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 cla… Read More

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 infri… Read More

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 Digit… Read More

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… Read More

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… Read More

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 i… Read More

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 Millenni… Read More

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.  U… Read More

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… Read More

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… Read More