Copyright Law

Timothy B. McCormack, attorney at law, discusses some one of the most cutting edge copyright actions in the United States – a copyright case handled by Timothy B. McCormack: subject to certain exceptions, 17 U.S.C. § 411 requires copyright holders to register their works in accordance with the requirements of the Copyright Act before bringing a claim for copyright infringement. See id. § 411(a).1 Thus, a party ordinarily must have a valid copyright registration in order to bring a claim for copyright infringement. See Reed Elsevier, Inc. v. Muchnick, — U.S. —-, —-, 130 S.Ct. 1237, 1242, 176 L.Ed.2d 17 (2010).2 Parties accused of copyright infringement often argue that inaccurate information submitted in an application for registration invalidates the copyright registration. In 2008, as part of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO IP Act), however, Congress amended § 411 to provide that a certificate of registration satisfies the section’s requirements, “regardless of whether the certificate contains any inaccurate information, unless” the following two requirements are met:

Timothy B. McCormack, attorney at law, discusses some one of the most cutting edge copyright actions in the United States – a copyright case handled by Timothy B. McCormack: The Register notes the court’s concern regarding the structure of 17 U.S.C. § 41l(b)(2) and the potential that the provision might be abused by litigants. See, Footnote 4 of the Order on Motion for Issuance of Request to Register of Copyrights. Since the Office played an instrumental role in the amendment of 17 U.S.C. § 411(b)(2) as part of the Prioritizing Resources and Organization for Intellectual Property Act of 2008, the Register takes this opportunity to relay its insight regarding the provision. The amendment to 17 U.S.C. § 41l(b)(2) was adopted in order to address situations in which courts of appeals have misunderstood Copyright Office registration practices and came to erroneous conclusions about alleged misstatements on applications for registration. See Raquel v. Education Management. Corp., 196 F.3d 171, 177 (3d Cir. Pa. 1999), vacated and remanded, 531 U.S. 952 (2000)(1). See also Greenberg V. National Geographic Society, 244 F.3d 1267. 1273 (11th Cir. Fla. 2001)(2). As a result of these decisions, 17 U.S.C. §411(b)(2) was amended to ensure that no court holds that a certificate is invalid due to what it considers to be a misstatement on an application without first obtaining the input of the Register as to whether the application was properly filed or, in the words of § 411(b)(2), “whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.” The Register readily admits that in many, and perhaps even most, cases in which it is alleged that there is a misstatement on an application that might lead a court to conclude that the registration cannot be relied upon as satisfying the statutory prerequisite for an infringement suit, there may be little need for the assistance of the Register because the answer will be apparent. However, 17 U.S.C. § 411(b)(2) was enacted because a court will not always know what information would or would not make a difference in the Register’s determination whether to register a copyright.

Timothy B. McCormack, attorney, discusses AVOIDING COPYRIGHT INFRINGEMENT IN THE REALM OF SOFTWARE DEVELOPMENT: Determining What Can Be Copied – Unprotected Elements: An algorithm in the most general sense is an uncopyrightable idea. As used below, the term “algorithm” refers to a “finite sequence of instructions, each of which has a clear meaning and can be performed with a finite amount of effort in a finite length of time.”(52) For example, an algorithm for Christmas shopping could be: (1) find appropriate gift, (2) purchase gift, (3) wrap gift, and (4) present gift to recipient. “When viewed from the highest level, algorithms represent the very essence of abstract ideas; as such, algorithms are ineligible for copyright or patent protection. . . . [and] always remain in the public domain.”

Timothy B. McCormack, attorney, shares some of the “trade secrets” of copyright law and disputes: Proving copyright infringement during litigation can be very complex. An easy case might involve a “smoking gun” where direct proof of copying exists. A more complex case might involve a detailed three-part analysis, known as the abstraction-filtration-comparison test. When trying to figure out what can be copied and what cannot, it is best to err on the side of caution and ask an attorney.

Timothy B. McCormack, attorney, shares some of the “trade secrets” of copyright law and disputes: An example of the fair-use defense applied in a non-software context is Harper & Row Publishers, Inc. v. Motion Nation Enterprises.(77) In Harper & Row, the Supreme Court held that using 300 words excerpted from an unpublished manuscript written by President Gerald R. Ford as his autobiography was not a fair use. The Supreme Court found that all four fair use factors weighed against a finding of fair use. The court found that the purpose and character of the infringing use was commercial in nature. The “scooped” material from the President’s autobiography, for example, was intended to sell magazines and conversely was not for a nonprofit or educational purpose.(78) The court also found that the nature of copyrighted manuscript (i.e., that it was unpublished) weighed against finding fair use. Specifically, the court reasoned that the infringing use interfered with the author’s interest in confidentiality and creative control of his own, yet unpublished, work.

COPYRIGHT DEFENSES: Abandonment or Forfeiture

February 22, 2011

Timothy B. McCormack, attorney, shares some of the “trade secrets” of copyright law and disputes: A copyright can be abandoned, forfeited, or both, and a copyright owner can sometimes be prevented from asserting their rights. Abandoning a copyright requires some manifestation of an intent to abandon. Mere inaction will not constitute such a manifestation.

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COPYRIGHT DEFENSES: No Infringement Defense (Independent Creation)

February 15, 2011

Two computer programs can be identical and yet there will be no copyright infringement if both were created independently of each other. One common way of doing this is by creating a “clean room.”

Timothy B. McCormack, lawyer in Seattle, writes: One may independently develop a competing program by having a first team produce design documentation of inputs and desired outputs after lawfully analyzing a first program from which the competing program is to be developed. A second team then writes code for the competing program based on the created design documentation. The competing program, even if substantially similar to the first program will not likely infringe any copyrights because of its independent creation.

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COPYRIGHT DEFENSES: Expired Copyrights and Public Domain (The Public Owns it Now)

February 14, 2011

Timothy B. McCormack, attorney and founder of McCormack Intellectual Property Law PS writes: Two computer programs can be identical and yet there will be no copyright infringement if both were created independently of each other. One common way of doing this is by creating a “clean room.”

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COPYRIGHT DEFENSES

February 10, 2011

Timothy B. McCormack, attorney and copyright lawyer, writes: Even if one establishes ownership in a copyrighted work and that an accused infringer copied the work, the accused infringer may escape liability under one of several defenses set forth in the Copyright Act. Note, however, that although a defense to copyright infringement may exist, one may still be prohibited from copying a work. Some defenses are absolute, and thus one can copy with impunity (assuming of course that the defense can be proven at trial). Other defenses can shield one from the legal consequences of copying another work, however, they are sometimes difficult to prove. In cases where the copying is exact – like I copied 100% of your image, picture or photograph there is typically no good defense – copyright in those cases are strict liability torts.

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