e-Commerce Docket Sheet

Online Promo Music Resales
Fall under First Sale Doctrine

The Copyright Act's first sale doctrine allows an individual to resell promotional music CDs sent to industry insiders, despite the fact that the CDs bore labels with words that purportedly “license” use of the CD by the recipient. UMG Recordings, Inc. v. Augusto, No. 07-03106 (C.D. Cal. June 10, 2008). The court granted the defendant online reseller's motion for summary judgment on the plaintiff-record company's copyright-infringement claim, but denied the defendant's Digital Millennium Copyright Act (“DMCA”) counterclaim for the plaintiff's alleged wrongful takedown notice previously sent to an online auction Web site. Looking to the economic realities of the transaction, the court found that the distribution of the promotional CD provided the recipients with many rights of ownership, including the right to perpetual possession and the freedom from obligations to the plaintiff, making such a distribution a gift or sale, not a license, and thus subject to the first sale doctrine. The court also concluded that, based on the uncertainty of the law in this area, the plaintiff possessed a subjective good-faith belief that its copyright was being infringed when it sent the takedown notice to the online auction site containing the defendant's listing, and was not liable under the DMCA.

Unadorned digital models of cars that depict the three-dimensional object in a two-dimensional digital medium for the purpose of Web-based advertisements were merely replicated images and not sufficiently original to warrant copyright protection. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 2008 U.S. App. LEXIS 12774 (10th Cir. June 17, 2008). The Appeals Court affirmed the lower court's finding of summary judgment in favor of the defendant, finding that the plaintiff's digital modeling images were “not so much independent creations as (very good) copies of [the] vehicles” and thus were not original, copyrightable, matter. In discussing originality, the court found that the models depicted nothing more than unadorned vehicles and the plaintiff made no decisions regarding lighting, shading, background or any new expressions subject to copyright protection. The court commented that effort alone was not enough to make the resultant digital model “original” and, therefore, copyrightable ' and the fact that a work in one medium has been copied from a work in another medium “does not render it any less a 'copy.'”

An unauthorized reseller that purchased keyword advertising containing the supplier's trademark and otherwise suggested sponsorship by the trademark holder in its product descriptions is not shielded by the first sale doctrine. Standard Process, Inc. v. Total Health Discount, Inc., 2008 U.S. Dist. LEXIS 44598 (E.D. Wisc. June 6, 2008). The court denied the defendant's motion for summary judgment on the plaintiff's trademark claims. The court found that the reseller did not establish that its unauthorized sales of the plaintiff's products on the reseller's Web site were protected by the first sale doctrine because the defendant used the plaintiff's trademarks to give the impression that it was an authorized dealer. The court also held that the reseller was not protected by the nominative fair use defense because the reseller's use of the plaintiff's mark “suggested sponsorship or endorsement by the trademark holder.”

A subpoena to an ISP seeking to identify anonymous defendants may request only information sufficient to identify the individual who used a particular IP address, but not ISP-subscriber billing information. Kimberlite Corp. v. Does 1-20, 2008 U.S. Dist. LEXIS 43071 (N.D. Cal. June 2, 2008). The court rejected the defendant's motion to quash the subpoena seeking the identities of anonymous defendants who allegedly accessed the plaintiff's e-mail system without authorization, but found portions of the subpoena overbroad and imposed certain restrictions. The court concluded that the subpoena could request the names and addresses of the owner and all persons listed on the ISP account for the relevant IP address during the relevant time periods, but that the plaintiff was not entitled to request ISP billing information because such information is not necessary for the plaintiff's stated purpose of identifying the anonymous defendants.

Online Promo Music Resales
Fall under First Sale Doctrine

The Copyright Act's first sale doctrine allows an individual to resell promotional music CDs sent to industry insiders, despite the fact that the CDs bore labels with words that purportedly “license” use of the CD by the recipient. UMG Recordings, Inc. v. Augusto, No. 07-03106 (C.D. Cal. June 10, 2008). The court granted the defendant online reseller's motion for summary judgment on the plaintiff-record company's copyright-infringement claim, but denied the defendant's Digital Millennium Copyright Act (“DMCA”) counterclaim for the plaintiff's alleged wrongful takedown notice previously sent to an online auction Web site. Looking to the economic realities of the transaction, the court found that the distribution of the promotional CD provided the recipients with many rights of ownership, including the right to perpetual possession and the freedom from obligations to the plaintiff, making such a distribution a gift or sale, not a license, and thus subject to the first sale doctrine. The court also concluded that, based on the uncertainty of the law in this area, the plaintiff possessed a subjective good-faith belief that its copyright was being infringed when it sent the takedown notice to the online auction site containing the defendant's listing, and was not liable under the DMCA.

Unadorned digital models of cars that depict the three-dimensional object in a two-dimensional digital medium for the purpose of Web-based advertisements were merely replicated images and not sufficiently original to warrant copyright protection. Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 2008 U.S. App. LEXIS 12774 (10th Cir. June 17, 2008). The Appeals Court affirmed the lower court's finding of summary judgment in favor of the defendant, finding that the plaintiff's digital modeling images were “not so much independent creations as (very good) copies of [the] vehicles” and thus were not original, copyrightable, matter. In discussing originality, the court found that the models depicted nothing more than unadorned vehicles and the plaintiff made no decisions regarding lighting, shading, background or any new expressions subject to copyright protection. The court commented that effort alone was not enough to make the resultant digital model “original” and, therefore, copyrightable ' and the fact that a work in one medium has been copied from a work in another medium “does not render it any less a 'copy.'”

An unauthorized reseller that purchased keyword advertising containing the supplier's trademark and otherwise suggested sponsorship by the trademark holder in its product descriptions is not shielded by the first sale doctrine. Standard Process, Inc. v. Total Health Discount, Inc., 2008 U.S. Dist. LEXIS 44598 (E.D. Wisc. June 6, 2008). The court denied the defendant's motion for summary judgment on the plaintiff's trademark claims. The court found that the reseller did not establish that its unauthorized sales of the plaintiff's products on the reseller's Web site were protected by the first sale doctrine because the defendant used the plaintiff's trademarks to give the impression that it was an authorized dealer. The court also held that the reseller was not protected by the nominative fair use defense because the reseller's use of the plaintiff's mark “suggested sponsorship or endorsement by the trademark holder.”

A subpoena to an ISP seeking to identify anonymous defendants may request only information sufficient to identify the individual who used a particular IP address, but not ISP-subscriber billing information. Kimberlite Corp. v. Does 1-20, 2008 U.S. Dist. LEXIS 43071 (N.D. Cal. June 2, 2008). The court rejected the defendant's motion to quash the subpoena seeking the identities of anonymous defendants who allegedly accessed the plaintiff's e-mail system without authorization, but found portions of the subpoena overbroad and imposed certain restrictions. The court concluded that the subpoena could request the names and addresses of the owner and all persons listed on the ISP account for the relevant IP address during the relevant time periods, but that the plaintiff was not entitled to request ISP billing information because such information is not necessary for the plaintiff's stated purpose of identifying the anonymous defendants.