Category Archives: Copyright

Trade Dress and Copyright for Functional Software Tool

The specific design elements of a software tool may be entitled to “look and feel” trade dress protection if it is nonfunctional. Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 309 (3d Cir. 2014). But even if the tools’ elements are functional, such non-protectable elements could still provide a plausible circumstantial basis to state […]

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Toying with Statute of Limitations for Copyright Ownership

A lawsuit for copyright infringement must be brought “within three years after the claim accrued.” 17 U.S.C. § 507(b). For purposes of this statute of limitations under copyright law, the Ninth Circuit distinguishes between “infringement” claims and “ownership” claims. Unlike infringement claims, “ownership claims accrue only once, at the time ‘when plain and express repudiation […]

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Ephemeral Fair Use

“[T]he fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. An “equitable rule of reason,” the fair use doctrine “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Google LLC […]

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No CMI Violation Without Intent to Infringe

With respect to the removal or alteration of copyright management information (“CMI”), the DMCA requires proof that the defendant knew, or had reasonable grounds to know, that its conduct “will” induce, enable, facilitate, or conceal an infringement. 17 U.S.C. § 1202(b). To establish a CMI violation under Section 1202(b)(3), a plaintiff must prove: (1) the […]

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Communication Protocols for Fireworks Are Not Copyrightable

“It is axiomatic that copyright does not protect ideas, but only expressions of ideas.” Whelan Assocs., Inc. v. Jaslow Dental Lab’y, Inc., 797 F.2d 1222, 1234 (3d Cir. 1986); see also Mazer v. Stein, 347 U.S. 201, 217 (1954). The line between uncopyrightable idea and copyrightable expression can be difficult to draw, especially for utilitarian works. If […]

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