Infringement Nation
February 22, 2012
Copyright Wars Continue: Kim Dotcom Has Been Granted Bail
Megaupload founder Kim Dotcom, who had been arrested on January 20th 2012 following a police raid on his estate in Auckland, New Zealand, has been granted bail today after after a month of incarceration. Dotcom had previously been denied bail on the grounds that he was a serious flight risk; this assertion was made largely on the justification that the authorities were previously unsure as to the true amount of assets possessed by Dotcom, and also that during the raid on his home police had discovered multiple passports of both his previous names (Kim Schmitz, and Kim Tim Jim Vestor) as well as German and Finnish variations of these passports (due to his dual citizenship).
February 13, 2012
The Federal Circuit Affirms an “Exceptional” Case
In Marctech v. Johnson & Johnson the Federal Circuit reviewed whether Chief Judge Herndon of the Southern District of Illinois erred when he found the case was “exceptional” and awarded $3,873,865.01 in fees on that basis. In a unanimous opinion written by Circuit Judge O’Malley, the Federal Circuit panel affirmed the district judge’s opinion. Title 35 of the US Code Section 285 gives district court judges the discretion to award reasonable attorney’s fees in “exceptional cases.” A case is deemed exceptional when there has been “willful infringement, fraud, or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation...Additionally, a court can award attorney fees under § 285 if the action is brought in subjective bad faith and is objectively baseless.”
February 7, 2012
The Obama Administration Keys in on SOPA & PIPA
The Obama administration has officially voiced its opposition toward parts of both the Stop Online Piracy Act (SOPA) as well as the Protect IP Act (PIPA). In the official response of the Obama administration made via the blog from “WhiteHouse.gov,” Victoria Espinel, Intellectual Property Enforcement Coordinator at Office of Management and Budget, Aneesh Chopra, U.S. Chief Technology Officer, and Howard Schmidt, Special Assistant to the President and Cyber-security Coordinator for National Security Staff stress “that the important task of protecting intellectual property online must not threaten an open and innovative internet.”
February 2, 2012
Will the Supreme Court Review the Ninth Circuit’s Copyright Misuse Decision?
Several weeks ago, Psystar filed certiorari to ask the Supreme Court to review the Ninth Circuit’s analysis of its copyright misuse defense. Psystar is a computer manufacturer that sells computers which use Apple’s operating system software, OS X. In 2009, Apple, Inc., prevailed on a copyright infringement claim against Psystar and also successfully convinced the district court for the Northern District of California that Psystar’s copyright misuse defense should not stand. The district court decided these issues on summary judgment. Psystar did not appeal the district court’s finding of copyright infringement. However, it did appeal the court’s ruling on the copyright misuse issue.
January 25, 2012
Sundance Sued for Defamation after Publicizing Real Estate Mogul went from “Rags to Riches to Rags”
David A. Siegel filed a complaint against Sundance Institute, Inc., and Lauren Greenfield, director of the film “The Queen of Versailles,” for defamation. Siegel is the president and CEO of Westgate, a development company which owns 27 resorts. One of those resorts is in Park City, Utah, where the Sundance festival is held annually. In 2007, Siegel agreed to allow Greenfield to shoot a documentary on the construction of his 90,000 square foot home, "Versailles." While Greenfield and her crew filmed the documentary, Siegel provided free accommodations to them. He also relayed to Greenfield that he had “successfully resolved his financial issues [which resulted from a credit freeze after the financial crisis of 2008] and that Westgate remained highly profitable.” Siegel claims Westgate’s “sales remained strong.”
January 18, 2012
Contributory Cybersquatting Liability Exists but Not in Petroliam Nasional Berhad v. GoDaddy
In Petroliam Nasional Berhad v. GoDaddy.com, Inc., Petronas, the national oil company for Malaysia alleged a claim for contributory cybersquatting against GoDaddy, a domain name registrar. Cybersquatting is “the bad faith registration of a domain name that is identical or confusingly similar to another’s distinctive mark.” Domain name registrars act as intermediaries between the party registering the domain name and the registries that maintain a master list of all domain names. They are accredited by the Internet Corporation for Assigned Names and Numbers (ICANN), a non-profit organization that manages domain names and Internet Protocol addresses. GoDaddy is required to follow ICANN rules, including “maintain[ing] the status quo during a domain name dispute until receipt of directions from the registrant, an order from a court or arbitral tribunal, or the decision of an administrative panel.” Petronas uses the domain names petronas.com.my and petronastwintowers.com.my. Registrant Heiko Schoenekess registered the domain names petronastower.net and petronastowers.net using GoDaddy. He also used GoDaddy’s “dashboard” interface to forward internet traffic from these two websites to the same porn website.
January 12, 2012
The Songwriters Guild Files Amicus in First Copyright Termination Case within the Ninth Circuit
In July, 2011, Scorpio Music and Can’t Stop Productions filed for declaratory relief against Victor Willis who served Can’t Stop with a notice of termination of post-1977 copyright grants. Victor Willis was the lead singer of the 1970s disco group the Village People. Scorpio based its argument on Section 203(a)(1) of Title 17, which provides that “[i]n the case of a grant executed by two of more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it.” Scorpio asserted that the works were written as joint works and because Willis alone does not constitute a majority of the authors he does not have the right to terminate.
January 5, 2012
The Federal Circuit Convened En Banc to Hear Oral Arguments on Joint Infringement Cases
Eleven judges of the Federal Circuit convened en banc today to hear oral arguments on whether and when, to allow patent owners to pursue remedies for “joint infringement” of their patents. Joint infringement also called “divided infringement” would occur when no single defendant practices all the elements of a patent claim, but different defendants act in a way that does so. An important open issue is what type of relationship is required between the defendants for joint infringement to occur. In Akamai Technologies v. Limelight Networks, Inc., a Federal Circuit panel held that joint infringement requires “some sort of agency relationship between the parties...or [for one to be] contractually obligated to the other to perform the steps.” At today’s hearing, Akamai’s counsel argued that the panel’s holding created an “unfair loophole.” Akamai’s pointed out that the patent statute provides remedies against “whoever uses the patented invention,” and Akamai argued that “whoever” can be either a single party or more than one party.
December 27, 2011
Knowledge and Copyright Infringement Do Not Create Specific Jurisdiction in Plaintiff’s Forum State
Judge Edward M. Chen of the Northern District of California granted a motion to dismiss Lang v. Morris for lack of personal jurisdiction. The opinion relies on recent Ninth Circuit interpretation of specific jurisdiction requirements in cases where the plaintiff was attempting to pursue litigation in the plaintiff’s resident forum-state. In Lang, the plaintiff was an origami artist who sued Sarah Morris, painter and film maker, for allegedly willful copying of plaintiff’s origami designs. Lang filed suit in California, where he resides. Morris is a New York resident and claimed she neither sold the works in question in California nor had a representative or agent in California. Lang argued that the court should find personal jurisdiction because Morris willfully infringed his work while knowing Lang resides in California. The case was dismissed because Judge Chen found Morris had insufficient personal contacts with California.
December 20, 2011
Footzyrolls Rolled into Tootsie Roll’s Mark?
Tootsie Roll Industries is suing small business shoe designer, Rollashoe LLC, for Lanham Act violations in the Northern District of Illinois. At issue in this case is whether Rollashoe’s trademark, Footzyrolls, likely causes confusion with Tootsie Roll or dilutes the value of the Tootsie Roll mark. Although tootsie roll is probably best known as a chewy, chocolate flavored confection, the Tootsie Roll mark doesn’t just appear in connection to the candy. It also appears on footwear, accessories, and clothing. The mark Footzyrolls is registered for footwear accessories, like “rollable ballet slippers, drawstring bag for alternate shoes and a small purse bag for the rollable slippers all packaged together in the small box.”
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