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Lex Blog

AUGUST 15, 2018

In our continued post-TC Heartland coverage, Judge Gilstrap in the Eastern District of Texas recently held that venue was proper because Google exercises exclusive control over physical servers implicated by the litigation, as well as the physical space within which the server is located and maintained. The court emphasized that the place where the server is located occupies a physical space, which is more than merely a virtual space or electronic communications from one person…

Lex Blog

DAVINIA BRENNAN

AUGUST 16, 2018

[ed notes: EU rules and actions; international]

The CJEU has ruled that an unauthorised reposting of a photograph on a website, which is already publicly accessible without restriction on another website, can infringe the copyright rights of a photographer (Renckhoff, C-161/17). It is of little importance if, as in the present case, the copyright holder does not limit the ways in which the photograph may be used by internet users.

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The content in this post was found at https://www.lexblog.com/2018/08/16/cjeu-rules-reposting-photograph-internet-freely-accessible-another-website-requires-reauthorisation-author/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

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Lex Blog

AUGUST 9, 2018

[ed’s note: EU copyright ruling]

Copying an image from a website and using it for one’s own purposes, e.g. the illustration of a memo which eventually happens to be uploaded to another website – this happens a hundred times every day. However, such conduct is a copyright infringement. This is the clear answer the Court of Justice of the European Union (CJEU) has just given in a truly remarkable judgement (judgement of 7 August 2018, C-161/17 – Córdoba)….

The content in this post was found at https://www.lexblog.com/2018/08/09/cjeu-re-posting-content-is-a-communication-to-the-public/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

Chicago IP Litigation

R. David Donoghue

May 25, 2018TopstepTrader, LLC v. OneUp Trader, LLC, No. 17 C 4412, Slip Op. (N.D. Ill. Apr. 18, 2018) (Leinenweber, J.).

Judge Leinenweber granted in part defendant OneUp Trader’s Fed. R. Civ. P. 12(b)(6) motion to dismiss and defendant Alsabah’s Fed. R. Civ. P. 12(b)(2) & (6) motion to dismiss for lack of personal jurisdiction and failure to state a claim in this copyright dispute involving electronic trading systems.

Personal Jurisdiction

Alsabah had to enter an agreement to use TopstepTrader’s software in which he allegedly consented to jurisdiction in Illinois. The Court held that the contract was on a spectrum between a clickwrap and a browsewrap agreement, in a type of agreement referred to as sign-in-wrap. Alsabah did not take an affirmative action to explicitly agree to the site terms, but there was affirmative action in that Asabah had to sign up for an account. During the sign up process, Alsabah would have been informed that by creating an account, he accepted the terms of service, along with a hyperlink to those terms. In fact, Alsabah clicked a “sign up” button next to a hyperlink for the terms. Without doing so, he could not have activated an account and gotten access to TopstepTrader’s website. But the “sign up” button did not clearly state that by clicking on it Alsabah was accepting the terms. So, while it was a close call, the terms and their forum selection clause were not enforceable against Alsabah.

Regarding specific jurisdiction, TopstepTrader’s location in Illinois and harm in Illinois was not sufficient to create personal jurisdiction. But Alsabah specifically sought out TopstepTrader’s website, created an account and then received multiple communications which identified TopstepTrader as an Illinois-based company. While walking into a brick and mortar store in Illinois would have been better evidence of specific jurisdiction, signing up with an Illinois business under the particular circumstances that Alsabah did was sufficient to create specific jurisdiction.

Failure to State a Claim

While OneUp Trader is correct that short, common phrases may not be copyright-protectable, OneUp Trader failed to address Topstep Trader’s argument that it is the combination of elements such as text, graphic size screen layouts, colors, charts, unique terms, etc. that is protectable. And even if the alleged copying identified in the complaint was only a small portion of the total content, that could be sufficient. Topstep Trader did not need to detail each copied element. It was enough to provide examples of the copying at the complaint stage. And a review of the exhibits showed sufficient alleged copying.

The Court dismissed Topstep Trader’s breach of contract claim, but gave Topstep Trader leave to replead with sufficient facts to show that a contract was formed that would support Topstep Trader’s breach claim.

Finally, Alsabah argued that the claims against him should be dismissed because the complaint only specifically mentioned him in limited instances. Topstep Trader, however, defined a term that combined OneUp Trader and Alsabah and referred to it collectively throughout the complaint.

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The content in this post was found at https://www.chicagoiplitigation.com/2018/05/sign-in-wrap-did-not-create-personal-jurisdiction/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com

TechDirt
Glyn Moody
Tue, Jul 3rd 2018

Yesterday, Mike took apart an extraordinarily weak attempt by the UK’s music collection society, PRS for Music, to counter what it claimed were “myths” about the deeply-harmful Article 13 of the proposed EU Copyright Directive….

Once again, there is no attempt to demonstrate that Article 13 is not about censorship, merely an assertion that it isn’t, together with the usual claim that it’s all being orchestrated by big US Internet companies. The fact that over two-thirds of a million people have signed an online petition calling for the “censorship machine” of Article 13 to be stopped rather punctures that tired argument.

More interesting is the second sentence, which essentially confirms that for the recording industry, the Copyright Directive — and, indeed, the Internet itself — is purely about getting as much money as possible.

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The content in this post was found at https://www.techdirt.com/articles/20180703/05375040163/copyright-industries-reveal-their-ultimate-goal-internet-where-everything-online-requires-license-them.shtml Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Social Aware
John Delaney & Monica Cai on July 23, 2018

If a web server located outside the United States hosts video content that can be viewed by Internet users located in the United States, does a public performance result under U.S. copyright law?

This has been a topic of hot debate for a surprisingly long time, with little or no direct guidance from the courts—until now. A recent decision from the D.C. Circuit, Spanski Enterprises v. Telewizja Polska, addresses this issue head-on, with the court finding that the uploading of video content in which a party held exclusive U.S. public performance rights and the subsequent directing of the content to U.S. viewers upon their request to be an infringing “performance” under the U.S. Copyright Act.

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The content in this post was found at https://www.sociallyawareblog.com/2018/07/23/copyrights-long-arm-foreign-website-found-to-infringe-u-s-copyright-law-by-providing-u-s-viewers-access-to-site-content/ Clicking the title link will take you to the source of the post. and was not authored by the moderators of freeforafee.com.

Hogan/Lovells

APRIL 1ST, 2018 BY DR. NILS RAUER, ALASTAIR SHAW AND PENNY THORNTON

This year’s Easter holiday brings with it a further milestone in the Commission’s endeavor to bring about a truly Digital Single Market: The Portability Regulation (EU) 2017/1128 comes into force on 1 April 2018. The Regulation facilitates cross-border portability of online content. It allows for subscribed content services to “travel” with the subscriber throughout the entire European Union. Be it movies, sport events, music, e-books, online games, they all need to remain accessible when temporarily abroad in another Member State. Service providers need to make sure this travel option is provided to their customers. Importantly, the Regulation applies to both new and existing subscriber contracts.

 

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The Regulation

According to Article 3 of the Regulation, providers of paid-for online content services are obliged to allow access and use of the content during a temporary presence in another Member State. The same content, the same types and the same number of devices (PC, smartphone, tablet etc.), the same number of authorised users and the same range of functions must be granted. Only the quality standards abroad are not guaranteed to be equal to those in the country of subscription. Providers who operate on the basis of a contract but free of charge can choose whether they want to make their online content available to their subscribers while travelling (Article 6). This also includes public broadcasters to which a mandatory broadcasting fee has to be paid.

IP Watchdog

Roman Brtka
April 2, 2018

eSports is an exciting new area — not only in the sporting industry but in legal terms. There are various key players such as eGamers, game publishers, and organizers of eSports events, who are facing the challenge of sufficiently protecting their rights. Organizers need to ensure that they obtain all necessary usage rights from the game publishers and the participating eGamers, and these parties need to be aware of their possible ancillary copyrights and should take appropriate precautionary measures to protect them.

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Social Aware blog: law and business of social media

Hywote Taye & John Delaney on March 20, 2018

Does a search engine operator have to delist websites hosting, without authorization, your trade secret materials or other intellectual property? The answer may depend on where you sue—just ask Google. The U.S. District Court for the Northern District of California recently handed the company a victory over plaintiff Equustek Solutions Inc. in what has turned into an international battle where physical borders can have very real consequences on the Internet.

The dispute began when a rival company, Datalink, allegedly misappropriated Equustek’s trade secrets in developing competing products. Equustek also alleged that Datalink misled customers who thought they were buying Equustek products. In 2012, Equustek obtained numerous court orders in Canada against Datalink. Datalink refused to comply, and Canadian court issued an arrest warrant for the primary defendant, who has yet to be apprehended.

In September 2012, Equustek asked Google to delist search results for Datalink; Google declined this request. Equustek then sought a court order against Google in Canada and prevailed, resulting in Google removing 300 Datalink websites from search results generated by the Canadian version of its site, located at www.google.ca. Google, however, did not take similar steps with respect to U.S. and other non-Canadian versions of its site, so the Datalink websites continued to appear in search results conducted by users outside of Canada.

Equustek returned to the Canadian court, this time to seek an order compelling Google to remove the Datalink-related search results globally so that Datalink results would not appear for any Google users, regardless of their location. Equustek once again prevailed, and Google appealed to the Court of Appeal for British Columbia. That court, and later the Supreme Court of Canada, affirmed the trial court’s order.

Google then brought the battle to the United States; in July 2017, it commenced an action in the U.S. District Court for the Northern District of California seeking a declaratory judgment that the Canadian court order cannot be enforced in the United States and an injunction against the enforcement of such order. (Equustek did not submit an opposition brief.)

In support of its preliminary injunction motion, Google’s primary arguments were that the Canadian order (1) ignores the Communication Decency Act’s immunity for interactive service providers (2) directly conflicts with the First Amendment and (3) violates principles of international comity.