Dice Corp is in the business of selling software into the niche market of the security and alarm industry; and, as a part of that business was a nonexclusive licensee, a dealer, of an accounting and business software package, THOROUGHBRED. Dice found the THOROUGHBRED license to be cumbersome and restrictive.

So, Dice designed some self help that allowed Dice to sublicense the THOROUGHBRED software multiple new locations and users. The self help was a bit of custom code that facilitated the installation of the licensed code without any of the restrictions – the install code, for instance. Dice sublicensed to several end users using this free wheeling process.

Thoroughbred, the licensor, exercised their rights to audit the sublicenses that Dice was granting; and hired a private detective to verify that there was a whole subset of unauthorized sublicensees that Dice had set up. Thoroughbred sued; and Dice defended that it was contract breach, not copyright infringement.

The trial court in the Eastern District of Michigan on July 21 found that there was copyright infringement, not breach of contract; but, limited the damages to be paid to Thoroughbred to be the amount that Thoroughbred would have gotten but for the unauthorized licenses. This damage calculation is not the amount that the plaintiff was entitled to under the statute, but in favor of keeping the ongoing business relationships going, perhaps enough for Thoroughbred.

Facts as rare as a winning lottery ticket, but not so sweet.

One of the tunes on the “Saturday Night Live” movie is “Disco Inferno”; and the facts surrounding that song’s renewal are the makings of a rare copyright question.

Two collaborators, Kersy and Green, were joint authors to the song when they wrote it in 1977 after the 1976 Copyright Act was passed, but before it was enabled in 1978. So, the song was covered under the 1909 Act, and was granted an initial term of 28 years, plus an opportunity for another 28 years if a timely renewal was filed.

When the time window to file the renewal came up, the joint authors had long previously been assigned to a series of owners. Dreamworks most recently had assigned it on to another assignees finally Dimensional Music Publishing (DMP). The DMP assignee filed the renewal document on January 5th, 2005, which is about as soon after that renewal window opens that anyone can file it.

So, far the facts are fairly standard; and, here is where the anomolous fact comes in: Kersey, one of the two original collaborators and a joint author, both filed a renewal application for the work in his own name; and then died three weeks later. Kersey filed his individual renewal on January 13th, but because Kersey submitted the wrong amount of monies to pay the renewal fees, the renewal was not operative until April 5, 2006.

Why is this a rare combination of facts?

First, because all copyrights expire at the end of a calendar year and the renewal window in which the renewal must be filed extends all twelve months of that renewal window year. Second, although transfer owners eligible to renew the copyrights that the transfer owners has taken by assignment, that right is predicated upon the author being alive when the renewal is effected.

The question of whether the renewal rights vested in DMP in the three weeks before Kersey died is the open issue before Judge Jan Dubois in the Eastern District of Pennsylvia. On July 12th, 2006, the Judge signed an order denying reconsideration of her earlier ruling which made the renewal term vest in the name of DMP. Stay tuned to see if it is appealed. The case is Dimensional Publishing v. Kersey.

This article on page B3 of the New York Times in the July 18th edition is reminscent of the sort of citizen reporting that happened in the McCarthy era. It is Hong Kong this time where young people in otherwise benign organizations are being recruited to report internet sites dispensing unauthorized copies of songs and movies.

The youth reporting is the grass roots end of the chain of reporting that funnels information up to the government. The Customs officials will then verify the internet site and then relay the details on the trade groups such as the RIAA, MPAA and the International Federation of Photographers. The identity of the reporting youngster (average age 11) will be kept secret, or so the Hong Kong government promises.

The Scout Association of Hong Kong reports that this campaign is a great vehicle to teach children good citizenship. The Hong Kong police department defends the campaign saying that it is no different than asking citizens to tell police when they see a crime committed.