ASM Receives Implied Nonexclusive Copyright License in Software

Asset Marketing Systems, Inc. v. Gagnon, 88 USPQ2d 1343, 1348 (9th Cir. 2008) - An implied license is granted when (i) a person (licensee) requests the creation of the work; (ii) the creator (licensor) makes that particular work and delivers it to the licensee who requested it; and (iii) the licensor intends that the licensee copy and distribute the work.

Free Software Foundation Sues Cisco for Copyright Infringement

As reported in Information Week, the Free Software Foundtion (FSF) has sued Cisco  Systems in the Southern District of New York for copyright infringement. 

FSF initiated development of the GNU Project, which resulted in several open source computer programs for which FSF owns the copyrights.  FSF distributes the programs according to the terms of public licenses, i.e., the GNU General Public License (GPL) version 2, and the GNU Lesser General Public License versions 2 and 2.1 (LGPL).  Under the terms of the licenses, FSF grants permission to third parties to copy, modify, and re-distribute the software on the condition that licensees include access to their source code.

In its Complaint, FSF alleges Cisco failed to make its source code available and that it therefore did not have permission to re-distribute FSF’s software.  As a result, Cisco is accused of infringing FSF’s copyrights in its software.

Parties agree to settle Google Book Search litigation

Google, Inc., the Authors Guild, and the Association of American Publishers announced on October 28, 2008, that they’ve agreed to settle lawsuits in which the copyright owners alleged Google’s Book Search project infringed their copyrights.

Under the terms of the proposed Settlement Agreement, Google will pay a total of $125 million, in part to establish a centralized royalty colletion ogranization and to compensate authors of scanned books.  The parties also agree that ongoing royalties will be paid for institutional subscriptions to Google Book Search, for paid online access to books through Google, and for printouts made at participating public libraries.  A Book Rights Registry under the control of authors and publishers also will be established to monitor the use of registered works and for centralized collection of royalties.

Lawsuit over use of photo from Flickr

According to The Dallas Morning News, Virgin Mobile was sued in Texas district court for using a photo of a teenage girl in an Australian ad campaign promoting its text messaging services.  The photographer published the photo on flickr.com and made it available for use under a Creative Commons license.

 

“We Are Marshall” DVD and copyright infringement lawsuit

The film "We Are Marshall" will be released on DVD on September 18.  Last month, a $40 million lawsuit was filed in California against Warner Brothers and others associated with the film by the producers of the 2000 documentary "Marshall University: Ashes to Glory," accusing them of copyright infringement, fraud, breach of contract, and unfair competition.

Who owns your website? – Part 2

Here is an interesting recent case regarding ownership of websites.  State v. Kirby, 161 P.3d 883 (N.M. 2007).  A small business owner hired an independent website designer for $1,890.00 to design and develop a web site for the business.  A written contract between the parties provided that ownership of the copyright in the web pages was retained by the designer, but that upon final payment the business owner would be "assigned rights to use as a website the design, graphics, and text contained in the finished assembled website."  The designer "was to develop the website from content supplied by the" business owner and then place it on web space owned by the business owner to which the designer would have access.

The designer fulfilled his end of the bargain, but the business owner then blocked the designer’s access to the site and never paid the designer.  The business owner was charged with criminal fraud.  The business owner unsuccessfully argued that there was no fraud because he owned the website and therefore he could not have obtained through deception a website belonging to another, as required by the criminal fraud statute.

The New Mexico Supreme Court ruled that ownership in the copyright of the website rested with the designer and not the business owner, based on the contract.  If there was no contract, ownership would still rest in the designer since he was the "author" of the work.  The court rejected the business owner’s argument that he owned the web space and/or domain name where the website resided, and therefore he owned the website regardless of who owned the copyright in the web pages.  The court said that the web page is the predominant portion of a website "that gives it life," and the domain name is merely an address.  Thus, the owner of the copyright in the web pages is the owner of the website.

This case illustrates the importance of having a written agreement up-front with website designers specifically setting forth who owns the copyright in the web pages, as I indicated in a previous post.  For that matter, you should have such up-front agreements with anyone inside or outside your business who creates content for you (e.g., graphic designers, computer programmers, marketing consultants, architects, engineers, etc.).

Who owns your website?

As this article points out, your web-hosting company or website designer may own the intellectual property rights to your website, not you.  You may be unpleasantly surprised if you haven’t read the fine print in any agreements or contracts you have with these service providers.  Unless the parties expressly agree otherwise, the creator (designer) of a web page owns the copyright in that web page.

Copyright Office finally enters the Digital Age

The U.S. Copyright Office issued interim regulations providing for online submission of copyright registration applications.  A limited beta test phase of the new submission system starts this month.  Part of the system includes a new consolidated application Form CO that will replace the current separate forms for each class of authorship, and the online filing fee will be $35 rather than the $45 paper filing fee.  The Copyright Office is accepting comments regarding the interim regulations until September 4.

A few statistics: "In fiscal year 2005, the Office received 600,535 claims to copyright for more than a million works of authorship of which it registered 531,720 claims."  The vast majority of copyright registration applications are approved by the Copyright Office.

Copyright infringer can sell “hot” house

Normally, a successful plaintiff in a copyright infringement suit would be able to get an injunction barring the defendant from selling any infringing items.  In fact, the defendant would generally be required to give any infringing copies to the plaintiff, or to destroy them.

Not so, according to the Fourth Circuit Court of Appeals, when the infringing item is a house built from copyrighted blueprints used without the permission of the copyright holder.  Christopher Phelps & Associates, LLC v. Galloway, No. 05-226, 2007 WL 1933594 (4th Cir. July 5, 2007).  The defendant has to pay $20K in damages for the infringement, but he will be free to sell or lease the "hot" house.