Back in June we wrote about a somewhat odd copyright lawsuit, involving a guy who has spent many years recording bird sounds. Some of those sounds appeared (without his permission) in an iPhone app called "iBird" and so the guy sued
both the developer of iBird and Apple. Of course, he also had only just filed for a copyright on the recordings, which would make it impossible to get any statutory damages. With the initial lawsuit, I noted that it wasn't clear that recordings of birds chirping could even qualify for copyright, but more importantly there was the question of why he was suing Apple, which would appear to be protected by the DMCA's safe harbors, since it wasn't the one who created the app.
Venkat Balasubramani has an update on the case, noting that the late timing of the copyright registration has indeed backfired on the guy
, but what's odd is that Apple has not raised the DMCA's safe harbors in its own defense. This seems really strange, and Venkat is also at a loss as to why Apple would not raise such a defense. I'd be curious if anyone here has any ideas why Apple would avoid such an easy "get out of lawsuit" card?