September 20, 2003

3rd Circuit On Copyright Misuse Defense

In 3rd Circuit Breaks New Ground on Copyright Misuse, 8/26/03., Tech Law Journal summarizes and discusses the August 2003 decision in Video Pipeline v. Buena Vista Home Entertainment . This extended note includes a review of the history of copyright misuse through the Lasercomb and subsequent decisions. (Read more ... )

The perceived offense in Video Pipeline was suppression of criticism, rather than unfair competition or violation of antitrust law. Such use by the rights holder undermines the purpose of copyrights derived from the United States Constitution, said the Court, which in the end found the defense inapplicable in the facts of Video Pipeline's case.

The commentator also briefs a decision by Judge Posner in Ty v. Publications International (7th Cir. 2002), involving the manufacturer of "Beanie Babies" and a publisher of books about the collection of such toys. Ty sued to prevent the publisher's unlicensed use of images of the toys, which are copyrighted by Ty. In his opinion, Judge Posner discussed the potential for using a copyright monopoly in one market (the toys) to take over and monopolize a second market (the publication of critical guides). He wrote that "ownership of a copyright does not confer a legal right to control public evaluation of the copyrighted work."

Judge Posner noted some of Ty's actions to suppress criticism by licensees. Ty reserved rights to veto any text in the publisher's guides. It forbade licensees to reveal that they were licensees of Ty. Despite Ty's control over content, it required licensees to expressly disclaim sponsorship or endorsement by or affiliation with Ty. But the facts of the case did not require determination of the issue, so Judge Posner left it with the sentence "We need not consider whether such a misleading statement might constitute copyright misuse, endangering Ty's copyrights."

The TechLawJournal commentator continues with a discussion of several other possible factual contexts in which the theory in the Video Pipeline and the Ty cases might be applied in 3rd Circuit Breaks New Ground on Copyright Misuse, 8/26/03.

DougSimpson.com/blog

Posted by dougsimpson at September 20, 2003 04:06 PM | TrackBack
Comments