New Media, Technology and the Law (January 2011)

Mondaq Business BriefingUnited States Law Articles in EnglishIT & Telecoms (2011)

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New Media, Technology and the Law (January 2011)

Edited by Jeffrey D. Neuburger


Download of Copyrighted Digital Music File Not a Public Performance under Copyright Act

Downloading a copyrighted digital music file does not constitute a public performance under the Copyright Act, the U.S. Court of Appeals for the Second Circuit ruled. The court upheld the lower court ruling that while companies that sell digital music online must pay a royalty fee for the right to make a copy of a work, they need not separately and additionally pay a royalty for downloading the copy. The appeals court found that a digital music file is neither recited, rendered or played within the Copyright Act definition of "perform," nor does downloading "show" a work or make it audible. "The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded," the court commented.

United States v. American Society of Composers, Authors and Publishers, 2010 U.S. App. LEXIS 19983 (2d Cir. Sept. 28, 2010) Download PDF

Editor's Note: The parties did not dispute that Internet streaming of a digital music file constitutes a public performance of the work.

Transfer of Packaged Software Was a License, Not a Sale, under Copyright First Sale Doctrine

A transaction involving the transfer of packaged software from a developer to a user was a license, not a sale, under the copyright first sale doctrine, the U.S. Court of Appeals for the Ninth Circuit ruled. The appeals court held "a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions." The court also noted, among other things, that the developer expressly retained title to the software, prohibited further transfers or leases of the software without the developer's consent, and provided for the termination of the license for unauthorized copying.

Vernor v. Autodesk, Inc., 2010 U.S. App. LEXIS 18957 (9th Cir. Sept. 10, 2010)  Download PDF

Editor's Note: The ruling is discussed further on the Proskauer New Media and Technology Law blog.

Developer of Automated Videogame-Playing Program Violated DMCA But Did Not Infringe Copyright

The deve...

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