Category Archives: Copyright Law

BMI Copyright Infringement Lawsuits

Yesterday, BMI filed two copyright infringement lawsuits against area restaurants. In these lawsuits, BMI maintains that these restaurants allowed the unauthorized public performance of songs to which it holds the copyright. In layman’s terms, this means that the restaurant played the radio over the speakers without first purchasing a license from BMI.

Many restaurant owners are not aware that the simple act of playing songs over the speakers can constitute copyright infringement if the appropriate license is not purchased. This simple act can have large consequences. For each unauthorized song played, the restaurant can be liable for up to $150,000.00 in statutory damages plus attorney’s fees and costs. All of this just by turning on the radio.

If you or your company have been contacted by BMI regarding unauthorized performance of songs, you mast act quickly to protect your rights. At Smith & Associates, we not understand litigation and copyright law. If you need help addressing this or any other copyright issue, please contact us for a free consultation.

More BitTorrent John Doe Lawsuits Filed

Over the past few days, Plastic the Movie Limited has filed John Doe lawsuits against eight BitTorrent users alleging copyright infringement.

These lawsuits are ‘John Doe’ lawsuits because, at this time, the copyright holder does not know the name of the party they are accusing of infringement. Right now, all they know are the accused infringer’s IP address. From here, they copyright holders will subpoena the ISPs to determine who had the IP address at the time of the alleged infringement. Once that is determined, the copyright holders will update the lawsuits to name the correct individual.

Fortunately, most ISPs inform users before they give up their information. If you receive a letter informing you that you are the subject of a John Doe lawsuit, you should contact an attorney immediately. Damages in a copyright infringement suit are determined by statute and, if willful infringement is shown, can be as much as $150,000.00 per infringement plus opposing counsel’s attorney fees and costs. It is imperative that you act quickly to protect your rights.

At Smith & Associates, we not only understand litigation and copyright law, we understand the technology at the heart of these issues. We understand BitTorrent and the issues associated with associating an IP address to an individual. If you need help addressing this or any other copyright issue, please contact us for a free consultation.

Manny Film Files more BitTorrent Lawsuits

As predicted yesterday, Manny Fillm, LLC has filed more John Doe copyright infringement lawsuits. 11 more lawsuits have been filed so far today claiming that BitTorrent users downloaded the film Manny, a movie about boxer Manny Pacquiao. If you receive a letter informing you that you are the subject of a John Doe lawsuit, you should contact an attorney immediately. Damages in a copyright infringement suit are determined by statute and, if willful infringement is shown, can be as much as $150,000.00 per infringement plus opposing counsel’s attorney fees and costs. It is imperative that you act quickly to protect your rights.

At Smith & Associates, we not only understand litigation and copyright law, we understand the technology at the heart of these issues. We understand BitTorrent and the issues associated with associating an IP address to an individual. If you need help addressing this or any other copyright issue, please contact us for a free consultation.

More John Doe BitTorrent Lawsuits Filed

Today in the Middle District of Florida, Manny Film, LLC, owners of the movie ‘Manny’ about boxer Manny Pacquiao, filed three John Doe lawsuits. This company has already filed 46 John Doe lawsuits across Florida and it is expected that more are on the way. These three represent the latest in the movie industries attempt to punish people who infringe their copyrights via BitTorrent.

These lawsuits are ‘John Doe’ lawsuits because, at this time, the copyright holder does not know the name of the party they are accusing of infringement. Right now, all they know are the accused infringer’s IP address. From here, they copyright holders will subpoena the ISPs to determine who had the IP address at the time of the alleged infringement. Once that is determined, the copyright holders will update the lawsuits to name the correct individual.

Fortunately, most ISPs inform users before they give up their information. If you receive a letter informing you that you are the subject of a John Doe lawsuit, you should contact an attorney immediately. Damages in a copyright infringement suit are determined by statute and, if willful infringement is shown, can be as much as $150,000.00 per infringement plus opposing counsel’s attorney fees and costs. It is imperative that you act quickly to protect your rights.

At Smith & Associates, we not only understand litigation and copyright law, we understand the technology at the heart of these issues. We understand BitTorrent and the issues associated with associating an IP address to an individual. If you need help addressing this or any other copyright issue, please contact us for a free consultation.

BitTorrent Lawsuits Filed Today

Today in the Middle District of Florida, a litany of John Doe lawsuits were filed alleging that BitTorrent users violated copyright law by downloading and making available certain copyrighted films. The first set of lawsuits is by Good Man Productions, Inc. for a Steven Seagal film entitled ‘A Good Man.’ Read a copy of one of the complaints here. The second set of lawsuits is by Poplar Oaks, Inc. for a movie entitled ‘A Certain Justice’ now titled ‘Puncture Wound.’ Read a copy of one of the complaints here.

These lawsuits are ‘John Doe’ lawsuits because, at this time, the copyright holder does not know the name of the party they are accusing of infringement. Right now, all they know are the accused infringer’s IP address. From here, they copyright holders will subpoena the ISPs to determine who had the IP address at the time of the alleged infringement. Once that is determined, the copyright holders will update the lawsuits to name the correct individual.

Fortunately, most ISPs inform users before they give up their information. If you receive a letter informing you that you are the subject of a John Doe lawsuit, you should contact an attorney immediately. Damages in a copyright infringement suit are determined by statute and, if willful infringement is shown, can be as much as $150,000.00 per infringement plus opposing counsel’s attorney fees and costs. It is imperative that you act quickly to protect your rights.

At Smith & Associates, we not only understand litigation and copyright law, we understand the technology at the heart of these issues. We understand BitTorrent and the issues associated with associating an IP address to an individual. If you need help addressing this or any other copyright issue, please contact us for a free consultation.

Software Licensing and Enforcement

Software is rarely sold anymore, it is usually licensed. These licenses restrict how the software can be used and if the software can be resold. Even open source licenses, which convey rights to the users instead of take them away, have conditions on how the software can be used. When considering what to include in a software license or which open source license to use, it is important to consider how software licenses are enforced and what terms you want in your license.

License Terms vs. Covenant Terms

The enforceability of the license depends on what clause in the license is being breached and what remedy the developer is seeking. When someone breaches a copyright license, the courts look to the term that was breached to determine if it limited the scope of the license or if it was a mere covenant in the contract. For example, if the term limited the distribution method of the code, it would most likely be considered to be restricting the scope of the license. However, if the term involved how warranty claims were to be submitted, it would most likely be considered a mere covenant.

If the term being breached is considered a mere covenant, the remedies available are the traditional breach of contract remedies. While there are many of these remedies, for the most part this means that the remedy will be actual damages – how much money was actually lost because of the breach. This is not very easy to determine as the amount must be proven by evidence. For example, terms regarding the warranty of the software are usually considered covenants.

If the term being breached is limiting the license, then the breach is considered copyright infringement. This has advantages over a breach of contract action. The most important being that if the copyright was registered with the Copyright Office before the infringement, the copyright holder may be entitled to statutory damages between $750.00 and $150,000.00 per infringement. The copyright holder may also be entitled to attorney’s fees and costs. If the work is not registered before the infringement, the copyright holder is usually stuck having to prove the actual damages from the infringement. Whether or not the work was registered before the infringement, the copyright holder can also ask the court for an injunction to prevent the infringer from continuing to use the software.

When a developer is ready to license her software, what should she look out for?

  • Register the software with the Copyright Office. As stated above, having the work registered opens the door to remedies that do not require proof of damages. To make this even more attractive, it only costs $35.00 to register. There is no reason not to do this.
  • Ensure that your goals are met by the license. Whether you are using an open source license or a custom license, make sure that the terms that control the way your software is distributed are written in a way that actually accomplishes what YOU want to have happen with your software. Do not settle on a license because it is popular. Ensure that its terms meet the goals of your software project.
  • Consider a liquidated damages clause for covenants. Proving actual damages, especially with software licenses is extremely difficult to do. A liquidated damages clause can give a number to the actual damages in the case that one party breaches.
  • Prepare for if things go bad. You may want to disclaim any liability and warranties. You may also want to add a clause for attorney’s fees and costs. Also, you may want to add a choice of forum or arbitration clause to determine where or how any dispute would be handled.

What if someone is breaching your license?

  • If you have not done so already, register your work with the Copyright Office. To bring a claim in federal court, the work must first be registered. Get that process started as soon as possible.
  • Consider alternate options. If you have not registered with the Copyright Office prior to the infringement, or if the infringer has no money, a federal lawsuit may not be worth it financially. However, the Digital Millennium Copyright Act (DMCA) may offer some cheaper alternatives. This act offers a takedown procedure that asks web hosts to remove infringing material. If they refuse, they can be held liable for infringement. If the infringing work is being distributed via the Internet, a DMCA takedown notice may be a viable alternative to prevent the infringer from continuing to distribute the work without breaking the bank.
  • Talk to an attorney. Every situation is unique. An attorney can help you understand your situation and what your rights and options are.

If you or your company need help writing or enforcing a software license, contact us at Smith & Associates.

Software Audit Demand from the BSA

Recently, radio stations have started playing advertisements informing the listener that if they report software piracy at their place of work, they could receive a reward. While I do not condone software piracy, the Business Software Alliance (BSA), the company running the ads, along with the Software and Information Industry Association (SIIA) use very heavy-handed tactics when dealing with potential pirates. So what should you do if your company receives an audit request from the BSA, SIIA, or some other software company?

  • Don’t Ignore It – While it may be a valid strategy to ignore some demand letters, it is not the case with these audit requests. These companies will follow through with court cases. This can increase the costs of defense and possibly limit your options for the future.
  • Retain an Attorney – The BSA and SIIA have attorneys working for them with the goal of maximizing the payments made by potential infringers. You need an attorney working for you. An attorney can help ensure that the audit cannot be used against you in court and help you keep certain knowledge confidential. An attorney can help explain the copyright infringement laws – which don’t always agree with what the BSA and SIAA believe constitute copyright infringement. If infringing software is discovered, an attorney can also help you with negotiating the settlement agreement, ensuring that BSA and SIIA cannot publish your infringements publicly and the terms of any re-audit.
  • Don’t Buy New Licenses – Once you receive the audit demand, you may feel the need to go out and buy licenses for any non-licensed software. This will not fix the problem and will most likely just end up being a waste of money. The BSA/SIAA will look at the install date and the purchase date to ensure that the software was licensed for the entire time it was installed.
  • Don’t delete infringing software – Destroying evidence is never a good idea. This can lead to a presumption of infringement and possibly sanctions. This along with the fact that computer experts can recover deleted information makes deleting the infringing software a bad idea.

If you or your company have received a letter from the BSA, SIAA, or any other software company demanding an audit, contact us at Smith & Associates. The BSA/SIAA will use attorneys against you – don’t go it alone.