Ninth Circuit
February 26, 2012
Ninth Circuit Affirms $836,000 Fee Award to Trade Dress Defendant
Published trade dress cases from the Ninth Circuit are relatively rare, but this month the Court issued an important opinion on the legal burden of a plaintiff to establish that their trade dress is nonfunctional. In the Court assessed whether a traction hoist qualifies for trade dress protection, and found it did not.
January 12, 2012
The Songwriters Guild Files Amicus in First Copyright Termination Case within the Ninth Circuit
In July, 2011, Scorpio Music and Can’t Stop Productions filed for declaratory relief against Victor Willis who served Can’t Stop with a notice of termination of post-1977 copyright grants. Victor Willis was the lead singer of the 1970s disco group the Village People. Scorpio based its argument on Section 203(a)(1) of Title 17, which provides that “[i]n the case of a grant executed by two of more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it.” Scorpio asserted that the works were written as joint works and because Willis alone does not constitute a majority of the authors he does not have the right to terminate.
November 14, 2011
The Ninth Circuit Grants En Banc Review to Interpret the Computer Fraud and Abuse Act
The Court of Appeals for the Ninth Circuit recently agreed to rehear U.S. v. Nosal, a decision that interpreted the Computer Fraud and Abuse Act (“CFAA”) to impose criminal sanctions on an employee that exceeded the scope of his computer access privileges. In a rare move, the Ninth Circuit agreed to review the decision en banc, meaning that 10 judges and the Chief Judge of the Ninth Circuit will preside over the rehearing. Commentators on the decision argue that violations of CFAA can now extend beyond the employer/employee context, thus subjecting Internet users to criminal prosecution for violating agreements limiting the users’ scope of computer use.
August 20, 2011
Internet 2.0 Businesses and Personal Jurisdiction Standards in Copyright Cases
The Ninth Circuit issued a major ruling on copyright claims and personal jurisdiction. In Mavrix Photo v. Brand Technologies, the court addressed the question of whether a modern internet website with an ad revenue business model can be subjected to personal jurisdiction in a foreign forum. Mavrix is a celebrity photo agency who sued Brand, an Ohio company, in California for copyright infringement of Mavrix’s exclusive photos of pop superstar Fergie. Brand had a website that was a highly ranked one, higher than MSNBC.com. The Court rejected Brand’s argument that the ads were placed by third party ad companies and that Brand therefore had no knowledge of who saw them. The Court instead held that Brand had actual or constructive knowledge. The case is significant because it is the first appellate opinion in the country to address specific jurisdiction in the context of an internet 2.0 business that is solely web based and built around an ad revenue model that monetizes content by viewers as opposed to the traditional model of monetizing revenue on content through user subscription fees.
August 18, 2011
Tough Times for Preliminary Injunctions in Copyright Cases After eBay
In Perfect 10 v. Google, Perfect 10 argued that because it had a strong likelihood of success on the merits of its copyright claim, it was entitled to the long-recognized presumption of irreparable injury and thus issuance of a preliminary injunction. The Ninth Circuit held that the seminal eBay decision from the Supreme Court in 2006, which held that injunctions in patent cases do not issue automatically upon prevailing and rather must issue only in accordance “with traditional principles of equity,” cast a long shadow and reached copyright cases also. Specifically, it reversed the long-standing rule that posited that upon a showing a likelihood of success on the merits, there is a presumption of injury to justify an injunction. That presumption has now been jettisoned, and this is consistent with the Second Circuit’s famed decision in the Salinger v. Colting case in the copyright arena.
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