Foreign Manufactured Goods and the First Sale Doctrine

Posted by on Jul 16, 2012 in Copyright, Fair Use, First Sale Doctrine

On July 9, 2012, The Association of Art Museum Directors along with nearly 30 American museums including MoMA, LACMA, the Guggenheim, the Getty, the Whitney, SFMOMA,the Art Institute of Chicago, and the Dallas Museum of Art submitted an amicus brief  to the Supreme Court. The brief comes as a response to a recent decision by the Second Circuit to limit the protections under Section 109 of the Copyright Act to works created within the United States in John Wiley & Sons v. Kirtsaeng. As a result, many museums feel that the way they operate may be in jeopardy, much like libraries and many gray market businesses. The Kirtsaeng case follows the Supreme Court’s December 2010 decision in Costco Wholesale Corp. v. Omega, which centered on the first-sale doctrine, which usually entitles the owner of a lawfully produced copyrighted work to resell it without permission from the copyright holder. The Supreme Court split 4-4, with Justice Elena Kagan not taking part. The court did not issue a written opinion, but held that the first-sale doctrine did not apply to foreign goods. The Second Circuit’s Kirtsaeng decision relied on the Supreme Court’s Costco ruling. In the present case on appeal, Supap Kirtsaeng, a graduate student at the University of Southern California,...

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First Sale Doctrine: Foreign Manufactured Goods

Posted by on Jul 16, 2012 in Copyright

On July 3, the Library Copyright Alliance filed an amicus brief with the Supreme Court as a result of their decision to review the Second Circuit’s decision in John Wiley & Sons v. Kirtsaeng. The decision interpreted the first-sale doctrine, which allows legal owners to resell, lend, or dispose of copyrighted works after purchase, to apply only to works manufactured in the United States. As a result, foreign manufacturers have greater control over their products under U.S. law. Many organizations like libraries and museums have submitted amicus briefs urging the Supreme Court to reject this interpretation since they depend on the first-sale doctrine to operate. In December 2010, the Supreme Court faced a similar issue in Costco Wholesale Corp. v. Omega. In that case, the Supreme Court held that the first-sale doctrine only applied to U.S. manufactured works. The unwritten ruling was based on a 4-4 split by the court. Justice Elena Kagan did not take part, since she was involved in the issue as the Solicitor General. When Kirtsaeng reaches the Supreme Court next year, however, she could be the deciding vote that finally determines the issue. In the Kirtsaeng case, the Second Circuit upheld a jury award of statutory damages to John Wiley & Sons, after Supap...

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Fair Use in Copyright: Time Shifting and Dish Network AutoHop

Posted by on Jul 12, 2012 in Copyright, Fair Use

In Dish Network LLC v. American Broadcasting Cos et al, a U.S. District Judge in Manhattan, Laura Taylor Swain, granted a motion by Fox to dismiss copyright and contract claims by Dish. The claims result from Dish’s new AutoHop feature, which allows viewers to skip commercials. In order to achieve a more favorable ruling, Dish filed preemptively in New York, only hours before claims by CBS, Fox, and NBC were filed in California. Dish’s New York dispute involves ABC, CBS, Fox, and NBC. After the judge’s ruling, the issue will be tried in both New York and California on several different issues. Dish’s claims against Fox, and copyright claims against CBS and NBC were all dismissed to be heard in California. Dish’s contract claims against CBS and NBC, however, will proceed in New York since the companies failed to assert those claims in California. All claims by Dish against ABC also remain in New York. Dish filed the suit in New York District Court primarily to preempt suits by CBS, Fox, and NBC in California. In fact, the networks filed suits against Dish in Los Angeles only hours after the New York case was filed. The networks are concerned that Dish’s ad-skipping feature will result in a severe decline...

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Cloning Video Games is Copyright Infringement: You Can’t Just Copy Tetris 0

Cloning Video Games is Copyright Infringement: You Can’t Just Copy Tetris

Posted by on Jul 10, 2012 in Computer Law, Copyright

On May 30, 2012, a Federal District Court in New Jersey granted summary judgment to Tetris in an infringement case against Xio Interactive, Inc. for their iPhone game “Mino.” In Tetris Holding, LLC v. Xio Interactive, Inc., the judge ruled that Xio infringed upon Tetris’ copyright and trade dress. The decision is an important gain for game developers, who are often offered little protection against infringement by game studios who produce clones of popular games for profit. Many game developers have trouble protecting their intellectual property rights against companies who create clone games to cash in on successful designs. Clones copy the look, feel, and mechanics of a popular game for a profit, but, until recently, the original developers had trouble proving these clones crossed the line into copyright infringement. Often, developers like Xio successfully argued that they copied only functional elements of the game, such as the underlying rules or theme, and not that game’s particular expression of them. The New Jersey court ruled for Tetris, however, holding that Xio’s clone copied various parts of “Tetris” that may have been acceptable individually, but, taken together, constituted infringement. While the holding is well argued, the court may also have ruled for Tetris after Xio openly admitted to downloading Tetris’...

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Copyright Royalty Board Ruled Unconstitutional

Posted by on Jul 9, 2012 in Copyright

On July 6, the U.S. Court of Appeals for the District of Columbia Circuit found that the Copyright Royalty Board violates the Appointments Clause of the Constitution. The Copyright Royalty Board is a board of three judges appointed by the Librarian of Congress to set the rates paid for copyright licenses. Since the market for copyright licenses can be very unique, the Board balances a variety of considerations to ensure that licensing prices remain fair. The Appointments Clause of the Constitution requires that “principal officers” be appointed by the President with the advice and consent of the Senate. Intercollegiate Broadcasting System, Inc. argued that the Judges of the Board exercised power as principal officers without being appointed constitutionally. The court agreed that the judges could be considered principal officers, but solved any constitutional issues by eliminating limitations on the Judges’ removal. If the Librarian of Congress can remove the Judges at will, then the Judges of the Board can be considered inferior officers and avoid violating the Appointments Clause. While the Librarian of Congress oversees the Copyright Royalty Board to a degree, the Board enjoys a great deal of independence. The Librarian can only approve their procedural regulations, issue their ethical rules, and oversee logistics. Also, the librarian can...

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Tacit Consent to E-mail Snooping

Posted by on Jul 9, 2012 in Computer Law

Thanks to a New Jersey court ruling, if you’re one of the many people who check their personal email at work, you might be concerned. Forgetting to log off a public computer could be even more stressful after a jury found that failing to log off constituted tacit authorization to snoop around. The case, Marcus v. Rogers, included excerpts from the emails in question. On June 28, a New Jersey Appellate Court affirmed a lower court’s ruling in a digital snooping case in an unpublished opinion. The court found no error in a trial judge’s refusal to grant summary judgment for the plaintiffs based on the evidence presented throughout the trial. The defendant, a teacher, sat down in the computer lab of the school to check his email before work. When he put down his drink on the desk between two computers, he woke up the inactive computer next to him and revealed another teacher’s private email. After noticing some of the messages in the Yahoo inbox mentioned him, the defendant read and printed the emails. He then confronted the plaintiffs with the emails. The plaintiffs filed a claim under N.J.S.A. 2A:156A-27, which prohibits unauthorized access of computer files or emails. At several points during the trial, the plaintiffs...

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