In a September 26, 2013 ruling, Judge Cathy Seibel denied the parties' cross-motions for summary judgment in Firesabre Consulting LLC's copyright infringement claim against educator Peggy Sheehy and the board of the Ramapo Central School District. The "copyright case arises from a dispute over payment for computer programming and digital design services rendered in connection with the virtual world Second Life. Second Life is an internet-based simulation in which users appear via digital characters called 'avatars' and interact with a computer-generated environment." Sheehy and others in the school district created three "islands" in Second Life for educational use with her students. After meeting the principal of Firesabre Consulting, Frederick Fuchs, at a conference, Sheey had him to do some development work on the islands. Fuchs also later developed three additional islands for Sheey's Second Life project. There was never any written contract between Firesabre Consulting and the school district, but the district did pay Firesabre Consulting $5,000 for some of the work. After a falling out, Firesabre Consulting demanded that the school district stop using its work. Also after that, the school district migrated its "islands" from the Second Lfe platform to SIMS, copying some of plaintiff's work in the process.Firesabre Consulting sued for copyright infringement, alleging that the defendants' continued to use his work after the relationship soured (and thus ended any license to the work), and that the migration from Second Life to SIMS involved unauthorized copying. Defendants defended by arguing that the plaintiff's work was ineligible for copyright protection because it was not "fixed," and that the plaintiff's copyright deposit was insufficient to bring defendants' copying within its scope. Judge Seibel rejected both these defenses, ruling that "[d]igital images in a video game are 'fixed' within the meaning of the Act" when they are stored in memory, and that although plaintiff's deposit could have been more complete, the overall design of Firesabre Consulting's work was sufficiently visible in the deposit. The Court denied plaintiff's motion for summary judgment, though, finding issues of disputed fact about whether the defendants' work was substantially similar to the copyrighted work, and about the scope of defendants' authority to use plaintiff's work.
Judge Seibel then considered defendants' fair use defense by weighing four factors: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." The Court found that there were disputed issues of fact about some of the copying in regard to the first factor, but further found that all the other factors weighed against a finding of fair use. So Judge Seibel denied defendants' summary judgment motion on its fair use defense.
