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e-Commerce Docket Sheet

By Julian S. Millstein, Edward A. Pisacreta and Jeffrey D. Neuburger
July 31, 2006

Hard Disk Imaging of Licensed Software to
Enable 'Broadest Authorized Use' Is Not Fair Use

The use of hard-disk imaging to install licensed software on computers in excess of the number of paid-for licenses is not protected by fair use, even where the licensee alleged that it limited simultaneous user access to the software's functionality to the number of paid-for licenses. Wall Data, Inc. v. Los Angeles County Sheriff's Department, No. 03-56559, 2006 U.S. App. LEXIS 12100 (9th Cir. May 17, 2006).

The appeals court upheld the trial court's grant of summary judgment, rejecting the licensee's fair-use defense, finding that each of the four fair-use factors weighed against a fair-use finding. In particular, the appeals court noted that the use of hard-drive imaging saved the licensee the time and effort that would have been required to install each copy of the software individually, rendering the licensee's use commercial, because the unauthorized copies were made to save the expense of purchasing authorized copies.


Trademark Use Prohibition Agreement
Requires Explanatory Link

Under a settlement agreement in which a defendant agreed not to use the plaintiff's trademark in Oklahoma, the defendant's obligation to avoid consumer confusion requires it to place an 'Oklahoma' link on the first page of the Web site. Communitycare HMO, Inc. v. Memberhealth, Inc., No. 06-CV-187, 2006 U.S. Dist. LEXIS 28121 (N.D. Okla. May 8, 2006).

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