Copyright and Fair Use

DirectBuy and their lawyers at Dozier Internet Law

In a recent trend, lawyers who send baseless letters threatening to sue over online complaints, but do not want themselves or their clients to be embarrassed by public discussion of their claims, have taken to threatening to sue over posting of the demand letters.

Public Citizen has replied to such a letter, picking apart the legal claims and explaining as well that the doctrine of fair use allows demand letters to be posted online.

Read more on the Consumer Law & Policy Blog.

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Kopp v. Vivendi Universal Games, et al.

The lawsuit, filed in U.S. District Court for the Central District of California, was brought to restore the right of Brian Kopp of Bronson, Fla., to sell a guidebook containing tips on how to play the video game "World of Warcraft." He was blocked from selling it on eBay after the video game maker, Irvine, Calif.-based Blizzard Entertainment, Inc., invoked the provisions of the Digital Millennium Copyright Act (DMCA) by claiming that the guide violated its copyright and trademark in the game. Blizzard, its parent company Vivendi Universal Games Inc. of Los Angeles, and the Washington, D.C.-based Entertainment Software Association (ESA) agreed to settle the case, withdrawing their claims of copyright and trademark infringement and allowing Kopp to re-list his guide on eBay.

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Phyllis Gatson v Seneca Technologies

After a West Virginia company won a Freedom of Information Act case to obtain electronic copies of state tax maps, and the company posted the copies to its web site where it made them freely available to the public, a county tax assessor sued seeking to enjoin the posting of the maps. The assessor invoked a state regulation saying that tax maps could not be copied or given out without the consent of an assessor. Public Citizen is representing the web site host, arguing the the injunction would be an unconstitutional prior restraint, that state law against copying maps without any exception for fair use violates the copyright laws and that, in any event, the state law applies only to paper copies and not electronic ones.

After Public Citizen filed its brief, the tax assessor decided to withdraw her request for an immediate injunction. The case remains alive but is suspended pending further study by the assessor and her counsel.

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Vernor v. Autodesk

Public Citizen represents an eBay vendor in a case against Autodesk, a California-based software company. The suit alleges that Autodesk used its copyright to suppress competition from the sale of used copies of its products online, leading to higher prices for consumers. Although Autodesk claims that its shrink-wrap license prohibits resale of its products, Public Citizen argues that the contract language is unlawful under the Copyright Act, which guarantees that the owner of a copyrighted product can resell that product without permission.

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