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Liability for Copyright Infringement Attaches if Conduct Exceeds Scope of License

The US Court of Appeals for the Ninth Circuit revived a software owner’s copyright infringement suit because the district court erred in granting summary judgment of no infringement by failing to analyze whether the accused infringer exceeded the scope of a copyright license. Oracle America, Inc., et al. v. Hewlett Packard Enterprise Company, Case No. 19-15506 (9th Cir. Aug. 20, 2020) (Smith, J.). Oracle owns registered copyrights for Solaris software, including copyrighted software patches. Oracle requires its customers have a prepaid annual support contract, for each server they desire to be under support, to access the software patches. Customers under a support plan can access patches through an Oracle support website. Hewlett Packard Enterprise (HPE) provides a “one-stop-shop” for support to its customers, including HPE servers running Solaris. HPE provides this support directly and through its partners. One of HPE’s partners is Terix Computer Company....

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Bugs in Space? Star Trek Plotline Does Not Infringe Tardigrade Video Game

The US Court of Appeals for the Second Circuit affirmed a district court’s pleadings-stage determination that certain Star Trek: Discovery characters and plotlines did not infringe copyrighted elements of a video game because there was not substantial similarity between protectible elements of the video game and the Discovery episodes. Abdin v. CBS Broad. Inc., Case No. 19-3160 (Fed. Cir. Aug. 17, 2020) (Chin, J.). Between 2014 and 2017, Plaintiff Abdin posted videos and draft designs online for his sci-fi video game, Tardigrade, a puzzle-based game in which the human protagonist can travel through outer space in the warm embrace of a gigantic blue tardigrade. Tardigrades, also known as water bears, are microscopic animals capable of withstanding extreme climates—including the harsh vacuum and radiation of space. After a 2007 research study confirmed tardigrades’ spacefaring abilities, they became somewhat of a pop culture phenomenon, being featured in...

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Buzz-sawed: Give Copyright Credit or Face Statutory Damages, Fees, Costs

The US Court of Appeals for the Second Circuit affirmed a district court’s award of statutory damages where the defendant knowingly distributed a photograph without first getting permission to use the photograph. Gregory Mango v. BuzzFeed, Inc., Case No.19-446 (2nd Cir. Aug.13, 2020) (Park, J.). Gregory Mango, a freelance photographer, sued BuzzFeed, an online media company, under the Digital Millennium Copyright Act (DMCA), for using one of his photographs in a news article without first obtaining his permission and crediting him. Mango asserted copyright infringement, alleging that BuzzFeed removed or altered the copyright management information (CMI), a violation under the DMCA. Mango sought statutory damages of $30,000 for his copyright infringement claim, $5,000 for his DMCA claim, and attorney’s fees. BuzzFeed argued that it could not be held liable under the DMCA because there was no evidence that it knew its conduct would lead to future, third-party...

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Copyright Board Ordered to Take a New Look at Streaming Services Rate Structure

Reversing the Copyright Royalty Board’s (Board) determination of a revised rate structure governing musical works, the US Court of Appeals for the District of Columbia Circuit concluded that the Board reached a final structure without providing adequate notice. George Johnson v. Copyright Royalty Bd., Case No. 2019-1028 (D.C. Cir. Aug. 7, 2020) (Millett, J.). Every five years, the Board holds a proceeding to determine the royalty rate and terms for reproducing and distributing musical works, where interested stakeholders are permitted to present evidence and argument. At issue in Johnson is the Board’s decision, made after a five-week evidentiary hearing, setting the compulsory rate for the right to reproduce and distribute recordings of copyrighted musical works, known as a mechanical license, through streaming services for the period of January 1, 2018, to December 31, 2022. Before the Board’s determination, depending on the type of service provided, the...

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“Salacious” Content Doesn’t Bar Discovery in Copyright Infringement Suit

The US Court of Appeals for the District of Columbia Circuit preserved discovery options for copyright owners fighting online piracy when it reversed the district court’s refusal to allow a subpoena of an alleged online infringer’s internet service provider. The DC Circuit found that the district court abused its discretion by relying heavily on the copyright owner’s litigation history and the nature of its films rather than the relevant legal standards under the Federal Rules of Civil Procedure. Strike 3 Holdings, LLC v. John Doe, Subscriber Assigned IP Address 73.180.154.14 (DC Cir. July 14, 2020) (Rao, J.). Strike 3 is a producer and online distributor of adult films. Like most of its industry peers, the company faces significant online piracy that is often facilitated by peer-to-peer file sharing. To combat this infringement, Strike 3 regularly files copyright infringement lawsuits against “John Doe” defendants based on the internet protocol (IP) address...

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Fifth Circuit Drills Down to Details in Drilling Database Disagreement

In a wide ranging opinion, the US Court of Appeals for the Fifth Circuit held that copying unimportant database schema from a proprietary database did not constitute infringement. The Court also held that where the technological measure that the defendant allegedly circumvented did not effectively control access to the work, there was no Digital Millennium Copyright Act (DMCA) violation. Moreover, the Court found error in not treating the defendant as the sole prevailing party on the copyright and DMCA claims for purposes of attorneys’ fees, notwithstanding plaintiff’s success on other claims. Digital Drilling Data Systems, LLC v. Petrolink Services, Inc., Case No. 19-20116 (5th Cir. July 2, 2020) (Duncan, J.). Digital Drilling Data Systems (Digidrill) provides software used in oil drilling operations. Digidrill’s software collects data from underground sensors in order to help above-ground operators steer the drill. Digidrill’s systems compile the data into...

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More Than a Feeling: No Fees for Frivolous Claim Where “Perceived Wrongs Were Deeply Felt”

Addressing the appropriateness of the district court’s decision to deny attorneys’ fees relating to a copyright claim it labeled “frivolous,” the US Court of Appeals for the Seventh Circuit affirmed the denial, despite the strong presumption in favor of awarding fees. Timothy B. O’Brien LLC v. Knott, Case No. 19-2138 (7th Cir. June 17, 2020) (Flaum, J). Apple Wellness owns and operates a small chain of vitamin stores in the Madison, Wisconsin, area. David Knott was hired as an employee of Apple Wellness in 2013 and was fired in 2017. Upon his termination, Knott founded a competing vitamin shop, Embrace Wellness, which allegedly shared several design features and a similar layout, and stocked similar products to those of Apple Wellness’s stores. Apple Wellness sued Knott and Embrace Wellness, alleging trademark, trade dress and copyright infringement. Apple Wellness moved for a preliminary injunction on only the trademark and trade dress claims, which was...

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Advertising Falls within Commercial Activity Exception to Sovereign Immunity

The US Court of Appeals for the Second Circuit affirmed a district court’s denial of a motion to dismiss a copyright infringement suit on the ground of sovereign immunity, holding that advertising activity in the United States on behalf of a sovereign government falls within the commercial activity exception to sovereign immunity. Pablo Star Ltd. v. Welsh Gov’t, Case No. 19-1262 (2d Cir. June 8, 2020) (Lynch, J.). Pablo Star is a company registered under the laws of Ireland and the United Kingdom. The Welsh government is a political subdivision of the United Kingdom. Pablo Star sued the Welsh government, along with multiple New-York-based media companies working with the Welsh government, for copyright infringement. Pablo Star alleged infringement of its copyrights in photographs that the Welsh government used in online and printed materials advertising Welsh-themed events in New York and promoting tourism to Wales. The Welsh government moved to dismiss,...

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Copyright Office, Not Courts, Determines Validity of Registrations Containing Inaccurate Information

With the validity of a copyright registration at issue, the US Court of Appeals for the Ninth Circuit reversed and remanded a district court’s judgment after a jury trial and award of attorney’s fees in favor of the plaintiff in a copyright infringement action, holding that the district court was required to request the Register of Copyrights to advise whether inaccurate information, if known, would have caused the Register to refuse registration of the plaintiff’s asserted copyright. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., (9th Cir. May 29, 2020) (Bea, J.). The appeal to the Ninth Circuit arose from a copyright infringement action brought by Unicolors, a company that creates designs for use on textiles and garments, against the global fast-fashion retail giant, H&M Hennes & Mauritz (H&M). After a jury found substantial similarity between a design created by Unicolors in 2011 and a design printed on a skirt and jacket sold by...

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Prayer for Declaratory Relief Invokes Copyright Act and Available Attorneys’ Fees

Vacating the district court’s order denying a defendant’s recovery of attorneys’ fees under the Copyright Act, the US Court of Appeals for the Ninth Circuit held that, even when asserted as a claim for declaratory relief, any action that turns on the existence and potential infringement of a valid copyright invokes the Copyright Act and therefore gives the district court discretion to award reasonable attorneys’ fees pursuant to § 505 of the Copyright Act. Doc’s Dream, LLC v. Dolores Press, Inc. and Melissa Scott, Case No. 18-56073 (9th Cir. May 6, 2020) (Callahan, J.). In a long-running and multi-action dispute between Doc’s Dream and Dolores Press over the ownership rights and usage of video-recorded sermons created by the late religious leader Dr. Eugene Scott, the Ninth Circuit affirmed a district court grant of summary judgment in favor of Dolores in response to Doc’s Dream’s petition for a declaratory judgment on grounds that Dr. Scott abandoned his...

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