If you missed last night’s NASA landing and tried to check it out this morning, you may have had some trouble. NASA posted a 13 minute excerpt of the Curiosity Mars rover’s landing on their official YouTube channel. Within a matter of minutes, the video was taken down with a message explaining the video contained copyrighted material claimed by Scripps Local News. NASA’s video should not have been removed, since, not only did they create it, but it’s also public domain content.
The Digital Millennium Copyright Act allows YouTube to escape liability if they remove content when someone claims to hold a copyright to it. The DMCA then allows users to submit a counter claim if they believe their content does not infringe on an existing copyright and was wrongfully removed.
It’s unclear exactly how or why Scripps filed the complaint, or whether YouTube took it down automatically because their system believed it copied an existing video. Scripps Local News released an apology for the problem through a spokesperson for their parent company, E.W. Scripps Company. This is not the first NASA video that has been taken down on a claim by Scripps. Bob Jacobs, NASA’s Deputy Associate Administrator for Communications said that DMCA complaints routinely disrupt NASA’s online presence. The repeated invalid takedowns are probably a result of YouTube’s automated copyright system that can block wrongfully claimed material.
Video game publisher Electronic Arts (EA) has challenged video game creator Zynga in California Federal Court. It appears that Electronic Arts suspects Zynga has been borrowing a few too many elements from its game, The Sims Social, and incorporated those elements into the Zynga game, The Ville. From EA’s complaint it appears that various design elements of The Sims Social were copied directly into the Zynga game. A few months ago it would have seemed that EA had an uphill battle on their hands but a recent case may have shifted the verdict in EA’s favor. That recent case involved cloning the popular game Tetris (See Cloning Tetris). It would be wholly unsurprising if EA’s recent action was spurred by the verdict of the Tetris case, firstly because of the many common elements with EA’s case against Zynga and the Tetris case and secondly and more importantly, the connection that EA has with the owner of the rights to Tetris. It may be that EA’s actions against Zynga were started as a result of the Tetris case or it may be that the Tetris case was a result of some agreement that EA has with the owners of the rights to the Tetris game.
The Tetris case and the EA case may be the start of a new line of litigation targeting the makers of clone video games. Whatever the motivation for these recent litigation events was, or what entity was behind the suits, it now seems that those video game manufacturers copying substantial elements of other game manufacturers are no longer safe from infringement claims. Although it has always been the law that copyright can not and should not protect the underlying idea behind a work, the expression of that idea can be protected. The central issue in the Tetris, and most likely in the Sims Social case, was whether the underlying idea of a game can be separated from the expression of that idea; the idea of watching someone’s life and controlling it in a video game may not be protectable, but the interface for doing so seems as if it should be.
The commonality which is shared between The Sims Social and The Ville appears to go beyond the mere superficial, as shown on page 20 of the attached complaint, the skin tone choices in both games is identical. Somehow it appears that Zynga has independently picked the exact same eight skin pigmentation representations as EA, in addition to the fact that Zynga also appears to have chosen to allow the same number of skin pigmentation representations. Unless there is some universal skin color chart which is given to first year computer programmers it seems that these similarities can not be coincidental. There are numerous other design choices which carry over from the EA game into the Zynga game which appear to defeat any argument that the Zynga game is at least a partial copy of the EA game.
It cannot be said for sure that The Ville is a copy of The Sims Social, that is something which the court will have to decide. It will be interesting to see what Zynga’s response to the complaint is and whether they can explain some of the many similar choices which the developers of both games chose.
On July 27, Google Inc. asked U.S. Circuit Judge Denny Chin to dismiss a lawsuit from the Authors Guild over the company’s plan to digitize books and provide excerpts through their search engine service. Google filed a motion seeking dismissal and arguing their actions fall under fair use and also provide a benefit to the public and the authors themselves. The Authors Guild also filed for summary judgment. Both parties’ motions are set for oral argument on Oct. 9.
The case has been ongoing since The Authors Guild, along with The American Society of Media Photographers and other parties, sued Google in 2005 claiming the company’s plan to create an online literary database was carried out without permission from copyright holders. Google estimated it has already scanned more than 20 million books and posted excerpts from over 4 million. The process began when Google entered agreements with public and university libraries to digitize and upload information for their Google Books service. So far, Google says works have been scanned from Harvard University, Oxford University, Stanford University, the University of California, the University of Michigan, and the New York Public Library. Judge Denny Chin began hearing the case as a trial judge and has retained jurisdiction after being elevated to the Federal Appeals Court in 2010.
The Authors Guild believes that Google’s actions constitute massive copyright infringement. Google argues, however, that their Google Books service actually furthers the objectives of copyright law by providing significant public benefits. Google believes their service even provides a benefit to the authors themselves and argues the authors have failed to prove Google Books displaced any book sales whatsoever. Google Books, the company argues, actually makes the authors’ works more easily available and may have even increased sales. Additionally, Google argues that Google Books constitutes fair use since it creates significant benefits without diminishing the value of the copyrighted works in question.
Previously, in March 2011, Judge Chin rejected a $125 million settlement reached between the plaintiffs and Google. While this may seem unreasonable, the Judge believed the proposed settlement was far too broad. Judge Chin accused Google of using the settlement to implement a business plan that would leave them with a monopoly to copy works without permission. The settlement went beyond the bounds of the litigation and would strengthen Google’s control over the search engine market. The United States, Amazon.com, and Microsoft had raised antitrust concerns following the first proposed settlement. Further talks to reach an alternate settlement between the parties were unsuccessful. In May, the judge granted class-action status to the plaintiffs, allowing photographers and graphic artists to join the suit.
Formerly, the seal’s use was governed by a variety of financial and administrative restrictions including a written agreement. The FBI’s update now allows the seal to be downloaded for free from their website. Under the new regulation, the Anti-Piracy Warning Seal is available for use by all copyright holders who meet specific conditions. Unlike the original APW Seal program, which restricted the Seal’s use to five associations, the new regulation will enhance the Seal’s availability. The new regulation includes the following conditions:
The APW seal is authorized for use on copyrighted works including films, audio recordings, electronic media, software, books, photographs, etc.
The APW Seal shall only be used on copyrighted works subject to U.S. Criminal Code protection, including 18 U.S.C. Sections 2319, 2319 (A), & 2319(B)
The APW Seal must be accompanied by the Authorized Warning Language included in the regulation, or alternate language authorized by the Director of the FBI in writing.
No additional communication or information may be represented as approved by the FBI.
The APW Seal must be obtained from the FBI’s official website: http://www.fbi.gov
The APW Seal may only be altered in black and white or grayscale. Any other animation or alteration is prohibited.
Copyright holders who use the APW Seal are encouraged to use copyright protection or anti-piracy measures.
The APW Seal may not be used in any manner that suggests FBI approval, authorization or endorsement of any information other than the authorized warning language.
The APW Seal may not be used on any illegal work including infringing material, child pornography, or obscenity.
Any unauthorized use or use that violates the regulation’s conditions may be punishable under 18 U.S.C. Sections 701, 709, or other applicable law.
These new conditions protect the use of the seal and allow it to be used more broadly. Instead of being used only by the previous five industry associations, the APW Seal can now be used by any copyright holder. Since the copyright itself does not even need to be registered, the APW Seal can now protect a wider variety of copyrighted works, including smaller, independent copyright holders. This widespread grant informs the public about criminal penalties and the FBI’s involvement.
Despite some criticism, the majority of feedback to the regulation was positive. Some comments urged the FBI to take a more comprehensive approach, but the FBI pointed out that the APW Seal is only a small part of their larger efforts to curb and punish copyright infringement. The new regulation should help a variety of copyright holders; for example, independent films and sports broadcasts will both benefit from the ease of using the APW Seal to discourage piracy and inform the public. The FBI took into account all comments on the proposed regulation and addressed any concerns expressed.
Some of these comments criticized the regulation as continuing the FBI’s current weak and ineffective APW Seal use. Broader use, they argue, will only serve to further dilute the Seal and will not prevent any infringement. The FBI disagreed, however, and they argue that the regulation was created after a large volume of requests from individual copyright holders. Rather than weaken the APW Seal, the broader grant for use should promote the FBI’s goal of preventing piracy and informing the public about its criminal nature. Additional comments expressed concern that the APW Seal program will dilute the seal generally, but the FBI believes the benefits will outweigh any such risks. The FBI also points out that the APW Seal is protected from misuse by criminal statutes.
This article is not intended as legal advice. If you are a copyright holder and would like to use the FBI’s APW Seal, contact an attorney to ensure you comply with the new regulation’s conditions. While the FBI would like to see the Seal used by all copyright holders, unauthorized use is punishable by law. Stone Law, P.C. is available to guide you through the process of using the APW Seal.
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, sold John Wiley textbooks on eBay. The books were purchased in Asia by his family and friends and shipped into the U.S. to be sold on eBay. The Second Circuit upheld a verdict against Kirtsaeng and held that the first-sale doctrine only applied to goods manufactured in the U.S. The decision by the Second Circuit may have some strange implications that give foreign manufacturers greater control over their products than U.S. manufacturers. In particular, the Association of Art Museum Directors is concerned that museums may be barred from displaying foreign works of art.
According to the brief, the American museums believe they could lose their ability to acquire and display foreign-made, copyrighted pieces. Under the ruling, the museums argue, any gallery that displays a foreign work is potentially infringing on a copyright. The museums were long protected under Section 109, but would now have to rely on fair-use arguments with little precedent.
The museums also argue that any foreign works protected by copyright law should also be subject to the law’s limitations. Section 109 limits the protections under the Copyright Act by allowing owners to manage lawful copies of a copyrighted work without permission from the copyright holder. Normally, public performance without permission is a clear violation of copyright, but Section 109(C) provides an exception for owners of lawful copies:
(c) Notwithstanding the provisions of section 106 (5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.
This exception allows museums to display works publically without obtaining a license from the copyright holder, a practice that could be prohibitively expensive. The museums may have no choice when it comes to foreign art, however, since the Second Circuit ruled that Section 109 applies only to American-made works. In addition to being wildly expensive, licensing could be impossible for museums when the copyright holder is unknown or unavailable.
One argument made in the amicus brief is that Section 104 of the Copyright Act makes all eligible works subject all protections and limitations of the act. There is no distinction for works based on origin in the act; therefore, Section 109 limits the rights of every copyrighted work, regardless of where it was produced. The court below, according to the brief, erred by finding that the text of Section 109 was ambiguous. Instead of finding ambiguity and selectively interpreting the text of the Copyright Act, the court should have read Section 104 as establishing that all protections, remedies, and limitations of the entire Copyright Act apply to all works and all copies by extension.
The brief also argues that the broad interpretation of Section 109 does not conflict with Quality King Distribs., Inc. v. L’anza Research Int’l, Inc., 523 U.S. 135, 150 (1998). In that case, the Supreme Court left open the possibility that all copies that receive protection under U.S. law are subject to the limitations of Section 109. The exception for foreign works, the museums argue, is a result of unnecessary judicial interpretation. The brief argues that no foreign work should receive more or less than a domestic work since there is no clear grant in the statute, since, in the few times Congress has prescribed special treatment for foreign works, they have done so with explicit language. For example, the brief argues that Congress could have chosen the words “lawfully made in the United States,” rather than “lawfully made under this title,” for Section 109. Therefore, there is no reason to interpret the statute differently for foreign made works than for domestic ones.
In its conclusion, the brief pleads for the Supreme Court to reverse the decision below. The museums believe that the court should find that if the copyright owner authorized the first distribution abroad, then imported foreign copies can be distributed or publicly displayed within the U.S. without permission. Doing so would preserve the statutory exception that allows museums across the country to display works of art without fear of unnecessary copyright litigation.
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 Kirtsaeng sold foreign copies of their books on eBay. Kirtsaeng’s family and friends mailed him books purchased abroad, which he sold on eBay to U.S. customers. Relying heavily on the Supreme Court’s Costco ruling, the Second Circuit ruled that the first-sale doctrine did not apply since the books were manufactured abroad and that Kirtsaeng could be held liable.
While the outcome of the case certainly has important implications for public services like libraries and museums, many companies or businesses that deal in foreign-made goods, including CostCo Wholesale Corp. and the National Association of Chain Drug Stores, have also submitted briefs to the court urging them to overturn the decision. The Supreme Court’s decision has a great impact on the lawful, yet unofficial, sale and trade of goods. Also known as the gray market, these unofficial sales are a $63 billion industry. The court’s decision could cripple the industry’s ability to avoid liability for a variety of unauthorized transactions by the owners of legal copies. Much like the Library Copyright Alliance, these businesses could be exposed to litigation due to extra rights afforded to foreign manufacturers under the Second Circuit’s decision.
The libraries maintain that the decision effectively outlaws the way they operate by taking away their ability to lend any foreign books. It does not make sense, they argue, for the law to differentiate between owners’ rights merely based on the location their legitimate copies were produced. Under the Second Circuit’s interpretation, the law would also reward and incentivize sending publishing or production to other countries. The libraries believe Congress would never have intended this kind of reward for outsourcing.
According to a press release by the American Library Association, U.S. libraries currently contain over 200 million books from foreign publishers that would be in jeopardy if the decision is upheld. Even more books from U.S. publishers may have been printed elsewhere, and libraries would be in danger of copyright liability if they lent out any books that did not indicate they were printed in the U.S. While it’s unlikely that copyright holders would bring claims, the libraries do not want to engage in unlawful conduct just because the chances of getting caught are low.
The libraries would like the Supreme Court to overturn the decision and find that the “lawfully made” language in Section 109 of the Copyright Act applies to all works protected under it, but that would protect Kirtsaeng from liability under the first-sale doctrine. If the court chose not to accept this approach, the libraries urge them to adopt the Denbicare exception. The Denbicare exception, from a 1996 Ninth Circuit case, allows parties to assert a first-sale defense if foreign copies are authorized for domestic sale. This interpretation would likely result in liability for Kirtsaeng since he was not authorized to sell the books in question by John Wiley & Sons.
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 in advertising and believe that it violates their copyrights and licensing agreements with Dish.
In court, Dish argued that the case should be tried in New York since they filed first and the contracts with ABC and CBS required it. Dish’s New York filing sought a declaratory ruling that their AutoHop service does not violate copyright law, but the judge said Dish did not specify the copyright or licensing agreements that may have been violated. The judge also said that part of the claim belonged in California and that Dish filed primarily to avoid a case there. As a result, the judge believed Dish’s filing was improperly anticipatory and dismissed some of the claims. The judge also ordered the parties to coordinate the trials to avoid inefficiencies.
Dish likely tried to have the case litigated in New York partly because of a favorable Second Circuit ruling in Manhattan. In Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008), the court granted summary judgment for Cablevision that their proposed RS-DVR system did not infringe as reproductions or public performances. In examining the potential audience, the court found that single subscribers using a DVR did not constitute a Public Performance. Presumably, Dish thought this ruling made New York a more favorable venue to hear the copyright issues that arise from their DVR’s AutoHop capability.
In the trial, Dish will also rely on the Supreme Court’s ruling in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). Known as the “Betamax Case,” the Supreme Court decision ruled that individual time shifting or recording complete television programs constitutes fair use. The court held that VCR manufacturers could not be held liable for infringement, and the case has been at the center of recent technological copyright issues like file sharing. While there is a clear parallel between VCRs and DVRs, Dish’s case is complicated by the AutoHop’s alteration of the broadcast since, in the original Betamax ruling, the court noted that the entire work was merely reproduced at a different time in its entirety. Dish has maintained, however, that the AutoHop does not alter the broadcast signal or delete commercials. According to Dish, the AutoHop skips commercials by fast-forwarding them, not by removing them.
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’ own iPhone game when seeking to create “Mino.” While they did not copy the actual underlying coding for Tetris’ game, Xio did not deny widespread copying of Tetris’ features and design. Additionally, Xio did not deny spending money to research copyright law and concluding they could imitate “Tetris” if they stuck to the game’s functional elements.
For this conclusion, Xio leaned heavily on the merger and scenes a faire doctrines to conclude that most of Tetris’ content could not be protected. Since only expression is copyrightable, the underlying ideas of a game are not protected. For example, while “Mario” is protected from wholesale copying, creating a game around an Italian plumber who saves a princess might not be copyright infringement. Stemming from this expression/idea theory, the doctrine of merger limits copyright protections when there are few ways of expressing a given idea. Since the expression and idea are so closely related, if the law offered standard copyright protection, the copyright holder would receive a near monopoly on the idea. To avoid these idea monopolies, the merger doctrine reduces copyright protection when an idea and its expression merge. Similarly, Scenes a Faire limits expression that is widely used and commonly associated with a given genre. Relying on these two doctrines, Xio argued that any expression found in “Tetris” is unprotectable since it is so closely related to the game’s underlying rules and ideas.
The judge disagreed, however, and held that Xio’s theory would only preclude protection for expression that is inseparable or integral to an idea. Xio’s articulation of merger and Scenes a Faire is dangerously broad and could have precluded any protection whatsoever for game developers. The court’s adoption of a narrow view ensures that developers will be protected while also preserving merger and Scenes a Faire for difficult cases where an idea and expression are almost inseparable.
Specifically, the judge found Xio copied the individual Tetris pieces, the dimensions of the playing field, the display of garbage lines, the appearance of shadow pieces, the display of the next piece, the color changes when pieces land, and the playing field automatically filling in when a player loses. The court found this expression was not inseparable from the underlying ideas of the game, and while taking a single one of these elements may not have been infringement, Xio’s wholesale replication constituted copyright infringement.
The court also held that Xio infringed on Tetris’ trade dress in creating “Mino.” Trade dress is a legal protection designed to protect consumers from purchasing goods that imitate another product. Trade dress tries to prevent knock-offs and counterfeits from being sold as the genuine product. Xio similarly sought to argue that Tetris’ trade dress was functional and did not deserve protection. The court also rejected this argument and held that many of the design choices in Tetris are not related to function.
While many have expressed concerns that the decision will stifle creativity and encourage copyright holders to pursue frivolous lawsuits, the decision will help protect copyright holders against clone producers like Xio. Given Xio’s unapologetic, wholesale reproduction of “Tetris,” there is a good chance that this decision will not harm genuinely new creative games that simply share elements or inspiration with their predecessors.
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 only remove a judge for misconduct or neglect of duty. The Register, also appointed by the Librarian, can interpret copyright laws and provide written opinions to the Board on novel material questions of law and reviews any legal errors in the Board’s decisions.
Intercollegiate, a group of college radio stations that operate online, challenged the Board’s rates for educational and noncommercial webcasters. As part of their claim, Intercollegiate presented two arguments that the Copyright Royalty Board’s structure violates the Constitution’s Appointments Clause, art. II, § 2, cl. 2:
The judges are principal officers who must be appointed by the President with Senate confirmation since they exercise significant ratemaking authority without any restrictions by a superior.
If the judges are inferior officers, the Librarian of Congress is not a Head of Department in whom Congress may vest appointment power.
The court agreed with Intercollegiate’s first argument but rejected their second. After accepting the argument that the judges are primary officers, the court tried to provide a remedy that would bring the appointments in line with the constitutional requirements with as little disruption as possible.
Since the Librarian can only remove Judges from the Board for limited reasons and the Board is not subject to the supervision of a principle officer, the court agreed that the Judges can be considered principle officers who are not appointed constitutionally. In order to solve this issue, the court simply invalidated the limitations on the Librarian’s power to remove a judge. If the Librarian is a Head of Department and can remove Judges from the Board without cause, then the Judges could be considered inferior officers.
While some previous cases have stated that the Library of Congress is not an executive department and cannot be considered a Department under the Appointments Clause, the court held that the Library of Congress meets the definition of Department since it exercises a variety of executive powers and the Librarian is appointed by the President with the advice and consent of the Senate. As a result, the Librarian of Congress can be considered a Head of Department. Therefore, if the restrictions on removal are invalidated, the Librarian can appoint Copyright Royalty Judges constitutionally.
Having resolved the constitutional issues, the court remanded the case back to the Board to determine suitable copyright licensing fees.
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 moved for summary judgment, but the trial judge refused to grant them based on the evidence. A jury eventually heard the questions of whether the defendant had “tacit authorization” to access the account and whether the defendant exceeded such authorization. All seven jurors found that the defendant had been granted tacit authorization to view the email after the plaintiff failed to log out, and six of the seven jurors found that the defendant did not exceed the tacit authorization by accessing and printing the messages.
The court also found that the various motions were properly denied since there was little evidence of any damage to the plaintiffs. All plaintiffs remained employed and were reelected to their teachers’ association positions. The appellate court said that the jury was free to discredit any testimony presented by the plaintiffs that their reputations were harmed.
The Appellate Court found that the evidence throughout the trial did not support a grant of summary judgment for the plaintiffs and refused to address the plaintiffs’ remaining objections in a written opinion. The court ruling will certainly make people check twice before getting up to leave a public computer, and although the ruling might seem like a grant to read through your friends’ email, it’s best to stay on the safe side and keep out.