Smith v. Barnesandnoble.com

Cheryl Smith (plaintiff) owned the copyright in a book written by her late husband. Mr. Smith had contracted with an e-book distributor to market the book. The agreement provided for distribution of electronic samples of the book with a license for free, noncommercial use, duplication, and sharing by end users. The agreement also authorized the distribution of paper samples and did not distinguish between the treatment of paper and electronic samples. Nothing in the agreement suggested that a customer’s right to use a validly obtained sample would terminate if the agreement itself was terminated. In accordance with that agreement, the distributor provided the book for sale and sampling to Barnesandnoble.com, LLC (Barnes & Noble) (defendant), which listed the book for sale and made free samples available on its website. Mr. Smith later canceled the agreement because no copies of the book were sold. However, before the agreement was terminated, a single customer obtained a digital sample from Barnes & Noble. The sample was stored in a cloud-based digital locker associated with the customer’s account, which was effectively a bookshelf for digital products. The customer accessed the sample on two occasions after the distributorship agreement was terminated. Cheryl filed suit, alleging that Barnes & Noble violated her copyright by allowing the customer to retain access to the digital sample after the agreement was terminated. The district court granted summary judgment in favor of Barnes & Noble, and Cheryl appealed.