In order to prove copyright infringement where there has been a breach of a licensing agreement, the owner must satisfy two elements. First, the use must exceed the scope of the license. Second, the breach must be grounded in an exclusive right of copyright such as the reproduction or distribution of a work.
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Into the Breach License
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A data breach is a security violation in which sensitive, protected or confidential data is copied, transmitted, viewed, stolen or used by an unauthorized individual. A data breach may occur as a result of:
It's important to understand that a data breach does not necessarily mean that you will become a victim of identity theft. If you are a victim of a data breach, you are at greater risk of identity theft, but until your information is misused, you are not considered to be an identity theft victim.
Breaches of your credit or debit card information may occur in retail stores at point-of-sale (POS) terminals or as part of an online transaction. These breaches can be massive in size, sometimes affecting millions of cardholders.
You might become aware of a breach affecting your credit or debit card because your financial institution has reissued your payment card with a new account number. However, many financial institutions do not automatically reissue cards that may have been compromised.
If you are notified of a breach involving your driver's license or another government identification document (such as a passport or non-driver ID), contact the agency that issued the document and find out what it recommends in such situations. You might be instructed to cancel the document and obtain a replacement. Or the agency might instead "flag" your file to help prevent fraud.
If the breach includes your Social Security number (SSN), the information could be used to open new accounts in your name. This is called new account fraud. You will not immediately know about these new accounts because criminals usually use an address other than your own for the account. That is why it is so important to immediately place a security freeze on your credit reports when you learn that your SSN has been compromised.
Capella is entitled to a declaration that the Termination Notice was valid. It is well settled that when a party to a contract is in breach, the other party must make an election between declaring a breach and terminating the contract or, alternatively, ignoring the breach and continuing to perform under the contract (Rebecca Broadway LP v Hotton, 143 AD3d 71, 80--81 [1st Dept 2016]; Parlux Fragrances, LLC v S. Carter Enterprises, LLC, 204 AD3d 72, 86 [1st Dept 2022]; Albany Med. Coll. v Lobel, 296 AD2d 701, 702 [3d Dept 2002]). On the record before the Court, and as discussed above, Screen Media was in material breach of the License Agreement because Screen Media failed to timely provide accurate accounting statements, hid certain distribution for which it owed money (and to avoid making payments) and failed to make payments when due pursuant to the terms of the License Agreement. Thus, the Termination Notice was effective when sent.
Capella is also entitled to summary judgment that Screen Media breached the License Agreement because (i) Screen Media failed to furnish the accounting statements within 60 days following the end of the 4th quarter of 2010 as required by the License Agreement, (ii) they failed to pay amounts due under the License Agreement, (iii) they failed to report and pay for certain distribution of the films and (iv) they streamed licensed films on the online streaming service Popcornflix in violation of the License Agreement. These are material breaches to the License Agreement. They go to the very heart of the deal. For the avoidance of doubt, Screen Media's deduction of attorneys fees in pressing its claims in this case are also inappropriate and constitute damages due Capella.
Two companies enter into an intellectual property licensing agreement. Later, a dispute erupts over whether the licensee has used the IP outside the scope of the license agreement such as marketing a brand on a new product line or selling patented goods in another territory. Does this extra-license use constitute breach of license agreement? Infringement of the IP rights or both? Or, is it license infringement?
The Washington Department of Licensing (DOL) said in a press release late Friday night that it suffered a security breach of its IT system and that the personal data of hundreds of thousands of licensed professionals may have been exposed.
The breach occurred during the week of January 24 and impacted POLARIS, an online web-based database where the agency stores information on licensed professionals such as drivers, accountants, lawyers, bail bonds agents, funeral directors, home inspectors, notaries, and others.
Recently, in Artifex Software v. Hancom, Inc., a California district court refused to dismiss breach of contract claims for alleged violations of the GNU General Public License (GPL) in connection with the use of open source software. The decision signals a growing acceptance of contract law as a viable option for addressing GPL breaches.
The GPL is one of the most widely used, and restrictive, open source licenses. It was published by the Free Software Foundation and has three different versions in use. Among other terms, the GPL requires licensees to provide or offer the source code for the licensed software (or works based on it) upon conveyance of the corresponding object code version. Despite the prevalence of the GPL, few cases have addressed its enforceability.
The Department of Licensing's POLARIS system may have been affected by a data breach last week. It is currently inaccessible while an investigation is underway. Those professional licensees who may have been affected by the breach include:
Of the roughly 40 professional and occupational licenses overseen by DOL, POLARIS contains information for 23 such professions, said Christine Anthony, communications manager for the agency. Those professions include architects, bail bondsmen, tattoo artists, cosmetologists, notaries, real estate appraisers and brokers, and more.
A license is different from an assignment agreement, in that the former has a limited term, whereby the authorisation to use the IPRs granted to the licensee by the licensor will expire, after a period of time explicitly set out in the license agreement. On the contrary, an assignment is a perpetual and irreversible transfer of ownership of some designated IPRs, from the assignor to the assignee, in exchange for the payment of a consideration (usually, a one-off sum of money).
For example, in the music industry, many copyright licenses are entered into, in order for music distributors to distribute the masters of sound recordings to new territories, which are difficult to reach for the music label which owns such masters because this label is located in a totally different geographical area. Therefore, the licensor, the music label, relies on the expertise of the local licensee, the national distributor, to put in place the best local strategy to broadcast the masters of its sound recordings, via radio plays, local streaming websites, TV broadcasting, and then to generate revenues through these various income streams and local neighbouring rights collecting societies.
Another example of a copyright license, in the fashion and luxury sectors, is when a brand commissions an artist or designer to make some drawings and designs, which the brand will then display on its website(s), as well as in its various stores. These drawings and designs being protected by copyright, the brand, as licensee, will enter into a license agreement with the artist, as licensor, to obtain the right to use these drawings and designs in set locations and premises of this brand.
In the technology sector, patent and/or copyright licenses are the norm. Indeed, softwares and sources codes are protected by copyright, so many tech companies make a living licensing their copyright into such inventions, to their retail or business customers, in exchange for some royalties and/or licensing fees. As far as technological products are concerned, those can be protected by patents, provided that they are novel, that an inventive step was present in creating such products, and that the invention is capable of industrial application. Therefore, most technological hardware products, such as mobile phones, computers, tablets, are protected by patents. And whenever there is a dichotomy between the creator of these products, and the manufacturers and distributors of such products, then some patent license agreements are entered into.
Due to poor management and in-house record-keeping, as well as human resources disorganisation and high turnover rate of staff, the licensee may breach the licensing agreement by keeping on using the licensed IPR, although the license agreement has reached its term.
So what can a licensor do, when he or she notices that the licensee has, or is, breaching the terms of the license agreement by overrunning its duration? How to remedy a breach of license which term is overran?
You will have guessed by now that, indeed, once the ex-licensor has gathered as much conclusive evidence as possible that his or her IPR is being infringed by the ex-licensee because the latter keeps on using such IPR outside the contractual framework of the now-expired license agreement, the second stage is to instruct counsel, in the country where such IPR infringement is taking place, and have such counsel send a robust, cordial yet frank letter before court action to the ex-licensor, asking: 2ff7e9595c
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