The Court of Appeals for the Federal Circuit’s second decision in the long-running Oracle v. Google copyright case is astonishing, since it is the first time a federal appeals court has reversed a jury verdict on copyright fair use. But, it’s not surprising – the CAFC telegraphed its views on Google’s fair use defense in its first decision, which held that Oracle’s Java declaring code was copyright-protected (“Google overstates what activities can be deemed transformative under a correct application of the law”).

Like its 2014 decision, the 2018 decision (decided by the same 3-judge panel) rejecting Google’s fair use defense has triggered a flood of articles analyzing, supporting or criticizing the decision.

Rather than rehash what other commentators have said about this case, here are what I see as the practical take-aways.

First, and most importantly: it ain’t over until it’s over. Google is almost certain to seek Supreme Court review (it did, unsuccessfully, after the 2014 decision – all the more reason to try again, now that it’s facing a trial on damages).… Read the full article

Why Didn't the Blurred Lines Defendants File Rule 50 Motions? (Waiver, again)

You can find plenty of commentary on whether the Ninth Circuit Court of Appeals ruled correctly when it upheld a jury verdict that “Blurred Lines” infringed the copyright in “Got To Give It Up.” But another aspect of this decision has received little attention, and that is a mistake made by trial counsel for the Williams/Thicke defendants in this case.

One of the things that keeps lawyers awake at night (or should) is the risk that they will unknowingly waive a client’s legal rights. I wrote about this in 2008 (Traps for the Unwary – Waiver), and again in 2010 (Mister Softee Bitten By Waiver Under FRCP 50 ). In the 2010 post I observed that Microsoft’s failure to move for judgment as a matter of law (“JMOL” in legal jargon) under Rule 50 may have cost it several hundred million dollars.

The bottom line is that lawyers always need to be alert to the risk of a waiver.… Read the full article

Ninth Circuit Decides “Jumpman” Copyright Case

by Lee Gesmer on February 28, 2018

Ninth Circuit Decides "Jumpman" Copyright Case

In only three years the “Jumpman” case has become an established teaching tool in CopyrightX. I’ve taught it in the first class for three years running, and I know many other teaching fellows have as well. It’s a great way to get people who are new to copyright law thinking about copyright issues, in this case whether a photograph by Nike infringes a photo of Michael Jordan taken by Jacobus Rentmeester in 1984. The two photos are show below: Rentmeester’s original on the left, Nike’s allegedly infringing photo on the right. Rentmeester also alleged that Nike’s Jumpman logo (above) infringed the copyright in his photo.

Until now, we’ve only had the 2015 District of Oregon decision available to teach this case. In that decision Oregon District Court Judge Michael Mosman granted Nike’s motion to dismiss, holding as a matter of law that the two images were not substantially similar.… Read the full article

Is In-Line Linking Illegal Now?

by Lee Gesmer on February 27, 2018

Is In-Line Linking Illegal Now?

It’s long been widely assumed that in-line linking is not a basis for copyright infringement. Following a recent decision by a Southern District of New York federal judge, that is no longer true.

Justin Goldman took a photograph of Tom Brady. Under the copyright laws, one of his  exclusive rights is the right of public display.

Goldman posted the photo to Snapchat. It went viral and was embedded in a tweet. A number of mainstream media publications posted the tweet by embedding the tweet into articles on their sites. Because the tweet was linked “in-line” (displaying content from one site within another via a link), none of the publications downloaded the image, copied it, or stored it on their own servers.

Is this copyright infringement? Specifically, did the embedded tweet violate Goldman’s right of public display?

SDNY judge Katherine Forrest held that it could, and granted summary judgment to Goldman on this issue, leaving for trial or later motions whether Goldman released his image into the public domain by posting it on Snapchat and whether the defendants have a fair use defense.… Read the full article