Copyright Infringement

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 at law and Seattle copyright lawyer, has been writing about how not to infringe copyrights for years: One should presume that all postings on the Internet are copyrighted unless specifically stated otherwise or unless the postings fall into one of the categories of uncopyrightable material discussed below. Postings that are presumably copyrighted include: (1) email, (2) Usenet and news group posting, (3) bulletin board system (BBS) posting, (4) mailing lists posting, (5) postings to Internet Service Providers (such as America Online and Microsoft Network), (6) interactive chat communications (IRC), (7) recordings of communications via Internet telephone and Internet video conferencing, (8) web page contents, (9) computer graphics, (10) sound, (11) video; and, of course, (12) photographs.

Timothy B. McCormack, attorney at law, writes: Reverse engineering can be accomplished in at least two ways.(60) First, one may reverse engineer a program through the program’s design documentation. For example, one may independently develop a competing program by having one team produce design documentation of desired inputs and outputs after lawfully analyzing the program from which the competing program is to be developed. Another team then writes codes for the competing program based on the created design documentation.

AVOIDING COPYRIGHT INFRINGEMENT IN THE REALM OF SOFTWARE DEVELOPMENT: Programming Elements that may be Copyrighted (“Gray Areas”)

February 1, 2011

Timothy B. McCormack, attorney for software in Seattle, discusses software issues: Consequently, to the extent the competing programmer can demonstrate that aspects of the original interface are functionally optimal, and that there are few ways to devise alternative interface elements that will perform the function equally well, reproduction of those original interface elements by a competing program will not infringe. (It must be borne in mind that the copyright in the interface is distinct from the copyright in the program. A competitor who invokes this exception pertaining to the interface must still develop the program generating the interface in a legal manner.)

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AVOIDING COPYRIGHT INFRINGEMENT IN THE REALM OF SOFTWARE DEVELOPMENT: Protected Elements

January 26, 2011

Timothy B. McCormack, attorney at law, discusses what you should note copy: Both a computer program’s source code and object code are protected under copyright law. Thus, one should not copy code from one disk to another (i.e., make unauthorized copies unless such copying is for authorized back-up use), or view a program’s code and retype it into one’s own program without authorization. Computer applications such as a word processing program are subject to copyright law. Likewise, computer operating systems such as WINDOWS® are also subject to copyright laws.

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COPYRIGHT INFRINGEMENT: Indirect Infringement

January 20, 2011

Timothy B. McCormack, lawyer for Getty Images writes about copyright infringement: Someone who knows or should have known that he or she is assisting, inducing, or materially contributing to another person’s infringement of any of the exclusive copyright rights may be liable as a contributory infringer.”(38) The Software Publishers Association(39) suggests that the following activities might constitute contributory copyright infringement:

(1) posting serial numbers of a program for others who copy and use the program;
(2) posting cracker utilities for disabling copy protection code;
(3) linking to FTP sites where software may be unlawfully obtained;
(4) informing others of FTP sites where software may be unlawfully obtained;
(5) aiding others in locating or using unauthorized software;
(6) supporting sites from which the above information may be obtained; and
(7) allowing sites where the above information may be downloaded to exist on a server.

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COPYRIGHT INFRINGEMENT: Direct Infringement

January 18, 2011

Timothy B. McCormack, attorney and Seattle technology lawyer writes about copyright infringement: Anyone who violates any of the exclusive rights of the copyright owner (discussed above) is an infringer of the copyright.(36) Copying a computer program without permission onto a diskette or a hard drive is direct copyright infringement. Photocopying an instruction manual is also direct copyright infringement. Other activities that might constitute liability for direct copyright infringement include:

(1) downloading software;
(2) uploading software;
(3) making software available for download; and
(4) transmitting software files.

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