Addressing copyright infringement issues, the US Court of
Appeals for the Ninth Circuit affirmed the district court's
summary judgment in defendants' favor on direct, vicarious and
contributory infringement claims. Perfect 10, Inc. v. Giganews,
Inc., et al., Case Nos. 15-55500; -55523; -56026 (9th Cir.,
Jan. 23, 2017) (Nelson, J).
Giganews owns and operates several Usenet servers.
"Usenet" is a collection of people and organizations
whose computers are connected to one another and can therefore
exchange messages. Giganews provides its subscribers access to
content that Giganews stores on its own servers, as well as content
stored on other Usenet providers' servers. The content offered
through the Giganews servers is almost entirely provided by Usenet
users. Livewire Services (together with Giganews, the defendants)
provides its subscribers with access to the Usenet content stored
on Giganews' servers but does not own any Usenet servers.
Perfect 10 owns thousands of adult images, many of which have
been illegally distributed over Giganews' servers. Perfect 10
sent Giganews numerous "takedown" notices in connection
with these images. When Perfect 10's takedown notices included
machine-readable Message-IDs (the identification number for each
item), Giganews responded by taking down the infringing images.
When Perfect 10's notices included illegible Message-IDs,
Giganews asked Perfect 10 for the Message-IDs in a legible,
machine-readable format, which Giganews claims Perfect 10 failed to
Under the Copyright Act, the copyright owner exclusively owns
the right to display, distribute and reproduce its work. Perfect 10
sued defendants for direct, contributory and vicarious copyright
infringement of these rights. The defendants successfully moved to
dismiss the right to display claim on the pleadings. As to other
counts, the district court found in favor of the defendants.
Perfect 10 appealed.
On appeal, the Ninth Circuit agreed with the district court that
Perfect 10 failed to plead infringement of its display rights.
According to the Court, the fact "that users may use
Giganews' reader to display infringing images does not
constitute volitional conduct by Giganews." Distinguishing its
earlier panel decision in Perfect 10 v. Amazon.com, where
the Court held that Google controlled the storage and communication
of the thumbnails, the Court here found that Giganews had a passive
role and did not control the images.
The Ninth Circuit further agreed with the district court that
defendants did not directly infringe Perfect 10's distribution
and reproduction rights because these acts occurred automatically
when the users viewed the images. The Court found that Giganews did
not contributorily infringe Perfect 10's copyrights because it
did not "materially contribute to or induce
infringement" of the copyrights. Finally, the Court found that
Perfect 10's vicarious copyright infringement allegations were
deficient because Perfect 10 failed to establish that defendants
received a direct financial benefit from the infringing
In Wasica Finance GmbH v. Continental Automotive Systems, Inc., No. 15-2078 (Fed. Cir. 2017), the patentee Wasica Finance discovered, among other things, the importance of using consistent terminology in the patent specification and claims.
While under attack for several years now, the patent infringement defense of laches was dealt a serious, and likely final, blow by the recent Supreme Court case of SCA Hygiene Products AB et al. v. First Quality Baby Products LLC et al.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
On April 6, 2017, the Federal Circuit reversed-in-part and affirmed-in-part the district court's judgment of infringement and summary judgment for non-infringement of The Medicines Company's ("MedCo") patents-in-suit.
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