Case Comments
| Jurisdiction | United States,Federal |
| Author | Lowell Anderson |
| Publication year | 2018 |
| Citation | Vol. 43 No. 1 |
Lowell Anderson
Stetina Brunda Garred & Brucker
"The question presented is—can an agency regulation, previously adopted by formal notice-and-comment rulemaking procedure pursuant to the APA, be amended by a guidance document that is not so enacted?" The answer here was no, because the regulation was not ambiguous. An ITC regulation issued after notice-and-comment allowed an extension of a 90-day window within which to withdraw a request for administrative review of an antidumping order. The regulation was not ambiguous and granted the Secretary wide discretion regarding facts and circumstances presented and to apply a reasonableness test in deciding whether to extend the deadline. A 2011 guidance document issued without notice and comment required "extraordinary circumstances" to extend the deadline and represented an "incompatible departure from the clear meaning of the regulation." Rewriting the non-ambiguous regulation cannot be done under the guise of interpreting a regulation. Notice and comment rulemaking was required to rewrite the non-ambiguous regulation. The CIT requirement that the Secretary of Commerce apply the prior meaning of the regulation, was affirmed. Glycine & More, Inc. v. U.S., 880 F.3d 1335 (Fed. Cir. 2018).
"In short, current 28 U.S.C. § 2107 (c)...specifies the length of an extension for cases in which the appellant lacked notice of entry of judgment. For other cases, the statute does not say how long an extension may run." Fed.R.App.P. 4(a)(5)(C) sets a limit of 30 days to file a notice of appeal, but it is a rule, not a statute enacted by Congress. Because rules are not jurisdictional, a district court's 60-day time extension to file a notice of appeal was a claim-processing rule that may be waived. The dismissal of an appeal for extending beyond 30 days, was reversed. Hamer v. Neighborhood Housing Services of Chicago, 138 S.Ct. 13, 199 L.Ed.2d 249 (2017).
Inferring access based on substantial similarity only applies when the works are so strikingly similar as to preclude the possibility of independent creation. Here, the differences in a fabric design avoided inferring access. The China distributor of the accused goods only purchased finished goods, did not make clothing using selected fabrics and did not visit showrooms of fabric designers so it had no access for copying. Other than speculation and conjecture based on the garment manufacturer being located 1.6 miles from plaintiff's China factory, no evidence showed the manufacture had access. Summary judgment for lack of evidence on copying was granted. Unicolors, Inc. v. NB Brother Corp., 124 U.S.P.(Q2d 1322 (C.D. Cal. 2017).
Defendant newspaper sold lithographs based on plaintiff's painting of Louis Farrakham. While the newspaper prevailed below, that decision was reversed on appeal and remanded for damages. On remand, the court found willful infringement but in view of the modest number of infringing sales, awarded only $25,000 statutory damages and ordered all remaining copies destroyed. Ali v. Final Call, Inc., 124 U.S.P.(Q2d 1497 (N.D. Ill. 2017).
The anticircumvention provisions of 17 U.S.C. § 120(a)(1)(A) authorize circumvention only by "'those whom a copyright owner authorizes to circumvent an access content measure, not those whom a copyright owner authorizes to access the work.'" A company buying movie DVDs and decrypting them to filter objectionable content before streaming the videos, was likely to violate the anticircumvention provision. A preliminary injunction was affirmed. Disney Entrs., Inc. v. Vidangel, Inc., 869 F.3d 848, 123 U.S.P.(Q2d 1753 (9th Cir. 2017).
The play "Who's Holiday!" was a parody of the book "How the Grinch Stole Christmas!" The parody made the play a transformative use of the book. Because it was transformative, "it is of little significance that the use is also of a commercial nature." While the creative nature of the book favored protection, this factor was given little weight in view of the transformative nature of the play. The amount taken from the book was reasonable in light of the transformative use. As consumers would not see the play in lieu of reading the book, there was no effect on the potential market for the book. The court thus found that the play was a fair use of the book. Lombardo v Dr. Seuss Enters., LP, 124 U.S.P.Q2d 1146 (S.D.N.Y. 2017).
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A streaming video service removed objectionable content and streamed the filtered movies to customers. Omitting audio or visual material from movies that viewers may find objectionable and transmitting the filtered movies for the same intrinsic entertainment value was not a transformative use, and was a commercial use that substituted for the original work. A finding of no fair use was affirmed, as was the grant of a preliminary injunction. Disney Entrs., Inc. v. Vidangel, Inc., 869 F.3d 848, 123 U.S.P.Q2d 1753 (9th Cir. 2017).
The well-known verse 5 of "We Shall Overcome" altered a prior, almost-identical composition by changing "will" to "shall" and "down" to "deep." The copyright registration failed to identify the known prior composition and failed to adequately identify the changes so the presumption of validity arising from the registration of the song was rebutted. The changes represent variations of the piece that are standard fare in the music trade by any competent musician. Popularity does not equate to originality and does not make the changes non-trivial. The changes were insufficient to establish the originality required for a derivative work. Fact issues existed on authorship and on fraud on the Copyright Office. We shall Overcome Found. v. Richmond Org., Inc., 124 U.S.P.Q2d 1234 (S.D.N.Y. 2017).
The terms and conditions for the "Rip-off Report" website granted the website "irrevocable rights" in exchange for posting a submitted report critical of an attorney's legal representation. Through a state court action, the criticized attorney received an assignment of the copyright in the submitted report. When the attorney sued the website to take down the posted report, the district court found the brouserwrap agreement was not a writing transferring ownership, but it did grant a perpetual license to display the report which license waived any right to sue for infringement. The court then awarded $123,000 in fees against the attorney and required a $30,000 bond for costs on appeal. On appeal, consideration for the copyright license was found in the website's performance in publishing the report criticizing the attorney. Public policy against per se libel provided no reason to hold the nonexclusive license invalid, even assuming the report was libelous. The attorney argued the copyright claims were decided on procedural grounds rather than the merits so the website was not the prevailing party. But even a failure to answer a complaint can establish a prevailing party. The website was the prevailing party and the fee award was affirmed. Small Justice LLC v. Xcentric Ventures LLC, 873 F.3d 313, 124 U.S.P.Q2d 1306 (1st Cir. 2017).
The Ninth Circuit uses the purposeful availment test or "effects" test for cases sounding in tort. That test requires committing an intentional act, expressly aimed at the forum state, causing harm that the defendant knows is likely to be suffered in the forum state. Individualized targeting can satisfy the express aiming requirement. The test depends on the defendant's contacts. Allegations of wiUful infringement could previously satisfy the "express aiming" requirement for personal jurisdiction in tort cases, such as copyright infringement. "In light of the Court's instructions in Walden, mere satisfaction of the test outlined in Washington Shoe, without more, is insufficient to comply with due process. Following Walden, we now hold that while a theory of individualized targeting may remain relevant to the minimum contacts inquiry, it will not, on its own, support the exercise of specific jurisdiction, absent compliance with what Walden requires." That a UK defendant sent newsletters to 10 California residents was insufficient to support personal jurisdiction for copyright infringement arising from logos appearing on the newsletter. The dismissal for lack of personal jurisdiction was affirmed. Axiom Foods, Inc. v. Acerchem Int'l, Inc., 874 F.3d 1064, 124 U.S.P.Q2d 1612 (9th Cir. 2017).
Defendant was preliminarily enjoined from decrypting purchased DVDs of movies, filtering them to remove offensive content, and streaming the filtered movies to multiple recipients. Ownership of the copyrighted work did not grant the right to reproduce copies. The Family Movie Act (FMA) permits transmitting video content "from an authorized copy of the motion picture" and that did not encompass beginning from an authorized copy and modifying the content. The streaming also not from the "authorized copy" but from a "ripped" and modified version stored on a computer. The plaintiffwas likely to succeed on the merits. The harm to the copyright owner's business model, goodwill and negotiating leverage with licensees established irreparable harm, so a preliminary injunction was affirmed. Disney Entrs, Inc. v. Vidangel, Inc., 869 F.3d 848, 123 U.S.P.Q.2d 1753 (9th Cir. 2017).
In response to a certified question from the Eleventh Circuit Court of Appeals, Florida common law does not recognize an exclusive right of public performance in pre-1972 sound recordings. Florida has never previously recognized such an exclusive right. The court agreed with the Second Circuit's conclusion that "Flo & Eddie's 'copying claims' fail because 'the ultimate use of the internal copies is permissible.'" The lack of a public performance right was determinative of other Florida...
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