Friday, February 26, 2010

9th Cir. decision re enforcement of judgment by levying on and auctioning off domain names

In Office Depot, Inc. v. Zuccarini, No. 07-16788 (9th Cir. Feb. 26, 2010), the Ninth Circuit held Office Depot’s money judgment against notorious cybersquatter could be enforced by levying upon and selling off his domain names.

VeriSign, the registry for all “.com” and .net” domain names, is located in the N.D. Cal. The 9th Circuit permitted an enforcement procedure comprising: (1) registering the judgment in the N.D. Cal.; and (2) moving for the appointment of a receiver, who would then (3) obtain the domain names from the VeriSign registry and sell them off at auction. In approving this procedure, the court held that domain names are “property” that can be levied upon under California law. The court further held that, for purposes of the quasi in rem jurisdiction that applied to such attachment proceedings, domain names are located wherever the registry or registrar is located.

Fed. Cir. holds government liable for copyright infringing stamp depicting Korean War Veterans Memorial

In a fascinating and factually unique case that I won’t try to fully summarize, a 2-1 panel majority of the Federal Circuit held that the U.S. government is liable to the sculptor of the soldier figures in the government’s Korean War Veterans Memorial for copyright infringement based on a commemorative U.S. postage stamp bearing a photograph of the soldier figures. Gaylord v. United States, No. 2009-5044 (Fed. Cir. Feb. 25, 2010).

The sculptor was a subcontractor. The prime contractor for the Memorial had a contract with the government providing that government would own the copyrights in the end product and that the project was a work made for hire. The government paid the subcontractor/sculptor $775,000 to create the figures. The sculptor later registered copyrights in the figures.

The majority ignored the government contract because the parties (curiously) didn’t brief it, and ruled that: (1) the sculptor owned valid copyrights; (2) the stamp was not a fair use; and (3) the government was not a joint author because the only contributions made by the government’s designees were suggestions (i.e., uncopyrightable ideas). The majority remanded for a determination of damages—which will probably be substantial in light of the fact that the government sold $17 million worth of stamps.

In dissent, Judge Newman lambasted the majority for ignoring the contract and for ignoring a statute that provides that there is no right of action against the government for infringement of copyrights inuring in works created in service to the government (28 U.S.C. § 1498).

Thursday, February 25, 2010

5th Circuit decision on "innocent infringer" damages reduction defense in copyright case

The 5th Circuit recently whacked a defendant found liable for copyright infringement by downloading, and possibly sharing, 37 of the plaintiff’s copyrighted songs through a peer-to-peer file-sharing network. Maverick Recording Co. v. Harper, No. 08-51194 (5th Cir. Feb. 25, 2010).

The district court had entered summary judgment of infringement. The plaintiff requested minimum statutory damages of $750 per song under 17 USC § 504(c)(1), but the defendant argued that she was an innocent infringer and therefore should be liable only for the 17 USC § 504(c)(2) reduced amount of $200 per song. The district court found that the defendant’s testimony—that she was too young to understand that such free downloading and sharing constituted copyright infringement—created a trial issue.

The copyright owner accepted the $200 per song judgment, but reserved the right to appeal the innocent infringer issue if the infringer appealed. The infringer appealed.

Bad idea.

The Fifth Circuit affirmed the infringement finding and threw out the infringer’s weak due process argument (to paraphrase the defense: “$200 per song is unconstitutional given that I was young and naive”). The Fifth Circuit then found that the infringer’s "young and ignorant of the law" argument immaterial to the “innocent infringement” defense as well because the copyright owner put copyright notices on its “phonorecords” (e.g., CDs). Even though there was no evidence that the file-downloading infringer ever saw a CD, 17 USC § 402(d) prohibits the “innocent infringement” reduction where the infringer had “access” to the “phonorecord,” a point that the infringer failed to contest. Having stripped away the innocent infringer reduction, the Fifth Circuit remanded for entry of judgment for the amount the copyright owner originally requested: $750 per song.

Sunday, February 21, 2010

11th Cir. decision on copyrightability of blank forms

In Utopia Provider Sys., Inc. v. Plummer, No. 09-11160 (Feb. 19, 2010), the 11th Circuit addressed the test for determining the copyrightability of blank forms. At issue was a series of print and electronic forms developed for hospital emergency room treatment. The forms contained a detailed series of headings with blank spaces for a treating physician to input a patient's medical history, present symptoms, physical exam results, diagnosis and treatment decisions, and instructions. The more specific aspects of the forms were different for different problems.

The court first noted that blank forms are not copyrightable unless they convey information or original pictorial expression. Examples of non-copyrightable forms include baseball scorecards and check stubs. In contrast, diaries for "baby's first year" might be an example of a form that could be copyrightable. Because, in the court's view, the headings of the medical forms at issue did not convey any information, but simply called for the recordation of the information that any responsible physician would ask or note in such emergency room visits, the court held that the forms were not copyrightable.