Copyright Defenses

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Inc. v. Motion Nation Enterprises.(77) In Harper & Row, the Supreme Court held that using 300 words excerpted from an unpublished manuscript written by President Gerald R. Ford as his autobiography was not a fair use.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nonprofit or educational purpose.(78) The court also found that the nature of copyrighted manuscript (i.e., that it was unpublished) weighed against finding fair use.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that the infringing use interfered with the author’s interest in confidentiality and creative control of his own, yet unpublished, work.

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.

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.

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.”

COPYRIGHT DEFENSES

by on 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.

COPYRIGHT DEFENSES: Governmental Works

February 9, 2011

Timothy B. McCormack, lawyer, writes: Works of authorship by the United States Government are not subject to copyright.(66) A “work of the United States Government” is defined as “a work prepared by an officer or employee of the United States Government as part of their official duties.”

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COPYRIGHT DEFENSES: Authorization Defense (Consent/License)

February 16, 2010

Article provided by Timothy B. McCormack, Seattle Copyright Attorney working in area of copyright litigation, procurement and development. This article is a continuation in the series of Software Copyright articles. Generally, if someone has permission to use a particular copyrighted work, then no copyright infringement arises. Permission to use a work is often in the […]

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