The United States Supreme Court, in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., a recent 6-3 decision, found that innocent legal errors in copyright applications do not preclude copyright holders from taking advantage of the safe harbor provision of the Copyright Act, which protects registrants from having their copyrights invalidated due to inadvertent errors. The Court’s ruling therefore made clear that such errors in copyright applications—including both mistakes of law and mistakes of fact—will rarely be the basis for invalidation.
When there is a right, there is a remedy—or so the maxim goes. But when a state infringes upon your copyright, such a remedy may be more difficult to obtain. Just a year ago, the Supreme Court held in Allen v. Cooper that the Copyright Remedy Clarification Act did not abrogate a state’s sovereign immunity, and therefore, absent consent, sovereign immunity prevents suits for copyright infringement against a state. Are there any exceptions to this rule? Are there alternatives causes of action or remedies available? That is the question plaintiffs-appellants posed in Canada Hockey, L.L.C. v. Texas A&M Univ. Athletic Dep’t. And the answer, at least in federal court in the Fifth Circuit, is no, though the Fifth Circuit left open the possibility for recovery in state court.
Judge Jed Rakoff of the Southern District of New York recently denied a motion to dismiss in a copyright dispute involving the unlicensed “embedding” of a social media video. In doing so, the court explicitly and definitively rejected the Ninth Circuit’s “server rule,” under which the Ninth Circuit held that re-posting of online content does not constitute a separate act of infringement where the infringing copy is stored only on third party servers. Instead, Judge Rakoff held that by re-posting the copyrighted content online, defendants had implicated plaintiffs’ exclusive display right – regardless of whether they created and stored a copy on their own servers. The opinion states that to hold otherwise would be to “make the display right merely a subset of the reproduction right.” Nicklen v. Sinclair Broadcast Group, Inc., et al.