New Perspective On Copyright Misuse Doctrine Inwards The Us

welcomes Alan Cunningham back equally a invitee blogger. Alan, a Herchel Smith Research Scholar at the QM Intellectual Property Research Institute, is researching the cutting border of digital rights management. Says Alan:

A (relatively) late decided case, that exclusively final calendar week came to my attention, has about of import implications for the continuing evolution of the nascent concept of copyright misuse inwards the US. Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc. 342 F.3d 191 [2003] concerns the application of this equitable defense strength past times a companionship that began life compiling cinema trailers into videotape for dwelling family video retailers to display inwards their stores. Video Pipeline gained the correct to distribute such trailers past times entering into agreements amongst a diversity of amusement companies. In 1988 Video Pipeline entered into such an understanding amongst the Disney Corporation. After the completion of the agreement, Disney proceeded to furnish Video Pipeline amongst a number of pic trailers.

Video Pipeline shortly established an online presence, creating ii websites, VideoPipeline.net in addition to VideoDetective.com. Influenza A virus subtype H5N1 pic trailer database was made available on VideoPipline.net. With its websites, Video Pipeline was able to extend the ambit of its business; the Internet clients of Video Pipeline were unremarkably retail websites selling dwelling family videos or DVDs in addition to they used VideoPipeline.net to display trailers to site visitors.

VideoPipeline had included on its online trailer database trailers it had received nether licence from Disney. However, Disney considered such action to live on inwards breach of its licence. As a termination of this interpretation, Disney requested that VideoPipeline take the trailers from the website; VideoPipeline later complied amongst this request. However, inwards 2000, Video Pipeline filed a electrical load inwards the District Court of the District of New Jersey, seeking a announcement that the online usage of the trailers did non violate federal copyright law. Disney shortly after terminated the licence agreement. Before this termination, Video Pipeline decided to supplant about of the trailers it had removed at Disney’s asking – inwards doing so, however, it but copied a number of minutes’ worth of cinema from a number of Disney movies inwards gild to do its ain clip previews of the movies. Similarly to the licensed trailers, Video Pipeline stored the clip previews on its website database in addition to amended their electrical load inwards the District Court to attempt a announcement allowing the usage of the clip previews. Disney filed a counterclaim alleging copyright infringement. The District Court entered a preliminary injunction, later revised, that prohibited Video Pipeline from displaying Disney films on the Internet.

When appealing against this injunction, Video Pipeline claimed that Disney misused their copyright past times placing weather condition inwards their licence that prevented Disney trailers from existence shown on websites that attempted whatever criticism of the Disney Corporation. The Disney licence understanding stated:

“Websites inwards which trailers are used may non live on derogatory to or critical of the amusement manufacture or of Disney (and its officers, directors, agents, employees, affiliates, divisions in addition to subsidiaries) or of whatever motility painting produced or distributed past times Disney…….or of the materials from which the trailers were taken or of whatever mortal involved amongst the production of the underlying works. Any breach of this paragraph volition homecoming the licence goose egg in addition to void in addition to the licensee volition live on liable to all parties concerned for defamation in addition to copyright infringement, equally good equally breach of contract.”

While the Court of Appeal affirmed the judgment of the District Court, ii of import points, were made inwards summary, guide keep of import implications for the doctrine of copyright misuse.

First the Court (3rd Circuit) explicitly recognised the existence of copyright misuse. This is of import because the really existence of copyright misuse has long been a contentious issue, amongst about courts withholding judgment because the Supreme Court had non decided on its existence. Second, in addition to to my hear to a greater extent than importantly, the copyright misuse defense strength was essentially distinguished from an historic reliance on antitrust. The Court stated:

“it is possible that a copyright holder could leverage its copyright to confine the creative appear of about other without engaging inwards anti-competitive demeanour or implicating the fair usage in addition to idea/expression doctrines”.

Previously, inwards many cases in addition to much academic literature, it was suggested that a defense strength of copyright misuse could exclusively live on applied where the action inwards inquiry too contravened anti-trust law, i.e. if it was too anti-competitive. The distinction is of import because the modern interface betwixt technology scientific discipline in addition to copyright has ensured that the mere misuse of a copyright grant (as opposed to the anti-competitive usage of a copyright grant) has croak to a greater extent than possible inwards practice. For example, the command of digital copyright industrial plant past times technological systems that rely on conceptual legal protection tin live on seen equally extending the grant of copyright. How? By the elementary fact that the nature of the contract constructed past times the organization allows a greater specification of the grant of copyright, so removing about of the equities that emerge from the complexity in addition to fluidity of a non-digital, non-computational contractual scenario. Such “misuse” may non live on anti-competitive, but it may live on misuse nonetheless. Video Pipeline recognises that a copyright grant may live on misused inwards such an anti-public policy fashion. Importantly, it suggests the removal of the previously burdensome requirement of the existence of anti-competitive demeanour inwards copyright misuse cases.

Of course, an of import question, fifty-fifty if 1 accepts the distinction betwixt anti-competitive demeanour in addition to misuse, is how 1 arrives at a suitable Definition of such populace policy misuse for legal purposes. As such, fifty-fifty though Video Pipeline provides much of do goodness for the continuing evolution of copyright misuse doctrine, it too ensures farther disceptation regarding this virtually interesting aspect of U.S. copyright law.