EXPLOROLOGIST LIMITED v. SAPIENT

Filing 26

RESPONSE in Opposition re 19 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) filed by EXPLOROLOGIST LIMITED. (Attachments: # 1 Appendix of Foreign Authorities# 2 Text of Proposed Order Denying Motion to Dismiss)(WINELANDER, RICHARD)

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA EXPLOROLOGIST LIMITED
1 Lumley Street London United Kingdom W1K 6TT Plaintiff v. ) ) ) ) ) ) ) ) )

CIVIL ACTION No. 07-1848

BRIAN SAPIENT
aka BRIAN J. CUTLER 303 Warren Road Hatsboro, PA. 19140 Defendant

)
)

APPENDIX OF FOREIGN AUTHORITIES
Plaintiff attaches hereto the following authorities cited in his Brief and Opposition to Motion to Dismiss, electronically filed on June 28, 2007: 1. Copyright, Designs and Patents Act 1988. 2. Spelling Goldberg Productions v B.P.C. Publishing Ltd. [1981] R.P.C. 283 Respectfully submitted, EXPLOROLOGIST LIMITED By and Through Counsel, /s/ ________________________ Richard Winelander, Esquire 1005 North Calvert Street Baltimore, MD 21202 [e-mail] 410.576.7980 Fax: [phone] and /s/ ____________________________ Alan L. Frank Law Associates, P.C. 8380 Old York Road, Suite 410 Elkins Park, PA 19027 [e-mail] 215.935.1000 Fax: [phone] Attorneys for Plaintiff
Richard Winelander Esq. 1005 North Calvert Street Baltimore, MD 21202 410-576-7980

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Exhibit 1 Excerpts from the Copyright, Designs and Patents Act 1988
Section 16: The acts restricted by copyright in a work. 16.-(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom(a) to copy the work (see section 17); (b) to issue copies of the work to the public (see section 18); (ba) to rent or lend the work to the public (see section 18A); (c) to perform, show or play the work in public (see section 19); (d) to communicate the work to the public (see section 20); (e) to make an adaptation of the work or do any of the above in relation to an adaptation (see section 21); and those acts are referred to in this Part as the "acts restricted by the copyright". (2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright. (3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it(a) in relation to the work as a whole or any substantial part of it, and (b) either directly or indirectly; and it is immaterial whether any intervening acts themselves infringe copyright. (4) This Chapter has effect subject to(a) the provisions of Chapter III (acts permitted in relation to copyright works), and (b) the provisions of Chapter VII (provisions with respect to copyright licensing). Section 17: Infringement of copyright by copying. 17.-(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

Richard Winelander Esq. 1005 North Calvert Street Baltimore, MD 21202 410-576-7980

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(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means. (3) In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work. (4) Copying in relation to a film or broadcast includes making a photograph of the whole or any substantial part of any image forming part of the film or broadcast. (5) Copying in relation to the typographical arrangement of a published edition means making a facsimile copy of the arrangement. (6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work. Section 18: Infringement by issue of copies to the public. 18.-(1) The issue to the public of copies of the work is an act restricted by the copyright in every description of copyright work. (2) References in this Part to the issue to the public of copies of a work are to-(a) the act of putting into circulation in the EEA copies not previously put into circulation in the EEA by or with the consent of the copyright owner, or (b) the act of putting into circulation outside the EEA copies not previously put into circulation in the EEA or elsewhere. (3) References in this Part to the issue to the public of copies of a work do not include(a) any subsequent distribution, sale, hiring or loan of copies previously put into circulation (but see section 18A: infringement by rental or lending), or (b) any subsequent importation of such copies into the United Kingdom or another EEA state, except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA. (4) References in this Part to the issue of copies of a work include the issue of the original. Section 18A: Infringement by rental or lending of work to the public 18A.-(1) The rental or lending of copies of the work to the public is an act restricted by the copyright in-(a) a literary, dramatic or musical work, (b) an artistic work, other than-Richard Winelander Esq. 1005 North Calvert Street Baltimore, MD 21202 410-576-7980

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(i) a work of architecture in the form of a building or a model for a building, or (ii) a work of applied art, or (c) a film or a sound recording. (2) In this Part, subject to the following provisions of this section-(a) "rental" means making a copy of the work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage, and (b) "lending" means making a copy of the work available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public. (3) The expressions "rental" and "lending" do not include-(a) making available for the purpose of public performance, playing or showing in public or communication to the public; (b) making available for the purpose of exhibition in public; or (c) making available for on-the-spot reference use. (4) The expression "lending" does not include making available between establishments which are accessible to the public. (5) Where lending by an establishment accessible to the public gives rise to a payment the amount of which does not go beyond what is necessary to cover the operating costs of the establishment, there is no direct or indirect economic or commercial advantage for the purposes of this section. (6) References in this Part to the rental or lending of copies of a work include the rental or lending of the original. Section 19: Infringement by performance, showing or playing of work in public. 19.-(1) The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work. (2) In this Part "performance", in relation to a work(a) includes delivery in the case of lectures, addresses, speeches and sermons, and (b) in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film or broadcast of the work. (3) The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film or broadcast.

Richard Winelander Esq. 1005 North Calvert Street Baltimore, MD 21202 410-576-7980

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(4) Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement.

Section 20: Infringement by communication to the public. 20.-(1) The communication to the public of the work is an act restricted by the copyright in (a) a literary, dramatic, musical or artistic work, (b) a sound recording or film, or (c) a broadcast. (2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include (a) the broadcasting of the work; (b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them. Section 30: Criticism, review and news reporting. 30.-(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public. (1A) For the purposes of subsection (1) a work has been made available to the public if it has been made available by any means, including (a) the issue of copies to the public; (b) making the work available by means of an electronic retrieval system; (c) the rental or lending of copies of the work to the public; (d) the performance, exhibition, playing or showing of the work in public; (e) the communication to the public of the work, but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.

Richard Winelander Esq. 1005 North Calvert Street Baltimore, MD 21202 410-576-7980

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(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement. (3) No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film or broadcast where this would be impossible for reasons of practicality or otherwise.

Richard Winelander Esq. 1005 North Calvert Street Baltimore, MD 21202 410-576-7980

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Exhibit 2
Spelling Goldberg Productions v B.P.C. Publishing Ltd. [1981] R.P.C. 283

Richard Winelander Esq. 1005 North Calvert Street Baltimore, MD 21202 410-576-7980

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