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Copyright First Sale Doctrine and Burdens of Proof

Adobe, having been precluded from relying on license agreements that it failed to produce during discovery, has lost a summary judgment motion on its claim for copyright infringement against a defendant who asserted the first sale doctrine as a defense.  Adobe Systems, Inc. v. Christenson, No. 2:10-CV-00422-LRH-GWF (D. Nev. 2012). Defendants sold software over the Internet.  Although not authorized Adobe distributors, they resold Adobe software, purchased from third parties, through their website.  Adobe brought claims for copyright infringement under the Copyright Act of 1976, and for trademark infringement under the Lanham Act (not relevant to this post).  In addition to the first sale doctrine defense, the defendants responded with counterclaims and a third-party complaint (also not relevant to this post).  Following discovery, the parties brought motions for summary judgment, and the defendants also brought a motion to strike certain evidence relied upon by Adobe. During discovery, the court found that…

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Are Webpages “Published” Under U.S. Copyright Law?

Allegedly infringed webpages were held not to be “publications” under U.S. copyright law.  Rogers v. The Better Business Bureau of Metropolitan Houston, Inc., No. H-10-3741 (Aug. 15, 2012).  The plaintiff had described the webpages as unpublished when applying for copyright registrations.  The defendant argued that the webpages were published, and that the copyright registrations were therefore invalid.  Although acknowledging a split in authority concerning whether web pages are publications, the court rejected the defendant’s argument, and denied the defendant’s motion for partial summary judgment. The plaintiff had contracted with the defendant to create webpages for its individual member businesses.  Further, the plaintiff agreed “to create a website at the uniform resource locator (‘URL’) reliabilitymall.com for hosting the webpages, to license the URL to Defendant, and to maintain the URL and webpages.” After the defendant exercised its right to terminate the parties’ agreement, and before bringing the lawsuit, the plaintiff “applied…

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Are Links on a Social Network Contributory Copyright Infringement?

Because it was not satisfied that a social network, hosting links to copyrighted videos, was a contributory infringer, the Seventh Circuit has vacated a preliminary injunction against the social network.  Flava Works, Inc. v. Gunter, No. 11-3190 (7th Cir. Aug. 2, 2012).  According to Judge Posner’s opinion for the court, even if the defendant, myVidster, knew that its website hosted links to infringing videos, there was no evidence that the defendant facilitated copying constituting copyright infringement.  Therefore, the plaintiff, Flava Works, had not shown a likelihood that it would successfully show that the defendant was a contributory infringer. The Court began its opinion by chastising the District Court for equating the plaintiff’s purported showing of a likelihood of success with a showing of irreparable harm.  Although eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), was a patent case addressing a permanent injunction, the Court found that case to govern…

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Copyright Infringement and Software Version Control

Enforcing a software copyright depends on good source code version control.  This is because enforcing a software copyright depends on being able to produce the version of software whose copyright is alleged to be infringed.  In Indyne, Inc. v. Abacus Technology Corp., No: 6:11-cv-137-Orl-22DAB (M.D. Fla. June 1, 2012), the defendant’s motion for summary judgment of noninfringement was successful because the plaintiff could not satisfy the requirement of producing the version of software alleged to be infringed. The plaintiff in this case had used its Program Information Management System (“PIMS”) software to deliver information technology services to NASA.  The plaintiff registered version 2 of the PIMS software in 2008, claiming a publication date of 2003, but had not retained a copy of version 1, or of version 2 as it existed in 2003.  In fact, “by the time of its registration in 2008, [the plaintiff] only had some version adulterated…

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When Is Software a Work for Hire?

A recent California case provides a good illustration of different possible grounds for finding that software is a work made for hire under the Copyright Act.  Siniouguine v.  Mediachase Ltd., CV 11-6113-JFW (AGRx) (C.D. Cal. June 11, 2012).  Among other things, the court held that the software was “specially commissioned” and qualified as a work made for hire as “contributions to a collective work” and “compilations.” Siniouguine, the plaintiff, had been employed by Mediachase, the defendant.  He had signed an employment agreement under which his work product was “a ‘work-made-for-hire’ specially ordered or commissioned by” Mediachase.  The plaintiff subsequently assisted in creating a calendar application and an e-commerce application, referred to as “the Programs.”  After the plaintiff sued Mediachase for copyright infringement and a declaration of copyright ownership, Mediachase brought a plethora of counterclaims, and argued that it owned the copyrights, either by assignment or as works made for hire.…

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