Bit Parts

Aimster Litigation Update

The U.S. Court of Appeals for the Seventh Circuit upheld sanctions against John Deep for failure to shut down his Aimster peer-to-peer file-sharing network. In Re: Aimster Copyright Litigation, 03-2188. The district court had issued an injunction ordering Deep to either block infringing uses or stop operating Aimster pending resolution of the music industry's copyright infringement suit against the service. The Seventh Circuit affirmed. But the district court fined Deep $5000 and ordered him to pay more than $100,000 of the plaintiffs' attorney fees for violating the injunction. In its latest ruling, the Seventh Circuit noted that Deep “admitted in the district court that, since he was unable (he claimed) to block infringing uses, he had to shut his service down. He did not do so. The excuses he offers for his contumacy are unpersuasive, indeed frivolous. As the plaintiffs point out, he has engaged in vexatious litigation in several courts in an effort to avoid complying with the injunction, as well as skipping hearings in the district court and engaging in a variety of stall tactics.” Only a few days before the Seventh Circuit affirmed the sanctions, the U.S. Supreme Court denied Deep's petition for a writ of certiorari from relief from the injunction. Deep v. Recording Industry Association, 03-658. 

'Peacemaker' Ruling

The U.S. Court of Appeals for the Ninth Circuit decided that the district court didn't abuse its discretion in denying a discovery motion by the plaintiffs in a copyright infringement suit over the film “The Peacemaker.” Idema v. Dreamworks Inc., 01-57243. According to the appeals court, “The district court accepted Defendants' concession (made for the purpose of summary judgment only) that they had access to Plaintiffs' works, so the additional evidence of access that was sought was not required at that stage of the litigation.” In the unpublished opinion, the appeals court went on to uphold the lower court's denial of the plaintiffs' request to file a third amended complaint after the court had entered summary judgment. Then, after reviewing “in painstaking detail” the plaintiffs' works and the defendants' film, the appeals court concluded that there was no substantial similarity of ideas and expression. “To the extent that there are similarities, many of them relate to historical facts, which are not themselves subject to copyright protection, or to stock characters and scenes a faire,” the appeals court stated. “The remaining similarities are not substantial, and the differences between the film and Plaintiffs' eight works are extensive.”

Copyright Expert Can't Testify

The U.S. Court of Appeals for the Ninth Circuit affirmed a lower court ruling that precluded an expert witness from testifying at trial for copyright infringement plaintiffs. The suit claimed that the defendants had infringed on the plaintiffs' composition “This Is How We Do It.” Stell v. Jordan, 03-15603. In its unpublished opinion, the appeals court emphasized that the plaintiffs had violated repeated district court orders to make the expert available for deposition. The lower court had also warned the plaintiffs that failure to comply would lead to witness preclusion. The appeals court also upheld dismissal of the plaintiffs' remaining claims on the ground that the plaintiffs' failure to obey the discovery orders regarding the expert had been willful.

Digital Magazine Rights

A magazine publisher had the right under Sec. 201(c) of the Copyright Act of 1976 to reproduce previously published articles in CD-ROM and DVD formats, the U.S. District Court for the Southern District of New York ruled. Faulkner v. National Geographic Society, 97-9361. The court noted: “The digital revolution has caused substantial growing pains in the law of copyright as the law has sought to adapt to the demands of a new age. This case is yet another example.” The key issue to which the court answered “yes” was whether presenting magazine articles in their original contexts, but in digital versions containing software, constituted allowable “revisions” within the meaning of Sec. 201(c).

Seizure Order Upheld

The U.S. District Court for the Southern District of New York upheld the seizure of unauthorized copies of Chinese-language films and TV programs under the impoundment provisions of Sec 503(a) of the Copyright Act. U2 Home Entertainment Inc. v. Bowery Music City Inc., 03-8909. The court found that the plaintiff had established a prima facie case of copyright infringement by: attaching to the complaint a list of the works to which the plaintiff claimed registrations or pending registrations in the U.S. Copyright Office or protection under international copyright law; providing the defendants with documentation of alleged ownership of rights to the works; and alleging that the defendants had violated the plaintiff's exclusive rights. In addition, the defendants failed to bring forth any evidence to contest the plaintiff's rights in the impounded works.

Aimster Litigation Update

The U.S. Court of Appeals for the Seventh Circuit upheld sanctions against John Deep for failure to shut down his Aimster peer-to-peer file-sharing network. In Re: Aimster Copyright Litigation, 03-2188. The district court had issued an injunction ordering Deep to either block infringing uses or stop operating Aimster pending resolution of the music industry's copyright infringement suit against the service. The Seventh Circuit affirmed. But the district court fined Deep $5000 and ordered him to pay more than $100,000 of the plaintiffs' attorney fees for violating the injunction. In its latest ruling, the Seventh Circuit noted that Deep “admitted in the district court that, since he was unable (he claimed) to block infringing uses, he had to shut his service down. He did not do so. The excuses he offers for his contumacy are unpersuasive, indeed frivolous. As the plaintiffs point out, he has engaged in vexatious litigation in several courts in an effort to avoid complying with the injunction, as well as skipping hearings in the district court and engaging in a variety of stall tactics.” Only a few days before the Seventh Circuit affirmed the sanctions, the U.S. Supreme Court denied Deep's petition for a writ of certiorari from relief from the injunction. Deep v. Recording Industry Association, 03-658. 

'Peacemaker' Ruling

The U.S. Court of Appeals for the Ninth Circuit decided that the district court didn't abuse its discretion in denying a discovery motion by the plaintiffs in a copyright infringement suit over the film “The Peacemaker.” Idema v. Dreamworks Inc., 01-57243. According to the appeals court, “The district court accepted Defendants' concession (made for the purpose of summary judgment only) that they had access to Plaintiffs' works, so the additional evidence of access that was sought was not required at that stage of the litigation.” In the unpublished opinion, the appeals court went on to uphold the lower court's denial of the plaintiffs' request to file a third amended complaint after the court had entered summary judgment. Then, after reviewing “in painstaking detail” the plaintiffs' works and the defendants' film, the appeals court concluded that there was no substantial similarity of ideas and expression. “To the extent that there are similarities, many of them relate to historical facts, which are not themselves subject to copyright protection, or to stock characters and scenes a faire,” the appeals court stated. “The remaining similarities are not substantial, and the differences between the film and Plaintiffs' eight works are extensive.”

Copyright Expert Can't Testify

The U.S. Court of Appeals for the Ninth Circuit affirmed a lower court ruling that precluded an expert witness from testifying at trial for copyright infringement plaintiffs. The suit claimed that the defendants had infringed on the plaintiffs' composition “This Is How We Do It.” Stell v. Jordan, 03-15603. In its unpublished opinion, the appeals court emphasized that the plaintiffs had violated repeated district court orders to make the expert available for deposition. The lower court had also warned the plaintiffs that failure to comply would lead to witness preclusion. The appeals court also upheld dismissal of the plaintiffs' remaining claims on the ground that the plaintiffs' failure to obey the discovery orders regarding the expert had been willful.

Digital Magazine Rights

A magazine publisher had the right under Sec. 201(c) of the Copyright Act of 1976 to reproduce previously published articles in CD-ROM and DVD formats, the U.S. District Court for the Southern District of New York ruled. Faulkner v. National Geographic Society, 97-9361. The court noted: “The digital revolution has caused substantial growing pains in the law of copyright as the law has sought to adapt to the demands of a new age. This case is yet another example.” The key issue to which the court answered “yes” was whether presenting magazine articles in their original contexts, but in digital versions containing software, constituted allowable “revisions” within the meaning of Sec. 201(c).

Seizure Order Upheld

The U.S. District Court for the Southern District of New York upheld the seizure of unauthorized copies of Chinese-language films and TV programs under the impoundment provisions of Sec 503(a) of the Copyright Act. U2 Home Entertainment Inc. v. Bowery Music City Inc., 03-8909. The court found that the plaintiff had established a prima facie case of copyright infringement by: attaching to the complaint a list of the works to which the plaintiff claimed registrations or pending registrations in the U.S. Copyright Office or protection under international copyright law; providing the defendants with documentation of alleged ownership of rights to the works; and alleging that the defendants had violated the plaintiff's exclusive rights. In addition, the defendants failed to bring forth any evidence to contest the plaintiff's rights in the impounded works.