By Scott Hervey
The United States District Court for the Southern District of New York rules that the downloading of a digital music file embodying a particular song does not constitute a "public performance" of that song within the meaning of the Copyright Act. Thus, on-line music retailers need not negotiate a license with performance rights organizations like ASCAP and BMI in order to offer downloadable music files to consumers.
The opinion is available here
The number of patent infringement cases filed in the United States has increased dramatically over the last ten years or so, and we can expect to see that trend continue. One reason is that the number of patents issued is increasing, and many of those patents, particularly business methods patents, are viewed with suspicion by the high-tech industry. Another reason is that businesses are investing more time and money into intellectual property assets and the loss of those assets could cost the business greatly.
What is patent infringement? Anyone who makes, uses, offers to sell, or sells in the United States, or imports into the United States, a patented invention, without authority from the patent owner, infringes a utility patent. The prerequisite is an issued (not pending or expired) U. S. patent. No intent is required. The patent is infringed if any of the above acts are committed in the United States. An infringer cannot, for example, avoid liability by moving a manufacturing operation outside the United States where the product is sold within the United States. Likewise, a manufacturer of a product made in the United States infringes the patent even if the product is only sold outside the United States.
On March 29, 2007, the Ninth Circuit issued its opinion in the case Perfect 10, Inc. v. CCBill LLC, et al. in which it attempted to clarify when immunity is available to internet service providers for copyright infringement under the Digital Millennium Copyright Act (“the DMCA”), 17 U.S.C §512. Perfect 10, the publisher of an adult magazine and a related subscription website, brought a lawsuit claiming that CCBill and CWIE violated copyright laws by providing services to other websites that posted images stolen from Perfect 10’s magazine and website. CWIE provides web hosting and related internet connectivity services to the owners of various websites. CCBill allows customers to use credit cards or checks to pay for subscriptions or memberships to various websites. The U.S. District Court granted summary judgment in favor of CCBill and CWIE as to the copyright claims finding that they qualified for the “safe harbor” provisions from copyright infringement liability under the DMCA.
The state of California is considered an at-will employment state, where both the employee and the employer may freely walk away from the employment contract at any time with little to no consequences. This freedom, while intended to benefit both the employer and the employee, has enabled several employers to hire away their competitor’s employees. Last month the Ninth Circuit identified significant nuances concerning the issue of whether, under California law, a corporation’s allegations that its competitor lured away employees who signed term-based employment contracts, sufficiently plead intentional interference with contract, interference with prospective economic advantage and violation of the California Business and Professions Code section 17200 et seq., also known as the Unfair Competition Law (“UCL”).
By Scott Hervey
By now, everyone has heard about the One Billion dollar copyright infringement lawsuit Viacom filed against YouTube and its owner, Google. The lawsuit stems from the fact that clips from a number of Viacom’s programs are regularly appearing on the YouTube website.
YouTube allows its users to post video clips onto the YouTube website, and categorize the clip by providing terms which enable the clip to be displayed when a viewer conducts a search. While some users post videos clips they themselves create, other users are posting clips from television programs and motion pictures, including programs owned by Viacom such as Sponge Bob Square Pants, The Daily Show with Jon Stewart, The Colbert Report, South Park, and MTV Unplugged.
One of Viacom’s chief complaints is that YouTube has not instituted filtering technologies to prevent the uploading of clips from Viacom’s programs despite promises from its executives. Viacom also complains that because YouTube users are able to re-post removed clips almost as soon as they come down. This and other factors cause Viacom to lament that “no matter how much a copyright owner expends to protect their rights, there will always be a vast collection of infringing videos available on YouTube to draw users to its site.”
As an attorney who regularly represents content owners, I understand Viacom’s concerns. Viacom believes that if clips from one or more of its programs are available to users for free on YouTube, this may lessen the demand for those programs on either Apple’s iTunes or on one of Viacom’s own sites. Is YouTube taking advantage of some loopholes in the now 9 year old Digital Millennium Copyright Act (“DMCA”), or is the DMCA doing what its supposed to do and content owners are trying to run rough shot over what may be fair use.
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