Q3 2011 Quick Links, Part 1 (Copyright Edition)

By Eric Goldman

* The Golan v. Holder SCOTUS oral arguments are today. My colleague Tyler Ochoa has been actively monitoring the case:

– his essay previewing the case and the issues it raises

– an amicus brief on whether the 1790 Copyright Act restored copyright on works then in the public domain

– a video where he explains the case to a student audience (item #21)

– a video of a Harvard Law School roundtable about the case

* Lots of news involving Oracle. First, in Oracle v. SAP, the court sliced Oracle’s damages by about a billion dollars. Even reduced, Oracle got a huge copyright damages award. Prior blog post. In related news, TomorrowNow struck a plea deal where SAP will pay $20M in criminal fines.

Separately, in Oracle America, Inc. v. Google Inc., 2011 WL 4336691 (N.D. Cal. Sept. 15, 2011), Oracle got a favorable ruling on its copyright claims over Android’s infringement of Java. Software geeks, this opinion warrants your attention.

* The Supreme Court denied certiorari in ASCAP v. US, which held that Internet downloads aren’t a public performance. NY Times and Reuters.

* The Supreme Court also denied certiorari in Vernor v. Autodesk. Prior blog post.

* The PROTECT IP Act is an abomination. I signed a law professor letter against PROTECT IP. Entrepreneurs circulated their own letter. Larry Downes offered some suggestions on how to make the PROTECT IP Act less worse.

* In re Literary Works in Elect. Databases Copyright Litig., 05-5943-cv(L) (2d Cir. Aug. 17, 2011). The long-running Tasini battle takes another turn. This time, the court rejected the settlement because of intra-class conflicts. James Grimmelmann explains the implications for Google Book Search.

* Speaking of long-running disputes, the judge in the Jammie Thomas case once again reduced the damages. Opinion. EFF. Techdirt. The RIAA has appealed.

* Rock River Communications, Inc. v. Universal Music Group, Inc., 2011 WL 3501762 (C.D. Cal. Aug. 9, 2011). The court dismissed claims over allegedly bogus copyright takedown notices. Prior blog post.

* Only 13 years after DMCA passage, the Copyright Office is proposing a permanent process for designating 512 agents. I have strong objections to the proposal, especially the part where service providers can lose their registration for failing to jump through additional formalities over time. If you are interested in working on comments, contact me.

* A few Righthaven tidbits. MediaNews, one of Righthaven’s two main newspaper “customers,” has ended its contract with Righthaven. The new MediaNews chief says it was a “dumb idea” from the beginning. Amen! And in Righthaven LLC v. Hill, 2011 WL 4018105 (D. Colo. Sept. 9, 2011), the court denied a fee shift to the defendant. The 505 motion failed because Righthaven voluntarily dismissed the case, meaning that Hill was not a “prevailing party.”

* Flexible Lifeline Systems, Inc v. Precision Lift, Inc., 10-35987 (9th Cir. Aug. 22, 2011): “presuming irreparable harm in a copyright infringement case is inconsistent with, and disapproved by, the Supreme Court’s opinions in eBay and Winter. Thus, our long-standing precedent finding a plaintiff entitled to a presumption of irreparable harm on a showing of likelihood of success on the merits in a copyright infringement case, as stated in Elvis Presley and relied on by the district court, has been effectively overruled.”

* Kernal Records Oy v. Mosley, 2011 WL 2223422 (S.D. Fla. June 7, 2011): “publishing AJE on a website in Australia was an act tantamount to global and simultaneous publication of the work, bringing AJE within the definition of a “United States work” under § 101(1)(C) and subject to § 411(a)’s registration requirement.” This appears to be an opposite conclusion to Moberg v. 33T LLC, 666 F. Supp. 2d 415 (D. Del. 2009) (mentioned here).

* Slightly related: Shropshire v Canning, 2011 WL 3667492 (N.D. Cal. Aug. 22, 2011). Uploading a video to YouTube’s California servers from Canada can constitute infringement in the United States. Prior blog post.

* William Wade Waller Co. v. Nexstar Broadcasting, Inc., 2011 WL 2648584 (E.D. Ark. July 6, 2011). A 1202 CMI claim fails: “Assuming that RKC intentionally cropped the copyright notice out of the picture before distributing it to Nexstar, Plaintiff has made no effort to show that RKC did so intentionally to induce, enable, facilitate or conceal infringement.”

* Edgenet v Home Depot (7th Cir. Sept. 2, 2011). A product taxonomy is copyrightable, but the Home Depot properly procured the necessary rights from its vendor before home-brewing its own solution and dropping its vendor. See more on property rights in taxonomies.

* Brownmark Films, LLC v. Comedy Partners, 2011 WL 2648600 (E.D. Wis. July 6, 2011) South Park parody of a YouTube viral video is fair use (on a motion to dismiss).

* Fraserside IP L.L.C. v. Youngtek Solutions Ltd., 2011 WL 2689058 (N.D. Iowa July 12, 2011). A potentially meritorious 17 USC 512(c) defense helps set aside a default judgment.

* The Swatch Group Management Services Ltd. v. Bloomberg LP, 1:11-cv-01006-AKH (SDNY Aug. 30, 2011). Recording a securities analyst call could be copyright infringement.

* Tertiary liability copyright infringement claims against CNET for distributing LimeWire dropped. In other LimeWire news, as part of a deal with the Maryland AG, LimeWire will notify users about the risks of inadverent data sharing.

* Another copyright infringement suit against Amazon, this time for “manufacture-on-demand” CDs.

* Princeton prevents its professors from assigning the copyright in their research to publishers.

* A significant Canadian ruling against scraping in a lawsuit between Century 21 and Zoocasa. Michael Geist’s coverage.

* Turnitin’s “WriteCheck” service lets students preview the plagiarism detection report before submitting their papers to their instructors. Good business to be dealing arms to both sides.

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