Top 10 Copyright Cases for the Month of September 2010

1. MGE UPS Sys. v. GE Consumer & Indus. Inc., No. 08-10521, UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, 2010 U.S. App. LEXIS 20094, September 29, 2010, Filed

OVERVIEW:  Software manufacturer's claim against competitors under Digital Millennium Copyright Act was properly dismissed under Fed. R. Civ. P. 50(a) because the manufacturer did not present any evidence showing that the competitors altered the software in that their employees simply used the software after alteration, which did not amount to circumvention.

CORE TERMS:  software, trade secrets, infringement, copyright infringement, gross revenue, misappropriation, circumvention, infringer's, machine's, injunction ...

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2. United States v. Am. Soc'y of Composers, Docket Nos. 09-0539-cv (L), 09-0542-cv (con), 09-0666-cv (xap), 09-0692-cv (xap), 09-1572-cv (xap), UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, 2010 U.S. App. LEXIS 19983, March 3, 2010, Argued, September 28, 2010, Decided

OVERVIEW:  Downloads of digital music files did not constitute a public performance within the meaning of 17 U.S.C.S. § 101 of the Copyright Act. The district court erred in determining the appropriate fees for blanket licenses allowing Internet companies to perform a music repertory; a uniform royalty rate did not reflect the companies' varying music uses.

CORE TERMS:  music, musical, license, download, royalty rate, user, benchmark, advertising, site, transmission ...

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3. Romero v. Buhimschi, No. 09-1195, UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT,  10a0606n.06;, 2010 U.S. App. LEXIS 19219; 2010 FED App. 0606N (6th Cir.), September 13, 2010, Filed,  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

OVERVIEW:  To extent physician's claim relied on § 43(a)(1)(A) of Lanham Act's "origin of goods" prong, claim fell within scope of Dastar, which made clear that origin did not refer to the person originating the idea and could not be read to apply to communicative products. Claim failed in as much as it alleged co-author failed to attribute certain work him.

CORE TERMS:  authorship, Lanham Act, defamation claim, preexisting duty, summary judgment, defamation, consented, absolutely privileged, advertising, co-author ...

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4. Vernor v. Autodesk, Inc., No. 09-35969, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 2010 U.S. App. LEXIS 18957, June 7, 2010, Argued and Submitted, Seattle, Washington, September 10, 2010, Filed

OVERVIEW:  Because a copyright owner's software was distributed with a license agreement stating it was nontransferable without the owner's consent, its customer was a licensee, not an owner of a particular copy and could not resell its copies to a reseller under 17 U.S.C.S. § 109(a)'s first sale doctrine; summary judgment to the reseller was vacated.

CORE TERMS:  software, license, customer's, print, copyrighted, licensee, user, copyright infringement, transferee, trio ...

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5. F.B.T. Prods., LLC v. Aftermath Records, No. 09-55817, No. 09-56069, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 2010 U.S. App. LEXIS 18450, July 12, 2010, Argued and Submitted, Pasadena, California, September 3, 2010, Filed

OVERVIEW:  Record label's agreements permitting third parties to use its sound recordings to produce and sell permanent downloads and mastertones were licenses and not sales, requiring the label to pay 50 percent royalty to production companies under "Masters Licensed" provision of their contract rather than 12 percent royalty under "Records Sold" provision.

CORE TERMS:  download, licensed, mastertones, summary judgment, recording, license, royalty, matter of law, sound recordings, ambiguous ...

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6. United States v. Friedlander, Nos. 09-11354 and 09-13811 Non-Argument Calendar, UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, 2010 U.S. App. LEXIS 18462, September 3, 2010, Decided, September 3, 2010, Filed,  PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

OVERVIEW:  Defendant's Double Jeopardy Clause rights were not violated by a mistrial in defendant's first trial for child enticement under 18 U.S.C.S. § 2422(b) because prosecutor's misreading of a publication date of a manual of mental disorders, which was used to discredit defendant's expert, was not found to be purposeful or intended to provoke a mistrial.

CORE TERMS:  prosecutor's, sentence, mistrial, sexual, detective, admitting, expert testimony, charged offense, highly probative, sadomasochistic ...

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7. Bouchat v. Baltimore Ravens Ltd. P'ship, No. 08-2381, UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, 2010 U.S. App. LEXIS 18355, December 4, 2009, Argued, September 2, 2010, Decided

OVERVIEW:  The unauthorized use of a copyrighted logo by a professional football team in its highlight films, without transformation, was not fair use under 17 U.S.C.S. § 107. Because the logo was still being used as a logo, that is, as an identifying symbol of the team, the purpose behind the use was not transformative.

CORE TERMS:  logo, raven's, flying, fair use, highlight, copyrighted, film, transformative, season, team ...

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8. Kendall Holdings v. Cryogenics, Case No. 2:08-cv-390, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION, 2010 U.S. Dist. LEXIS 103021, September 29, 2010, Decided, September 29, 2010, Filed

CORE TERMS:  trade secrets, confidential, misappropriation, proprietary, unfair competition, tortious interference, conversion, confidentiality, loyalty, preemption ...

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9. Martinez v. Licensing, Civil No. CC-09-71, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, CORPUS CHRISTI DIVISION, 2010 U.S. Dist. LEXIS 103246, September 29, 2010, Decided, September 29, 2010, Filed

CORE TERMS:  pretrial, deposition, intends, discovery, disclose, pretrial conference, attorneys fees, lesser sanction, status conference, admitted to practice ...

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10. 5 Plus 7 v. Bbc, 09-CV-2255 (DLI) (JO), UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, 2010 U.S. Dist. LEXIS 103153, September 29, 2010, Decided, September 29, 2010, Filed

CORE TERMS:  racketeering activity, state law claims, television, attorneys' fees, leave to amend, citations omitted, supplemental jurisdiction, participated, diversity, course of conduct ...

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