In Penhallurick v MD5 Ltd [2021] EWHC 293 (IPEC) the Court held that the copyright in various literary works relating to software Mr. Penhallurick created during his tenure with former employer MD5 belonged to MD5. The Court found that the works were created in the course of Mr. Penhallurick’s employment with the result that MD5 was deemed the owner of the works (under the Copyright, Designs and Patents Act 1988), despite the fact that some of the work was done from Mr. Penhallurick’s home, outside normal office hours and using his own computer.
Continue Reading UK Court Rules on Copyright over Software Developed Whilst Working at Home

On 29 October 2013, the Republic of Ireland’s Department of Jobs, Enterprise and Innovation (DJEI) published a report containing proposed amendments to its copyright laws, named “Modernising Copyright” (“the Report”).  Taking account of submissions received during a public consultation that ran between February and May 2012, the DJEI’s Copyright Review Committee (CRC) uses the Report to recommend a series of amendments to the Irish Copyright and Related Rights Act, 2000 (CRRA).

Some of the Report’s key findings and recommendations are outlined below.Continue Reading Ireland Proposes Amendments to Copyright Law

On 3 October 2013, in the case of Peter Pinckney vs. KDG Mediatech AG, the Court of Justice of the European Union (CJEU) confirmed that, with certain qualifications, when a copyrighted work is reproduced in one Member State, and offered for sale online by companies established in another, the author of the work can bring an action for copyright infringement in the courts of their own home Member State if infringing copies are accessible from that State – even if that State is not among the States where the work was reproduced and/or made available online.
Continue Reading European Court Issues Ruling on Jurisdiction in Cross-EU Copyright Infringement Case

A federal court last week ruled that copyright owners can only sue multiple peer-to-peer users if all of the defendants participated in the same infringement scheme.

In recent years, copyright owners have sued people who have shared their movies, songs, and other content via peer-to-peer networks such as BitTorrent. The copyright owners use proprietary software to obtain the IP addresses of BitTorrent users who are downloading and sharing the copyright holders’ content. Rather than filing individual lawsuits against each user, the copyright owners often name dozens of alleged John Doe infringers in the same complaint. After filing the complaint, the copyright owners typically issue subpoenas to the customers’ Internet service providers to determine the identities of the John Doe defendants.

Although courts have generally approved the subpoenas for the identities of John Doe defendants in copyright infringement cases, plaintiffs are encountering a new obstacle, as illustrated in the September 27 opinion by Judge John Z. Lee, a district judge for the U.S. District Court for the Northern District of Illinois.

Continue Reading Copyright Suits Against Anonymous Defendants Must Involve Common ‘Swarm’

A three-judge panel of the Ninth Circuit Court of Appeals heard oral arguments on Tuesday in the so-called “Aereokiller” litigation.  The case tests whether services that allow subscribers to stream broadcast television on their computers and mobile devices infringe the exclusive right of copyright owners to publicly perform their copyrighted works.  Specifically, the Ninth Circuit will decide whether to uphold a December 2012 district court decision granting a preliminary injunction sought by NBC, ABC, CBS, Fox, and others to stop FilmOn X LLC (formerly known as Aereokiller) from re-transmitting broadcast television to its subscribers without a license.

The key legal issue in the case is whether FilmOn’s re-transmission of broadcast TV programming constitutes a public performance or a private one.  Copyright owners have the exclusive right to publicly perform their copyrighted works, but cannot stop the private performance of their works.  At oral argument, counsel for FilmOn argued that the company provides only private performances, as it re-transmits broadcast TV programming to each of its subscribers via individual antennas and DVRs.  As one of the judges on the Ninth Circuit panel observed, FilmOn appears to have chosen the individualized antenna and DVR system for the specific purpose of attempting to circumvent the prohibition on publicly performing copyrighted works without a license.Continue Reading Oral Arguments Tee Up Widely Anticipated 9th Circuit Decision in “Aereokiller” Case

A pair of recent decisions—one involving a work of street art used by the band Green Day for an in-concert video; the other about a single line from a William Faulkner novel paraphrased in a Woody Allen film—offer two distinct examples of the important role that copyright’s fair use doctrine plays in today’s popular media.
Continue Reading Fair Uses Big and Small in Recent Copyright Cases

In a case of first impression, the U.S. Court of Appeals for the Fourth Circuit recently held that accepting a website’s terms of use through a so-called “clickwrap” agreement constitutes a signature for purposes of effecting a transfer of copyright.

The case, Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., revolved around photographs displayed with real estate listings.  The plaintiff, MRIS, operated an online real estate listing service.  As part of its terms of use, MRIS’s service required users to “irrevocably assign” all rights they had in any images submitted as part of a listing.  The defendant, AHRN, a real estate broker, displayed photographs taken from the plaintiff’s site on its own website.  When MRIS sued for infringement, AHRN challenged its ownership of copyrights in the photos.  The lower court rejected AHRN’s challenge, granting a preliminary injunction, and the Fourth Circuit has now affirmed.
Continue Reading Clickwrap Agreement Found Sufficient to Transfer Copyright Ownership

Recently, a Ninth Circuit panel unanimously affirmed the district court’s denial of a preliminary injunction in Fox’s copyright and contractual challenge to Dish’s Hopper set-top boxes and related AutoHop feature.  The Ninth Circuit emphasized that it applied a “limited and deferential review” that does not “determin[e] the ultimate merits of the case.”  In particular, the Court suggested that Fox’s contract claims presented “much closer” questions than the infringement claim, and on one of those claims expressly stated it was not deciding the issue on the merits at this stage.
Continue Reading Ninth Circuit Panel Rules Against Fox Preliminary Injunction Request in Dish Hopper Case

On June 27, 2013, the Court of Justice of the EU (CJEU) issued an important judgment on private copying levies.

The CJEU found that, when a copy can be made by a “single process” using a “chain of devices,” e.g., a PC and a printer linked with each other, Member States are free to establish a system where fair compensation is paid by those who are in possession of a device contributing to the single process of copying.  However, Member States must ensure that (i) any such system enables device manufacturers to pass the cost of the levy on to consumers;  and (ii) the overall amount of fair compensation owed as recompense for the harm suffered by the rightholders at the end of the single process must not be substantially different from the amount fixed for a reproduction by a single device.

The CJEU takes the view that the existence of anti-copying measures does not in itself negate the obligation to pay fair compensation. However, it is open to Member States to determine whether they make the actual level of compensation owed to rightholders dependent on the availability of such anti-copying measures. In addition, the CJEU found that a rightholder’s explicit or implicit authorization to copy its works has no bearing on its right to receive fair compensation.

This ruling must be seen in the context of the ongoing reform of the EU’s copyright levy system.  In January 2013, former Commissioner António Vitorino acting as a “mediator” on private copying and reprography levies delivered several recommendations to the European Commission.  For instance, he observed that liability for paying levies should be shifted from the level of manufacturers and importers to retailers level, and the levy tariff system should be simplified.  He also recommended that “harm” resulting from uncompensated private copying must be defined uniformly across the EU in order to ensure coherence.Continue Reading EU Member States Can Impose Copyright Levies on Devices such as Scanners, PCs, and Printers, Says CJEU