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ARTICLE · 05 DECEMBER 2016

Termination Of Distribution Agreement Does Not Affect Licenses To Cloud-Based Access

McDermott Will & Emery
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After finding that a copyright infringement question analyzed by the district court was more properly a contract interpretation issue, the US Court of Appeals for the Second Circuit...

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McDermott Will & Emery
McDermott Will & Emery
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After finding that a copyright infringement question analyzed by the district court was more properly a contract interpretation issue, the US Court of Appeals for the Second Circuit affirmed the district court’s decision that termination of a distribution agreement did not require termination of the licenses granted under that agreement. Smith v. Barnesandnoble.com, LLC, Case No. 15-3508 (2d Cir., Oct. 6, 2016) (Jacobs, J).

Plaintiff Cheryl Smith is the widow of Louis Smith, who authored and copyrighted a book titled The Hardscrabble Zone, and in 2009 entered into a distribution agreement with an online ebook distributor, Smashwords, to market his book. The contract gave Smashwords “the right to distribute samples of the Work in any form of media” and stated that “[t]hese samples will be licensed for free, non-commercial use, duplication and sharing.” Smashwords subsequently offered the book for sale and sampling to its retail partners, including Barnes & Noble, which

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