BMG Rights Management v. Cox Communications

BMG Rights Management (US) LLC (“BMG”), which owns copyrights in musical compositions, filed this suit alleging copyright infringement against Cox Communications, Inc. and CoxCom, LLC (collectively, “Cox”), providers of high-speed Internet access. BMG seeks to hold Cox contributorily liable for infringement of BMG’s copyrights by subscribers to Cox’s Internet service. Following extensive discovery, the district court held that Cox had not produced evidence that it had implemented a policy entitling it to a statutory safe harbor defense and so granted summary judgment on that issue to BMG. After a two-week trial, a jury found Cox liable for willful contributory infringement and awarded BMG $25 million in statutory damages. Cox appeals, asserting that the district court erred in denying it the safe harbor defense and incorrectly instructed the jury. We hold that Cox is not entitled to the safe harbor defense and affirm the district court’s denial of it, but we reverse in part, vacate in part, and remand for a new trial because of certain errors in the jury instructions.

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Oracle USA v. Rimini Street

The panel affirmed in part, reversed in part, and vacated in part the district court’s judgment after a jury trial in favor of Oracle USA, Inc., on its copyright infringement and California and Nevada state law claims against Rimini Street, Inc., a provider of third-party support for Oracle’s enterprise software, and Seth Ravin, Rimini’s CEO.

Oracle licenses its software and also sells its licensees maintenance contracts. The maintenance work includes software updates. In order to compete effectively with Oracle’s direct maintenance services, Rimini needed to provide software updates to its customers. With Oracle’s knowledge, Rimini copied Oracle’s copyrighted software in order to provide the updates. Rimini obtained software from Oracle’s website with automated downloading tools in direct contravention of the terms of the website.

The panel affirmed the district court’s partial summary judgment and partial judgment after trial on Oracle’s claims that Rimini infringed its copyright by copying under the license of one customer for work performed for other existing customers or for unknown or future customers, rather than restricting such copying to work for that particular customer. The panel concluded that Rimini’s activities were not permissible under the terms of the licenses Oracle granted to its customers. The panel rejected Rimini’s argument that holding it accountable for its alleged conduct would condone misuse of Oracle’s copyright.

The panel reversed the district court’s judgment after trial with respect to Oracle’s claims under the California Comprehensive Data Access and Fraud Act, the Nevada Computer Crimes Law, and California’s Unfair Competition Law. The panel held that taking data from a website, using a method prohibited by the applicable terms of use, when the taking itself generally is permitted, does not violate the CDAFA or the NCCL. Accordingly, Rimini did not violate these computer abuse statutes by using automated tools to take data in direct contravention of Oracle’s terms of use. Because the district court granted judgment in favor of Oracle on Oracle’s Unfair Competition Law claim based on its finding that Rimini violated the CDAFA, the panel reversed the district court’s determination that Rimini violated California’s Unfair Competition Law.

The panel reduced the district court’s award of damages by the amount based on Rimini’s alleged violation of the CDAFA and NCCL. The panel affirmed the district court’s award of prejudgment interest on the copyright claims. The panel reversed the district court’s permanent injunction based on alleged violations of the CDAFA.

The panel vacated the district court’s permanent injunction based on copyright infringement because the district court assessed the relevant factors by reference to both the copyright and the CDAFA claims, without considering separately the propriety of issuing an injunction as to the copyright claims alone.

The panel reversed the district court’s judgment with respect to Ravin’s liability for attorneys’ fees. As to Rimini, the panel vacated the fee award and remanded for reconsideration in light of Oracle’s more limited success at litigation in view of the panel’s conclusion that there was no violation of the state computer laws.

The panel reduced the district court’s award of taxable costs and affirmed its award of non-taxable costs.

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Roberts v. Gordy

William L. Roberts II, Andrew Harr, and Jermaine Jackson (collectively “Appellants”), who are artists in the hip-hop industry, appeal the dismissal of their copyright infringement case. On appeal, they argue that their copyright registrations were improperly invalidated under 17 U.S.C. § 411 without a showing of scienter and that they made a proper showing of copyright ownership. Appellees counter that 17 U.S.C. § 411(b)(1) does not require scienter for nullification of a copyright registration and that a web of transfer and licensing agreements reflect a murky disposition of legal ownership. The Court need not reach a decision on the ownership issue because the district court misapplied the law by invalidating the copyright registrations. Accordingly, the district court’s dismissal order will be reversed and remanded for further proceedings.

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Signature Management Team, LLC v. Doe

Plaintiff, Signature Management Team, LLC (“Team”), prevailed in this action for copyright infringement but appeals the district court’s refusal to unmask Defendant John Doe, an anonymous blogger. Because the district court failed to recognize the presumption in favor of open judicial records, we REMAND with instructions to reconsider unmasking Doe in light of this opinion.

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Motion Medical Technologies, LLC v. Thermotek, Inc.

ThermoTek, Inc. convinced a jury that Mike Wilford and his companies engaged in unfair competition and fraud in violation of Texas law. The district court, however, granted judgment as a matter of law to the defendants, concluding that federal law preempted the unfair competition claim and that ThermoTek failed to prove its damages for fraud. We affirm.

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SAS Institute, Inc. v. World Programming Ltd.

SAS Institute (SAS) and World Programming Limited (WPL) are competitors in the market for statistical analysis software. SAS alleges that WPL breached a license agreement for SAS software and violated copyrights on that software. We agree with the district court that the contractual terms at issue are unambiguous and that SAS has shown that WPL violated those terms. We thus affirm the district court’s judgment finding WPL liable for breach of the license agreement. With respect to the district court’s ruling on the copyright claim, we vacate that portion of the district court’s judgment and remand with instructions to dismiss it as moot.

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DRK Photo v. McGraw-Hill Global Education Holdings, LLC

The panel affirmed the district court’s summary judgment in favor of the defendants in a copyright infringement action brought by a stock photography agency.

The panel held that the plaintiff, a nonexclusive licensing agent for the photographs at issue, failed to demonstrate any adequate ownership interest in the copyrights to confer standing. Distinguishing Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d 997 (9th Cir. 2015), the panel held that the plaintiff lacked standing as a legal owner because its representation agreements with the photographers did not grant the plaintiff an exclusive license to authorize use of the photographs. The panel held that under Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881 (9th Cir. 2005) (en banc), the plaintiff’s assignment agreements with the photographers did not confer standing because they merely transferred the right to sue on accrued claims. The panel held that the plaintiff also lacked standing as a beneficial owner of the copyrights.

The panel affirmed the district court’s denial of the plaintiff’s motion to modify the scheduling order for leave to amend its complaint to join three photographers as plaintiffs.

Concurring, Judge Berzon wrote that Silvers, holding that the transfer of the right to sue to a nonowner or nonexclusive licensee of a copyright right can never confer standing to sue for a copyright violation, controlled but was wrongly decided.

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Mavrix Photographs, LLC v. LiveJournal, Inc.

The panel filed an amended opinion (1) reversing the district court’s holding, on summary judgment, that the defendant was protected by the safe harbor of the Digital Millennium Copyright Act from liability for posting the plaintiff’s photographs online and (2) vacating a discovery order.

In its amended opinion, the panel held that the safe harbor set forth in 17 U.S.C. § 512(c) would apply if the photographs were stored at the direction of users. The defendant, a social media platform, posted the photographs after a team of volunteer moderators, led by an employee of the defendant, reviewed and approved them. The panel held that whether the photographs were stored at the direction of users depended on whether the acts of the moderators could be attributed to the defendant. Disagreeing with the district court, the panel held that the common law of agency applied to the defendant’s safe harbor defense. Because there were genuine factual disputes regarding whether the moderators were the defendant’s agents, the panel reversed the district court’s summary judgment and remanded the case for trial.

The panel also discussed the remaining elements of the safe harbor affirmative defense. If an internet service provider shows that the infringing material was posted “at the direction of the user,” it must then also show that (1) it lacked actual or red flag knowledge of the infringing material; and (2) it did not financially benefit from infringements that it had the right and ability to control. The panel held that to fully assess actual knowledge, the fact finder must consider not only whether the copyright holder has given notice of the infringement, but also the service provider’s subjective knowledge of the infringing nature of the posts. The panel held that to determine whether the defendant had red flag knowledge, the fact finder would need to assess whether it would be objectively obvious to a reasonable person that material bearing a generic watermark or a watermark referring to the plaintiff’s website was infringing. When assessing the service provider’s right and ability to control the infringements, the fact finder should consider the service provider’s procedures that existed at the time of the infringements and whether the service provider had “something more” than the ability to remove or block access to posted materials.

Finally, the panel vacated the district court’s order denying discovery of the moderators’ identities. It remanded the case for further proceedings.

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Disney Enterprises, Inc. v. VidAngel, Inc.

The panel affirmed the district court’s preliminary injunction against the defendant in an action under the Copyright Act and the Digital Millennium Copyright Act.

Defendant VidAngel, Inc., operated an online streaming service that removed objectionable content from movies and television shows. VidAngel purchased physical discs containing copyrighted movies and television shows, decrypted the discs to “rip” a digital copy to a computer, and then streamed to its customers a filtered version of the work.

The panel held that the district court did not abuse its discretion in concluding that VidAngel’s copying infringed the plaintiffs’ exclusive reproduction right. Because VidAngel did not filter authorized copies of movies, it was unlikely to succeed on the merits of its defense that the Family Movie Act of 2005 exempted it from liability for copyright infringement. VidAngel also was unlikely to succeed on its fair use defense.

The panel held that the district court also did not abuse its discretion in concluding that the plaintiffs were likely to succeed on their DCMA claim.

The panel held that the anticircumvention provision of the DMCA, 17 U.S.C. § 1201(a), covered the plaintiffs’ technological protection measures, which controlled both access to and use of the copyrighted works.

The panel affirmed the district court’s findings regarding the likelihood of irreparable harm, the balancing of the equities, and the public interest.

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Jordan-Benel v. Universal City Studios, Inc.

The panel affirmed the district court’s order denying defendants’ anti-SLAPP motion to strike a state law claim for breach of implied-in-fact contract in a copyright case.

The plaintiff alleged that the defendants infringed his copyright in a screenplay and used his screenplay idea to create films without providing him compensation as a writer. The panel held that the breach of contract claim did not arise from an act in furtherance of the right of free speech because the claim was based on defendants’ failure to pay for the use of plaintiff’s idea, not the creation, production, distribution, or content of the films. Accordingly, the district court did not err in denying defendants’ motion to strike the state law claim under California’s anti-SLAPP statute.

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