Packets: Tuesday, October 10, 2008, Volume 6, No. 1

In the Southern District of New York, J.K. Rowling, author of the Harry Potter novels, sued publisher RDR Books for copyright infringement regarding RDR's planned publication of The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials. The principal question at issue was whether The Lexicon was a fair use of Rowling's works. In an expedited trial on the merits consolidated with a preliminary injunction hearing, the court ruled that RDR had failed to establish fair use, permanently enjoining RDR's publication of The Lexicon and awarding Rowling minimum statutory damages. JK Rowling v. RDR Books

In Jaynes v. Commonwealth of Virginia (decided September 12, 2008), the Supreme Court of Virginia reversed the felony conviction of notorious spammer Jeremy Jaynes, as well as its own earlier decision upholding Jaynes’ conviction. Jaynes appealed his conviction on two principle grounds: first, that the Virginia trial court lacked personal jurisdiction, since he had conducted all his spamming activities in Raleigh, North Carolina; and second, that the statute restricted the First Amendment right to anonymous speech, and therefore was invalid. The court rejected Jaynes’ argument on jurisdiction, but reversed the conviction on the ground that the underlying statute was overbroad in violation of the First Amendment. As Justice Agee writing for the majority observed, the statute was drafted in such a way that “were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.” Jaynes v. Commonwealth of Virginia

Io Group, Inc. (“Io”) sued Veoh Networks, Inc. (“Veoh”) in federal district court for direct, contributory, and/or vicarious copyright infringement performed in the website veoh.com, which enables the sharing of user-provided content. Veoh responded that it qualifies for safe harbor under Section 512(c) of the Digital Millennium Copyright Act (“DMCA”), which provides protection from liability for: “(1) transitory digital network communications; (2) system caching; (3) information residing on systems or networks at the direction of users; and (4) information location tools.” The United States District Court for the Northern District of California agreed with defendant Veoh and dismissed the case. Io Group, Inc. v. Veoh Networks, Inc.

In July 2008, Stubhub lost a motion to dismiss a North Carolina anti-scalping complaint regarding tickets for a Hannah Montana concert purchased at grossly inflated prices via stubhub.com. The court denied Stubhub’s motion to dismiss on plaintiffs’ claim that Stubhub had violated North Carolina’s anti-ticket scalping law. Two months later, an Oregon court granted a similar motion to dismiss brought by joint defendants Stubhub and eBay in a case concerning a Bruce Springsteen concert. In both cases, the issue presented was how far the immunity found in the Communications Decency Act section 230 should extend. Hill v. Stubhub Fehrs v. Stubhub

 

The U.S. Court of Appeals for the Federal Circuit held that the copyright limitations in the open source Artistic License were comprised of conditions, and not covenants. The court further held the breach of these conditions constituted copyright infringement. The ruling strengthens the enforceability of free and open source “public” licenses, which allow copyright holders to make material available for public use, generally on very permissive terms, subject to certain conditions. The court below held that violations of the license terms at issue gave rise only to contract remedies. The Federal Circuit reversed, adopting the view that license terms requiring retention of copyright notices and licensing information, when appropriately drafted as conditions to the license, serve to limit the scope of the license such that copyright remedies, instead of contract remedies, are available for conduct exceeding that scope. Jacobsen v. Katzer et. al, No. 2008-1001 (Fed. Cir. Aug. 13, 2008)

 

EMI Records sought to enjoin Premise Media Corporation (Premise) from using a clip from John Lennon’s song, Imagine, in the documentary film, EXPELLED: No Intelligence Allowed. The court did not issue guidance on the exact amount of use needed to constitute copyright infringement. Instead, the court ruled that EMI was unlikely to win on the merits of the case because the fair use defense likely applied to Premise’s use of Imagine. The court denied the injunction since granting one would cause harm. EMI Records v. Premise Media

 

Stephanie Lenz sued Universal Music Corp. (“Universal”) in the U.S. District Court for the Northern District of California under 17 U.S.C. § 512(f) for misrepresentation pertaining to a DMCA takedown notice issued by Universal in relation to a video clip that Lenz posted on YouTube depicting her child dancing to the Prince song “Let’s Go Crazy,” which Universal owns the rights to. Lenz believed her use of the Prince song constituted fair use. She alleged that Universal did not consider fair use before issuing the takedown notice and therefore had misrepresented that it had done so in the takedown notice. Universal sought a motion to dismiss the case for failure to state a claim upon which relief may be granted. Universal claimed that takedown notice procedures do not require it to consider the fair use doctrine. The Court denied the motion, holding that a copyright owner, in formulating a “good faith belief” that the use of material is not authorized, must consider the fair use doctrine prior to sending a takedown notice. However, the court also indicated that this consideration does not need to be comprehensive. Lenz v. Universal Music Corp., No. C 07-3783 JF (N.D. Cal. Aug. 20, 2008) (order denying motion to dismiss)