Pattishall IP Blog

August 17, 2010

Government Filings Made Publicly Available Through Government Web Sites May Maintain Copyright Protection

Filed under: Copyright — Tags: , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 5:26 pm

by Phillip Barengolts

Nowadays, nearly all filings to a federal court or an administrative agency, such as the USPTO or the SEC, are available to the general public through government web sites (e.g., PACER, EDGAR, TESS, PAIR, and others).  Businesses (and lawyers) often wonder whether their submissions are protected by copyright or if copying another’s publicly available document violates copyright law.  In a matter of first impression, one court recently found that copying a work that is available to download and use through a government web site may constitute copyright infringement.

In International Swaps & Derivatives Association, Inc. v. Socratek, LLC, No. 09 CV 8033  (S.D.N.Y. May 4, 2010) (available at http://scholar.google.com/scholar_case?case=41428918949911 51874&q), the Southern District of New York  found that the mass resale of U.S. Securities and Exchange Commission (“SEC”) filings that include copyrighted material and that are available through the EDGAR database[1] may violate the Copyright Act. (more…)

February 11, 2010

Owners of copyright in a foreign work must obtain U.S. copyright registration in order to seek statutory damages/attorneys’ fees in U.S. courts

Filed under: Copyright — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 10:22 pm

by Thad Chaloemtiarana, Trademark Attorney

Article Five of the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) provides that “the enjoyment and the exercise of [rights under the Convention] shall not be subject to any formality”.  In the Berne Convention Implementation Act of 1988 (the “Implementation Act”), Congress brought United States copyright law into conformity with the standards of the Berne Convention.  Among other things, the Implementation Act released foreign (but not U.S.) claimants from the obligation to register their foreign copyrights as a prerequisite to enforcing them in United States courts.  The Implementation Act, however, did not amend Section 412 of the Copyright Act of 1976 which conditions an award of statutory damages or attorneys’ fees on registration of the copyright in the United States.

Does Section 412 of the Copyright Act conflict with Article Five of the Berne Convention, such that it should be pre-empted by the Supremacy Clause of Article VI of the United States Constitution?  In Elsevier B.V. v. UnitedHealth Group Inc., 93 U.S.P.Q.2D 1408 (S.D.N.Y. 2010), the U.S. District Court for the Southern District of New York, following the well-established precedent that the Berne Convention was not self-executing, answered, “No”. (more…)

December 11, 2009

Court Holds Wireless Service Providers Need Not Pay Public-Performance Royalties for Sale of Ringtones

Filed under: Copyright — Tags: , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 6:42 pm

By Jordan A. Arnot, Esq.

The United States District Court for the Southern District of New York recently ruled that a cellular phone service provider was not required to pay royalties on ringtones sold to its customers.  In re Application of Cellco Partnership, 92 U.S.P.Q.2d 1811 (S.D.N.Y. 2009).  Cellco Partnership d/b/a Verizon Wireless (“Verizon”) successfully argued it was not publicly performing, nor enabling others to publicly perform, musical works when it sold customers ringtones and therefore was not required to obtain a public performance license in order to do so. (more…)

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