Copyright

Failure to Put Infringing and Infringed Work in Evidence Dooms Copyright Case

I was surprised when I read the Ninth Circuit’s recent decision in Antonick v. Electronic Arts, Inc. (9th Cir. Nov. 22, 2016). In that case the plaintiff alleged copyright infringement against EA* based on copying of computer source code for the John Madden Football game, but failed to introduce the source code into evidence, choosing instead to rely solely on expert testimony to prove copying.

*[footnote] Technically speaking, this was a breach of contract case. However, the contract between Antonick and EA stated that Antonick would receive royalties on the sale of any “derivative work”, as that term is defined under U.S. copyright law. As a result, the parties and the courts applied copyright law to determine whether EA had breached its royalty agreement with Antonick.

This was an enormous risk, and it doomed Mr. Antonick’s case. The Ninth Circuit panel held:

Antonick’s claims rest on the contention that the source code of the Sega Madden games infringed on the source code for Apple II Madden.

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The U.S. Copyright Office has issued a new rule that has important implications for any website that allows “user generated content” (UGC).  This includes (for example), videos (think Youtube), user reviews (think Amazon or Tripadvisor), and any site that allows user comments.

In order to avoid possible claims of copyright infringement based on UGC, website owners rely on the Digital Millennium Copyright Act (the “DMCA”). However, the DMCA imposes strict requirements on website owners, and failure to comply with even one of these requirements will result in the loss of protection.

One requirement is that the website register an agent with the Copyright Office. The contact information contained in the registration allows copyright owners to request a “take down” of the copyright owner’s content.

The Copyright Office is revamping its agent registration system, and as part of this process it is requiring website owners to re-register their DMCA agents by the end of 2017, and re-register every three years thereafter.… Read the full article

Redigi - Did Ossenmacher Know He Was Risking Personal Liability?

In August, MediaPost reported that Redigi and one of its founders, John Ossenmacher, had filed bankruptcy:

“ReDigi recently stipulated to pay Capitol $3.5 million in damages, but also appealed the underlying copyright infringement finding to the 2nd Circuit Court of Appeals. This week, the company said in an appellate filing that it had declared bankruptcy in U.S. District Court for the Southern District of Florida. ReDigi co-founder John Ossenmacher also declared bankruptcy in the same court.” (link)

Very likely, this ends the appeal to the Second Circuit.

I’ve written about this case several times, and in April 2013 I observed:

In addition, Capitol may seek leave of court to add as defendants the individual owners and employees of Redigi that exercised control over or benefited from the infringement.  While Redigi could oppose such as motion as coming too late in the case, a decision would be at the discretion of the judge.

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Melania Trump's Speech – Plagiarism or Copyright Infringement?

The press calls Melania Trump’s use of Michelle Obama’s 2008 nomination speech “plagiarism,” but is it also copyright infringement?  Could the authors or assignees of Michelle’s speech sue Melania and others for copyright infringement?

It’s hard to imagine this would ever happen for political and practical reasons (one of which I discuss below). But it’s interesting (fun?) to think about whether a copyright infringement suit against Melania would have legs. In that spirit, consider the following.

Ownership. It’s likely that Michelle’s 2008 speech was written by several people, each of whom could be considered a co-author. The Forward reports that the speech was first written by Sarah Hurwitz, but it’s not clear if she was an independent contractor, an employee of the Obama campaign or working for someone else. This could raise ownership issues under the work-for-hire provision of the copyright statute.

Setting aside work-for-hire, if several people participated in writing the speech (Hurwitz, Michelle, Barack?), assuming that each of these people meets the stringent requirements for co-authorship under U.S copyright law (independently copyrightable contribution and intent) and hasn’t assigned ownership to someone else, each co-author has independent standing to sue Melania for copyright infringement.… Read the full article