Intellectual Property

A federal court last week ruled that copyright owners can only sue multiple peer-to-peer users if all of the defendants participated in the same infringement scheme.

In recent years, copyright owners have sued people who have shared their movies, songs, and other content via peer-to-peer networks such as BitTorrent. The copyright owners use proprietary software to obtain the IP addresses of BitTorrent users who are downloading and sharing the copyright holders’ content. Rather than filing individual lawsuits against each user, the copyright owners often name dozens of alleged John Doe infringers in the same complaint. After filing the complaint, the copyright owners typically issue subpoenas to the customers’ Internet service providers to determine the identities of the John Doe defendants.

Although courts have generally approved the subpoenas for the identities of John Doe defendants in copyright infringement cases, plaintiffs are encountering a new obstacle, as illustrated in the September 27 opinion by Judge John Z. Lee, a district judge for the U.S. District Court for the Northern District of Illinois.

Continue Reading Copyright Suits Against Anonymous Defendants Must Involve Common ‘Swarm’

A three-judge panel of the Ninth Circuit Court of Appeals heard oral arguments on Tuesday in the so-called “Aereokiller” litigation.  The case tests whether services that allow subscribers to stream broadcast television on their computers and mobile devices infringe the exclusive right of copyright owners to publicly perform their copyrighted works.  Specifically, the Ninth Circuit will decide whether to uphold a December 2012 district court decision granting a preliminary injunction sought by NBC, ABC, CBS, Fox, and others to stop FilmOn X LLC (formerly known as Aereokiller) from re-transmitting broadcast television to its subscribers without a license.

The key legal issue in the case is whether FilmOn’s re-transmission of broadcast TV programming constitutes a public performance or a private one.  Copyright owners have the exclusive right to publicly perform their copyrighted works, but cannot stop the private performance of their works.  At oral argument, counsel for FilmOn argued that the company provides only private performances, as it re-transmits broadcast TV programming to each of its subscribers via individual antennas and DVRs.  As one of the judges on the Ninth Circuit panel observed, FilmOn appears to have chosen the individualized antenna and DVR system for the specific purpose of attempting to circumvent the prohibition on publicly performing copyrighted works without a license.Continue Reading Oral Arguments Tee Up Widely Anticipated 9th Circuit Decision in “Aereokiller” Case

A pair of recent decisions—one involving a work of street art used by the band Green Day for an in-concert video; the other about a single line from a William Faulkner novel paraphrased in a Woody Allen film—offer two distinct examples of the important role that copyright’s fair use doctrine plays in today’s popular media.
Continue Reading Fair Uses Big and Small in Recent Copyright Cases

In a case of first impression, the U.S. Court of Appeals for the Fourth Circuit recently held that accepting a website’s terms of use through a so-called “clickwrap” agreement constitutes a signature for purposes of effecting a transfer of copyright.

The case, Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., revolved around photographs displayed with real estate listings.  The plaintiff, MRIS, operated an online real estate listing service.  As part of its terms of use, MRIS’s service required users to “irrevocably assign” all rights they had in any images submitted as part of a listing.  The defendant, AHRN, a real estate broker, displayed photographs taken from the plaintiff’s site on its own website.  When MRIS sued for infringement, AHRN challenged its ownership of copyrights in the photos.  The lower court rejected AHRN’s challenge, granting a preliminary injunction, and the Fourth Circuit has now affirmed.
Continue Reading Clickwrap Agreement Found Sufficient to Transfer Copyright Ownership

Recently, a Ninth Circuit panel unanimously affirmed the district court’s denial of a preliminary injunction in Fox’s copyright and contractual challenge to Dish’s Hopper set-top boxes and related AutoHop feature.  The Ninth Circuit emphasized that it applied a “limited and deferential review” that does not “determin[e] the ultimate merits of the case.”  In particular, the Court suggested that Fox’s contract claims presented “much closer” questions than the infringement claim, and on one of those claims expressly stated it was not deciding the issue on the merits at this stage.
Continue Reading Ninth Circuit Panel Rules Against Fox Preliminary Injunction Request in Dish Hopper Case

On June 27, 2013, the Court of Justice of the EU (CJEU) issued an important judgment on private copying levies.

The CJEU found that, when a copy can be made by a “single process” using a “chain of devices,” e.g., a PC and a printer linked with each other, Member States are free to establish a system where fair compensation is paid by those who are in possession of a device contributing to the single process of copying.  However, Member States must ensure that (i) any such system enables device manufacturers to pass the cost of the levy on to consumers;  and (ii) the overall amount of fair compensation owed as recompense for the harm suffered by the rightholders at the end of the single process must not be substantially different from the amount fixed for a reproduction by a single device.

The CJEU takes the view that the existence of anti-copying measures does not in itself negate the obligation to pay fair compensation. However, it is open to Member States to determine whether they make the actual level of compensation owed to rightholders dependent on the availability of such anti-copying measures. In addition, the CJEU found that a rightholder’s explicit or implicit authorization to copy its works has no bearing on its right to receive fair compensation.

This ruling must be seen in the context of the ongoing reform of the EU’s copyright levy system.  In January 2013, former Commissioner António Vitorino acting as a “mediator” on private copying and reprography levies delivered several recommendations to the European Commission.  For instance, he observed that liability for paying levies should be shifted from the level of manufacturers and importers to retailers level, and the levy tariff system should be simplified.  He also recommended that “harm” resulting from uncompensated private copying must be defined uniformly across the EU in order to ensure coherence.Continue Reading EU Member States Can Impose Copyright Levies on Devices such as Scanners, PCs, and Printers, Says CJEU

On 13 June 2013, Advocate General (“AG”) Niilo Jääskinen of the EU’s Court of Justice (CJEU) issued his non-binding Opinion in the Pinckney case, dealing with the question of courts’ competence to hear online copyright infringement cases in the EU.  In his Opinion, the AG extended to copyright principles developed in relation to other IP

On 22 May 2013, the Supreme Court issued a ruling on the English law of confidential information.  The case represents a helpful guide as to how confidential information may be protected by a business after the end of an employment contract.

The case, Vestergaard Frandsen A/S (now called MVF 3 ApS) and others v Bestnet Europe Limited and others [2013] UKSC 31, deals with facts that may represent a fairly common business scenario.  In the case, one employee left a business, together with a consultant, to set up a rival business.  In the course of their work at the new business, the ex-consultant used what was, unbeknownst to the ex-employee, confidential information that the court deemed to be a trade secret from the prior business.

Considering these facts, the High Court found the ex-consultant liable for breach of confidence.  Expanding on that finding, the Supreme Court found that the ex-employee — in contrast to the ex-consultant — should not be liable for breach of confidence, because unlike the ex-consultant the ex-employee had had no knowledge of the trade secret when working for their former employer, and because the ex-employee hadn’t subsequently realised that the information had ever originated from their former employer when it was being used in the new rival business.

Summarising the Supreme Court’s logic, Lord Neuberger stated that “an action for breach of confidence is based ultimately on conscience”.  In other words, the ex-employee was not liable because she had no knowledge of the breach, so her conscience couldn’t have been affected – despite the fact that the ex-employee had arguably assisted in the use and misuse of the trade secret in the course of running a rival business.Continue Reading UK Supreme Court Rules on Case Involving Misuse of Trade Secrets by Former Employee

As our colleagues discussed in a previous post on InsideMedicalDevices, FDA took its first publicly announced enforcement action against a mobile app developer on May 22, issuing an “It Has Come to Our Attention Letter” to India-based app developer, Biosense Technologies.  The letter received extensive media coverage, and the mHealth sector was immediately abuzz with interest (and concern) about its implications.

Commentators observed that the letter appeared to be intended, in large part, as an educational tool for industry.  As such, it’s appropriate to ask:  what lessons should industry draw?  Although single enforcement actions do not always serve as reliable predictors of future actions, the letter offers a handful of key takeaways:
Continue Reading Lessons from FDA’s First Public Mobile Medical Apps Enforcement Letter

by Morag Peberdy and Christina Helden

When the legislative package the EU Unitary Patent was agreed last December, many speculated that the 1 January 2014 date for the implementation of the EU’s Unitary Patent was overly ambitious.  The publication of the UK’s new Intellectual Property Bill (the “Bill”) on 10 May 2013 now gives real substance to this viewpoint.  The provisions of the Bill indicate that the UK will not ratify the Agreement on a Unified Patent Court (the “Agreement”), one of the key legislative instruments required for the Unitary Patent’s implementation, until April or May 2015.  Since the UK must ratify the Agreement before it can be implemented anywhere in Europe, it appears that the timetable has been derailed.  Given that a number of tech companies, including Nokia and BAE Systems, advocated vocally against the Unitary Patent in its current form, this may be welcome news to some.
Continue Reading The UK Parliamentary Process Delays the Implementation of the Unitary Patent