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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 infringing activity to happen. Notably, the Court rejected Appellant’s argument that the Supreme Court’s ruling in American Broadcasting v. Aereo, Inc. removed this “volitional conduct” requirement. Appellant Perfect 10, Inc. owns copyrights to several images. Appellee Giganews, Inc. owns and operates several Usenet servers and provides subscribers to user-stored content to other Usenet providers. Perfect 10’s images have been distributed by users over Giganews’s servers, and Perfect 10 sued Giganews for direct and indirect copyright infringement claims. The district court granted Giganews’s motions for summary judgment as to the direct and indirect copyright infringement claims. The Court reviewed the grant of summary judgment de novo. To show a prima facie case of direct copyright…

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Preliminary Injunction for Software Copyright Infringement

When can a plaintiff obtain a preliminary injunction relating to a customer’s use and distribution of copyrighted software beyond the scope of the customer’s license?  The court in Accusoft Corp. v. Quest Diagnostics, Inc., No. 12-40007 (D. Mass. April 18, 2012), granted a preliminary injunction, but limited the preliminary relief so as to properly balance the hardships between the parties. The plaintiff’s software program, ImageGear, “operates as a component in other software applications to provide discrete imaging functions.”  The plaintiff sold both “development licenses, which allow the licensee to incorporate ImageGear into those other software applications,” as well as “distribution licenses, which authorize distribution of those applications once ImageGear has been incorporated into them.”  The defendants had both development and distribution licenses for two products, and a development license, but no express distribution license, for a third product, OptiMaxx.  The plaintiff filed suit alleging that it had discovered numerous unauthorized…

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