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First off today, Adam Liptak at The New York Times reports that the Supreme Court has ruled unanimously in favor of Supap Kirtsaeng on the issue of attorney’s fees but it still seems unlikely that he will get the fees he desires.
The lawsuit pits Kirtsaeng against John Wiley & Sons, a major textbook publisher. Kirtsaeng had started a business of importing lower-cost textbooks from Thailand and reselling them in the U.S. John Wiley sued claiming that this was a violation of their right to block imports of copyrighted works. Kirtsaeng, however, argued that right of first sale, the right to sell or dispose of legally-purchased works, trumped that.
The case made it all the way to the Supreme Court, which ruled in Kirtsaeng’s favor 6-3. However, when Kirtsaeng sought his attorney’s fees, the lower court denied them saying that John Wiley was objectively reasonable in its lawsuit. That too wound up at the Supreme Court, which is saying the lower court used the wrong test to determine attorneys fees, focusing too much on reasonableness. However, the Supreme Court expressed a lack of confidence that Kirtsaeng would be awarded fees even if the correct formula was applied, thus sending the case back down to the lower court again.
Next up today, Wendy Davis at MediaPost reports that the Second Circuit Court of Appeals has ruled in favor of Vimeo in its case against Capital Records over pre-1972 sound recordings.
In the case, Capitol Records sued Vimeo for copyright infringement of pre-1972 sound recordings it owned the rights to. Pre-1972 sound recordings are not protected under federal law and, instead, are covered under state common law. Capitol Records argued that, because of this, the Digital Millennium Copyright Act (DMCA), which protects hosts from liability when users upload infringing materials, did not apply to such recordings.
The lower court agreed with Capitol Records but the appeals court reversed that decision, saying that such a stance would defeat what Congress had intended to achieve with the DMCA. The court also ruled that Vimeo had not lost its DMCA protection by having listened to at least one of the infringing videos, with the court saying that provided no proof that Vimeo was actually aware of the infringement.
Finally today, The Canadian Press reports that Playboy has reached a settlement with two Canadian online publishers that it accused of copyright infringement for publishing nude photos of Kate Moss that Playboy featured in its 60th anniversary edition.
Playboy had sued the companies, Toronto-based Contempo Media and Montreal-based Indecent Exposure, for copyright infringement and had sought up to $50,000 from each. Indecent Xposure claimed that it earned no revenue from the images and removed them immediately after receiving a complaint from Playboy.
The parties have since reached a settlement but the terms are not known. The lawsuit itself has been discontinued, bringing an end to the matter for all sides.
That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.