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: Cogito Ergo Teneo; an intellectual property blawg

051607 Copyright Law: Furkin

By Sean Fowler

Furkin v. Smikun, 7th U.S. Court of Appeals, No. 07-1067 (May 16, 2007):

Issue:
In 1985, Furkin hired Smikun to write a program called, "Silent Partner." This program was designed to keep track of sale on coin-operated machines, and the two agreed that they would split the profits. Furkin owned a sawed-off shotgun and was caught by authorities in 1994 with said shotgun, and so went to prison for a good 10 years.

In 2000, Furkin found out that Smikun had sold Silent Partner to an interested company, and Smikun thereafter sent a candid letter to Furkin confirming that he had taken such action. Over the next four or five years, Smikun sent the imprisoned Furkin bits of money in the amounts of $100 here or $500 there. In 2004, Furkin was released from prison.

Furkin demanded the full amount of money to which he believed he was entitled; half of the sale and half any profits. By 2006, Smikun stopped returning his calls. In response, Furkin filed suit that same year. The lower court found that -- whether by local law or by the Copyright Act -- the statute of limitations had passed for his claims of copyright conversion, etc.

Furkin appealed, arguing that the claim was still viable since he continued to receive payments from Smikun while he was in jail.

Pertinent issue of copyright law:
1) Do token payments made to a copyright holder after the explicit notification to the copyright holder of the conversion of the copyright holder's rights by the payor preserve the claim for conversion against the payor until the statutory period expires from the point where the payments stop?

Conclusion:
No. The court found that the letter sent to Furkin by Smikun clearly stating that Smikun had indeed sold the Silent Partners property, was clear notice to Furkin of a copyright claim. Furkin's argument that he was lulled into complacency by Furkin's payments to Furkin was -- even if the court was to believe that such token payments were legitimately believed by Furkin to be payments to Furkin of his share of profits -- insufficient. Once Furkin had notice of a ripe claim, the statute of limitations began to run. Whether or not sums of money were paid out to Furkin thereafter did not unripen and already ripe claim. The ruling of the lower court that the statute of limitations had run was affirmed.

Full post as published by Cogito Ergo Teneo; an intellectual property blawg on August 27, 2007 (boomark / email).