E-book Pricing the Emphasis of DOJ Suit Against Apple and Book Publishers

The U.S. Department of Justice (DOJ) filed a civil antitrust action against Apple and five major book publishers – Hachette, HarperCollins, Macmillan, Penguin and Simon & Schuster (Publisher Defendants) – for violations of Section 1 of the Sherman Act.  The DOJ seeks “to enjoin the Publisher Defendants and Apple from further violations of the nation’s antitrust laws and to restore the competition that has been lost due to the Publisher Defendants’ and Apple’s illegal acts.”  (Complaint pdf page 5).  This lawsuit attacks the legality of the “agency model,” as implemented by Apple and the Publisher Defendants.

Alleged facts.  Technology has transformed the book publishing industry.  E-books, books in electronic form, are much cheaper to produce and distribute than print books (e.g., reduced manufacturing and distribution expenses, no warehousing and unsold stock expenses).  E-books benefit consumers by allowing them to read books on various electronic devices, by providing consumers with around the clock access to products, by enabling easier portability and storage and by allowing consumers to adjust font size.

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Floral Fabric Design Copyright Infringement Case Remanded for Jury Trial by Ninth Circuit

L.A. Printex is a fabric printing company based in Los Angeles.  Ms. Bubbles is an L.A-based apparel wholesaler.  Aeropostale, a mall-based retailer, purchases apparel from Ms. Bubbles and other vendors.  L.A Printex sued Aeropostale and Ms. Bubbles for copyright infringement when it discovered that Aeropostale was selling shirts, under the Aeropostale trademark, displaying a design similar to L.A. Printex’s C30020 floral design.  Aeropostale ordered the shirts from Ms. Bubbles.

The district court granted the defendants’ motion for summary judgment, finding that there was no issue for trial on whether defendants had access to L.A. Printex’s design and whether the two designs were substantially similar.  L.A. Printex appealed and the Ninth Circuit held that L.A. Printex raised a genuine dispute of material fact on both access and substantial similarity.

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YouTube’s Safe Harbor Status Requires More Fact-Finding, Rules Second Circuit

The Second Circuit issued its opinion in Viacom v. YouTube last week.  This case is similar to UMG v. Shelter Capital Partners, LLC in that it addresses issues arising out of applying the Digital Millennium Copyright Act (DMCA) safe harbor provisions to a service provider that permits users to upload videos to its website and view video clips uploaded by others without charge.  See my post Veoh’s Services Protected by DMCA Safe Harbor, Rules Ninth Circuit for details on UMG v. Shelter Capital.  The Second Circuit agreed with some, but not all, of the Ninth Circuit’s DMCA safe harbor analysis.

The plaintiffs in Viacom v. YouTube appealed the district court’s ruling granting YouTube’s motion for summary judgment on the grounds that YouTube was protected by the DMCA §512(c) safe harbor and denying plaintiffs’ cross motions for partial summary judgment.  This case is actually comprised of related actions in which the plaintiffs, including Viacom, film studios, television networks, music producers, sports leagues and class action plaintiffs, are copyright holders who sued YouTube for copyright infringement based on the public performance, display, and reproduction of video clips that appeared on the YouTube website between 2005 and 2008.  The specific video clips at issue are 63,497 clips identified by Viacom and 13,500 clips identified by the class action plaintiffs.  The Second Circuit refers to the clips at issue as “clips-in-suit.”

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Domain Tools Seeks Declaratory Relief in Copyright and Trademark Dispute

This is a summary of the allegations in Domain Tools’ complaintDomain Tools, LLC is a King County-based company offering online domain name research and monitoring services.  Domain Tools’ services include domain name research, registration research, WHOIS information, historical WHOIS information and historical static screenshots of the home pages of websites that have been associated with specific domain names.  WHOIS information is the contact information that everyone who registers a domain name must provide, as per ICANN requirements.  ICANN is the Internet Corporation for Assigned Names and Numbers and is the entity that controls the domain name system. 

The historical screenshots provided by Domain Tools are not interactive and do not substitute for live websites.  Domain Tools believes that by providing access to historical information about the Internet, it provides a service that benefits the public.  The DOMAINTOOLS trademark is registered on the U.S. Patent and Trademark Office (USPTO) Principal Register, which means that it is a distinctive trademark.  Domain Tools, LLC is the exclusive licensee of the mark. 

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