P2P: “making available” is not “distribution”

Via the Susan Crawford blog¬†and Corante. In 2005, in the Napster Investor case, Judge Marilyn Patel dismissed a plaintiff attempt to equate making files available (without proof of being downloaded) with an infringement of a copyholder’s exclusive right of distribution under the ART Act (Artists’ Rights and Theft Prevention Act of 2005). Under the Act, it is a criminal offense to “make available” public electronic files of prereleased material. Here is Judge Patel’s order (PDF). While an old item, I wanted to start the discussion because it will be coming up again over the next few months.

Storage Tech. Corp. v. Custom Hardware

An independent maintenance and repair company is sued by a manufacturer of automated data storage machines alleging violation of copyright on software and misappropriation of trade secrets. The lower courts judgement in favor of plaintiff vacated. The defendant’s use of and copying and plaintiff’s software code within the protection of section 117(c) of the Copyright Act. – Storage Tech. Corp. v. Custom Hardware, 421 F.3d 1307 (Fed. Cir. 2005).

Kourtis v. Cameron

The writers of an un-produced film sued the producers of Terminator II for breach of screenplay copyright. Ct. ruled that, although the present claims and claims asserted by screenplay writer in prior suit were idential, there was no privity between the parties so the claim was not collaterally estopped. – Kourtis v. Cameron, 419 F.3d 989 (9th Cir. 2005).

Lyrick Studios, Inc. v. Big Idea Prod.

Jury’s judgment in favor of plaintiff reversed and remanded. Defendant could not meet the requirement that all copyright trandfers be in writing and signed by the transferor. – Lyrick Studios, Inc. v. Big Idea Prod., 420 F.3d 388 (5th Cir. 2005).

La Resolana v. Clay Realtors

Because architecture firm did not register their design, a requirement to bring an infringement action, the 10th Cir. affirmed the dismissal of the case. Copyright was not considered registered until Copyright Office approves or rejects application. – La Resolana Architects, PA v. Clay Realtors, 416 F.3d 1195 (10th Cir. 2005).

Maverick Boat Co. v. Am. Marine Holdings, Inc.

Ct. of App. upheald a lower courts bench trial ruling that:
the manufacturer of boat had not revised its design enouth, i.e. was not a “substantial revision,” and so was not entitled to protection under the Vessel Hull Design Protection Act (VHDPA), 17 U.S.C. section 1303); cancellation of plaintiff’s vessel hull design registration is affirmed with attorney’s fees granted. – Maverick Boat Co. v. Am. Marine Holdings, Inc., 418 F.3d 1186 (11th Cir. 2005).

Galiano v. Harrah’s Operating Co.

Affirmed: summary judgement in favor of defendant because plaintiff did not own a valid copyright on the clothing design at issue in the litigation; the designs were not copyrightable because there was no showing that they were marketable independent of their function as casino uniforms. – Galiano v. Harrah’s Operating Co., 416 F.3d 411 (5th Cir. 2005).

Chosun Int’l, Inc. v. Chrisha Creations, Ltd.

Two competitors who manufactured plush animal-themed Halloween costumes fighting it out in court. The lower court dismissed and, on appeal, Circuit Judge Calabresi vacated and remanded, holding that an fact issue still existed as to whether design elements of the costumes were conceptually separable from their overall utilitarian design. Vacated and remanded. – Chosun Intern., Inc. v. Chrisha Creations, Ltd. 413 F.3d 324 (2nd Cir. 2005).

MGM, Inc. v. Grokster, Ltd.

Ct. adopts inducement rule: one who distributes a device with the object of promoting its use to infringe copyright is liable for the resulting acts of infringement by third parties. – MGM, Inc. v. Grokster, Ltd.

Postlewaite v. Mcgraw-Hill, Inc.

Court affirmed the dismissal of breach of contract claim alleging that defendant failed to pay royalties after it transferred its rights to software copyright to Thomson Legal Publishing, Inc. – Postlewaite v. Mcgraw-Hill, Inc.

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