Copyright and whether it has been infringed Free Essays

In order to be able to settle the question whether or not there has been copyright infringement, the two underlying principles to guide us is the applicable law and infringement. The submissions by both parties to the dispute were drawn from the federal laws and a clear jurisdiction is provided for under the 1976 Copyright Act. Further, the submissions by the parties were clearly on cases that are from the federal courts and hence jurisdiction is not a debatable issue. We will write a custom essay sample on Copyright and whether it has been infringed? or any similar topic only for you Order Now The other issue is on the question of infringement. As previously indicated, the infringement arises when the copyright registered is used by somebody else who purports to be the owner of that work. In this issue, the plaintiff did not have his work registered, however, it is not a disputed fact that the works belonged to the plaintiff and therefore not an issue. The question that suffices in this case is the similarity of expression. The intention of the Copyright act is to protect the author’s expression of idea and not the idea itself. In the present case the plaintiff had brought to the defendant the work which the defendant was to look into and decide whether it was a good idea or not, however, the defendant went on to pass the works to another third party who turned to be his agent to confirm the work and instead stole his ideas and a document was produced to that effect. The intention of the doctrine is to protect the authors’ expression. In order to settle this question the court looks at the nature of expression is it expressed in myriad ways or in narrow ways? In the above case, the expression is expressed in narrow form and therefore there is similarity of expression from the document which was produced by the third party, who was in concert with the defendant herein, it is therefore correct to submit that there was infringement by the defendant. Whether or not there is an implied contract of fact? The issue of whether or not that there existed a contract is one which cannot go ignored. The rule of thumb is that all contracts must be in writing. However, the case before us is that, there is no written contract between the parties and therefore the issue of implied contract of fact arises. Whether or not there is an implied contract of fact, the test will be applied to the intentions and conduct of the parties. A contract implied in fact will construct the whole agreement, further it is a contract that is created when a party tacitly accepts benefit at a time it was able to reject it. In the present case, it is the finding of the court and fact that the plaintiff had given the defendant manuscript and that they would use it for the purpose which was intended and should they do otherwise then the plaintiff should have go consideration. In arriving to this conclusion the court looks at the intention and the conduct of both parties at the time of making of the contact. It is clear from the conduct of the defendant especially from the second request for the manuscript that there was intention to create an implied contract of fact. For the court to arrive at the conclusion that indeed the defendant was in breach is in order and therefore the plaintiff should be awarded the remedies that follow suit as a result of the defendant breaching the contract. Under the California laws which the plaintiff had pleaded under, the courts can enforce for remedies. Whether or not the affecting issues will affect the judgment of the court? There are other issues that directly and indirectly affect the outcome of the case this include; †¢ Exclusion of hearsay Evidence †¢ Denial of Motion to amend †¢ Finding of fact †¢ Statute limitations †¢ Attorneys fees It is trite law that the hearsay evidence will not be admitted on record save that it meets the exception rule. The issue in this case is whether or not in the trial courts’ finding the exclusion was in order. In the circumstances, the exclusion was in order since the evidence which the parties had purported to bring before the court was adduced by a third party and clearly could not and hearsay hence did not fall within the exception rules. Motion to amend can be given if certain legal principles and threshold are met with the party seeking to rely on it. The underlying guideline is that, the Motion to amend can be given and if it does not seek to prejudice the other party. In the foregoing circumstance, a motion to amend was brought 19 months from the time the matter was filed in court and viewed with suspicion. The only conclusion that was arrived by the courts is that it was brought with the aim of forestalling the wheels of justice and it was proper for the court to deny the same. The burden of proof shifts to the person who alleges, in the foregoing circumstances if the plaintiff made allegations and did support using evidence which they did, then it can be held as the true fact. In presenting their evidence, the plaintiff did support his evidence and was not shaken by the defense and therefore the court is correct to find their position as the truth. The issue of limitations goes to back when the cause of action arose. It is the defendants’ submission that it is time barred under the California laws. The courts are guided from when the action arose in this case after the defendant failed to make good the payment and which was within time when the defendant was filling this suit which is now a condition precedent. The general principle is that the losing party should pay the costs. In this case, the defendant lost the case and further, it is our submission that the case was brought under the federal laws copyright Act of 1976 that the party guilty should pay the advocates costs. In conclusion, therefore it is my humble submission that the plaintiff has fulfilled the required threshold on matter of balance of probability and hence attained the chance of success. Works cited Lessick, Susan,† Copyright ownership† UC Copyright. Feb 27, 2003 Nov 22, 2008http:://www. universityofcalifornia. edu/copyright/ownership. html â€Å"Implied-in-fact Contract†, Business Dictionary, Ed 2007-2008 http://www. businessdictionary. com/definition/implied-in-fact-contract. html Massey, Calvin R,† The California State Constitution A reference guide† published 1879 How to cite Copyright and whether it has been infringed?, Papers