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Third Party Affirmative Defenses to Software Copyright Infringement

A license, either express or implied, may be an affirmative defense to software copyright infringement.  However, a recent case, brought by Oracle against a vendor who had provided services to Oracle’s customer, illustrates the limits of these defenses.  Oracle USA, Inc. v. Rimini Street, Inc., No. 2:10-CV-00106-LRH-PAL (D. Nev. Feb 13, 2014).  Perhaps more importantly, […]

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First Sale Doctrine Inapplicable to Antitrust Claims Concerning Licensed Software

The first sale doctrine governing transfers of copyrighted works could not be used to allege that statements made to potential customers were “false, predatory or anti-competitive.” Int’l Equip. Trading v. Ab Sciex Llc, No. 13 C 1129 (N.D. Ill. Aug. 29, 2013). The plaintiff in this case had brought a number of unfair competition claims, […]

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Software Licensee’s Creation of Derivative Work Results in an Injunction

In case you doubted it, seemingly boilerplate provisions in software license agreements that prohibit the creation of derivative works do mean something, as exemplified in EyePartner, Inc. v. Kor Media Group LLC, No. 4:13-10072 (S.D. Fla. July 15, 2013). The court in this case granted a preliminary injunction based on such an anti-modification provision, as […]

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Use of Software After Expiration of License Is Copyright Infringement

A software owner was granted summary judgment of copyright infringement where its licensee had breached the applicable software license agreement, and continued to use the software after the agreement expired. Clinical Insight v. Louisville Cardiology Med. Group, No. 11-CV-6019T (W.D.N.Y. July 12, 2013). The licensee could not be saved by its allegation that it had […]

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Software Copyright Infringement Defenses: Ownership of a Copy and Implied License

A defendant accused of infringing a software copyright was, according to facts plead in the plaintiff’s complaint, an owner of a copy of the software under 17 U.S.C. § 117(a)(1). Further, the facts established that the defendant had an implied license. Therefore, the court in Zilyen, Inc. v. Rubber Mfrs. Ass’n, No. 12-0433 (RBW) (D.D.C April 2, […]

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Path Cleared for Ninth Circuit to Address Copyright First Sale Doctrine Burdens of Proof

Adobe has been granted partial judgment under Federal Rule of Civil Procedure 54(b) in a copyright infringement case so that the Ninth Circuit may determine which party bears the burden of proof when the first sale doctrine is raised as a defense to copyright infringement. Adobe Systems, Inc. v. Christenson, No. 2:10-CV-00422-LRH-GWF (D. Nev. Oct. […]

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Copyright First Sale Doctrine and Burdens of Proof

Adobe, having been precluded from relying on license agreements that it failed to produce during discovery, has lost a summary judgment motion on its claim for copyright infringement against a defendant who asserted the first sale doctrine as a defense.  Adobe Systems, Inc. v. Christenson, No. 2:10-CV-00422-LRH-GWF (D. Nev. 2012). Defendants sold software over the […]

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Are Webpages “Published” Under U.S. Copyright Law?

Allegedly infringed webpages were held not to be “publications” under U.S. copyright law.  Rogers v. The Better Business Bureau of Metropolitan Houston, Inc., No. H-10-3741 (Aug. 15, 2012).  The plaintiff had described the webpages as unpublished when applying for copyright registrations.  The defendant argued that the webpages were published, and that the copyright registrations were […]

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Are Links on a Social Network Contributory Copyright Infringement?

Because it was not satisfied that a social network, hosting links to copyrighted videos, was a contributory infringer, the Seventh Circuit has vacated a preliminary injunction against the social network.  Flava Works, Inc. v. Gunter, No. 11-3190 (7th Cir. Aug. 2, 2012).  According to Judge Posner’s opinion for the court, even if the defendant, myVidster, […]

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Copyright Infringement and Software Version Control

Enforcing a software copyright depends on good source code version control.  This is because enforcing a software copyright depends on being able to produce the version of software whose copyright is alleged to be infringed.  In Indyne, Inc. v. Abacus Technology Corp., No: 6:11-cv-137-Orl-22DAB (M.D. Fla. June 1, 2012), the defendant’s motion for summary judgment […]

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