Summary Judgment is Not Appropriate for Willful Infringement Where Jury Could Find Otherwise

The U.S. Court of Appeals for the Second Circuit has now held that even though Microsoft Corporation was entitled to summary judgment on its copyright infringement claims against an alleged counterfeiter, Island Software & Computer Services, a decision to grant the software giant $240,000 in statutory damages on grounds that the infringer acted "willfully" was inappropriate. Island Software & Computer Services v. Microsoft, Case No. 04-07744-cv (2nd Cir. June 28, 2005) (Calabresi, J.).

Island, a small software retailer, sold an alleged counterfeit copy of Windows software products to a Microsoft anti-piracy investigator. Microsoft sent Island a cease-and-desist letter. Subsequently, Island sought a declaration of non-infringement of Microsoft’s trademarks and copyrights, and Microsoft filed counterclaims for copyright and trademark infringement under the Copyright Act and the Lanham Act, respectively.