Not Horsing Around

There are many specialties in law, copyright being one of them. Another is horses, or more formally Equus ferus caballus, belonging to the taxonomic family Equidae, from which we get the word “equine.”  Those who own or want to own horses have many legal needs, and where there is a need there will be a lawyer to fill those needs, even a law firm, in this case Legal Equine Solutions, based in Portland Oregon. 

Among the services offered are Equine Litigation and Dispute Resolution (among humans, not horses, who quickly settle such things on their own), business entity formation, “matters concerning governing bodies of Horse Sport,” and forms, lots of different types of forms: for boarding contracts, breeding contracts, Covid-19 liability releases, sales, purchases, stall cleaner, groom, and exercise rider forms, as well as lesson forms. If you taken horse riding lessons, no doubt you have filled out such a form. Legal Equine Solutions helpfully sells all these types of forms and many others on their website. 

Legal Equine Solutions registered many of these forms with the Copyright Office just in case someone might infringe them, as a certain Fireline Farms, Inc. is alleged to have done.  Defendant is said to have purchased some of these forms for $149.99 and given them to a website designer. There is a dispute about whether the website went online, but the documents were apparently available to anyone doing a Google search as Legal Equine Solutions did from time to time to discover any possible infringements. Having found the forms accessible on URLs connected to defendant’s website, takedown notices were sent to defendant whose president responded by asking whether it could still use the forms. The reply was that the license for the forms precluded making them available on the Internet. About six weeks later, plaintiff did another search, discovered the forms were still available online, and after not getting a reply from defendant, sued in federal district court in Oregon. On February 13th, the court granted plaintiff’s motion for summary judgment, 2025 WL 485493.

What is of interest in the case is the court’s discussion of the alleged violations of the distribution right and the display right. The court found the distribution right was not infringed but the display right was. 

No evidence was adduced showing anyone had ever accessed the forms on whatever part of defendant’s website they were stored in. It could well be that no one knew the forms were there. This raises issues going back to the 2005 Jammie Thomas-Rasset case, which became so famous it has not only its own Wikipedia page, one on the EFF website, and on YouTube.

The Thomas-Rasset case had three jury trials, and an appeal to the 8th Circuit, which resulted in a reduction of damages to $220, 000 down from the third jury award of $1,500,000. (The second jury had awarded $1,920,000).  All for 24 songs. For our purposes, of interest in the Thomas case, is Judge Davis’s September 24, 2008 opinion finding that the distribution right can only be infringed when there is an actual distribution of the work alleged to have been infringed; merely making it available is not enough, siding with me over the Copyright Office which had sent a letter to Congressman Howard Berman opining that. See 579 F.Supp.2d 1210, 1218.

That happily has been followed by other courts, including the 9th Circuit in Perfect 10, Inc. v. Amazon.com, Inc.,  508 F.3d 1146, 1162 (9th Cir. 2007). Since the horse case was within the 9th Circuit, our Oregon judge followed it too, granting summary judgment to defendant on that claim.

Infringement was found for violating the display right, however, even though the claim was made for the first time in plaintiff’s reply brief. There was one potential obstacle to the successful claim, though, an argument that there was a "making available" component to the display right. In VHT, Inc. v. Zillow Group, Inc., plaintiff made such an unusual claim. Defendant was found to have infringed 3, 921 photographs of houses by displaying them on defendant’s website where they were viewable and could be searched for..That was infringing of the display right. Plaintiff also alleged additional infringement of 1,694 photographs that had been on a spreadsheet, but as the court of appeals noted, the spreadsheet had been marked with these photographs not having been displayed. Undaunted, plaintiff claimed that

VHT's contention that the jury could have reasonably inferred that Zillow made “available for public display” all images similarly fails. This theory presumes that the Copyright Act's display right encompasses an exclusive right to “make available for display,” a position neither supported by the statute nor embraced by this court.

918 F.3d 723, 736 (9th Cir. 2019).

There is therefore no making available right for the display right either; you have to actually display the work. Does it matter if it is really hard to find the display and that there is no evidence anyone looked at it? No it doesn’t according to the Oregon judge, citing Bell v. Wilmott Storage Services, LLC, 12 F.4th 1065 (9th Cir. 2021), where even defendant didn’t know the photographs were buried deep in its website, discoverable only by a reverse image search. The photos were still there if you found the URL.  That was true for the horse forms too. No need to prove anyone ever saw them. The display right is not one to horse around about.