A Legal Blog by Aaron | Sanders, PLLC


The Aftermarket Holy Grail: Using Software Copyrights to Control Replacement Parts

Intellectual Property and Personal Property: Two Great Tastes That Might Not Taste Great Together

When everything runs on software, then everything will be subject to copyright protection, and you might not like the consequences. Let’s take cars, for example. In the old days, if your car needed a new distributor cap, you’d go down the neighborhood auto supply shop, and you would have several different manufacturers competing for your money, which keeps the price for replacement parts low. One of the manufacturers might be “authorized” by the car manufacturer and appropriately branded. And that one might command a somewhat higher price because of that association and the sense that it will somehow work better with your car. That premium is the result of branding—and trademark law—and years of hard work building up the brand.

The Right to Distribute Distributors

Slap a little computer module on the distributor cap, and the car manufacturer has a lot more control over who can manufacture replacement distributor caps. That’s because the computer module requires software, and software is made up of characters, and that makes it a literary work that is subject to copyright protection. It doesn’t matter if the only characters involved are 0 and…

Plug and play! (But where does the software come from?)

Read More»

What Two Hamburger Commercials Tell Us About Early Dismissal of Copyright Cases

Sealing in the Juices While Sealing Out the Lawsuits

It’s sadly true that many copyright cases are garbage, and obviously so, even at a glance. In many circuits, fortunately, trial courts are permitted to subject copyright claims to a kind of smell test. Before the case even really gets going, the defendant may move to dismiss the case under “Rule 12(b)(6).” With this kind of a motion, the court assumes everything in the complaint is true, and limits itself to just what is in the complaint. This rule is a kind of filter, where hopeless lawsuits can be thrown out before the parties really start spending money.

Most Rule 12(b)(6) motions fail because most lawyers can write a complaint well enough to avoid dismissal. You just have to make sure you allege facts that, if true, would have a decent chance of convincing a jury of your client’s claim. That one of your key allegations might rest on some shaky evidence is a problem for another time, so long as you have a good-faith basis that you’ll be able to prove the point.

Tests for “Substantial Similarity” Are Themselves Not Substantially Similar. How Ironic.

But in many circuits copyright claims are a bit…

Read More»

Oracle v Google: The Jury Has Spoken, But What Did it Say?

Note: This post and those following rely on and are indebted to live-tweeting by Sarah Jeong and Mike Swift of the trial. Jeong storified the trial here. You can find Swift’s twitter feed here. I also reference the jury instructions, which you can find here.

Once a Year, Everyone Pays Attention to Copyright (and Finds Something They Don’t Like)

It’s been only a little more than a year since a jury has rendered a controversial verdict in a closely watch-ed copyright case. That case, of course, was the “Blurred Lines” case, which led much furrowing of brows and some gnashing of teeth about whether, if verdicts like this become a trend, songwriting will become too risky to pursue. While there is evidence that “Blurred Lines” really is part of a trend in music cases, songwriting is not doomed, as I explained at the time.

The jury’s recent finding of fair use in Google v. Oracle has led to some wringing of hands, knowing tut-tutting, and even some exuberance:
* All copyright in software is doomed, especially free software.
* It’s nice and all for Google, but everything is already terrible because APIs were found to be copyrightable and fair use is a poor…

The waters of Redwood Shores appear peaceful, but lurking, lurking, lurking... Photo by Hokan Dahlström http://www.dahlstroms.com

Read More»

Are You a Phony if You Parody “Three’s Company”?

Holden Caulfield Watches a 70’s Sitcom. Hilarity Doesn’t Ensue.

If television shows are as influential as most people assume they are, I’m amazed that I wound up a productive member of society. My parents let me watch things that should have scarred any seven-year-old for life: Love Boat, Fantasy Island, That’s Incredible, I, Claudius, Diff’rent Strokes and Three’s Company, among other shows full of sex, violence, bullshit, stereotypes and empty calories

You younguns might not believe this, but there was a time when (1) TV was the primary form of entertainment, (2) you only had a few channels to choose from, and (3) most of it was awful. In the same way an app that costs $1.99 today is better than an Atari 2600 cartridge that cost $19.99, much of quasi-professional YouTube is better than what we had to watch in 1977. I get as nostalgic for my childhood as the next guy, but even I can see my children have it way better.

Three’s Company was a pretty execrable show. The plot (borrowed from a British television show called Man About the House) is about a straight man (an aspiring chef) who must pretend to be gay in order to live…

The three principal characters and two supporting characters. This photograph was taken in 1977 and apparently published without a copyright notice, so there.

Read More»

The Lines of Copyright Infringement Have Always Been Blurred

I swear the title of this post is the only time I’ll be making that pun.

The “Blurred Lines” case was actually highly unusual because of a key principle of copyright law that has not been discussed much at all: access. When the alleged infringement is “non-literal” (i.e., not word-for-word or note-for-note), you have to prove that the alleged infringer had “access” to the underlying work. This is usually very difficult to prove, because proof of access usually rests with the alleged infringer, who has little incentive to remember things correctly. But in this case, Robin Thicke told a magazine that he and Pharrell Williams not only were exposed to “Got to Give it Up,” but they had its “groove” in mind immediately before they wrote it. After that, it was just a (still difficult) matter of experts and a jury’s gut instinct, and here we are.

If this case exposes a problem, it’s that the law governing copyright infringement is so varied and inconsistently applied, and it relies to such a large extent on a jury’s gut feeling, that it’s difficult for artists to know when they’re too similar to works that they have frankly been inspired by. But it’s…

Read More»