Copyright Week 2013
Last week saw a string of interesting or important IP developments. One commenter called it “Shark Week for copyright lawyers.” (h/t Booth Sweet LLP)
Kirtsaeng v. John Wiley & Sons, Inc.—The U.S. Supreme Court held that the “first sale” doctrine applies to copyrighted works lawfully made abroad. So, Kirtsaeng’s textbook-arbitrage practice (having textbooks purchased abroad cheaply so that he could sell them in the U.S.) is lawful. SCOTUSBlog has good coverage here.
The ISOHunt case, Columbia Pictures Industries v. Fung—The Ninth Circuit affirmed a summary judgment ruling holding that under Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 U.S. 913 (2005), the defendants were liable for inducing copyright infringement through BitTorrent. ISOHunt’s actions didn’t fall under any of the safe harbor provisions of the DMCA. Importantly though, the panel refused to hold that inducement liability is inherently incompatible with protection under the safe harbors. “[W]e are not clairvoyant enough to be sure that there are no instances in which a defendant otherwise liable for contributory copyright infringement could meet the prerequisites for one or more of the DMCA safe harbors.” Bloomberg has a write-up here.
Speaking of BitTorrent, the Prenda copyright cases and the fraud-on-the-court investigation continues. American Lawyer has an overview here. The Prenda firm has been involved in a series of high-profile copyright-infringement suits against alleged BitTorrent downloaders of pornographic works; ArsTechnica reports that Judge Otis Wright in the Central District of California has scheduled a hearing for April 2 to determine “why they should not be sanctioned for defrauding the Court.” The Star Tribune explains the Minnesota connection to these lawsuits here. Ken at Popehat has in-detail coverage here. [Full disclosure: I previously represented a defendant in one of these cases.]
Maria A. Pallante the Register of Copyrights testified before Congress regarding the need for revisions to the copyright act in light of technological developments. The Register said that “if one needs an army of lawyers to understand the basic precepts of the law, then it is time for a new law.” She identified a non-exclusive list of issues:
clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons who have print disabilities, providing guidance to educational institutions, exempting incidental copies in appropriate instances, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace, updating the framework for cable and satellite transmissions, encouraging new licensing regimes, and improving the systems of copyright registration and recordation.
In other news the Associated Press won its suit against news-aggregator Meltwater. AP v. Meltwater. Judge Cote in S.D.N.Y. rejected Meltwater’s fair-use defense to AP’s allegations. Meltwater has vowed to appeal.