6/29/2009
The media have reported extensively on the potpourri of litigation that will likely commence as various stakeholders do battle over Michael Jackson's estate. Many sources have reported that Jackson was several hundred million dollars in debt when he died.
It would not surprise us if the Jackson estate's most valuable assets are copyrights, both in Jackson's works and in other music properties. Sony/ATV Music Publishing, in which the Jackson estate owns a substantial share, boasts a catalogue that includes Beatles songs and has been valued by some in the neighborhood of a billion dollars. In 2002, Forbes magazine estimated Jackson’s share was worth around $450 million. The National Law Journal Reports on pending Jackson copyright actions around the country here.
Copyright protection lasts for the life of the author plus seventy years. When Jackson died last week, the final seventy years of protection began to run on the songs he authored. There are few works in the world that maintain their commercial value for the entire duration of their copyright terms. Jackson's songs could turn out to be some of those few. 6/23/2009"Spam King" Alan Ralsky, one of the world's most prolific and notorious spammers, has pleaded guilty to wire fraud, money laundering, and violations of the CAN-SPAM Act, in a deal with federal prosecutors.
The Washington Posts's Brian Krebs has more here. 6/22/2009A jury in the United States District Court for the District of Minnesota Thursday awarded a group of record companies $1.92 million in damages for copyright infringement against Minnesota mother Jamie Thomas-Rasset. Thomas-Rasset's case is the first of thousands of cases brought by the Recording Industry Association of America to go to trial.
The jury's calculation was based on a finding of infringement of twenty-four songs at a rate of $80,000 per song.
Many observers have expressed concern that the $1.92 million verdict violates that Due Process Clause. The court might have the same concern as well. Thomas-Rasset originally lost in a trial several years ago, but the verdict was vacated because the court botched a jury instruction. The court expressed concern then that the $220,000 award in the first case was too high.
RIAA had offered to settle the case for $5,000 long before it went to trial, but Thomas-Rasset refused. RIAA is still offering to settle notwithstanding the jury verdict, apparently out of concern for negative publicity.
Nate Anderson at ars technica has a good piece on Thomas-Rasset's options going forward. On Thursday, June 18, 2009, the White House announced its intent to nominate David Kappos as the next Director of the USPTO. Kappos, whose official title will be Under Secretary of Commerce for Intellectual Property, has over 20 years of patent experience and is currently serving as the Vice President and Assistant General Counsel for Intellectual Property Law and Strategy at the IBM Corporation. He is also on the Board of Directors of the Intellectual Property Owners Association, and is active within AIPLA.
Kappos has been a strong proponent of patent reform efforts and has recently testified before the Senate Committee on the Judiciary to voice his support of S. 515, the Patent Reform Act of 2009. Specifically, Kappos advocated for post-grant review, enhanced inter partes reexamination proceedings, and pre-issuance submission of information. He also proposed a balanced approach to damages valuation provisions that would incorporate Quanta's "essential features" standard and provide for strengthened judicial gatekeeping. 6/16/2009NP Summer Associate Patrice Clair has taken a closer look at Judge Sotomayor's IP opinions. Her report can be found on the Wiki site or by clicking here.
While Judge Sotomayor has not handled an abundant number on IP cases on the bench, before she became a judge she was an IP litigator in New York City, where she represented corporate IP owners. Whether Judge Sotomayor's background would have any effect on how she handles IP cases on the Supreme Court is anyone's guess.
Try typing the domain names <williamclinton.com>, <williamjclinton.com>, and <presidentbillclinton.com> in you web browser. You will not find a website operated by former President Clinton or his foundation, but the home page of the Republican National Committee. The domain name are registered to an entity named Web of Deception, which is controlled by Jospeh Culligan. Culligan has registered the names of other famous politicians, including President Obama and Senator John McCain.
President Clinton filed a complaint under the Uniform Domain Name Dispute Resolution Policy ("UDRP") against Web of Deception and attempted to seize control of the domain names. A panelist of the National Arbitration Forum, however, denied President Clinton's complaint in a recent opinion.
The panelist concluded that President Clinton failed to prove the requisite element of bad faith. The panelist believed that the only way in which President Clinton might have proved bad faith was by showing that Web of Deception registered the domain names to prevent President Clinton from registering them himself. That required proving a pattern of similar conduct. The panelist, however, would not consider Culligan's past conduct with respect to President Obama's and Senator McCain's names as part of a pattern here. 6/3/2009
The U.S. Copyright Office has posted a press release on its website responding to a May 19 article in which the Washington Post chronicled the massive delays copyright applicants are experiencing as a result of the rollout of the new application filing system. See our earlier post on the article here.
In the press release, the Copyright Office clarifies that the backlog is almost exclusively affecting paper applications. Electronic applications with electronic deposits are being processed much faster (90% within five months and 33% within two and a half months).
The numbers suggest that once the public becomes comfortable with e-filing down the road, processing times should be dramatically reduced. But one cannot overstate the current problem; hundreds of thousands of paper applications are still backlogged. The Copyright Office clearly did not anticipate that problem would occur when it implemented the new system. A case in point that great ideas can go awry when not properly executed.
A final critique of the situation: It took the Copyright Office ten days to respond to the Post article. If the Copyright Office wants to be perceived as institution that can keep pace with the rapid changes copyright law is facing, it needs to be more responsive to the conversation that is going in the press and among the public. 6/1/2009
The Supreme Court has granted certiorari today in Bilski v. Doll, formerly In re Bilski, a significant case on whether business methods can be patentable subject matter. Despite opposition from the Solicitor General, the Court will hear the case and decide whether the Federal Circuit's holding that a "machine-or-transformation" test is the appropriate test to use to determine whether inventions in areas such as business methods, computer software, and related areas, constitute patentable subject matter. The appellate court held that a process claim must be tied to a particular machine, or must transform an article to a different state or thing.
The petition presents two questions:
Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. §101, despite this Court's precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”
Whether the Federal Circuit's “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. §273.
Now that the Supreme Court has granted certiorari, it will rule in due course and provide a more definite answer to which inventions are patent-eligible. In this morning's Washington Post, Howard Kurtz has a profile of Supreme Court practitioner Tom Goldstein. Goldstein runs SCOTUSblog, arguably the leading blog on Supreme Court practice.
As Goldstein demonstrates, bloggers are providing some of the richest content in the media today, especially on issues that require more than a generalist's knowledge that mainstream reporters typically provide. Although Goldstein makes regular appearances on cable news shows and feeds quotes to newspaper reporters, he offered Kurtz a blistering assessment of the job traditional media are doing with coverage the Court: "I talked to three reporters from Politico today. If they can find the Supreme Court, it's because it's across the street from the Capitol. It's not their beat, and they're highly open about that."
As the media head toward more convergence, this blogger would not be surprised to see more blurring of the lines between journalists and the fields they cover. This raises obvious ethical concerns. At the same time, though, this trend may well result in providing the public a better understanding of complex fields. 5/29/2009
President Obama announced this morning that he will create a cybersecurity czar, who will be charged with coordinating security of government IT systems and other major IT infrastructure, such as stock exchanges and air traffic control systems. The New York Times has more here.
When President Obama made the announcement this morning, the White House also released a report on cyberspace policy, the product of a sixty-day review the President ordered shortly after taking office. The report sets forth the President's blueprint cybersecurity going forward.
The cybersecurity czar will report to the National Security Council and National Economic Council, although the President said he would personally select the czar and that the czar will have frequent access to the Oval Office.
In addition to creating the White House position, President Obama is expected to sign a classified Executive Order in the coming days that will direct the Pentagon to set up an arm that will equipped to wage war in cyberspace.
The coordination of cybersecurity at the highest levels is long overdue. It will also surely give rise to new controversies. Observers have already raised two concerns. First, they are concerned the White House czar will not have sufficient power because the position does not have direct access to the President. Second, civil liberties advocates are concerned that the plan will give rise to new government intrusions on privacy. During this morning's press conference, President Obama attempted to reassure the country that would not occur. 5/27/2009
Commentators are combing through Judge Sonia Sotomayor's past opinions in cases involving intellectual property, technology, and the media to assess her past performance on those issues. A surprising trend is emerging: Judge Sotomayor has not written many opinions in cases involving the aforementioned issues, despite the fact that she sat on the U.S. District Court for the Southern District of New York -- one of the most copyright- and media law-heavy dockets in the country -- and the U.S. Court of Appeals for the Second Circuit, which hears appeals from the Southern District of New York.
Nevertheless, Judge Sotomayor did pen the trial court's ruling in a leading copyright case, New York Times v. Tasini, when she sat in the Southern District of New York. That case was ultimately appealed to the Supreme Court, which reversed Judge Sotomayor's opinion and held that freelance photographers could demand additional royalties when publishers reprinted old newspapers and magazines in digital format. New York Times v. Tasini, 533 U.S. 483 (2001).
While on the Second Circuit, Judge Sotomayor authored an opinion in which the court held that in rem actions brought under the Anticybersquatting Consumer Protection Act must be brought in the judicial district where the registrar, registry, or other authority is located. The case is Mattel, Inc. v. barbie-club.com, 310 F.3d 293 (2d Cir. 2002).
Betanews has a rundown of more of Judge Sotomayor's cases here.
Several sources are reporting that the White House will name a cybersecurity czar to oversee security issues related to both the nation's public and private computer networks. The position is expected to be created when the Obama Administration merges the Homeland Security Council into the National Security Council. A report is expected to be released any day.
We will continue to monitor developments on this story.
The Register has more here. 5/26/2009
In Craigslist, Inc. v. McMaster, on May 20, 2009, Craigslist took legal action against the South Carolina Attorney General to prevent him from suing the website for violating obscenity or prostitution laws. Jim Buckmaster, CEO of Craiglist wants a restraining order and declaratory relief to protect itself.
While McMaster, the Attorney General, acknowledged that Craigslist was taking action to place erotic and potentially obscene content in an “adult” section and manually screening said content, McMaster said that the potential for prostitution and obscene content remained and thus law enforcement would continue to monitor the site to see if it operated legally.
This situation illustrates that in communities with strict obscenity and prostitution laws, the freedom of the Internet can make law enforcement difficult and can raise privacy and freedom of expression issues. 5/19/2009
The U.S. Court of Appeals for the D.C. Circuit held today that the White House Office of Administration is not subject to the Freedom of Information Act. The case is Citizens for Responsibility and Ethics in Washington v. Office of Administration, No. 08-5188. The opinion is available here.
The Office of Administration provides the Executive Office of the President with various administrative services. This lawsuit came about when the Office of Administration learned that e-mail messages created and sent during the Bush Administration years had gone missing, apparently the result of inadequate document retention policies. CREW filed a FOIA request seeking results of the Office of Administration’s investigation. The Office of Administration denied the request, claiming the office was exempt from FOIA.
The D.C. Circuit sided with the Office of Administration. In 1980, the Supreme Court held that FOIA does not apply to the immediate personal staff or units of the Executive Office of the President whose sole function is to advise and assist the President. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980). FOIA, by its own terms, applies only to "agencies." The court concluded that the Office of Administration is not an agency, but part of the class described in Kissinger. Today's Washington Post reports on the sclerotic backlog the U.S. Copyright Office is experiencing in processing applications for claims to copyright. The Copyright Office is currently sitting on a pile of 523,000 applications waiting to be examined. Processing time is running at eighteen months. If you submitted an application in late 2007, Copyright Office staff is probably getting around to examining it now.
The backlog, ironically, is a result of the Copyright Office's effort to roll out a new electronic filing system. The new system went live last year and the Copyright Office shut down its old paper-based filing system. But forty-five percent of applicants are still submitting paper applications, which Copyright Office staff have to enter by hand into the electronic system.
The most serious consequence of the problem is borne by copyright owners who need to register their works prior to bringing an infringement lawsuit. The Post article refers to a report from the Inspector General, which concluded that the backlog is threatening the integrity of the copyright system. It seems, however, that the problem is only getting worse, and the Copyright Office has failed to present a plan for getting out of the mess. 5/12/2009
In an Opinion issued May 7, 2009, the U.S. Court of Appeals for the Ninth Circuit reversed a district court and allowed a suit to proceed against Yahoo alleging that Yahoo promised, but failed, to remove offensive material about the plaintiff from its website. Barnes v. Yahoo!, Inc., No. 05-36189 (9th Cir. May 7, 2009).
The court noted that 47 U.S.C. §230 prevents a plaintiff from imposing liability on companies like Yahoo that would treat Yahoo as the "publisher or speaker" of the content at issue. It accordingly held that the plaintiff had not stated a claim against Yahoo for "negligent undertaking" (i.e., failing to remove the offensive content) because this would treat Yahoo! as the "publisher or speaker." However, the court held that the plaintiff's "promissory estoppel" claim stated a viable cause of action because the liability imposed under this theory "would come not from Yahoo's publishing conduct, but from Yahoo's manifest intention to be legally obligated to do something." The decision suggested that, if Yahoo had refused to take down the offensive conduct, it would be protected by §230. However, having allegedly promised to take down the content, it changed the "baseline rules" and could not claim protection under §230. The bottom line: don't make promises to investigate an issue or remove material or you may lose your §230 defense. 5/11/2009
A coalition representing trademark owners has submitted a proposal to ICANN to improve the new generic top-level domain name (gTLD) scheme scheduled to take effect later this year.
The trademark owners are proposing that ICANN implement a number of institutional pillars that will put potential registrants on notice of prior-existing trademark rights and enable trademark owners to respond quickly if a potential registrant attempts to register a confusingly similar domain name. Among other things, the trademark owners propose that ICANN create an IP Clearinghouse, where trademark owners could pay for a watch service that would alert them when someone attempts to register gTLDs that might be of concern to them. The IP Clearinghouse would also feature a Globally Protected Marks List, which would block applications for famous marks.
The full report is available here. For background on the new gTLD scheme, see our earlier post here. 5/4/2009
The Supreme Court of the United States today remanded the infamous case involving Janet Jackson's "wardrobe malfunction" during the 2004 Super Bowl halftime show back to the Third Circuit. The Third Circuit previously invalidated a $550,000 fine the FCC imposed against CBS airing the incident. The Supreme Court, however, is ordering further consideration below in light of the Court's ruling last week on the regulation of "fleeting expletives."
In last week's "fleeting expletives" case, the Supreme Court held that the FCC's decision to switch to a stricter policy on the use of curse words on television and radio was not arbitrary and capricious and, therefore, did not violate the Administrative Procedure Act. The Court, however, ducked the issue of whether the FCC's policy violated the First Amendment and sent the case back to the Second Circuit to review that issue.
In both Justice Thomas's concurring opinion and the dissenting opinion in the fleeting expletives case, there appears to be rumblings that the Supreme Court believes the policy does not pass constitutional muster. It will be interesting, however, to see whether the Court ultimately treats fleeting expletives and fleeting nudity equally under the First Amendment, or whether the Court decides tighter regulation of fleeting nudity is permissible. 5/2/2009The judge overseeing the lawsuit brought by the Author's Guild and others against Google concerning Google's audacious attempt to digitize and make available all the out-of-print "orphan" works has delayed approval of the settlement by four months. The judge did this in reaction to concerns of several interested parties that the settlement would give Google a de-facto monopoly over orphan works.
The concerns raised seem vastly overblown. This blogger does not understand how a monopoly can be gained on something for which, by definition, there is no current market. If a market is created it will be because Google spent the intellectual and monetary capital to create it. If Google does create a significant market for orphan works, and then somehow absuses legitimately gained market power (by charging monopoly rates or engaging in censorship), the antitrust laws will still be there. 4/22/2009
Several months ago we reported on defendant Jeffrey Tenenbaum's Motion to Admit the Internet in the Courtroom in a lawsuit the Recording Industry Association of America brought against him the U.S. District Court for the District of Massachusetts. The district court granted the motion, and Sony BMG, one of the RIAA defendants, appealed to the First Circuit for a writ of mandamus.
In an opinion released this month, the First Circuit ruled the district court abused its discretion in allowing webcasting of the trial. The court's ruling was based primarily on its interpretation of the District of Massachusetts' Local Rule 83.3, which provides that “no person shall take any photograph, make any recording, or make any broadcast by radio, television, or other means, in the course of or in connection with any proceedings in this court.”
In a concurring opinion, however, Judge Kermit Lipez wrote that while he agreed with the court's interpretation of Local Rule 83.3, he believed the underlying policy of keeping webcasting out of the courtroom was flawed. |
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