Free for a Fee

The European Court of Justice has ruled that customers have a right to resell software they purchase regardless of whether the software was originally distributed on a physical medium or downloaded over the Internet. The ruling is a defeat for Oracle, which had argued that the court should uphold provisions in its license agreement prohibiting such transfers.

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In a statement emailed to reporters on Tuesday, the USTR appears to be addressing exceptions to copyright restrictions, which had not been included in a TPP draft leaked a year ago.

“For the first time in any US trade agreement, the United States is proposing a new provision, consistent with the internationally recognized ‘3-step test,’ that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research,” wrote Carol Guthrie, the spokesperson for the USTR, in an e-mail sent to Ars.

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By Eric Goldman

DFSB Kollective Co. Ltd. v. Bourne, 2012 WL 2376209 (N.D. Cal. June 22, 2012).

DFSB Kollective is a Korea-based copyright owner and a leading producer of Korean music. It went on a litigation tear on March 7, 2011, filing seven similar copyright enforcement actions in the Northern District of California (against Bourne, Doe (revealed to be Yang), Jenpoo, Kuoch, Ma, Tran and Yew). Rather than assigning the seven cases to the same judge or otherwise relating/consolidating them, the cases were divvied up among district judges.

The Jenpoo, Kuoch and Ma cases appear to have settled. Bourne, Tran, Yang (nee Doe) and Yew all no-showed, leading to entries of default against all of them except Yang (which is still pending).

In September 2011, DFSB got a default judgment against Yew for $325k and an injunction from Judge Alsup. I (and most others) missed the Yew case when it came out, but the issues it raises are subsumed by the Tran opinion.

This post focuses on the Tran and Bourne cases. The cases are virtually identical. Both defendants are located in Australia and allegedly ran linking sites focused on the Korean music community (and may have uploaded infringing files themselves). Both cases raise a fairly fundamental question: why is a Korean copyright owner with no operations in California suing Australian defendants in a California court?

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[Post by Venkat Balasubramani with comments by Eric]

Davis v. Tampa Bay Arena, Ltd., 2012 WL 2116136 (M.D. Fla.; June 11, 2012)

….

Davis worked from 1998 through 2011 (under various contract arrangements) for Tampa Bay Arena as the in-house photographer photographing events. (For what it’s worth, here’s what looks like Davis’ site.) Davis (smartly) retained ownership of the photographs and licensed them to the arena for limited uses. The agreement in place between the parties allowed for use by the arena in the following ways:

newsletter, advertising, display prints, broadcast, and the venue website.

The arena terminated its relationship with Davis in 2011 but continued to use his photographs. In early 2011, the arena created a Facebook page and posted Davis’ pictures on the page. Apparently Facebook had a feature that allowed users to download photographs at the click of a button, and this feature was available on the arena’s Facebook page. Davis asked the arena to remove the photographs from its Facebook page. The arena demurred, and Davis sued, asserting claims for infringement, conversion, and breach of contract.

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“It was definitely not as simple as knocking at the front door,” said Detective Inspector Grant Wormald in a police press release at the time.

It was also totally illegal. That’s the ruling of New Zealand High Court judge Helen Winkelmann, who today ripped the “invalid” warrant and the subsequent search and seizure in a 56 page decision.

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Poor “What What (In the Butt).” Once nothing more than a bizarre 2007 music video posing the question “You want to do it in my butt, in my butt?,” it went viral, racking up more than 47 million YouTube views to date—until its creators got into a long-running lawsuit with the TV show South Park. That suit appeared to end earlier this month with a decision from the 7th Circuit Court of Appeals in Chicago, which went out of its way to suggest that the video’s creators were starting to look like “copyright trolls.”

And the ill-considered case has actually turned out to do copyright law a bit of good by establishing that judges can make obvious “fair use” rulings early on in court proceedings, preventing litigants from simply running up the legal bill on the other side until they have to settle.

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Besides handling the rights and distribution for every official version of Tetris, The Tetris Company is also responsible for protecting the Tetris brand from unlicensed knock-offs. In the recent past, it’s done this by forcing platform holders like Apple to remove unofficial copies of the game from the iOS App Store as soon as they pop up, for instance.

But the company went a little further in the case of iPhone Tetris clone Mino, taking developer Xio Interactive to court to protect the Tetris copyright. A New Jersey circuit court judge recently ruled in favor of The Tetris Company in that case, issuing a ruling that highlights the legal challenges in determining what separates a hackneyed clone from a game that is merely “inspired” by an existing title.

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Oracle v. Google

• The Oracle v. Google aftermath
• Google wins crucial API ruling, Oracle’s case decimated
• Larry Ellison’s rose colored glasses: “The jury found that Google infringed”
• Oracle poured millions into failed patent trial, but will fight on
• Oracle v. Google jury foreman reveals: Oracle wasn’t even close

Oracle has agreed to accept zero dollars worth of damages from Google, three weeks after losing the major portions of the case in which Oracle accused Google of violating Java patents and copyrights in Android.

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Desiree Golden, a recent college graduate, wanted to aim at the big money that can be made in app development. She decided to replicate the popular “Tetris” videogame that has been around since the late 1980s. After researching intellectual property law, she says, she set out to copy only those elements of the Tetris game that she believed were not protected by copyright – game rules and functionality.

If this general strategy sounds familiar, perhaps you have read our recent post on the Oracle v. Google dispute over Google’s use of Oracle’s Java technology in the Android operating system. In that case, the court ruled that Google had done it right, and that the rules and functionality of the Java technology that Google copied were not subject to copyright.

But in Tetris Holding, LLC v. Xio Interactive, Inc., 2012 U.S. Dist. LEXIS 74463 (D.N.J. May 30, 2012), Judge Freda Wolfson ruled that Xio, Ms. Golden’s development company, got it wrong. By wholesale copying not only the rules and functionality of the original Tetris game but also its copyrightable expression, Xio’s“Mino” app crossed the line into copyright infringement. . . .

And so, for Mino, it’s game over.

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The content in this post was found at http://newmedialaw.proskauer.com/2012/06/19/videogame-app-developer-breaks-the-rules-on-copyright-infringement/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NewMediaAndTechnologyLaw+%28New+Media+and+Technology+Law%29 and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

By Eric Goldman

Obodai v. Demand Media, Inc., 2012 WL 2189740 (SDNY June 13, 2012)

This is the first substantive ruling I’ve seen interpreting the Second Circuit’s Viacom v. YouTube ruling. (The Viacom ruling was also discussed in the Ouellette case, but that was tangential to its main discussion). The good news is that the opinion looks pretty much like it would have looked before Viacom v. YouTube. The bad news is that the case was a layup victory against an outgunned pro se plaintiff (who is also unsuccessfully sued YouTube), so we don’t really learn much we didn’t know. The ugly news is that even at a comparatively svelte 17 pages, the opinion remains an unfortunately long read compared to brief and to-the-point Section 230 opinions.

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