If the beginning of 2009 is any indication, there seems to be a couple of new trends in copyright litigation.  The first trend is suits alleging copyright infringement against those who illegally access a copyright owner's website to view copyright content that they don't have permission to view.  Presumably, such illegal access violates the copyright owner's exclusive rights of display and distribution under the Copyright Act.   Examples of these claims can be seen in two cases:

• CoStar Realty Information sued Dumann Realty for copyright infringement in the U.S. District Court for the District of Maryland, alleging that the defendant’s managers illegally accessed the CoStar website by using another customer’s user information to access the site.  Through its website, CoStar provides its clients with real estate information by charging a subscription which costs hundreds of dollars a month.  In the complaint, CoStar argues that, by accessing its website illegally, Dumann’s managers engaged in the illegal distribution of CoStar’s content in violation of the Copyright Act.  Costar is demanding that Dumann pay $150,000 for each instance of infringement.

• In The Financial Times Limited v. The Blackstone Group L.P., the Financial Times sued the Blackstone Group in the U.S. District Court for the Southern District of New York for copyright infringement and violation of the Computer Fraud and Abuse Act (CFAA) alleging that Blackstone allowed multiple employees to access thousands of Financial Times articles online through plaintiff’s website (www.FT.com) using a single user ID, instead of paying for individual user IDs for each user.  According to the compliant, a senior manager at Blackstone registered an account and then permitted thousands of articles to be accessed by employees and others from computers located in the U.S. and abroad.  According to the complaint, the Financial Times allows people to view up to three Financial Times articles per month free of charge, and up to ten per month with a free registration.  If people want greater access to Financial Times’ content they must pay for an online subscriptions, which costs $179 to $299 a year. 

Another trend seems to be the bringing of claims under the until now, little-used prohibition against removing or altering copyright management information (CMI) found in section of 1202 of the Copyright Act (which is part of the Digital Millennium Copyright Act (DMCA)).  An example of this can be found in Associated Press v. All Headline News Corp., which I rcenetly blogged about and is pending before the U.S. District Court for the Southern District of New York. 

Another example can be found in Jacobsen v. Katzer, where the U.S. Court of Appeals for the Federal Circuit (CAFC) denied plaintiff’s request for a preliminary injunction for copyright infringement of its open source software on the basis that the plaintiff did not show the likely irreparable harm needed for such relief.  Significantly, the court refused to dismiss plaintiff’s claims for violation of Section 1202(b) of the DMCA because defendant used a “technological process” to replace plaintiff’s copyright management information with his own (note:  the decision itself refers to section 1201, but that is not accurate).   For a provision in the law that may have arisen in litigation only a handful of times, if that, since it was enacted ten years ago, having two cases where the claim has been (so far) successfully raised may in fact qualify it as a trend.

These cases are certainly worth following to see how they conclude and to see if others follow their lead.