Stephen S. Wu-- SL: Legal Writer,, (408) 573-5737, 50 W. San Fernando St., Ste. 750, San Jose, CA 95113

Virtual Property Suits in a Holding Pattern

I have been following the Playfish v. Rackspace case since the complaint was filed and the initial filings in the Eros v. Linden cases, but both seem to be in a holding pattern. Both cases involve important issues, and I hope to see some arguments on the substantive law from both cases.
In the Playfish case, the parties have not filed anything in months. I am not sure whether the parties have agreed to hold off on activity in the case, or whether Playfish found it unproductive to pursue the case. It may be that the parties are exchanging information, although they have not filed any documents showing they have undergone the usual process of appearing before the court in a hearing to manage activities and deadlines in the case.

The Eros case seems more active. The parties held a conference and then met at a pretrial conference at the court. The court set deadlines for the filing of a motion for class certification, an opposition, and a reply in support of the motion. Later, however, a docket entry seems to vacate the deadlines. In any case, it appears that the parties’ first priority is to sort out whether or not the case can proceed as a class action.

One development that may change the dynamic of the Eros case is a possible ruling on the Viacom v. Google case. In that case, Viacom accused Google/YouTube of not doing enough to stop infringing videos on the YouTube site. Viacom’s position is similar to that of Eros, which is making the same accusation against Linden Research. Viacom and Google have both moved for summary judgment, and a ruling may establish useful guidance to Eros and Linden Research as to what they must show to support their position on the contributory and vicarious infringement claims.