More Case Law

United States v. Elcomsoft, (N.D. Cal. 2002). Elcomsoft, a software company, faces charges that it violated the Digital Milenium Copyright Act (DMCA) by selling programs that allow people using Ebook reader to make digital copies of those books. Elcomsoft has presented a novel argument in its defense, that the federal court does not have jurisdiction over activities that occur on the Internet. According to Elcomsoft, Congress did not authorize the DMCA to have extraterritorial effect, and the Internet is beyond the jurisdiction of the United States.

Elcomsoft was acquitted of all charges on 12/17/02. See article here.

Elcomsoft's Motion to Dismiss at http://www.eff.org/IP/DMCA/US_v_Elcomsoft/20020114_elcom_dismiss_
juris_motion.html ICD Keywords: Copyright, Jurisdiction

On July 7, 2003, an opinion vacated its previous decision. See this article.

Kelly v. Arriba Soft Corporation, 280 F.3d 934 (9th Cir. 2002). Arriba Soft operates a search engine that displays its results in the form of small pictures (thumbnails), and a user may also view a larger version of the same picture within the context of Arriba's website. Arriba obtained its thumbnail images by copying images from other websites. The larger versions were imported directly from the plaintiff's website. The plaintiff Kelly sued Arriba for copyright infringement. The court held that the use of the thumbnail pictures fell within the fair use defense because they were much smaller, low resolution images that were used for a different purpose than Kelly's works, which were artistic images used for illustrative purposes. As to the online linking and framing of Kelly's full sized images, the court held that the use had infringed upon Kelly's exclusive right to display the copyrighted works publicly. Update March 22, 2002: Arriba Soft (now ditto.com) has filed a petition for rehearing.

Opinion at http://caselaw.lp.findlaw.com/data2/circs/9th/0055521p.pdf

ICD Keywords: Linking, Copyright

CoStar Group Inc. v. LoopNet Inc., 164 F. Supp. 2d 688; 2001 U.S. Dist. LEXIS 15401 (D. Md. 2001). The court analyzed the the Digital Millennium Copyright Act (DMCA) safe harbour concerning infringing material that is posted or transmitted through an online service provider. LoopNet is an internet company that offers a service for real estate brokers to post real estate listings. CoStar is a provider of real estate information services which maintains a database that includes photographs of properties that it licenses to brokers. CoStar claimed that its copyright was infringed when LoopNet users uploaded photographs from the CoStar database onto LoopNet. Both parties moved for summary judgment. The court held that LoopNet was not a direct infringer because it did not post the photographs itself. However, the court denied summary judgment on whether LoopNet was a contributory infringer because the court found that it was a question of material fact whether LoopNet had the requisite knowledge of the infringing activity. The court also found that the adequacy of LoopNet's compliance with the DMCA safe harbour's "take down" provisions was a question of material fact, and could not be resolved in a motion for summary judgment.

ICD Keywords: Copyright

Greenberg v. National Geographic Society, 244 F.3d 1267 (11th Cir. 2001). The 11th Circuit ruled that a CD-Rom set was not a revision of a prior collective work,, but instead an entirely new product. Jerry Greenberg's photographs had been used by National Geographic in its magazine. Afterwards, Greenberg obtained the copyrights back. National Geographic later created a CD-ROM collection that included all its published magazines, and included some of Greenberg's pictures. Plaintiff asserted that this constituted a new use of his photograph and an infringement of his copyright. The court of appeals held that the product was not a revision of the magazines nor a limited fair use of the photo. Rather, the court found it to be a new product and that National Geographic should have paid Greenberg for republishing his works. Update October 10, 2001: US Supreme Court denied certiorari. See 122 S. Ct. 347; 2001 U.S. LEXIS 9493 (2001).

Article at http://www.wired.com/news/politics/0,1283,47430,00.html

Opinion at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=11th&navby=case&no=
0010510OPN

Random House Inc. v. RosettaBooks LLC, 150 F. Supp. 2d 613 (S.D.N.Y. 2001). A federal judge ruled that Random House's standard book contracts with three authors did not bar e-book publisher RosettaBooks from marketing electronic versions of their books. The court held that under the Random House contract, "the right to print, publish and sell the work[s] in book form...does not include the right to publish the works in the format that has come to be known as the ebook."

SNC Havas Numerique v. SA Kelijob, (France, 2001). A French court ruled on a "deep linking" case. An online employment site brought an action against Kelijob, an employment search engine alleging copyright infringement and unfair competition. The defendant had provided links to the plaintiff's site without authorization. In granting the injunction, the court distinguished between surface linking in which there is an implied right due to the nature of the Internet, and deep linking which requires authorization.

Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290 (D. Utah 1999). Linking Liability. In the first U.S. case of its kind, Federal Judge Tena Campbell granted the IRI a preliminary injunction against critics of the Mormon Church finding that the defendants had engaged in contributory copyright infringement for posting an e-mail to their site which contained three links to web sites that they knew, or should have known, contained infringing copies of the Church Handbook of Instructions.

Article at http://www.nytimes.com/library/tech/99/12/cyber/cyberlaw/10law.html (subscription required)
Court Order at http://www.utlm.org/underthecoveroflight_news.htm
Various Articles and Court Documents at http://www.utlm.org/underthecoveroflight
_news.htm

United States v. Levy, (D. Or. 1999). University of Oregon student pled guilty to felony copyright infringement under the No Electronic Theft Act. Student had posted copyrighted material including movies, music, and software on his web site, making it available for copying by others. Update November 24, 1999: Levy sentenced to two years probation with drug testing and limitations on his access to the Internet.

Justice Dept. press release at http://www.usdoj.gov/opa/pr/1999/August/371crm.htm

Church of Scientology v. Dataweb, Cause No. 96/1048, Dist. Ct. of the Hague, Holland, June 9, 1999. ISPs held liable for copyright infringement based on customer web sites including copyrighted documents and links to other sites with copyrighted documents; court held that ISP's would be liable upon notice that infringing documents were on their system which could not reasonably be doubted, unless they act quickly to remove the material. Court also stated that ISPs could be required to divulge name and address of customers whose site included infringing material.

Opinion (in English) at http://www.xs4all.nl/~kspaink/cos/verd2eng.html
Article at http://www.news.com/News/Item/0,4,37622,00.html

Bernstein v. J.C. Penney, Inc., 1998 U.S. Dist. LEXIS 19048 (C.D. Cal. 1998). Web site, three links away from unauthorized reproduction of photographer's copyrighted work, was "too indirect" to be held copyright infringement. Photographer, Gary Bernstein, brought suit against J.C. Penney and Elizabeth Arden, Inc. After court dismissed case against Arden, Bernstein withdrew the suit against J.C. Penney.

Article at http://www.techweb.com/wire/story/TWB19980922S0008

Marobie-FL, Inc. v. Nat'l Assn of Fire Equip. Distribs., 983 F. Supp. 1167 (N.D. Ill. 1997). In action for online infringement of plaintiff's copyrighted clip art, co-defendant Internet service provider and Web host Northwest Nexus was held not directly nor vicariously liable for Web site owner's infringement; but summary judgment was denied on the issue of contributory liability, since that determination depends on the factual questions of how much the service provider knew about the alleged infringement, when it knew it, and whether it could or should have taken action. Decision's reasoning closely follows that of Religious Technology Center v. Netcom.

United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994). College student who used school's computer to set up electronic bulletin boards for uploading and downloading unauthorized copies of copyrighted software programs could not be prosecuted under criminal infringement statute because his activities had not been carried out for profit.

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