President of Restaurant and Lounge Is Found Personally Liable For Unlicensed Public Music Performance

By Evelyn Li The United States Court of Appeals for the Ninth Circuit affirmed a California district court’s granting of a summary judgment in favor of plaintiff-appellees for a total of $203,728.22. The judgment included a statutory infringement damage of $4,500 for each of the 8 infringements ($36,000), and attorneys’ fees and costs in the amount of $167,728.22. Plaintiff-appellees, Range Road Music, Inc. together with Sony/ATV harmony, Williamson Music Company and several other music companies (“Music Companies”) sued East Coast Foods, Inc.(“East Coast”) and its president Herbert Hudson for copyright infringement after collecting evidence through an independent investigator, Scott Greene, on unlicensed public performances of music owned by the Music Companies. Scott Greene was retained by American Society of Composers, Authors, and Publishers (ASCAP) to visit the restaurant “Long Beach Roscoe’s” owned by East Coast to investigate whether copyright infringement was likely occurring at the venue. Greene’s report identified eight songs, which were later confirmed by ASCAP as owned by

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eBay Reseller of OEM Software Denied First Sale Defense

By Zi Wang In Adobe Sys. v. Hoops Enter. LLC (N.D. Cal. 2012), the court rejected the first sale defense asserted by an eBay reseller of original equipment manufacturer (OEM) copies of software, drawing a distinction between licenses and sales of copyrighted works. Adobe sued the defendants for copyright infringement, alleging that the defendants sold OEM copies of Adobe software through the use of eBay and other websites.  The defendants countersued Adobe for a declaratory judgment of copyright misuse.  In particular, the defendants contended that Adobe’s assertion of copyright protection contravened the first sale doctrine, as codified in 17 U.S.C. § 109.  The defendants also asserted the first sale doctrine as an affirmative defense. The defendants obtained OEM copies of Adobe software that had been unbundled from the hardware with which they were originally packaged, such as Dell and Hewlett-Packard computers.  The defendants then re-bundled the software with items such as a piece of photo paper, a blank DVD, or

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Ninth Circuit Finds Creation of Custom Programs under Contract which is Silent as to Intellectual Property Grants an Unlimited License to Use and Modify the Custom Programs

In Asset Marketing Systems, Inc. v. Kevin Gagnon, d/b/a Mister Computer, D.C. 542 F3d 748; 88 USPQ2d 1343 (9thCir. 2008), Kevin Gagnon, doing business as Mister Computer (“Gagnon”) appeals from the District Court’s grant of summary judgment in favor of Asset Marketing Systems, Inc. (“AMS”). The Court of Appeals for the Ninth Circuit affirmed. Background From May 1999 to September 2003, AMS, a field marketing organization offering sales and marketing support to insurance marketing entities, hired Gagnon at-will as an independent contractor to assist with its information technology needs. Gagnon was asked to develop six custom software programs for AMS.  Over the course of the companies’ four year relationship, AMS paid Gagnon over $2 million for this development.  However, no agreement was agreed to governing rights in the intellectual property for the developed software programs.