After-the-Fact Email Notification of Online Contract Terms Insufficient

Trilegiant Corp. markets and sells online membership fee programs offering discounts on goods and services.  Brian Schnabel became enrolled in Great Fun, one of Trilegiant’s services, when he made a purchase through, an online travel site.  Edward Schnabel, Brian’s father, became enrolled in Great Fun when he made a purchase through, a sports memorabilia site.  Both Brian and Edward discovered that their credit cards were being billed a monthly fee from Great Fun.  They sought refunds from Trilegiant for every month that they were charged for Great Fun, a service which neither used.  When Trilegiant failed to issue full refunds, Brian and Edward brought suit against Trilegiant on behalf of a class of themselves and similarly situated plaintiffs.

Trilegiant moved to compel arbitration under the Federal Arbitration Act (FAA), asserting that Brian and Edward agreed to an arbitration provision.  The district court denied Trilegiant’s motion.  The Second Circuit Court of Appeals affirmed.  The Second Circuit ruled that Brian and Edward did not assent to an arbitration provision in an email Trilegiant sent to them after they enrolled in the Great Fun program.

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Personal Jurisdiction for Internet Copyright Infringement Clarified

May the federal district court in Washington State exercise personal jurisdiction over an accused copyright infringer who lives in New York state for infringing content posted on the accused infringer’s website?  No, according to Judge Robert S. Lasnik of the Western District of Washington in Seattle.

Larry G. Johnson is an attorney in Washington State and the sole copyright owner of The Deposition Guide, A Practical Handbook for Witnesses.  Catharine M. Venzon is an attorney in New York state.  Venzon’s law firm posted scanned pages from Johnson’s book on its website.  Johnson sued Venzon and her law firm for copyright infringement in federal court in Washington State.  Venzon brought a motion to dismiss for lack of personal jurisdiction.  The district court granted the motion, focusing on whether Venzon’s conduct was expressly aimed at Washington State.

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Trickle-Down Economics Does Not Work for Either Copyright or the Economy as a Whole

Who would have thought that a book about copyright would contain anything that is relevant to this year’s presidential election?  William Patry’s book, How to Fix Copyright, does.  Patry’s discussion of trickle-down economics is so relevant to today’s political scene that it deserves a broader audience than just those who are interested in improving our copyright system.

In addition to the Republicans’ anti-women and anti-gay agendas, their arguments about economics are outrageous.  Their theory is that if taxes on the wealthy are decreased and taxes on the middle class are increased, the wealthy will have more money to invest in business and we will all be better off – a trickle-down theory.  Patry persuasively demonstrates that trickle-down theory does not work in practice. 

Patry describes how copyright has become a trickle-up system, with the ownership of copyrights and money flowing away from the artists into the hands of large corporations and staying there.  The U.S. economy has become a trickle-up system, too, with money flowing to the wealthiest people and staying there.  We have an opportunity in this election to reverse the trickle-up trend.

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Photographer Boffoli Sues Twitter Over His Disparity Series

Seattle photographer Christopher Boffoli sued Twitter in federal court in the Western District of Washington, Seattle.  Boffoli’s Disparity Series “comically pairs teeny human figurines with real-life foods in extreme close-up.”  Patrick Hutchison describes the Disparity Series in greater detail, and includes pictures, in his article Christopher Boffoli’s Strange Little Worlds

The Disparity Series seems to be popular among Twitter users.  Boffoli’s complaint alleges that Twitter users copy his registered Disparity Series photos without license, that the infringing photos are posted on Twitter or third-party servers, and that Tweets advertise or link to each infringing use.  The complaint further alleges that Twitter has not removed infringing uses from its servers or disabled links to infringing uses, despite receiving four Digital Millennium Copyright Act (DMCA) takedown notices from Boffoli.

Boffoli’s allegations against Twitter include copyright infringement, failure to comply with the DMCA and willful copyright infringement.  Boffoli seeks temporary and permanent injunctions, the destruction of infringing copies, actual damages or statutory damages plus damages for willful infringement, and attorney’s fees and costs.

This case is Boffoli v. Twitter, Inc., No. 12-01534, Western District of Washington, Seattle.

Homebuilder Infringes Copyrights By Posting House Drawings on Its Website

Scholz Design, Inc. obtained copyright registrations for homes it designed in 1988 and 1989.  Scholz submitted both technical drawings and front-elevation drawings, i.e., scale drawings of the fronts of the homes, to the Copyright Office.  Scholz entered into contracts with Sard Custom Homes, LLC, allowing Sard to construct homes from Scholz’s copyrighted home plans.  Sometime after the contracts ended, Sard posted Scholz’s front-elevation drawings on Sard’s websiteScholz sued Sard, alleging copyright infringement, trademark infringement, breach of contract and Digital Millennium Copyright Act (DMCA) violations.

Sard argued that Scholz’s drawings could not receive copyright protection, as they were registered prior to the effective date of the Architectural Works Copyright Protection Act (AWCPA) and they did not contain enough detail to construct a building.  The district court agreed with Sard and dismissed the complaint.  The Second Circuit reversed, vacated and remanded the district court’s ruling.

Copyright protection of a pictorial work, whether depicting a house, or a flower, or a donkey, or an abstract design, does not depend on any degree of detail.  The rights Scholz claims in this suit derive from the general copyright law and not from the AWCAP, which has no relevance to the suit.

(Opinion pdf page 8).

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