OMG its OEM!

Stealing intellectual property is an American pastime. Music, software, ebooks, you name it—free is the right price. And mounds of shaming and litigation has done little to discourage the copyright abolitionists.

And then there is Joshua Christenson. He operated a website that offered discounted versions of Adobe software. These were not illegal copies, but actual Adobe products purchased from third parties.

Of course, Adobe was not happy about this. How could Christenson sell these products when the original license prohibited downstream sales?

So, Adobe filed suit. The only problem was that Adobe forgot to bring the actual licenses to the dance! Instead, it submitted license templates and testimony as to how Adobe routinely licenses software.

Christenson argued that he had every right to sell the software under the “first sale doctrine.” This statute allows someone who owns a particular copy to sell it to anyone they choose. Without this doctrine, I would be unable to add to my collection of Archies and Chipmunks recordings. Que triste.

But, to own something, there must be a sale, not a license. Adobe pounded a dent in the podium arguing this was no sale–just a license that prohibited downstream sales. And, that was probably right.

But, Adobe forgot to bring the licenses to the dance.

So, the judge agreed that Christenson met his initial burden of proving he owned the copies. The burden then shifted to Adobe to prove that Christenson was bound by its license.

But, Adobe forgot to bring the licenses to the dance. Christenson wins.

Adobe also asserted a trademark infringement claim. These can arise when someone illegally copies software and tries to pass it off as the real deal. But, what Christenson sold was the real deal–original Adobe software. Christenson 2, Adobe 0.

Here’s a picture of Christenson when he heard the good news:

laptop cartoon character with face hands

From reading the opinion, it appears that Adobe made litigation blunders. I have no idea why the licenses were not attached to the complaint, or why unfair competition claims were missing.

You can read the opinion here.  It is relatively short, and has nice discussions of the first sale doctrine and the fair use of trademarks. I think you can even download it in .pdf!


Las Tortugas

1.  slow-moving reptiles, enclosed in scaly or leathery domed shells into which they often retract their heads and legs.
2.  slow-moving mammals who sleep until noon and bathe infrequently, but who turtalised Sirius XM in Ca. District Court.

Here is a picture of each in their native environment:

Turtle          Musician

When you hear a song played on radio, you are hearing two copyrights: one for the composition, another for the recording of the composition. The latter is the sound recording copyright, and sound recordings created since 1972 are protected by federal copyright law.

The Turtles were a band with hits prior to 1972, most notably “Happy Together.”  Sirius has broadcast these sound recordings for years without paying royalties to the Turtles. Sirius claimed that no copyright arose for a pre-1972 sound recording, and no state law to the contrary trumped the federal statute.

So, the Turtles pulled an end-around and sued Sirius  in a California state court. After removal to the U.S. District Court, the Turtles were awarded summary judgment. The Court found that Sirius violated the public performance right for the sound recordings under California law. Whether Sirius unlawfully reproduced the sound recordings was left for the trier of fact.

This could start of a tidal wave of litigation. Here’s the opinion: Flo & Eddie v. Sirius XM.

Blame the Band

20 years ago, I played guitar for a living in Southern California. I worked in cover bands at many bars–many,many bars–sometimes 300 nights per year. Good times.

The bar owners often did not play nice with ASCAP or BMI [“PRO’s]. The owners were constantly on the lookout for the kid being paid a few shekels to log songs licensed by the PRO’s.  And, in-person visits from the PRO’s reps (all name Tony) were rarely congenial.

Move forward 20 years, and nothing has changed. A bar owner in Ohio defended BMI’s infringement lawsuit by blaming the band. After all, the band chose to play infringing music–let it pay statutory damages. And, let’s just overlook the fact that the bar profited from the infringement.


It didn’t work. The 6th Circuit took little time in ruling that the bar owner was vicariously liable for the infringement. Right result; I can drink to that all night.

I have defended a few of these lawsuits and the challenge is educating the bar owner about copyright ownership. They often pay considerably more to settle the lawsuit than what the PRO’s would have charged in licensing fees. Lesson learned.

Here’s the opinion.

Just Add Nuts

Sooner or later, all litgators encounter pro se opponents who make them blow a brain gasket.

Meet Banana Lady. She delivers singing telegrams in full fruitcake fruit costume, then sues anyone everyone who records her performance. Sanctions do not deter her, and she appeels appeals if she loses.

Here is a unanimous (not banana split) decision from the 7th Circuit where Judge Posner tells Banana Lady to quit monkeying around. Nice nuts-n-bolts discussion of copyright principles, then Posner delivers a delicious tongue lashing to La Senora Plátano.


A little dab will do ya!

Normally, copy someone else’s original work and Peter Private Process Server is Googling your home address. However, did you know that the judge may deal you a get-out-of-jail-free card if you only copy a dab? Dippity Doo-dah!!!!

This defendant copied 12-14 practice exam questions from a competitor’s test that contained over 1000 questions. The trial judge said this was just a dab and plaintiff needed to get out of defendant’s hair. The copying was de minimis, and the copyright world is jiggy with it, I guess.

The opinion has a nice discussion of the de minimis doctrine and cites the famous Beastie Boys case: