowledge. It would be unfair to burden plaintiff at the summary judgment stage with proving that knowledge with greater specificity than he did. Finally, the court held that the provision, in Section 504(c)(1) of the Copyright Act, of separate statutory damage awards for the infringement of each work “for which any two or more infringers are liable jointly and severally” applies only to parties who have been determined jointly and severally liable in the course of the liability determinations in the case for the infringements adjudicated in the action. Because plaintiff did not join any of his alleged downstream infringers as defendants in this case, the district court correctly held that he was limited to one award per work infringed by Live Nation. View “Friedman v. Live Nation Merchandise” on Justia Law

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Flo & Eddie, a California corporation, filed suit against Sirius, a satellite and internet radio provider, claiming that Sirius violated Flo & Eddie’s rights as owner of sound recordings of musical performances that were fixed before February 15, 1972. Because the issues in this case have not been addressed by the Supreme Court of Florida, the court certified the following questions to that state court: 1. Whether Florida recognizes common law copyright in sound recordings and, if so, whether that copyright includes the exclusive right of reproduction and/or the exclusive right of public performance? 2. To the extent that Florida recognizes common law copyright in sound recordings, whether the sale and distribution of phonorecords to the public or the public performance thereof constitutes a “publication” for the purpose of divesting the common law copyright protections in sound recordings embedded in the phonorecord and, if so whether the divestment terminates either or both of the exclusive right of public performance and the exclusive right of reproduction? 3. To the extent that Florida recognizes a common law copyright including a right of exclusive reproduction in sound recordings, whether Sirius’s back-up or buffer copies infringe Flo & Eddie’s common law copyright exclusive right of reproduction? 4. To the extent that Florida does not recognize a common law copyright in sound recordings, or to the extent that such a copyright was terminated by publication, whether Flo & Eddie nevertheless has a cause of action for common law unfair competition/misappropriation, common law conversion, or statutory civil theft under FLA. STAT. 772.11 and FLA. STAT. 812.014? View “Flo & Eddie v. Sirius SM Radio” on Justia Law

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Flo & Eddie, a California corporation, filed suit against Sirius, a satellite and internet radio provider, claiming that Sirius violated Flo & Eddie’s rights as owner of sound recordings of musical performances that were fixed before February 15, 1972. Because the issues in this case have not been addressed by the Supreme Court of Florida, the court certified the following questions to that state court: 1. Whether Florida recognizes common law copyright in sound recordings and, if so, whether that copyright includes the exclusive right of reproduction and/or the exclusive right of public performance? 2. To the extent that Florida recognizes common law copyright in sound recordings, whether the sale and distribution of phonorecords to the public or the public performance thereof constitutes a “publication” for the purpose of divesting the common law copyright protections in sound recordings embedded in the phonorecord and, if so whether the divestment terminates either or both of the exclusive right of public performance and the exclusive right of reproduction? 3. To the extent that Florida recognizes a common law copyright including a right of exclusive reproduction in sound recordings, whether Sirius’s back-up or buffer copies infringe Flo & Eddie’s common law copyright exclusive right of reproduction? 4. To the extent that Florida does not recognize a common law copyright in sound recordings, or to the extent that such a copyright was terminated by publication, whether Flo & Eddie nevertheless has a cause of action for common law unfair competition/misappropriation, common law conversion, or statutory civil theft under FLA. STAT. 772.11 and FLA. STAT. 812.014? View “Flo & Eddie v. Sirius SM Radio” on Justia Law

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VMG filed a copyright infringement suit against Madonna and others, alleging that the producer of the song “Vogue,” copied a 0.23-second segment of horns from an earlier song, known as “Love Break,” and used a modified version of that snippet when recording “Vogue.” The district court granted summary judgment to defendants and awarded them attorney’s fees under 17 U.S.C. 505. VMG appealed. The court agreed with the district court’s application of the longstanding legal rule that de minimus copying does not constitute infringement and that a general audience would not recognize the brief snippet in “Vogue” as originating from “Love Break.” The court rejected VMG’s argument that Congress eliminated the de minimis exception to claims alleging infringement of a sound recording. The court recognized that the Sixth Circuit held to the contrary in Bridgeport Music, Inc. v. Dimension Films, but found Bridgeport’s reasoning unpersuasive. The court held that the de minimus exception applies to infringement actions concerning copyrighted sound recordings, as it applies to all other copyright infringement actions. Accordingly, the court affirmed the district court’s grant of summary judgment to defendants. In regard to the attorney’s fees, the court concluded that the district court abused its discretion. A claim premised on a legal theory adopted by the only circuit court to have addressed the issue is, as a matter of law, objectively reasonable. The district court’s conclusion to the contrary constitutes legal error. View “VMG Salsoul, LLC v. Ciccone” on Justia Law