According to a recent study by Flurry Analytics, in the first two months of 2012 over 50% of all user app sessions on Android and iOS mobile devices involved video games. GamesIndustry International recently reported that by 2017 global revenue from video game software is expected to grow to $70 billion by 2017. With significant money and consumer interest in play, it’s not surprising that software developers are rushing to feed the gaming frenzy. In some cases, game developers may be inspired by the world’s most successful mobile gaming apps like Tetris, Angry Birds, Bejeweled and many others.
However, a recent court decision warns that game developers must recognize that the difference between “inspiration” and “copying” may be subtle. Falling into the wrong category can result in significant consequences. Continue reading
A district court in Georgia recently issued an opinion that, if upheld, may allow academic institutions and others to share portions of digital documents online and avoid liability under U.S. copyright law.
In Cambridge University Press v. Becker, the U.S. District Court for the District of Georgia considered a case where Georgia State University (GSU) allowed its faculty to post excerpts from copyrighted books online so long as the faculty members filled out a “fair use checklist” to determine whether the posting qualified as fair use. The plaintiffs alleged that GSU’s postings infringed plaintiffs’ copyright in 74 documents.
In its 350-page opinion, the court sided with GSU with respect to all but five of the 74 documents. In the decisions favoring GSU, the court generally found that the university published only small excerpts online with no intent to profit from the posting.
What amount is “small enough” to qualify as fair use? Continue reading
In United States copyright law, the “first sale” doctrine allows the purchaser of a lawfully-made copy of a copyrighted work to transfer the copy by a subsequent sale, rental, or other means. The first sale doctrine originated in a 1908 Supreme Court decision, and it is codified at 17 U.S.C. 109(d).
In a recent decision from the U.S. District Court for the Northern District of California, the court ruled that the first sale doctrine did not apply to copies of software that are pre-installed on a computer and sold by the original equipment manufacturer with the computer itself. In Adobe Systems v Hoops Enterprise LLC (N.D. Cal. Feb. 1, 2012), the court considered the case of a company that bought computer hardware from Dell and Hewlett-Packard and resold OEM-installed Adobe software on eBay, separate and apart from the hardware.
The court indicated that the key question was whether the Adobe software was sold or licensed to the OEM computer manufacturers. If it were a sale, then the first sale doctrine could apply. However, if it were a license, then the first sale doctrine would not apply based on the precedent of Vernor v. Autodesk, Inc. (9th Cir. 2010).
Adobe did enter into license agreements with the OEMs, but the defendants argued that those agreements did not create significant restrictions on transfer, nor did they impose notable use restrictions, and Adobe did not retain sufficient control over the copies, so the agreements were effectively sale agreements rather than license agreements. The court disagreed, noting that there were “significant distribution restrictions” in the license agreements.
It’s not often that a court decision about copyright law expressly acknowledges that the decision will be controversial. However, the U.S. Court of Appeals for the Second Circuit did just that in John Wiley and Sons Inc. v. Kirtsaeng (No. 09-4896, 2nd Cir. Aug. 15, 2011).
The decision related to the “first sale” doctrine under copyright law, which permits the owner of a lawfully purchased copyrighted work to resell it without limitations imposed by the copyright holder. Continue reading
In an unpublished opinion, the U.S. Court of Appeals for the 11th Circuit recently upheld a ruling that refused to impose liability on an employer for copyright infringement by an employee.
In Klein & Huchman Inc v. CoStar Realty Information Inc., No. 10-12201 (11th Cir. April 28, 2011), an employee of a real estate agency accessed a subscription-based database of real estate information, such as prices and form documents. The employee accessed the database without authorization, using a password that he received from a prior employer. The database provider sued the real estate agency, claiming copyright infringment.
The trial court ruled in favor of the real estate agency, finding that the employer could not be viacriously liable or liable for contributory copyright infringement when it was not clear that the employer enjoyed a direct, financial benefit from the infringement.
In the new ruling, designated as unpublished, the appeals court affirmed the trial court’s decision.
The Office of the U.S. Trade Representative periodically publishes a list of online and physical marketplaces that considers to be “notorious markets” for counterfeiting and intellectual property piracy. On February 28, 2011 the USTR released its latest notorious markets report, which includes markets such as:
- the number one-ranked website in China, which the report cites for enabling between 50 and 75 percent of all illegal music downloads in that country;
- a Russian website that was formerly the world’s largest server-based pirate music website;
- several Chinese B-2-B and B-2-C websites; and
- physical markets in China, Russia, South America, Poland, the Czech Republic, Indonesia, the Philippines, Thailand, and India.
The USTR states that the purpose of the report is to “shine a light’ on the markets and to “urge the responsible authorities in these markets to intensify efforts to combat piracy and counterfeiting in these and similar markets, and to use the information contained in the Notorious Markets List to pursue legal actions where appropriate.”
This weekend’s Super Bowl provides an opportunity to review some of the past year’s interesting developments relating to the National Football League and intellectual property:
1. Titlecraft v. NFL: wooden Lombardi trophy replicas infringe NFL copyright.
In Titlecraft Inc. v. National Football League (D. Minn. Dec. 20, 2010) the NFL and NFL Properties sued Titlecraft, a manufacturer of custom wooden trophies. Titlecraft made wooden replicas of the Vince Lombardi trophy. The Lombardi trophy is a silver statue made by Tiffany & Co. that is awarded to each year’s Super Bowl champion; Titlecraft’s trophies were small wooden replicas that were sold to fantasy football leagues for honoring their own champions.
Finding that (i) the NFL had a valid copyright registration for the Lombardi trophy; (ii) Titlecraft had access to the Lombardi trophy; and (iii) the two trophies were substantially similar, the court granted summary judgment for copyright infringement in favor of the NFL. Although Titlecraft pointed to minor differences in size, angles, and texture, the court stated that “‘if it walks like a duck, quacks like a like and looks like a duck, it has got to be a duck’ – or in this case a copy.”
2. Who dat say dey gonna own dem trademarks?
When the New Orleans Saints reached the Super Bowl in 2010, the NFL sent cease-and-desist letters to several Louisiana merchants, demanding that they stop selling Continue reading