I recently compiled a list of the biggest developments in copyright law in 2008, based on a not very systematic survey. I thought it would be worth sharing here, as I know that I often wish for lists like this myself. So here for your perusal is my list, grouped by topic:

Legislation

• PRO-IP Act, P.L. No. 110-403. The latest in Congress’s attempts to respond to the digital revolution by beefing up penalties. The PRO-IP Act gives the DOJ the ability to bring civil infringement cases, provides that harmless errors do not invalidate registrations, adds forfeiture as a penalty for criminal copyright infringement, increases funding for law enforcement investigation of copyright and trademark violations, and creates the position of Intellectual Property Enforcement Coordinator (i.e., “IP Czar”).

Licenses

• Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008). One of the first times an open source license has been held enforceable; in particular, the Federal Circuit held that breach a license provision requiring attribution can be copyright infringement. But see Mike Madison’s update on the remand.
• Asset Marketing Systems, Inc. v. Gagnon, 542 F.3d 748 (9th Cir. 2008). A useful implied license case. The Ninth Circuit holds that the purchaser of a computer program designed specially for its needs has an implied license to use it even after the parties parted ways, where there was no express agreement otherwise.

Infringement by individuals

• IO Group v. Veoh Networks, Inc., ___ F. Supp. 2d ___, 2008 WL 4065872 (N.D. Cal. Aug. 27, 2008). A preview of Viacom v. YouTube? I don’t think so, but some do. A California district court holds that automatically transcoding videos into a uniform format does not make a YouTube-like service into a direct infringer; and rejects IO’s argument that “red flags” existed putting Veoh on notice of the infringement.
• Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008). Prince has his label send a takedown notice to YouTube for a video posted by a mother of her toddler dancing to a nearly unrecognizable Prince song. Held: sending a 512 notice for an obvious fair use can subject the copyright owner to 512(f) penalties.
• Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210 (D. Minn. 2008). A new trial is granted in the Jammie Thomas peer-to-peer infringement case, due to a jury instruction stating that merely “making available” copies of a work is a violation of the public distribution right.
• London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153 (D. Mass. 2008). “Making available” is not distribution, but can be evidence of distribution; electronic files are material objects.

Fair use

• Warner Bros. Entertainment Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008). The Harry Potter Lexicon is held to be infringing and not fair use, given extensive borrowing of passages and descriptions from the novels and other Harry Potter materials. [On appeal to the Second Circuit.]
• Lennon v. Premise Media Corp., 556 F. Supp. 2d 310 (S.D.N.Y. 2008). Lennon’s heirs sue the makers of the film, “Expelled,” for use of a short segment from Lennon’s composition, “Imagine,” used to illustrate an argument made in the film. The defendants argue they used that song due to its “cultural force.” Held: fair use.
• EMI Records Ltd. v. Premise Media Corp., Index No. 601209/08 (N.Y. Sup. Ct. Aug. 8, 2008), available here. A New York state trial court holds that the use of the sound recording in “Expelled” was fair use under New York common law.
• Peter Letterese & Associates, Inc. v. World Institute of Scientology Enterprises, 533 F.3d 1287 (11th Cir. 2008). The copyright owner of a sales textbook sues the Church of Scientology for developing course materials based on the book. The 11th Circuit holds that the fourth fair use factor favors the plaintiff for some of the materials even though the plaintiff concedes there is no plan to ever exploit any market.
• Savage v. Council on American-Islamic Relations, Inc., 2008 WL 2951281 (N.D. Cal. July 25, 2008). CAIR’s use of four minutes of excerpts from one of Savage’s radio programs is held to be fair use, despite Savage’s attempt to link the copying to an alleged terrorist conspiracy (no, I’m not making this up).

Litigation strategy

• Stuart Weitzman, LLC v. Microcomputer Resources, Inc., 542 F.3d 859 (11th Cir. 2008). An alleged infringer has to wait until the copyright owner registers the work before it can seek a declaratory judgement of non-infringement.
• Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008). A takedown notice supports personal jurisdiction in the forum where the site owner resides, even if the ISP is not located there.
• London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153 (D. Mass. 2008). Court holds that additional protections are necessary in identifying anonymous defendants.
• Peter Letterese & Associates, Inc. v. World Institute of Scientology Enterprises, 533 F.3d 1287 (11th Cir. 2008). The 11th Circuit wades into a Circuit split, holding that laches can bar actions within the statute of limitations period, but only for damages, never for injunctive relief.

Distribution

• Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). Major movie and television companies sue Cablevision over its “remote DVR” plan, whereby subscribers can designate programs to be recorded and stored on Cablevision’s servers. The plaintiffs argue that a temporary copy made by Cablevision, and the permanent copy made at the request of subscribers, are both acts of direct infringement. The 2nd Circuit disagrees, rejecting MAI v. Peak Computing, and holding that the permanent copy is made by the subscriber, not by Cablevision, because no human at Cablevision ever intervenes. [Petition for cert. pending; Solicitor General’s views requested.]
• Vernor v. Autodesk, Inc., 555 F. Supp. 2d 1164 (W.D. Wash. 2008). The first sale doctrine is applied to resale of AutoCAD, despite language in the license to the original purchaser that indicated that the transaction was not a “sale” and that redistribution was prohibited.

Circumvention

• Blueport Co. v. U.S., 533 F.3d 1374 (Fed. Cir. 2008). The United States has not waived sovereign immunity for para-copyright claims, such as DMCA anti-circumvention claims, under the Tucker Act.

Excerpts

• Gottlieb Development LLC v. Paramount Pictures Corp., — F.Supp.2d —, 2008 WL 5396360 (S.D.N.Y. Dec. 29, 2008). Fuzzy views of copyrighted designs on pinball machine in the background of a scene in “What Women Want” held de minimis. Compare Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998) (“Seven” case); Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).
• Lennon v. Premise Media Corp., 556 F. Supp. 2d 310 (S.D.N.Y. 2008). Use of 15 seconds of Lennon’s song to illustrate an argument held fair.
• Peter Letterese and Associates, Inc. v. World Institute of Scientology Enterprises, 533 F.3d 1287 (11th Cir. 2008). The copyright owner of a sales textbook sues the Church of Scientology for developing course materials based on the book. The court holds that the materials are insufficiently similar to constitute a derivative work but sufficiently similar to potentially infringe the reproduction right (huh?).

Authors

• Siegel v. Warner Bros. Entertainment Inc., 542 F. Supp. 2d 1098 (C.D. Cal. 2008). “Against all odds” (Patry on Copyright § 7:52) an author’s heirs manage to actually terminate a pre-1978 grant—and not just any grant, but the 1938 assignment of the rights to Superman. Ka-pow! Bonus: the opinion attaches the very first Superman comic, in color.
• Penguin Group (USA) Inc. v. Steinbeck, 537 F.3d 193 (2d Cir. 2008). Steinbeck’s heirs? Not so lucky. Renegotiating the original grant post-1978 terminated the right to terminate.
• Richlin v. Metro-Goldwyn-Mayer Pictures, Inc., 531 F.3d 962 (9th Cir. 2008). Co-author of a “treatment” for the Pink Panther film did not thereby become a co-owner of the copyright in the film.

Copyrightability

• Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008). Digital wire-frame computer models of actual car not sufficiently original to be copyrightable.

Industry regulation

• Leadsinger, Inc. v. BMG Music Publishing, 512 F.3d 522 (9th Cir. 2008). Section 115 compulsory mechanical license does not cover printing of lyrics onscreen on a karaoke machine. For that, you need a (non-compulsory) synch license.
• Greenberg v. National Geographic Soc., 533 F.3d 1244 (11th Cir. 2008) (en banc). Tasini lives! The full 11th Circuit holds, 7-5, that a National Geographic CD containing PDFs of past issues is a “revision” under Tasini because it presents the contributions in their original context.

1909 Act fun

• Societe Civile Succession Guino v. Renoir, 549 F.3d 1182 (9th Cir. 2008). Renoir sculptures published in France in 1917 will be protected in the U.S. until 2043, because they were neither in the public domain nor protected by copyright as of Jan. 1, 1978. The court admits that its reasoning entails that a newly discovered ancient Greek sculpture could receive copyright protection until 2047.
• EMI Records Ltd. v. Premise Media Corp., Index No. 601209/08 (N.Y. Sup. Ct. Aug. 8, 2008), available here. A New York state trial court holds that fair use is a defense to a New York common law copyright claim (for pre-1972 sound recordings).

Right of publicity

• Romantics v. Activision Pub., Inc., 574 F. Supp. 2d 758 (E.D. Mich. 2008). The video game “Guitar Hero” contains a new recording of the song “What I Like About You,” licensed from the composition copyright owner. The Romantics sued on a Midler-type “sound-alike” right of publicity claim. The defendants win a trifecta: the recording didn’t violate Michigan’s right of publicity, and even if it did, the claim would be barred by the First Amendment and preempted by the Copyright Act.