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Bare Corporate Receipt Doctrine Less Help to Copyright Plaintiffs

By Orin Snyder

The first line of defense in most copyright infringement actions revolves around the question of “access” ' namely, whether the defendant had a reasonable possibility of viewing or hearing the plaintiff's work such that the defendant could have copied it illegally. Absent some direct proof that the defendant actually copied the plaintiff's work ' evidence that typically is not present ' a plaintiff will attempt to prove such copying indirectly by establishing that a defendant had access to the plaintiff's work and that the defendant's work is “substantially similar” to the plaintiff's.

The U.S. Court of Appeals for the Second Circuit has made it more difficult for plaintiffs to prove access. Specifically, in the Second Circuit's view, a company's “bare corporate receipt” of a plaintiff's work is insufficient proof of access.

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