Advanced Copyright Issues on the Internet - Fenwick & West LLP

(b) Wells Fargo v. WhenU.comSimilar claims of copyright and trademark infringement were brought against WhenU inthe case of Wells Fargo & Co. v. WhenU.com, Inc. 2309 The court denied a motion for apreliminary injunction, finding that the plaintiffs had not shown a likelihood of success on themerits of either the copyright or the trademark claims. With respect to the copyright claims, theplaintiffs argued that the SaveNow program caused infringing derivative works of their websitesto be created. The court ruled that, to support a claim of direct derivative works infringementagainst WhenU, the plaintiffs would need to prove that WhenU incorporated the plaintiffs’websites into a new work. The court ruled that the plaintiffs could not establish such proof,because WhenU merely supplied a software product that did not access the plaintiffs’ websitesand therefore did not incorporate them into a new work. Accordingly, the plaintiffs’ claim forcopyright infringement could, at best, be a claim for contributory infringement based on anallegedly infringing derivative work created by users of the WhenU software. 2310The court concluded that SaveNow users did not create infringing derivative workseither. Use of the SaveNow program to display ads did not alter the plaintiffs’ websites, nor didthe WhenU ad window have any physical relationship to the plaintiffs’ websites or alter thecontent displayed in any other open window. 2311 Even if the presence of an overlapping windowcould be said to change the appearance of the underlying window on a computer screen, thecourt held that such alteration was not an infringement by analogy to the case of Lewis GaloobToys v. Nintendo of Am. 2312 That case held that the “Game Genie” device, which attached to theNintendo game console and allowed players to temporarily alter certain attributes of videogames, did not create a fixed derivative work because once the Game Genie was detached or thepower turned off, the changes disappeared and the video game revered to its original form. 2313By analogy, the court ruled that WhenU’s program only temporarily changed the way theplaintiffs’ websites were viewed by users, and as soon as the ad windows were closed orminimized, the plaintiffs’ websites reverted to their original form. 2314 The court also rejected theplaintiffs’ argument that an unauthorized derivative work was formed because the WhenU adsmodified the pixels on the user’s screen display. The court concluded that the pixels “are ownedand controlled by the computer user who chooses what to display on the screen” and theplaintiffs’ did not have any property or copyright interest in those pixels. 2315 The court alsonoted that because the pixels on a computer screen are updated every 1/70th of a second, the“alteration of pixels is therefore far too transitory an occurrence to form a basis for a copyright2309 293 F. Supp. 2d 734 (E.D. Mich. 2003).2310 Id. at 769.2311 Id.2312 780 F. Supp. 1283 (N.D. Cal. 1991), aff’d, 964 F.2d 965 (9th Cir. 1992).2313 Id. at 1288, 1291.2314 Wells Fargo, 293 F. Supp. 2d at 770.2315 Id. at 770-71.- 505 -