1-800 Contacts, Inc. v. WhenU.com, Inc.
1-800 CONTACTS v. WhenU. com was a legal dispute beginning in 2002 over pop-up advertisements. It was brought by 1-800 Contacts, a distributor of various brands of contact lenses against WhenU SaveNow. The suit also named Vision Direct, one of WhenU advertising customers, as a co-defendant. com are in actuality advertisements authorized by, both the plaintiff, 1-800 Contacts, and the co-defendant, Vision Direct, sell and market replacement contacts lenses though their respective websites. The other defendant, WhenU. com was a company that developed and distributed a software application known as SaveNow. The SaveNow program, when installed on a computer, remains resident in memory. It is normally installed as part of a bundle of software programs. Specifically the program contains a directory that match specific URLs or search terms that the user enters into their browser to categories of popup advertisements. William D. Neal, an expert for 1-800 Contacts, conducted a study to determine if consumers were likely to be confused as to the source of the advertisements displayed by the defendants software. The conclusion of this survey was the 76% of users who had the SaveNow software on their system did not realize that it generated pop-up ads as the result of them visiting specific websites. Additionally, he reported that 60% of people who participated in his survey believed that advertisements are placed on the website on which they appear by the owners of that site. Avi Naider, CEO of WhenU. com, testified that the SaveNow program performs contextual marketing and he also argued, through the presentation of a number of screen captures, that the use of pop-ups was analogous to a number of other common computer programs including instant messaging software. As a result, he argues there is an expectation that websites will present users with an experience to users reads like a publication, finally, he testified that a preliminary injunction, if granted, would have some short-term immediate impacts and some chilling long-term impacts. This assertion was based on his belief that users who had chosen to install the SaveNow software would be frustrated in attempts to use the software. The district court held that while the trademark infringement claim was likely to succeed on the merits the copyright infringement claim was unmeritorious. Upon appeal, the United States Court of Appeals for the Second Circuit held that WhenUs actions did not amount to the use that the Lanham Act requires in order to trademark infringement. 1-800 Contacts did not appeal from the adverse copyright ruling, the same commentary notes that plaintiffs in these cases argue that pop-ups and other contextual advertising. Piggy-backs or free-rides on the content that other Web sites provide, the Electronic Frontier Foundation criticized the case, stating that it was not to help fight off adware and spyware but was rather intended to allow companies to gain control over desktop. They argued this lawsuit if successful would create a precedent that would enable trademark owners to dictate what could be open on your desktop when you visit their websites
Arista Records, LLC v. Launch Media, Inc
The lawsuit concerns the scope of the statutory term “interactive service” codified in 17 U. S. C. §114, as amended by the Digital Millennium Copyright Act of 1998. ”The parties did not materially dispute how LAUNCHcast worked, LAUNCHcast is now known as Yahoo. §114, by providing a service and therefore willfully infringing sound recording copyrights of BMG from November 1999 to May 2001. The district court charged the jury with determining whether LAUNCHcast was a service within the meaning of 17 U. S. C. The jury returned a verdict in favor of Launch, whether a webcasting service that provides users with individualized internet radio stations in this case is an interactive service within the meaning of 17 U. S. C. On March 17,2009, BMG appealed to the United States Court of Appeals for the Second Circuit, arguing that LAUNCHcast is an interactive service as a matter of law. On August 21,2009, the Court of Appeal confirmed the lower court decision, ruling that the service was not an interactive service as a matter of law. ”Since the LAUNCHcast users cannot request a particular song on demand. The primary argument at stake is whether LAUNCHcast enables the user to receive a transmission of a specially created for the user. “In short, to the degree that LAUNCHcasts playlists are created for each user. Indeed, the nature of the playlist helps Launch ensure that it does not provide a service so specially created for the user that the user ceases to purchase music. ”Therefore. Socy of Composers,663 F. Supp, sony BMG Music Entertainment v. Tenenbaum, No. Arista Records Arista Records LLC v. Lime Group LLC Text of Arista Records, LLC v. Launch Media, Inc. is available from, CourtListener Findlaw Justia
Authors Guild, Inc. v. HathiTrust
Authors Guild v. HathiTrust,755 F. 3d 87, is a copyright decision finding search and accessibility uses of digitized books to be fair use. The Authors Guild, other organizations, and individual authors claimed that the HathiTrust Digital Library had infringed their copyrights through its use of books scanned by Google. A federal court ruled against the plaintiffs in October 2012, finding that HathiTrusts use was permissible under fair use, the plaintiffs appealed the decision to the Second Circuit, and were rebuffed in 2014. In an opinion by Barrington Daniels Parker, Jr, the remaining claims were settled on January 6,2015. The HathiTrust Digital Library is a spin-off of the Google Books Library Project and it was founded in 2008 by the Committee on Institutional Cooperation and the University of California system. The collections of university libraries were digitized by Google and then combined by HDL. The digitization by Google has been the subject of a separate lawsuit, hDLs main objective is the long-term preservation of the collection. The HDL main functionality is full-text search, when search results are found in works in the public domain, the work is displayed online, and so are works for which the copyright holder has granted permission. For other works, only numbers and the number of search results per page are shown. In addition, the HDL makes its collection available to students with print disabilities by offering them secure system access for screen readers. The collection of works available to print-disabled students through HDL is often larger and easier to navigate than those offered through most university student disability student services offices, additionally, the University of Michigan library administers a project to identify orphan works. An orphan work is a work whose owner cannot be identified or contacted. The Orphan Works Project focuses primarily on works in the HDL, the project originally planned to automatically publish suspected orphan works after a 90-day notice. This plan was never implemented and was suspended indefinitely after the complaint in this case was filed, in its decisions, the district court first discusses the standing of the plaintiffs. Three plaintiffs, the Authors Guild, the Writers Union of Canada and the Australian Society of Authors dont own any copyrights, the court rules that under U. S. law only copyright owners and exclusive licensees may sue for copyright infringement. However, four organizations are allowed to sue on behalf of their members because they have that right under foreign law. The thirteen remaining plaintiffs are copyright owners and all have standing, the court then addresses the Orphan Works Project. However, since the project never made it out of the planning phase, the court is missing crucial information about what that program will look like should it come to pass and whom it will impact
Barclays Capital Inc. v. Theflyonthewall.com, Inc.
Barclays Capital Inc. v. Theflyonthewall. com, Inc.650 F. The defendant sold a service wherein subscribers could receive these recommendations prior to their release by the plaintiffs to the general public, in the procedural lead-up to the trial, the defendants essentially conceded their liability under the copyright claim. The defendants abandoned their defence against the claims and focused solely on the hot-news misappropriation findings. On June 20,2011, the Second Circuit released its decision - reversing the decision of the District Court below, a summary of the Second Circuits decision can also be found below. This misappropriation doctrine was developed further with the aim to protect costly efforts to gather commercially valuable, significantly, the hot news doctrine is concerned with the copying and publication of information gathered by another before he has been able to utilize his competitive edge. In Barclays Capital Inc. v. Theflyonthewall. com, Inc, the defendant did not dispute that the plaintiffs engaged in costly information gathering. Moreover, the time-sensitivity was especially important as the plaintiffs expended resources to be the first to communicate these findings to the client, the defendant did not dispute that the plaintiffs reports and recommendations were time-sensitive. The court defined free-riding as where there is little investment by the defendant to profit off of information generated or collected by the plaintiff at great cost. In doing so, the clientele, already identified as more likely to trade through the source from which they ascertained the news, were less likely to do their trading through the plaintiffs. The court noted that the plaintiffs relied on being the first to report their reports, as such, if other organizations were to preempt the plaintiffs, the knowledge that the plaintiffs had spent money to gather and analyze would be rendered basic. The court found that the defendant had infringed the copyrights of two of the plaintiffs - Morgan Stanley and Barclays Capital, while throughout the pre-trial process, Fly defended its copying of the reports as fair use under 17 U. S. C. §107, at trial, the defendant did not dispute that it infringed the copyrights in these seventeen reports. As such, the court ruled in favor of these two plaintiffs and ordered the defendant to pay them nominal damages, pre-judgment interest on the statutory damage awards, the defendant appealed the rulings of the District Court on hot-news misappropriation to the Court of Appeals for the Second Circuit. The Court recalled that in order to determine whether a claim is preempted by the federal Copyright Act,17 U. S. C. S. C. §106, and The Subject Matter Requirement, if the work in question is of the type of works protected by the Copyright Act under 17 U. S. C. §102 and 17 U. S. C. The Second Circuit found that the plaintiffs recommendations satisfied the subject matter requirement as well as the general requirement of the Copyright Act. They held that the hot-news misappropriation exemption from pre-emption carved out in the NBA case was intended to be narrow in scope. In addition, they characterized the 5-part test that was set out in NBA, the case was followed widely and several prominent organizations filed amicus curiae briefs as intervenors
Bensusan Restaurant Corp. v. King
Bensusan Restaurant Corp. v. King,126 F. The opinion, written by Judge Ellsworth Van Graafeiland, affirmed the United States District Court for the Southern District of New Yorks holding that defendant Richard B. Kings Internet website did not satisfy New Yorks long-arm statute requirements for plaintiff Bensusan Restaurant Corporation to bring a trademark infringement suit in New York, Bensusan Restaurant Corporation was a New York corporation that owned The Blue Note, a jazz club in Greenwich Village, New York. Bensusan owned all rights, title and interest in the federally registered The Blue Note mark. Richard B. King was a Missouri resident who owned The Blue Note club in Columbia, in April 1996, King posted a website hosted on a computer server in Missouri that contained general information about the club in Missouri as well as a calendar of events and ticketing information. The CyberSpot is created to provide information for Columbia, Missouri area individuals only, Bensusan brought suit in the Southern District of New York, asserting claims of trademark infringement, trademark dilution and unfair competition. King moved to dismiss the action for lack of personal jurisdiction pursuant to Federal Rules of Civil Procedure 12, Bensusan asserted that New York had personal jurisdiction over King based on two subsections of the New York Civil Practice Law and Rules - §302 and §302. The District Court looked both to the meanings of N. Y. C. P. L. R, §302 and the Due Process Clause of the United States Constitution in analyzing Bensusans claim. The Court of Appeals only addressed the long-arm statutes in affirming the District Courts holding, the Court noted that it takes several affirmative steps by the New York resident. Furthermore, because there was no proof that goods were shipped to New York, the Court of Appeals affirmed the District Courts findings, adding only that §302 required defendants to have committed a tort while present in New York state. Because Kings website was created in Missouri, New York did not have jurisdiction over him. It would violate the Due Process Clause of the US Constitution if New York had personal jurisdiction over King, the District Court concluded that even if N. Y. C. P. L. R. §§302, authorized personal jurisdiction over King, such an act would violate the Due Process Clause of the US Constitution, the Court of Appeals explicitly declined to address the due process issue, because the long-arm statute did not confer personal jurisdiction. Zippo Manufacturing Co. v. Zippo Dot Com, Inc, Zippo is notable for the creation of the Zippo Sliding Scale test for internet personal jurisdiction. Cybersell, Inc. v. Cybersell, Inc. a Florida corporation