Seattle Copyright Watch - Insight and Commentary on Copyright and other Intellectual Property topics and, occasionally, Dogs

Righthaven LLC’s business model is identifying copyright infringements on behalf of third parties, obtaining limited, revocable copyright assignments from the third parties, and then suing the infringers.  Righthaven received such copyright assignments from Stephens Media LLC, the owner of the Las Vegas Review-Journal.  Righthaven separately sued Wayne Hoehn and Thomas DiBiase for copyright infringement for posting Las Vegas Review-Journal articles online without authorization.  The cases were consolidated for appeal.  In both cases, the district court ruled that Righthaven lacked standing to sue for copyright infringement because Righthaven did not own any of the exclusive rights, as required by the Copyright Act.

The Ninth Circuit affirmed the district court’s decisions:

Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so. Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln’s wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.

(Opinion pdf pages 3-4).

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This post follows up on my post entitled YouTube's Safe Harbor Status Requires More Fact-Finding, Rules Second Circuit.  Viacom and other plaintiffs who are content owners sued YouTube for copyright infringement.  The district court granted YouTube’s motion for summary judgment, ruling that YouTube was protected by the DMCA §512(c) safe harbor.  On appeal, the Second Circuit ruled in YouTube’s favor on some issues, but remanded the case to the district court to address four specific issues.  On remand, the district court ruled in YouTube’s favor on all four of those issues, granted YouTube’s motion for summary judgment and dismissed the plaintiffs’ complaint.

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Aereo, Inc., charges a monthly fee for subscribers to watch broadcast television programs over the Internet.  Aereo’s service is currently available only in New York City.  Aereo picks up the broadcast signals using thousands of small antennas, each about the size of a dime.  Aereo assigns an antenna to an individual user, so that only one user uses a particular antenna at a time.  Users can record a program and/or watch the program, which is delayed just a few seconds compared to the broadcast.  A user’s individual directory is created on a hard drive at Aereo’s facility using the signal received through the antenna assigned to that user.  Each user views her individual copy of a program.  Copies created at the request of one user cannot be shared with other users.

The owners of copyrights for programs broadcast on network television sued Aereo for copyright infringement, alleging infringement of their right of public performance.  The copyright owners sought a preliminary injunction against Aereo.  The district court denied the motion, ruling that the Second Circuit’s opinion in Cartoon Network LP, LLLP v. CSC Holdings, Inc., (Cablevision) precluded a ruling in favor of the copyright owners.  The copyright owners appealed the denial of the preliminary injunction to the Second Circuit.  The Second Circuit affirmed the district court’s decision and agreed that Cablevision’s ruling controls in this case.  “Aereo’s transmissions are not public performances.”  (Opinion pdf page 33).  Infringement of the copyright owners’ other exclusive rights, such as reproduction and distribution, was not before the court because the copyright owners based their motion for a preliminary injunction on only the public performance right.

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The question the U.S. Supreme Court addressed in Kirtsaeng v. John Wiley & Sons, Inc., is whether copies that were published abroad and distributed abroad by an American copyright owner are copies that are lawfully made under the U.S. Copyright Act.  If so, Kirtsaeng, the alleged infringer, could lawfully buy copies published and distributed abroad, then sell them in the U.S. without permission from the copyright owner.  If not, then Kirtsaeng was a copyright infringer.

Supap Kirtsaeng, a Thai citizen studying in the U.S., bought foreign edition English language textbooks published abroad by John Wiley’s wholly owned foreign subsidiary for foreign markets.  He then imported and sold those textbooks in the U.S. for a profit.  Wiley sued Kirtsaeng for copyright infringement, due to Kirtsaeng’s unauthorized importation of the text books.  At issue was the interplay between 17 U.S.C. §106(3) granting the copyright owner the exclusive right to distribute copies, §109(a) limiting the copyright owner’s exclusive right to distribute copies with the first sale doctrine and §602 deeming importation of copies without the consent of the copyright owner an infringement under §106.  Ultimately, the case came down to whether the language of §109(a) places a geographic restriction on the scope of the first sale doctrine.  The U.S. Supreme Court ruled that there is no geographical restriction and that Kirtsaeng did not infringe Wiley’s copyrights by selling books in the U.S. that were published abroad by Wiley.

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Dodger Productions, Inc. used a seven-second clip from The Ed Sullivan Show in its stage musical, Jersey Boys.  Jersey Boys is a play recounting the history of the pop band, the Four Seasons, and its members.  SOFA Entertainment owns the copyrights for the entire series of The Ed Sullivan Show, from 1948 to 1971.  SOFA sued Dodger for copyright infringement for its unlicensed use of the clip.

Dodger asserted a fair use defense to SOFA’s lawsuit.  Both parties moved for summary judgment on the fair use issue.  The district court ruled in Dodger’s favor, agreeing that Dodger’s use in the Jersey Boys was a fair use.  The district court also granted Dodger’s request for attorney’s fees and costs of $155,000.  “The district court viewed SOFA’s infringement claim as objectively unreasonable and determined that awarding fees would deter future lawsuits that might chill the creative endeavors of others.”  (Opinion pdf page 6).  The Ninth Circuit affirmed the district court’s decision.

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