UPDATE: The lawsuits brought for allegations of illegal downloads of the movie “The Hurt Locker” are moving forward. Last year, the U.S. Copyright Group filed a copyright infringement complaint with a federal court in Washington D.C., naming 5,000 unidentified defendants.
Earlier this month, the Copyright Group filed multiple additional complaints for infringement of the movie across the country. Unlike their previous lawsuit, these lawsuits name individual Defendants.
The lawsuits were also filed in courts that have jurisdiction in the areas where the alleged illegal downloading occurred. There are several different venues: federal courts in Massachusetts (where a favorable judgment in the music downloading context already took place), Minnesota (where the Jammie Thomas music download case resulted in favorable jury results for copyright holders) and Colorado, among others.
News reports indicate that the individuals named in the lawsuits are those who previously refused to settle with Plaintiffs. (The reports indicate offers for settlement in the $1,500-$3,000 range.)
Will these lawsuits move forward? Will Defendants settle now that they have been named in lawsuits?
Friday, February 25, 2011
Tuesday, February 1, 2011
UFC Grapples with Justin.tv over Live-Streaming of Events
Zuffa, Inc., the parent company of Ultimate Fighting Championship has filed a lawsuit in the District Court of Nevada for copyright infringement against Justin.tv. Justin.tv is a website that allows for the streaming of live video through its web portal.
UFC alleges that its pay-per view events are being broadcast on Justin.tv. UFC hired third party vendors to send petitions to take down over 200 video feeds of the October 23, 2010 pay-per view event UFC 121. According to news reports, UFC claims that over 50,000 watched illegal streaming video of UFC 121.
Justin.tv has a terms of use which includes DMCA takedown notices. UFC alleges that Justin.tv’s response has been inadequate. According to a press relase on the UFC website, Zuffa contacted Justin.tv several times over almost a two-year span in attempts to prevent illegal uploading.
It seems likely that Justin.tv is likely to rely on the DMCA safe-harbor provision similar to the arguments made by YouTube in the Viacom lawsuit.
UFC alleges that its pay-per view events are being broadcast on Justin.tv. UFC hired third party vendors to send petitions to take down over 200 video feeds of the October 23, 2010 pay-per view event UFC 121. According to news reports, UFC claims that over 50,000 watched illegal streaming video of UFC 121.
Justin.tv has a terms of use which includes DMCA takedown notices. UFC alleges that Justin.tv’s response has been inadequate. According to a press relase on the UFC website, Zuffa contacted Justin.tv several times over almost a two-year span in attempts to prevent illegal uploading.
It seems likely that Justin.tv is likely to rely on the DMCA safe-harbor provision similar to the arguments made by YouTube in the Viacom lawsuit.
Tuesday, January 18, 2011
Banned in the United States (and Canada)
As a follow up to the Second Circuit decision in the Salinger case, there is a reported settlement. Defendant Colting wrote an alleged sequel to the Salinger book The Catcher in the Rye. As part of the settlement, Colting's book will not be sold in the U.S. and Canada. The book will be available in other countries.
Further, Colting's book will make no references to Salinger or his book nor can the author use the copyright lawsuit to promote the book.
BARBIE BRATZ
Opening arguments are set to begin soon on a jury trial on remand regarding the Mattel (Barbie) vs. MGA (Bratz). Link to previous blog entry. There are several copyright claims remaining from the first generation of Bratz dolls and a few others; however, copyright infringement claims on many subsequent generations of Bratz dolls were thrown out by the Ninth Circuit. The trial will also include trade secret misappropriation claims stemming from MGA's hire of Carter Bryant from Mattel.
Further, Colting's book will make no references to Salinger or his book nor can the author use the copyright lawsuit to promote the book.
BARBIE BRATZ
Opening arguments are set to begin soon on a jury trial on remand regarding the Mattel (Barbie) vs. MGA (Bratz). Link to previous blog entry. There are several copyright claims remaining from the first generation of Bratz dolls and a few others; however, copyright infringement claims on many subsequent generations of Bratz dolls were thrown out by the Ninth Circuit. The trial will also include trade secret misappropriation claims stemming from MGA's hire of Carter Bryant from Mattel.
Thursday, January 13, 2011
If the Damages Were Not Big Enough....
Following up on the recent lawsuit between Oracle and SAP and the $1.3 billion in damages awarded Oracle (the largest copyright damage award in U.S history), the parties were fighting over 2 other important remedies in copyright infringement actions - interest and attorneys fees.
An award of costs may include attorneys fees to a prevailing party under Section 505 of the Copyright Act. It has been reported that Oracle is seeking over $100 million in attorney's fees.
In addition, Oracle sought over $200 million dollars in interest. SAP argued that interest need not be paid. The court ruled that interest would be awarded but would not be the amount that Oracle sought but based on Treasury rates and calculations would be a much smaller figure (approx. $16 million).
An award of costs may include attorneys fees to a prevailing party under Section 505 of the Copyright Act. It has been reported that Oracle is seeking over $100 million in attorney's fees.
In addition, Oracle sought over $200 million dollars in interest. SAP argued that interest need not be paid. The court ruled that interest would be awarded but would not be the amount that Oracle sought but based on Treasury rates and calculations would be a much smaller figure (approx. $16 million).
Tuesday, January 11, 2011
Show Me...Damages
Clearly, damages are a form of monetary compensation. The question is how to assess damages. It is more than difficult to assess. Two recent damages cases prove this point: Oracle v. SAP and RIAA v. Thomas. In both instances, liability was established and now damages have become the major issue.
In Oracle v. SAP, the jury awarded $1.3 billion when SAP copied Oracle’s software and customer manuals. Oracle claimed that a license for such software to SAP would have been around $2 billion dollars. SAP countered that because it was only able to get sway a few of Oracle’s customer to buy from SAP that the damages in the $30-40 million dollar range was more appropriate. Following the verdict, a representative from SAP indicated that “[SAP] will pursue all available options, including post-trial motions and appeal if necessary.”
In November, the third trial in RIAA v. Jammie Thomas-Rassett, a case involving illegal music downloads of 24 songs was held. In 2007, the jury initially awarded the RIAA $222,000. However, due to a jury instruction error, the judge declared a mistrial and the verdict was thrown out. Rather than settling outside of court, Thomas-Rassett opted for a second trial, and in 2009 the second jury awarded the RIAA just under $2 million. The judge in the case subsequently lowered the award to over $50,000.
Both parties appealed the decision and a third jury awarded the RIAA $1.5 million or $62,500 per song. A copy of the verdict is available here via Copyrights and Campaigns. Lawyers for Thomas argued that because the downloads themselves were worth $1 a piece that the damages should be $24. The RIAA had sought a maximum amount of $3.6 million.
In Oracle v. SAP, the jury awarded $1.3 billion when SAP copied Oracle’s software and customer manuals. Oracle claimed that a license for such software to SAP would have been around $2 billion dollars. SAP countered that because it was only able to get sway a few of Oracle’s customer to buy from SAP that the damages in the $30-40 million dollar range was more appropriate. Following the verdict, a representative from SAP indicated that “[SAP] will pursue all available options, including post-trial motions and appeal if necessary.”
In November, the third trial in RIAA v. Jammie Thomas-Rassett, a case involving illegal music downloads of 24 songs was held. In 2007, the jury initially awarded the RIAA $222,000. However, due to a jury instruction error, the judge declared a mistrial and the verdict was thrown out. Rather than settling outside of court, Thomas-Rassett opted for a second trial, and in 2009 the second jury awarded the RIAA just under $2 million. The judge in the case subsequently lowered the award to over $50,000.
Both parties appealed the decision and a third jury awarded the RIAA $1.5 million or $62,500 per song. A copy of the verdict is available here via Copyrights and Campaigns. Lawyers for Thomas argued that because the downloads themselves were worth $1 a piece that the damages should be $24. The RIAA had sought a maximum amount of $3.6 million.
Wednesday, December 22, 2010
More First Sale News
Last week the Ninth Circuit ruled on the second of three first sale cases - MDY v. Blizzard. The opinion can be found here.
The case is about the use of bots (made by MDY) to assist in advancing in the World of Warcraft video game owned by Blizzard. For more facts about the case, see my previous blog entry.
Relying on the earlier decision in Vernor v. Autodesk, the first decision in the trio of first sale cases before the Ninth Circuit this term, the Court finds that the players of Blizzard are licensees and not owners of the World of Warcraft software. Blizzard’s World of Warcraft End User License Agreement specifically prohibits users from creating or using third party software to modify Worlds of Warcraft including bots.
However, the Ninth Circuit differentiates between a contract covenant which is a breach of the license agreement and not copyright enforceable conditions. Because the Ninth Circuit reversed the district court decision and determined that the MDY bot did not alter or copy any of Blizzard’s software, it was not a copyright enforceable condition and thus no copyright infringement occurred.
Next the Ninth Circuit had to decide whether MDY committed copyright infringement under the DMCA when it modified its bot to circumvent Blizzard’s Warden technology to prevent bots from connecting to the World of Warcraft servers.
In its interpretation of the DMCA (17 U.S.C. Section 1201(a)), the Court finds that the statute is meant to protect from circumvention of access controls to copyrighted works including decrypting and descrambling works. This does not necessarily affect the exclusive rights under Section 106 of the Copyright Act. The Court notes that this is a departure and differing view from the Chamberlain decision in the Federal Circuit requiring that the circumvention interfere with one of the exclusive rights under Section 106.
Based on this interpretation, the Court finds that MDY does not violate Section 1201(a)(2) for the literal elements and individual non-literal elements of Worlds of Warcraft because the Warden technology does not control access to the Worlds of Warcraft elements. The Warden technology does not prevent access to Worlds of Warcraft on an individual user’s computer but only to the Worlds of Warcraft servers.
However, the Court finds that MDY violates Section 1201(a) for the dynamic non-literal elements of Worlds of Warcraft. The Ninth Circuit explains the dynamic non-literal elements as analogous to the audiovisual display of a computer game which is independently copyrightable from the software program code. Because Warden does prevent access to the audiovisual display of the Worlds of Warcraft from its servers, MDY’s efforts to restructure its bots to circumvent the Warden technology is an infringement.
The Court reversed summary judgment for Blizzard for tortuous interference with contract because there were triable issues of fact.
The case is about the use of bots (made by MDY) to assist in advancing in the World of Warcraft video game owned by Blizzard. For more facts about the case, see my previous blog entry.
Relying on the earlier decision in Vernor v. Autodesk, the first decision in the trio of first sale cases before the Ninth Circuit this term, the Court finds that the players of Blizzard are licensees and not owners of the World of Warcraft software. Blizzard’s World of Warcraft End User License Agreement specifically prohibits users from creating or using third party software to modify Worlds of Warcraft including bots.
However, the Ninth Circuit differentiates between a contract covenant which is a breach of the license agreement and not copyright enforceable conditions. Because the Ninth Circuit reversed the district court decision and determined that the MDY bot did not alter or copy any of Blizzard’s software, it was not a copyright enforceable condition and thus no copyright infringement occurred.
Next the Ninth Circuit had to decide whether MDY committed copyright infringement under the DMCA when it modified its bot to circumvent Blizzard’s Warden technology to prevent bots from connecting to the World of Warcraft servers.
In its interpretation of the DMCA (17 U.S.C. Section 1201(a)), the Court finds that the statute is meant to protect from circumvention of access controls to copyrighted works including decrypting and descrambling works. This does not necessarily affect the exclusive rights under Section 106 of the Copyright Act. The Court notes that this is a departure and differing view from the Chamberlain decision in the Federal Circuit requiring that the circumvention interfere with one of the exclusive rights under Section 106.
Based on this interpretation, the Court finds that MDY does not violate Section 1201(a)(2) for the literal elements and individual non-literal elements of Worlds of Warcraft because the Warden technology does not control access to the Worlds of Warcraft elements. The Warden technology does not prevent access to Worlds of Warcraft on an individual user’s computer but only to the Worlds of Warcraft servers.
However, the Court finds that MDY violates Section 1201(a) for the dynamic non-literal elements of Worlds of Warcraft. The Ninth Circuit explains the dynamic non-literal elements as analogous to the audiovisual display of a computer game which is independently copyrightable from the software program code. Because Warden does prevent access to the audiovisual display of the Worlds of Warcraft from its servers, MDY’s efforts to restructure its bots to circumvent the Warden technology is an infringement.
The Court reversed summary judgment for Blizzard for tortuous interference with contract because there were triable issues of fact.
Tuesday, December 21, 2010
Supreme Court Splits on First Sale
Last week the Supreme Court issued a split 4-4 ruling in the Costco v. Omega lawsuit. The opinion can be found here.
The split affirms the decision of the Ninth Circuit that the first sale doctrine does not apply to copyrighted works manufactured and sold abroad. The case has been reported in many news outlets, including the New York Times and Wall Street Journal.
The split affirms the decision of the Ninth Circuit that the first sale doctrine does not apply to copyrighted works manufactured and sold abroad. The case has been reported in many news outlets, including the New York Times and Wall Street Journal.
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