Aba section of Intellectual Property Law
Committee members approving report
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- Committee members disapproving report : None Committee members that did not respond
- COMMITTEE 710 – DATABASES AND ECOMMERCE
- Fair use and compilations of copyright-protected works.
- Registration as prerequisite for suit or injunctive relief.
- Common law misappropriation and databases.
- Contractual limitations on uses of databases.
- Search engines.
Committee members approving report:
Co-Chairs: Gloria Archuleta and Mark Wittow Also responding – Associate members Trevor Smedley and Graham Smith and Student Member Brian Pyne Committee members disapproving report: None Committee members that did not respond:
Note: Ex-Officio, Law Student Member and Associate Member Participants are not required to vote; those student and associates members were as follows: Associate Members:
Student Members:
The 2007 Committee 709 report included the following explanation of open source software, offered here again for reference: What is Open Source Software? Open source software (“OSS”) is distinguishable from traditional commercial software in two main ways. First, while traditional commercial software is distributed in machine-readable object code form, OSS is made available in its human-readable source code form. OSS source code is often created and maintained by programmers who form a distributed, collaborative and virtual community on the internet. These OSS “projects” pride themselves on the technical nature of their software and rarely ask for monetary value for their creations. Hence, OSS is usually downloadable for free or at nominal cost to cover, for example, distribution mechanisms. Second, OSS is made available under the terms of what is known as an open source license (hereinafter “OSS license”). Commercial software licenses include many restrictive terms including limits on the copying and redistribution of the software and a prohibition on modification thereof. In general, an OSS license provides a recipient with a relatively unrestricted right to copy, redistribute and modify the OSS and no royalties are imposed for the copies downloaded. One last important legal point is that OSS is normally provided AS-IS which will drive our future evaluation of methods and documentation for ensuring proper copyright ownership in such software. What is not Open Source Software? OSS is sometimes confused with shareware (or freeware) and public domain software, two other categories of software that differ from traditional commercial software. However, neither of these types of software have the two main characteristics of OSS. Shareware or freeware is simply software in object code form that is made available free of charge (most often on the internet). While it may be made available under a license that permits copying and redistribution, it is not made available in source code form. Thus, it cannot be readily modified and is, therefore, not OSS. Public domain software is software in source code form where the author has given up his or her copyright or dedicated it to the public. This means that it is available to all with absolutely no restrictions on how the source code can be used. As there is no license associated with the software (since there is no identifiable owner thereof after it is dedicated to the public), public domain software is also not OSS. OSS authors (software writers) and project leaders (those that run and maintain the OSS code base) rely on the OSS license to restrict or compel recipients in various ways, depending on the goals of the particular OSS project. Therefore, OSS owners must retain their copyright ownership to the source code while allowing a recipient to use the OSS under a license that defines what the recipient may and may not do with the code (the OSS license). While OSS is often batched together as a single phenomenon, it is important to understand that there is no one OSS license. COMMITTEE 710 – DATABASES AND ECOMMERCE Brian N. Larson, Chairman Scope of Committee All legal issues relating to databases and ecommerce but excluding online security and e-privacy issues. Subject 1. DATABASES NO PROPOSED RESOLUTIONS Past action Past Action of the Section relating to databases appears in Exhibit A. References in this report to ‘past actions,’ if any, are to the numbered resolutions in Exhibit A. Developments the committee has monitored The committee is offering no resolutions with this report, but is tracking several developments. Fair use and compilations of copyright-protected works. In 2007, courts further addressed the extent to which aggregations of individual copyright-protected works into databases that make transformative uses of them are fair use under 17 U.S.C. § 107. In Perfect 10, Inc. v. Amazon.com,2 the Ninth Circuit suggested that Internet image indexes that create “thumbnail” copies of indexed images would be subject to less favorable fair use analysis if the thumbnails themselves supersede intended uses by the copyright holder. The court reviewed the district court’s grant of a preliminary injunction to plaintiff Perfect 10, a marketer of pictures of nude models, against defendants Google and Amazon.com. Google uses automated means to search the web for images; it makes small-sized, low-resolution copies (“thumbnails”) of the images it finds on originating sites, stores the thumbnails on its servers, and indexes the images in its database based upon text that surrounds the images on the originating sites. If a user of Google’s image search enters search criteria, Google generates a page showing search results – thumbnails displayed from Google’s servers. If the user clicks on one of the thumbnails, Google “frames” the site where the image originated, showing the thumbnail and Google links at the top of the page, and the originating site in the frame underneath. Perfect 10 repeatedly notified Google that the images on originating sites were unauthorized, infringing copies of works in which it owns copyrights. Perfect 10 publishes high-resolution images on its password-protected subscription web site and low-resolution versions to be sent and displayed on cell phones. At issue was whether Google’s use was likely to constitute infringement. The Ninth Circuit held that Perfect 10 satisfied its burden of showing that Google’s creation and distribution of thumbnails from its servers would likely be infringing, but Google satisfied its burden of showing that the thumbnails were likely a fair use. In particular, the court stressed the transformative value of search engine thumb-nails, even where they incorporate the entire image indexed, citing Kelly v. Arriba Soft Corp.3 The court did not give significant weight to Perfect 10’s contention that Google’s thumbnails supersede Perfect 10’s low-resolution cell phone images, where cell phone customers could use the Google thumbnails without paying Perfect 10, because the trial court had not made a finding that such infringement has happened. According to the Ninth Circuit, such a finding could trigger a fair use analysis that might weigh more heavily in Perfect 10’s favor. Holders of copyrights in images indexed on search engines may thus be able to strengthen their claims against the search engines by marketing their own images in thumbnail formats, but the transformative use argument supported by Kelly may still shield the search engines. In A.V. v. iParadigms, LLC,4 , the minor plaintiffs complained that defendant, operator of an academic anti-cheating service called “Turnitin,” infringed their copyrights by copying and distributing their term papers and essays without plaintiffs’ permission. Students in some classes in high schools subscribing to Turnitin are required to submit their written assignments online to Turnitin. The service compares the submitted assignments to a huge database of other assignments previously turned in to identify instances of plagiarism. The service retains copies of students’ work to use in future comparisons and allegedly distributes copies of some of the works without consent of the authors. iParadigms contended the claims are barred by an end-user agreement and that its copying was fair use. The plaintiffs alleged that no end-user agreement was formed and that it would be voidable in any event as the plaintiffs were minors. They countered the fair use argument, alleging among other things that iParadigms’ retention of the students’ paper and identifying information violates the federal Family Educational Rights and Privacy Act (FERPA), though plaintiffs made no claim under FERPA. On cross-motions for summary judgment, the District Court for the Eastern District of Virgina held the ‘clickwrap’ agreement enforceable. It dispensed with plaintiffs’ arguments that the contracts were voidable on account of infancy, as the plaintiffs had received the benefit of the contract before attempting to void it. In its fair use analysis, the court found that iParadigms made a highly transformative use of the works copied: the students originally produced their papers for purposes of education; Turnitin used them for examining papers for plagiarism, a “substantial public benefit.” The court granted the defendant’s motion for summary judgment on the complaint and granted the plaintiffs’ motions for summary judgment on the defendant’s counterclaims. Registration as prerequisite for suit or injunctive relief. In Perfect 10, Inc. v. Amazon.com, Inc.,5 the Ninth Circuit held that a court could grant a preliminary injunction affecting a group of works, even though some of the works in the group were unregistered, because at least some of the works in the group were registered. “Once a court has jurisdiction over an action for copyright infringement . . ., the court may grant injunctive relief to restrain infringement of any copyright, whether registered or unregistered.” But in November 2007, the Second Circuit vacated a trial court’s class certification and settlement approval with regard to certain unregistered copyright works appearing in electronic databases without the authors’ permission in In re: Literary Works in Electronic Databases Copyright Litigation.6 Common law misappropriation and databases. The United States District Court for the Northern District of California addressed this issue in Facebook v. ConnectU.7 Facebook and ConnectU operate competing social networking websites. Facebook sued ConnectU, alleging that ConnectU had been given log-in information from registered users and had used that information in connection with a software tool it developed to "harvest" millions of email addresses of Facebook users, to whom ConnectU then sent solicitation emails. ConnectU moved to dismiss five of the seven causes of action asserted by Facebook, and the court held that: 1) Facebook's complaint stated a claim under a California criminal statute prohibiting unauthorized access to computer systems and computer data, because while ConnectU had been given log-in information by registered users it had acted in a way prohibited by the terms and conditions governing those users' accounts, and hence its activities were not authorized; 2) Facebook's common law misappropriation claim was not preempted by the Copyright Act, because the emails and other information gathered were neither protectable under copyright law nor merely uncopyrightable "elements" of a larger copyrightable work, as would be required to trigger preemption; 3) two California statutes prohibiting the type of conduct at issue were preempted by the CAN-SPAM Act; and 4) Facebook could state no claim under the CAN-SPAM Act itself without alleging that the emails sent by ConnectU were themselves deceptive – Facebook was given leave to amend to make such an allegation if it could. Contractual limitations on uses of databases. The Eighth Circuit addressed this question in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P.8 CBC markets and sells fantasy sports products, including fantasy baseball games accessible over the internet. CBC had on two occasions entered into licensing agreements with the Major League Baseball Player's Association (the "Association") pursuant to which the Association, acting on behalf of its player members, granted CBC a license to use the names, likenesses, and playing records of those members in connection with its fantasy games. The most recent of these agreements (the "2002 Agreement") contained a no-challenge provision precluding CBC from challenging the right and title of the Association during the license period, and further stating that upon termination CBC would have no right to continue to use the intellectual property licensed to it by the Association. The Association subsequently entered into a license agreement with Advanced Media, the interactive media and internet arm of Major League Baseball, giving Advanced Media the right to use and license players' names and likenesses with respect to all interactive media. After Advanced Media refused to give CBC a license to operate its fantasy games, CBC filed a declaratory judgment action and the Association intervened to pursue claims for violation of the player's right to privacy and breach of the Association's prior license agreement with CBC. At issue was the right of CBC to use the names and playing history and statistics of Major League players (no pictures or other likenesses were used) in the conduct of its fantasy game without the permission of the Association or Advanced Media. On cross-motions for summary judgment, the district court concluded that CBC was not using the names of the players as a "symbol of their identity" or to obtain "commercial advantage" from a perceived connection between those players and CBC, and that accordingly CBC had not violated the players' right of publicity.9 The court also held that even if a violation of the right of publicity had occurred, that any claim would be trumped by CBC's First Amendment right to speak regarding factual data and historical facts. Finally, drawing upon the Supreme Court's pronouncements in the patent context in Lear v. Adkins, the court concluded that any provisions of the 2002 Agreement purporting to prevent CBC from utilizing information in the public domain would violate the policies behind the intellectual property laws and would be void and unenforceable as a matter of public policy. On appeal, the Eighth Circuit affirmed the district court's grant of summary judgment. Specifically, the court, while concluding that the Association could in fact make out a state law right-publicity claim, agreed with the district court that that claim was trumped by the First Amendment. The Eighth Circuit found it unnecessary to reach the question of what it termed the "unique" application of Lear to a state law claim, finding instead that the Association had materially breached the 2002 Agreement and so could not enforce it. In the 2002 Agreement, the Association had warranted that it was “the sole and exclusive holder of all right, title and interest” in and to the names and playing statistics of its members. Since others in fact had the right to use these names and statistics under the First Amendment, this warranty was breached, negating the contract. Subject 2. ECOMMERCE NO PROPOSED RESOLUTIONS Past action Past Action of the Section relating to databases appears in Exhibit A. References in this report to ‘past actions,’ if any, are to the numbered resolutions in Exhibit A. Developments the committee has monitored The committee is offering no resolutions with this report, but is tracking several developments. Search engines. See treatment of Perfect 10, Inc. v. Amazon.com, above. In Perfect 10, Inc., v. Amazon.com, the Ninth Circuit also held that an Internet image search engine may be liable for contributory infringement if it made infringing images on other web sites available to search engine users, if the plaintiff could show the search engine could take “simple measures” to prevent access to infringing works and failed to do so. But it found no likelihood of vicarious infringement where an Internet image search engine received advertising revenues from web sites hosting infringing copies of images to which the search engine directed users. While the search engine may have profited indirectly from the infringement, the plaintiff copyright-holder did not show that the search engine had the means to control the infringing advertisers and their web sites. Directory: dch -> thedl.cfm?filename= thedl.cfm?filename= -> The African-American Prosecutor Roundtable By Angela Downes, Candace Mosley and Whitney Tymus Introduction thedl.cfm?filename= -> Not classified, releasable to the public dch -> Appendix for Digital Image Acquisition and Display dch -> Affordable Care Act (aca) Frequently Asked Questions November 17, 2015 Note: The information provided in this document is not intended and should not be construed as legal advice dch -> 2 Peachtree Street, nw, 35th Floor Atlanta, Georgia 30303-3159 dch -> Notice of Direct award thedl.cfm?filename= -> Introduction to repair and maintenance obligations in leases Download 419.52 Kb. Share with your friends:
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