Geophysical Service v. TGS-Nopec Geophysical

Canada has a law that requires companies who gather seismic data about the Earth’s substructure to submit their findings to the Canadian government. After a period of confidentiality, the Canadian agency that compiles this data is then apparently permitted to release it to members of the public upon specific request. In this case, a Houston company requested seismic data from this Canadian agency pursuant to that law, and the Canadian agency sent copies of a particular Canadian company’s seismic data to the United States. The Canadian company then sued the Houston company, alleging copyright infringement.

We are called upon to determine whether the act of state doctrine forbids a United States court from considering the applicability of copyright’s first sale doctrine to foreign-made copies when the foreign copier was a government agency. We hold that it does not. We must also decide whether the inapplicability of the Copyright Act to extraterritorial conduct bars a contributory infringement claim based on the domestic authorization of entirely extraterritorial conduct. We hold that it does. Accordingly, we affirm in part, reverse in part, vacate in part, and remand.

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Flo & Eddie v. Sirius XM Radio

Defendant-Appellant Sirius XM Radio, Inc., appeals from the November 14, 2014 and December 12, 2014 orders of the United States District Court for the Southern District of New York (McMahon, J.) denying its motions, respectively, for summary judgment and for reconsideration in connection with Plaintiff-Appellee Flo & Eddie, Inc.’s copyright infringement suit. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-cv-5784 (CM), 2014 WL 7178134 (S.D.N.Y. Dec. 12, 2014) (denial of motion for reconsideration); Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 62 F. Supp. 3d 325 (S.D.N.Y. 2014) (denial of motion for summary judgment). We previously concluded that the appeal raised a significant and unresolved issue of New York law that is determinative of this appeal: Is there a right of public performance for creators of pre-1972 sound recordings under New York law and, if so, what is the nature and scope of that right?

We certified this question to the New York Court of Appeals. Flo & Eddie, Inc. v.Sirius XM Radio, Inc., 821 F.3d 265 (2d Cir. 2016). The Court of Appeals accepted certification and responded that New York common law does not recognize a right of public performance for creators of pre-1972 sound recordings. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 2016 WL 7349183 (N.Y. Dec. 20, 2016).

In light of this ruling, we REVERSE the district court’s denial of Appellant’s motion for summary judgment and REMAND with instructions to grant Appellant’s motion for summary judgment and to dismiss the case with prejudice.

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Design Data Corp. v. Unigate Enterprise

The panel affirmed in part and reversed in part the district court’s summary judgment in favor of the defendants in an action under the Copyright Act.

Design Data Corporation alleged that Unigate Enterprise, Inc., infringed the copyright on Design Data’s computer aided design program by downloading an unauthorized copy of the program and importing and distributing within the United States program output generated by a Chinese contractor using an unauthorized copy of the program. The panel reversed the district court’s summary judgment on the downloading claim. The panel held that there was a material question of fact whether Unigate’s download was more than an insignificant violation of Design Data’s copyright.#

The panel affirmed the district court’s summary judgment on the importation-and-distribution claim. The panel held that the copyright in the program did not extend to the program’s output of images and files. The panel also affirmed the district court’s decision to refuse Design Data a further opportunity to amend its complaint.

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Perfect 10, Inc. v. Giganews, Inc.

The panel affirmed the district court’s judgment in favor of the defendants in a copyright case involving the Usenet, an international collection of organizations and individuals whose computers connect to one another and exchange messages posted by Usenet users.

Defendant Giganews, Inc., owns and operates several Usenet servers and provides its subscribers with fee-based access to content stored on its own servers as well as content stored on the servers of other Usenet providers. Defendant Livewire Services, Inc., provides its subscribers with access to the Usenet content stored on Giganews’s servers. Plaintiff Perfect 10, Inc., owns the exclusive copyrights to tens of thousands of adult images, many of which have been illegally distributed over Giganews’s servers.######### The panel affirmed the district court’s partial dismissal and partial grant of summary judgment on Perfect 10’s direct copyright infringement claim. The panel held that causation, also referred to as “volitional conduct,” by the defendant is one of the elements of a prima facie case of direct infringement. The panel held that the volitional conduct requirement was not met on Perfect 10’s theories that the defendants directly infringed its display rights and distribution rights. The panel concluded that the evidence showed only that Giganews’s actions were akin to passively storing material at the direction of users in order to make that material available to other users upon request, or automatically copying, storing, and transmitting materials upon instigation by others. The volitional conduct requirement also was not met as to the claim that Giganews directly infringed on Perfect 10’s right to reproduce by uploading infringing content onto the Usenet or Giganews’s servers.

The panel held that Giganews was not liable for contributorycopyright infringement because Perfect 10 failed to raise a triable issue of fact as to whether Giganews materially contributed to or induced infringement of Perfect 10’s copyrights. The panel held that there were no simple measures available that Giganews failed to take to remove Perfect 10’s works from its servers. The panel affirmed the district court’s summary judgment on Perfect 10’s vicarious infringement claim. The panel held that Perfect 10 failed to demonstrate a causal link between the infringing activities and a financial benefit to Giganews. The panel affirmed the district court’s award of attorney’s fees to the defendants under the Copyright Act and its denial of defendants’ request for supplemental fees. The panel also affirmed the district court’s denial of defendants’ request to amend the judgment to add a judgment debtor as Perfect 10’s alter ego.

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Ultraflo Corp. v. Pelican Tank Parts, Inc.

This appeal requires us to again consider the preemptive force of the Copyright Act. Plaintiff Ultraflo Corporation asserts an unfair competition by misappropriation claim under Texas law alleging that a competitor stole its drawings showing how to design valves and then used them to make duplicate valves. We have previously held that copyright preempts this Texas cause of action when the intellectual property at issue is within the subject matter of copyright. Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 785–89 (5th Cir. 1999). Ultraflo contends that its claim escapes preemption because its valve design, when separated from the drawing itself, is afforded no protection under the Copyright Act. Because copyright preemption prohibits state interference with Congress’s decision not to grant copyright protection just as much as it protects a decision to provide protection, the district court correctly found that the state claim is preempted.

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Hart v. Amazon.com, Inc.

Granted, there is counterfeiting of books (especially text‐ books), in which Amazon may be involved to the extent of advertising and selling such books, though without neces‐ sarily knowing they’re counterfeit. See, e.g., Eliza Green, “The Problem of Fake Books on Amazon,” May 9, 2012, http://elizagreenbooks.com/the‐problem‐of‐fake‐books‐on‐ amazon/ (visited Dec. 24, 2016, as was the next website cit‐ ed). But counterfeiting can’t be presumed. For example, “all of the apparent copycat books that Fortune found on Ama‐ zon were made through CreateSpace, which is a division of Amazon.” Mario Aguilar, “Amazon Is Overrun With a Plague of Bestseller Knockoffs,” April 16, 2012, http://gizmodo.com/5902283/amazon‐is‐overrun‐with‐a‐plag ue‐of‐fake‐books. Hart’s obscure self‐published titles are a far cry from the pirated bestsellers regularly found on Ama‐ zon, and his assertion that the Internet giant must have un‐ dertaken the cost of reproducing his hardcover books be‐ cause they were “not sourced” by him and lack his nail in‐ dentations (when neither do his self‐published books, if one may judge from the photos) doesn’t meet even a minimum standard of plausibility. The judgment of the district court dismissing his suit with prejudice is therefore AFFIRMED.

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Antonick v. Electronic Arts, Inc.

The panel affirmed the district court’s judgment as a matter of law in favor of Electronic Arts, Inc., in a diversity action seeking unpaid royalties pursuant to a contract, arising from alleged copyright infringement.

Plaintiff Robin Antonick developed the computer code for the original John Madden Football game for the Apple II computer, which was released by Electronic Arts. Electronic Arts subsequently released Madden games for Sega Genesis and Super Nintendo for which plaintiff received no royalties under a 1986 contract.

Concerning plaintiff’s Sega claims, the panel held that the plaintiff did not provide sufficient evidence of copyright infringement because neither the source code used for Apple II Madden nor Sega Madden was in evidence. The panel also rejected plaintiff’s argument that Electronic Arts’s postverdict Fed. R. Civ. P. 50(b) motion for judgment as a matter of law regarding the intrinsic test for copyright infringement should not have been considered.

Concerning plaintiff’s Super Nintendo claims, the panel held that the district court did not err in dismissing plaintiff’s derivative work claims because the Apple II and Super Nintendo processors were not in the same microprocessor family, as defined by the parties’ contract. The panel also affirmed the district court’s conclusion that the jury could not have determined plaintiff’s damages from the alleged breach of contract to a reasonable certainty. The panel further held that, even if the district court erred, there was no harm, because plaintiff’s failure to introduce any source code precluded a finding that Super Nintendo Madden was a derivative work.

Finally, the panel held that plaintiff offered no evidence of purported damages arising from plaintiff’s claim that Electronic Arts used development aids to create nonderivative works without seeking a negotiated license.

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In re: Rearden, LLC

The defendants in the underlying case, Rearden LLC, Rearden MOVA LLC, MO2, LLC, and MOVA, LLC, petition for a writ of mandamus to challenge the district court’s order compelling them to produce allegedly privileged documents. We conclude we have jurisdiction to decide their petition. We further conclude that petitioners’ arguments fail to carry the high burden required on mandamus to overturn the district court’s discovery determination. We therefore deny their petition.

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EMI Christian Music Group, Inc. v. MP3tunes, LLC

In this appeal, we principally address one requirement of the Digital Millennium Copyright Act (“DMCA”) safe harbor: that an internet service provider “adopt[] and reasonably implement[]” a policy to terminate “repeat infringers.”  17 U.S.C. § 512.  The plaintiffs, all record companies and music publishers, brought this copyright infringement suit against MP3tunes, LLC and its founder and Chief Executive Officer Michael Robertson.  The plaintiffs alleged that two websites created by MP3tunes— MP3tunes.com, which primarily served as a locker service for storing digital music, and sideload.com, which allowed users to search for free music on the internet—infringed their copyrights in thousands of sound recordings and musical compositions.  After the parties filed cross‐motions for summary judgment, the United States District Court for the Southern District of New York (Pauley, J.) determined, among other things, that MP3tunes had a reasonably implemented repeat infringer policy.  A jury ultimately returned a verdict in favor of the plaintiffs that was partially overturned by the District Court.  

We AFFIRM in part, VACATE in part, REVERSE in part, and REMAND for further proceedings.

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TCA Television Corp. v. McCollum

On appeal from a judgment entered in the Southern District of New York (Daniels, J.) dismissing an action for copyright infringement by the heirs of William “Bud” Abbott and Lou Costello, plaintiffs challenge the district court’s determination, made as a matter of law on a Rule 12(b)(6) motion, that defendants’ verbatim use of a portion of Abbott and Costello’s iconic comedy routine, Who’s on First?, in the recent Broadway play Hand to God, qualified as a non‐infringing fair use.  Defendants defend the district court’s fair use ruling, and further argue that dismissal is supported, in any event, by plaintiffs’ failure to plead a valid copyright interest.    We here conclude that defendants’ appropriation of Who’s on First? was not a fair use, but, nevertheless, affirm the challenged judgment on defendants’ alternative invalidity ground.   AFFIRMED.

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