Case Comments
| Publication year | 2018 |
| Author | Lowell Anderson |
Lowell Anderson
Stetina Brunda Garred & Brucker
An anti-SLAPP motion obtained dismissal of claims alleging fraudulent settlement of an unlawful detainer action said to arise from the right to petition and thus within the anti-SLAPP statute—but only for quantum meruit and promissory estoppel claims that were first alleged in a third amended complaint. Claims for recovery based on breach of written contract and breach of the implied covenant o good faith arising from the same unlawful detainer were not dismissed because they were filed two years earlier and thus deemed untimely even though the anti-SLAPP motion was filed within 60 days of filing the third amended complaint. The order was affirmed by the California Supreme Court. "[S]ubject to the trial court's discretion under section 425.16, subdivision (f), to permit late filing, a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of action." "Section 425.16, subdivision (f), should be interpreted to permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier (subject to the trial court's discretion to permit a late motion)." Anti-SLAPP motions are to curb abuse by Plaintiffs by quickly resolving claims affecting First Amendment issues, but they are subject to abuse by Defendants because an anti-SLAPP motion stays discovery pending the motion, stays proceedings on the merits for claims affected by the motion, and is immediately appealable. The stated approach balances these opposing interests and potentials for abuse. Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 6 Cal.App.5th, 212 Cal.Rptr.3d 216 (2017).
"[W]hen one of several consolidated cases is finally decided, a disappointed litigant is free to seek [immediate] review of that decision in the court of appeals," regardless of whether any of the other consolidated cases remain pending. Hall v. Hall,___S.Ct.___(2018).
The parties agreed to admit "[a]ny claims or controversies... arising out of or relating to this Agreement.. .to binding arbitration." The district court erred in concluding that language was clear and unmistakable evidence the parties decided to give the question of arbitrability to the arbitrator. But dismissal of the complaint in favor of arbitration was affirmed on alternate grounds because when "two sophisticated parties expressly incorporate into a contract JAMS Rules that delegate questions of arbitrability to an arbitrator, then that incorporation constitutes the parties' clear and unmistakable intent to let an arbitrator determine the scope of arbitrability." Simply Wireless, Inc. v. T-Mo-bil US, Inc., 877 F.3d 522, 125 U.S.P.Q2d 1258 (4th Cir. 2017).
Plaintiff's attorney was required to post a $10,000 bond for attorney fees, as authorized by a local rule of court. Plaintiff gave a photo of Trump to the Trump campaign, which gave it to defendant who published it in Elle magazine. Plaintiff filed over 500 lawsuits in the district in the last two years, some of which were dismissed as frivolous, has been sanctioned and has been labeled a copyright troll. Reynolds v. Hearst Commc's, Inc., 126 U.S.P.Q2d 1051 (S.D.N.Y. 2018).
California's computer abuse law forbids knowingly gaining access to a computer system or network without authorization. Oracle's license allowed access for software updates but prohibited automatic access. "The central issue here is whether, by using automated tools to take data in direct contravention of Oracle's terms of use, Rimini violated the statutes." "We hold that taking data using the method prohibited by the applicable terms of use, when the taking itself generally is permitted, does not violate the CDAFA." The same reasoning applied to Nevada's similar law. Oracle USA, Inc. v. Rimini St., Inc., 879 F.3d 948, 125 U.S.P.Q2d 1380 (9th Cir. 2018).
Oracle licensed its customers to maintain the licensed software, which allowed service personnel to support the customer's use. But the license was with each specific customer so the license did not authorize service personnel to use information from one customer to develop tools for cross-use by other licensed customers. A license restricting use to the customer's facilities did not include use at the offsite facilities of the support personnel so copies of Oracle's software on the support personnel's offsite computers were not licensed. A finding of infringement was affirmed. Oracle USA, Inc. v. Romini St. Inc., 879 F.3d 1380, 125 U.S.P.Q2d 1380 (9th Cir. 2018).
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After an entry of default, plaintiff said the Complaint allegations entitled it to $150,000 per work in statutory damages, and thus the court should award the lesser $30,000 per work it requested. There was no evidence of actual damages or willful infringement so the court awarded $1,500 for each of three works. Luminence, LLC v. Top Lighting Corp., 125 U.S.P.Q2d 1460 (S.D. Cal. 2017).
Defendant news agencies published online articles with "embedded" images such that HTML language activated by the viewer automatically retrieved images from other servers using hyperlinks so the viewer was presented with a seamless presentation of text and images without having to click on any hyperlinks. Here, the disputed images were stored on third party servers. The Ninth Circuit has adopted the "server test" for "search engines," which requires the accused images to be located on defendant's servers to impose liability. Focusing on the "display" right, this N.Y, court stated: "The plain language of the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence provide no basis for a rule that allows the physical location or possession of an image to determine who may or may not have 'displayed' a work within the meaning of the Copyright Act." The server test was rejected in a summary judgment motion. Liability was not determined because posting the image on Snapchat without restriction gave rise to fact issues on public license, fair use and innocent infringement. Goldman v. Breitbart News Network, LLC., 125 U.S.P.Q2d 1778 (S.D.N.Y. 2018).
TVEyes creates a text searchable database of television broadcasts (based on close captions), and allows subscribers to search and watch up to 10-minute video clips of selected broadcasts. The district court found fair use for searching for videos keyword, watching the searched videos and archiving searched videos. No fair use was found for downloading videos to computers, e-mailing videos to others, or watching videos located by date, time and channel rather than keyword searches. The fair use of the search function was not appealed, but the fair use finding ofthe watch function was appealed. On appeal, the copying was transformative as it isolated and made immediately available the desired broadcasts from an ocean of programming but it was also commercial and thus the first statutory factor only slightly favored fair use. But taking 10 minute segments of news conveys most or all of the news content and deprives Fox News revenues from the copied content, so on balance there was no fair use of the watch function. Copying to support the infringing watch function was direct infringement. The case was remanded to revise the permanent injunction. Fox News Network, LLC v. TVEyes, Inc., 125 U.S.P.Q.2d 1854 (2d Cir. 2018).
"[W]e hold that where a foreign broadcaster uploads copyrighted content to its website and directs that content onto a computer screen in the United States at a user's request, the broadcaster commits an actionable domestic violation of the Copyright Act. Damages of $60,000 for willful infringement of each of 51 episodes were awarded against a Polish television broadcaster. Spanski Enters., Inc. v. Telewizja Polska, S.A., 883 F.3d 904, 125 U.S.P.Q2d 1868 (D.C. Cir. 2018).
A copyright in musical compositions like the song "Got to Give It Up" are entitled to the substantially similarity standard for evaluating infringement, rather than the virtual identity required to prove infringement for works with "thin" protection. The court accepted, without deciding, that the 1909 Act limited protection to the sheet music of the deposit copy rather than the studio sound recording of that music. A jury instruction on subconscious copying was proper as it required copying and access for that copying. A related instruction properly required both substantial extrinsic and intrinsic similarity with the accused "Blurred Lines" song and clarified that plaintiffs "do not have to show that each of these individual elements is substantially similar, but rather that there is enough similarity between a work of the Gaye Parties and an allegedly infringing work of the Thicke Parties to comprise a substantial amount." The jury finding of substantial similarity, based only on the deposit copy's music, was not against the clear weight of the evidence. A finding of infringement was affirmed. Judge Nguyen dissented, finding differences in melody, harmony and rhythm prevented objective similarity. Williams v. Gaye, 126 USPQ2d 1105 (9th Cir. 2018).
On a 12(b)(6) motion, the lyrics: "Players, they gonna play/And haters, they gonna hate," were "too brief, unoriginal, and uncreative to warrant protection under the Copyright Act." Plaintiff was given the option of leave to file only one amendment to try and identify other allegedly infringed material, or stipulate to entry of judgment followed by an appeal. Hall v. Swift, 125 U.S.P.Q2d 1679 (C.D. Cal. 2018).
"[W]e simply read the text of the Copyright Act to preclude infringement suits by assignees of...
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