Canada Hockey LLC v. Texas A&M University

Post publish date: September 1, 2019

Sports author filed a lawsuit against state university, alleging a university entity copied an unpublished chapter of his work and posted it to their website without permission. Defendants moved to dismiss, claiming sovereign immunity.

The Southern District of Texas granted the motion to dismiss for all except one defendant. Claims against the Texas A&M Athletic Department were dismissed because the department is not a separate legal entity and lacks capacity to be sued. The ability to substitute the University itself as the proper defendant failed because it is a state entity and protected by sovereign immunity.

The Court declined to extend the Supreme Court’s holding in Central Virginia Community College v. Katz546 US 356 (2006), which held that Congress can abrogate state sovereign immunity under its Article I Bankruptcy Clause power, to copyright claims. In addition, because the district court is in the Fifth Circuit, it is bound by that court’s Chavez holding, which held that Congress did not properly abrogate state sovereign immunity for infringement claims when it passed the Copyright Remedies Clarification Act–but the Court does say in a footnote: “Although Plaintiffs ask the Court to circumvent binding precedent, and this Court is of course bound by the Fifth Circuit precedent before it and ultimately declines to adopt their reasoning, the Court thought the Plaintiffs’ arguments were worth noting.”

Plaintiff’s state takings claims were dismissed as barred by sovereign immunity, and its Federal takings claims were dismissed for not being ripe because plaintiffs failed to allege that they pursued claims in state court under Texas’s inverse condemnation procedure, which is required before alleging a federal takings claim.

Plaintiff also brought the same claims against three individual employees of the Department acting in their individual capacities. The Court denied dismissal of direct and contributory infringement and violations of 1202 against one of them, Marquardt (who was alleged to have actually found Bynum’s manuscript and had his secretary upload it to the University’s website), finding that the complaint adequately alleged facts showing he did not have qualified immunity. Claims against the other two individuals were dismissed.

Procedural History

Status: District Court for the Southern District of Texas affirmed motion to dismiss in part and denied motion in part. (March 29, 2019)

Order on Motion to Dismiss (March 29, 2019)

Sur-reply in opposition to defendants’ motion to dismiss (May 21, 2018)

Motion for leave to file sur-reply opposing defendants’ motion to dismiss (May 21, 2018)

Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss (November 30, 2017)

First Amended Complaint (April 17, 2017)

Complaint (Jan. 19, 2017)

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Brammer v. Violent Hues

Post publish date: April 1, 2019

Photographer Russell Brammer sued Violent Hues Productions for copyright infringement after the company used a copy of Brammer’s photograph on a website promoting its film festival, without permission. In June 2018, the U.S. District Court for the Eastern District of Virginia, on a motion for summary judgment, found in favor of Violent Hues, stating that the use constituted fair use. Brammer appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the district court made both legal and factual errors in granting the motion and applying the fair use factors.

On April 26, the Fourth Circuit reversed the district court decision. The court held that Violent Hues’ copying was not transformative because it made only minimal changes to Brammer’s photo’s context and content. It also held that the use was commercial; that Violent Hues’ claim of good faith does not aid its fair use defense; the district court erred in finding the published status of the photo weighed in favor of fair use; the third factor weighed against fair use because Violent Hues copied roughly half of the photo, and the portion taken constituted the “heart” of the work; and the taking would cause market harm.

Procedural History

Status: Fourth Circuit reversed and remanded.  (April 26, 2019)

Fourth Circuit Court of Appeals Decision (April 26, 2019)

U.S. District Court for the Eastern District of VA (June 11, 2018)

Amicus Briefs

Copyright Alliance

National Press Photographers Association, American Society of Media Photographers, Graphic Artists Guild, and American Photographic Artists

Digital Media Licensing Association (DMLA)

Arts & Entertainment Advocacy Clinic at Scalia Law School

Volunteer Lawyers for the Arts

Digital Justice Foundation

Violent Hues Production, LCC

More Copyright Cases here.

VHT v. Zillow

Post publish date: March 1, 2019

Zillow uses VHT’s photos to display in home listings on its main website. However, Zillow continued to use these photos on expired home listings and additionally used these works on their “Digs” site which was focused on home interior designs. VHT eventually sued Zillow in the Western District of Washington for copyright infringement of photographs of homes used on Zillow’s listing site and “Digs” site.

Judge Robart granted Zillow summary judgment on the volitional conduct claim and denied both parties’ summary judgment motions on direct and secondary infringement claims regarding the “Digs” site. The jury found Zillow liable for willful infringement and awarded VHT around $8 million in combined statutory and actual damages. Judge Robart reduced the award to around $4 million and only found Zillow liable for infringements of certain photographs. Judge Robart additionally found insufficient evidence to support the jury’s verdict on secondary liability. Both parties filed cross-appeals to the Ninth Circuit Court of Appeals.

The Ninth Circuit affirmed in part, reversed in part, and remanded on March 15, 2019. VHT filed a cert petition, which was distributed for conference by the Supreme Court October 1, 2019.

Court Opinions

Western District of Washington


On Appeal to the Ninth Circuit Court of Appeals

Party Filings:

  • VHT Inc.’s Brief
  • Zillow’s Brief

Amicus Briefs:


Fourth Estate v.

Post publish date:

Although copyright protection for US works is automatic, registering a copyright provides several benefits to copyright owners, including the ability to file a lawsuit for infringement. However, courts have split regarding whether the Copyright Act allows a copyright owner to file a lawsuit as soon as she has submitted all the materials required for a registration application, or whether she can only file suit after the Copyright Office has acted on the application by either issuing a certificate or rejecting the application. The difference may be significant, given that it currently takes an average of six months for the Copyright Office to process applications.

Fourth Estate Public Benefit Corporation, an online news producer, licensed some of its articles to, a news website. The license agreement required to remove any Fourth Estate produced articles once the license expired, but declined to do so. Fourth Estate brought a copyright infringement claim against, but Wall-Street moved to dismiss the claims on the grounds that Fourth Estate could not sue until after the Copyright Office acted on its copyright registration application. The United States District Court for the Southern District of Florida granted’s motion to dismiss, and the United States Court of Appeals for the Eleventh Circuit affirmed. In October 2017, Fourth Estate filed a Petition for Writ of Certiorari with the Supreme Court of the United States. Cert was granted and the Court heard oral arguments January 8, 2019.

The Supreme Court affirmed, holding that registration occurs, and a copyright claimant may commence an infringement suit, only after the Copyright Office registers a copyright or refuses registration.

Procedural History

– Supreme Court decision (March 4, 2019)
– Supreme Court Oral Arguments Transcript (January 8, 2019)
– Eleventh Circuit decision (May 18, 2017)

Status: Supreme Court affirmed. (March 4, 2019)

Party Filings:

– Fourth Estate Reply Brief (Nov. 13, 2018)
– Brief (Oct. 11, 2018)
– Fourth Estate Brief (Aug. 27, 2018)
– Fourth Estate Supplemental Brief (Cert) (June 5, 2018)
– Fourth Estate Reply Brief (Cert) (Dec. 13, 2017)
– Brief in Opposition (Cert) (Nov. 28, 2017)
– Petition for Writ of Certiorari (Cert) (Oct. 13, 2017)

Amicus Briefs

In Support of (Certificate Approach)

– United States (Cert) (May 16, 2018)
– U.S. Government (Oct. 18, 2018)
– Public Knowledge and R Street (Oct. 18, 2018)
– Washington Legal Foundation (Oct. 18, 2018)
– “Authors and Educators” (Peter Jaszi) (Oct. 18, 2018)

In Support of Fourth Estate Public Benefit Corporation (Application Approach)

– Copyright Alliance (Sept. 4, 2018)
– American Bar Association (Sept. 4, 2018)
– NMPA, RIAA, ASCAP, BMI, NSAI, and SONA (Sept. 4, 2018)
– Authors Guild and other Authors’ Rights Organizations (Sept. 4, 2018)
– International Trademark Association (Sept. 4, 2018)

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Rimini Street v. Oracle

Post publish date:

Oracle brought claims, including copyright infringement claims, against Rimini Street, which provided third-party support for Oracle software and, in doing so, copied and distributed software updates without authorization. Oracle prevailed on its infringement claims in the district court, decisions that the Ninth Circuit affirmed. The Ninth Circuit also rejected Rimini Street’s argument that the district court erred when it awarded court costs under 17 USC §505 that were not considered taxable costs under 28 USC § 1920.

Rimini Street appealed to the Supreme Court, which granted cert on the question, “Whether the Copyright Act’s allowance of ‘full costs,’ 17 U.S.C. § 505, to a prevailing party is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits have held, or whether the act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.”

The Supreme Court reversed, holding that “full costs” means only the costs specified in the general costs statute, §§1821 and 1920.

Procedural History

Status: Supreme Court reversed in part and remanded. (March 4, 2019)

Decisions and Arguments

Rimini Street v. Oracle, Supreme Court decision (March 4, 2019)

Rimini Street v. Oracle, Supreme Court oral argument transcript (January 14, 2019)

Oracle v. Rimini Street, Ninth Circuit decision (January 8, 2018)

Briefs and party filings

Supreme Court

Rimini Street v. Oracle, Reply Brief for Petitioners (January 4, 2019)

Rimini Street v. Oracle, Brief for Respondents (December 13, 2018)

Rimini Street v. Oracle, Brief for Petitioners (November 13, 2018)

Amicus briefs in support of Oracle

Amicus briefs in support of Rimini Street or neither party

Petition for Certiorari

Rimini Street v. Oracle, Rimini Street reply brief (August 14, 2018)

Rimini Street v. Oracle, Oracle brief in opposition (August 1, 2018)

Rimini Street v. Oracle, Rimini Street cert petition (May 31, 2018)

Capitol Records v. ReDigi

Post publish date: December 1, 2018

Capitol Records sued ReDigi—which “invites users to ‘sell their legally acquired digital music files, and buy used digital music from others at a fraction of the price currently available on iTunes’”—for direct and secondary copyright infringement. In March 2013, the United States District Court for the Southern District of New York ruled in favor of Capitol Records, finding ReDigi liable for direct, vicarious, and contributory infringement for its unauthorized reproduction and distribution of Capitol Records’ copyrighted sound recordings. ReDigi appealed to the Second Circuit.

On December 12, 2018, the Second Circuit affirmed the district court’s decision, holding that ReDigi infringed the reproduction right of Plaintiffs and was not protected by the first sale doctrine or fair use.

In an opinion written by Judge Leval:

  • The court affirmed the holding that Redigi’s service created a new copy of a sound recording, and the reproduction right is not subject to the first sale doctrine, which applies solely to a particular phonorecord.
  • The court declined to weigh in on whether Redigi engaged in a distribution of a phonorecord through its service.
  • The court rejected Redigi’s argument that its technical process of deleting the original copy of the file in the course of reselling a sound recording does not constitute a reproduction, holding that the deletion does not nullify the fact that a reproduction has been made.
  • The court rejected ReDigi’s fair use argument, finding
    • (1) under the first fair use factor, the reproduction is not transformative or add nothing new, and that, given the total absense of transformative purpose, the commercial motivation weighs against a finding of fair use under this factor;
    • (2) the second fair use factor plays no role here;
    • (3) the copying of the entire digital file disfavors fair use under the third factor; and
    • (4) “Factor Four weighs powerfully against fair use”, in particular because, unlike used physical copies, “used” digital files are identical to “new” digital files, and thus Redigi’s marketplace directly competes with Plaintiff’s primary market.
    • Weighing the factors together, and relying heavily on the Second Circuit’s TVEyes decision, the court concluded there was no justification for fair use here, saying “Even if ReDigi is credited with some faint showing of a transformative purpose, that purpose is overwhelmed by the substantial harm ReDigi inflicts on the value of Plaintiff’s copyrights through its direct competition in the rights holders’ legitimate market, offering consumers a substitute for purchasing from the rights holders.”
  • Finally, the court rejected the policy-based arguments made by copyright law professors in an amicus brief supporting ReDigi that the first sale doctrine should be applied broadly to protect ReDigi “to vindicate purchasers’ ability to alienate digital copyrighted works under the first sale doctrine—emphasizing that §109(a) is styled as an entitlement rather than a defense to infringement—without regard to technological medium.” The court concluded, “If ReDigi and its champions have persuasive arguments in support of the change of law they advocate, it is Congress they should persuade. We reject the invitation to substitute our judgment for that of Congress.”

Procedural History

Second Circuit decision (Dec. 12, 2018)

Southern District of New York (Mar. 30, 2013)

Status: Supreme Court denied certiorari. (June 24, 2019)  Second Circuit affirmed the District Court for the Southern District of New York’s ruling. (December 12, 2018)

Amicus Briefs

  • AAP (May 12, 2017)

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Spanski v. Telewizja

Post publish date: March 1, 2018

Spanski Enterprises, Inc., sued Polish broadcaster, Telewizja Polska (“TV Polska”), for infringing on Spanski’s exclusive North and South American performance rights in TV Polska’s programs. Despite licensing Spanski the exclusive North and South American public performance rights to these programs, TV Polska streamed them on its video-on-demand system and failed to properly geoblock, making them accessible to North and South American internet users.

In December 2016, the District Court of the District of Columbia held TV Polska liable for directly infringing Spanki’s exclusive United States performance rights and awarded Spanski around $3 million in damages for willful infringement. TV Polska subsequently appealed on both issues of liability and infringement.

In March 2018, the Court of Appeals for the District of Columbia upheld the district court’s rulings on both infringement and damages. The Court found that TV Polska’s actions clearly fell within the Copyright Act’s definition of performing a work publicly, and that “TV Polska played a more active role in performing infringing content than did Aereo,” as TV Polska “purposefully selected” the copyrighted content. The Court also concluded that even if an infringing performance originates abroad, it is still actionable if it “ultimately reaches viewers in the United States.”

Procedural History

Status: Court of Appeals for the District of Columbia affirmed. (March 2, 2018)

Court of Appeals for the District of Columbia (Mar. 2, 2018)

District Court for the District of Columbia (Dec. 2, 2016)

Amicus Briefs

U.S. Copyright Office