"& Pizza" operates a pizza chain on the east coast. "@Pizza" operates a British pizzeria chain. Let us ignore that both brands are terrible (the symbols & and @ plus the generic term UGH) and that @Pizza may not have his Twitter account of the same name (the account is locked). & Pizza claims @Pizza chopped off / copied it after visiting the & Pizza stores. & Pizza sued @Pizza in Washington, DC for copyright infringement, trademark infringement, and violation, which I found to be unusually tendentious claims even for lawyers. The district court upheld personal jurisdiction, a dubious conclusion that required a series of compensatory tampering with the doctrine, and then rejected the claims. The appeals court agreed.
Copyright ©. The complaint is about @Pizza "downloading" the photos of & Pizza’s website that were allegedly used for copying. The download verb, however, masks important details. I cannot say whether @Pizza deliberately saved a copy on the hard drive or simply "downloaded" the photos as part of normal web browsing. If @Pizza saves the photos on its hard drive, the cases of file sharing can similarly characterize this as a violation. See e.g. B. Sony v. Tenenbaum, BMG v. Gonzalez and countless others. However, if the court only referred to the normal surfing of photos on the Internet, the label of this infringement deserves some care and nuance.
Without clarifying what “downloading” means, the Court of Appeals assumes that downloading an image is likely to be a violation because it creates a hard copy of the original work. However, it is only fixed on the recipient computer (in contrast to the server or in the encrypted bits transmitted over the Internet) and in this case on computers outside the USA. The court says:
IMAPizza claims that the US servers that were downloaded are "where the copying took place". However, it does not provide technical, legal, or other support for suggesting that when an image is downloaded from a server in the United States, a copy of that image is made in the United States in addition to the copy on which the receiving device is located
So @Pizza does not violate the US because the download / search took place in a foreign place. That's good news, I think. It should mean that foreign downloads of other material, such as B. shared music should also be outside the reach of US copyright law (uploads or storage in a shared directory can be a different story). Still, this result appears to be painfully complicated. Instead of dealing with serious epistemological questions such as the geographic location of virtual activities in a limitless electronic network, it may have been easier to solve the photo download for reasons of implicit license or fair use. This would have been in line with the de minimis nature of the alleged copyright infringement for photos.
& Pizza also claimed copyright on the interior of their pizzeria, and @Pizza, who took photos in the pizzeria, violated the design. "Really?" That doesn't sound like an issue spotter that you expect in a legal examination, not in a federal court. The court apologizes for @ Pizza because photos of architectural work are permitted (17 USC 120 (a)). The inside of a restaurant is implicitly a “public place”. When it is safe to eat in restaurants again, take selfies in the restaurant and enjoy eating from & Pizza without worrying that you will be sued for copyright infringement as their designs are in the background of your photos.
Finally, preparatory measures @Pizza in the United States did not change the calculus as long as the allegedly infringing acts (rendering the photos while surfing or creating copycat pizzerias) took place outside the United States.
Trademark. U.S. trademark law cannot reach @Pizza because:
The defendants here are foreign nationals. their business, which is "typically local", operates exclusively in the UK; You have not bought or sold supplies to the United States. and neither their products nor their advertisements are said to have been "filtered" into the United States.
While these are good reasons to reject the cross-border use of US trademark rights, they sound even better reasons to reject personal responsibility.
Violation. & Pizza invited customers to its premises and then sued one of them for abuse for taking photos? The court said & Pizza "did not allege that the accused had not entered public areas of & Pizza restaurants or observed intellectual property that was not visible to the public during their visits."
Seriously, & Pizza thought these arguments were worth taking to the DC Circuit ??? I hope your pizza is better than your legal judgment.
This case reminded me of Toys & # 39; R & # 39; Us vs. Step Two, a third circuit decision made in 2003 that I still teach on Internet law. This case also affected the efforts of a US brand owner to suppress a cross-border copycat retailer – in this case the Imaginarium toy chain. In step two, the Court of Appeals ordered the discovery of jurisdiction, and the case was subsequently resolved. I will note that the foreign copycat is the US Imaginarium brand, the Toys & # 39; R & # 39; Us tragically imploded in front of itself, has survived far. & Pizza may want to take note.
Case quote: Imapizza LLC v At Pizza Ltd., 2020 WL 4032650 (DC Cir. July 17, 2020)
Selected articles about surfing the Internet as a violation
* There is essentially no limitation period for online copyright infringement – APL vs. US
* D.C. Circuit makes geoblocking de facto mandatory for copyright purposes – Spanski vs. TV Polska
* Another bad verdict in Louis Vuitton against Akanoc
* "DVR as a Service" is not a copyright infringement – Cartoon Network vs. CSC Holdings
* Ticketmaster wins major Hannah Montana injunction, but has public interest been screwed? –Ticketmaster against RMG