Our law firm helps individuals and companies fight against claims, charges and allegations of federal copyright infringement. Federal copyright law is a very powerful law for copyright holders, and lawsuits involving infringement can be some of the most damaging allegations made against you or your brand which your opponent will try to paint as a “pirate” or “infringer.” When this happens, you need intellectual property litigators at your side.
Overview of federal copyright infringement possible defenses – I have a license!
One defense that can be raised in a copyright infringement case is that you have a valid license to use the copyrighted work. This could include either a oral license, or a written license which allows you to use the copyright work, or you could have an “implied license.” As a legal matter, implied and oral license present the toughest issue.
As the Federal Court discussed in John G. Danielson, Inc. v. Winchester-Conant Properties, Inc. (1st Cir. 2003) 322 F.3d 26, 40-41:
(1) whether the parties were engaged in a short-term discrete transaction as opposed to an ongoing relationship;
(2) whether the creator utilized written contracts providing that copyrighted materials could only be used with the creator’s future involvement or express permission;and
(3) whether the creator’s conduct during the creation or delivery of the copyrighted material indicated that use of the material without the creator’s involvement or consent was permissible.
“Gagnon argues that he never intended that AMS would retain and modify the programs he delivered. Gagnon misunderstands the inquiry into intent, and we conclude that his conduct did manifest an intent to grant a license. The relevant intent is the licensor’s objective intent at the time of the creation and delivery of the software as manifested by the parties’ conduct. See Effects, 908 F.2d at 559 n. 6 (noting that “every objective fact concerning the transaction” supported the finding that an implied license existed); see also John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26, 42 (1st Cir.2003); I.A.E., 74 F.3d at 777.
The concept or oral license was discussed in Crispin v. Christian Audigier, Inc. (C.D. Cal. 2011) 839 F.Supp.2d 1086, 1092:
A written agreement to license software is an example of a written licensing agreement. When your company “buys” copyrighted software, in most cases, you are merely “licensing” the right to use the software subject to some exceptions. This concept was discussed in Vernor v. Autodesk, Inc. (9th Cir. 2010) 621 F.3d 1102, 1110-11:
“We read Wise and the MAI trio to prescribe three considerations that we may use to determine whether a software user is a licensee, rather than an owner of a copy. First, we consider whether the copyright owner specifies that a user is granted a license. Second, we consider whether the copyright owner significantly restricts the user’s ability to transfer the software. Finally, we consider whether the copyright owner imposes notable use restrictions. Our holding reconciles the MAI trio and Wise, even though the MAI trio did not cite Wise. See Cisneros-Perez v. Gonzales, 451 F.3d 1053, 1058 (9th Cir.2006) (“[W]e are required to reconcile prior precedents if we can do so.”
The terms of your software license agreement may need to be reviewed, for example in a BSA software audit. Copyright licensing issues can be very complex. For example, we have tried to review a Getty images copyright license agreement. You should try to read through this when you have some free time. It can be very difficult to understand what your rights and limitations are, and there are some terms, words, and phrases (not to mention complex legal concepts) that contain a high degree of ambiguity basically needing an intellectual property lawyer to review and try to decipher it.
Copyright Infringement Lawyers
If your company is facing copyright infringement issues (ex charged with a accused of a criminal copyright matter or willful copyright infringement), or breach of software licensing agreement, including software compliance investigations that threaten infringement lawsuits, give us a call to discuss your case in confidence. We can reached at (877) 276-5084. If you prefer, you can fill out the form below and have one of our lawyers contact you. We offer low flat rate fees in BSA software license and copyright infringement cases.
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