E-Book Sample Download From B&N Cloud Not Contributory Infringement, 2nd Circuit Rules

to download an online sample of the e-book The Hardscrabble Zone, written by her late husband, Louis K. Smith, after he terminated a contract with third-party firm Smashwords to advertise the e-book on B&N. One of the retailer’s users was able to download the e-book sample to a mobile device via B&N’s “digital locker” cloud storage system even though the retailer already had deleted the sample from its website. District Judge Andrew Carter said B&N wasn’t liable for contributory copyright infringement because the digital locker system was widely used for legitimate purposes. Circuit Judge Dennis Jacobs, in opinion Thursday for the three-judge 2nd Circuit panel, said “the conduct at issue was authorized by the relevant contracts between the parties.” There was no dispute in the case “that the plaintiff has a valid copyright, but the plaintiff must also be able to demonstrate that the copying was unauthorized,” the 2nd Circuit said. “Where, as here, the existence of the license is undisputed, and the only contested issue is its scope, the copyright owner bears the burden of proving that the defendant’s conduct was unauthorized under the license.” Once the customer acquired the cloud-based sample, “the service that Barnes & Noble provided was no longer distribution; the service provided was access,” the 2nd Circuit said. “Because the agreement does not provide for the license in the sample to terminate after the sample has been distributed, the plaintiff cannot sustain her burden to prove that providing cloud-based access to validly obtained samples is beyond the scope of the license agreement.” Judges Amalya Kearse and Ralph Winter joined Jacobs in affirming the New York district court ruling. Smith lawyer Carlos Leyva didn't comment.