Intellectual Property
March 27, 2012
Chinese Authors Strike against Apple Inc.
Last Sunday Chinese state media reported that a group comprising of 22 Chinese authors have filed suit against Apple alleging that Apple’s App Store has been selling unlicensed copies of their books.
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.
December 9, 2011
Priorities and Special Projects of the Copyright Office for the Next Two Years
The U.S. Copyright Office just released its priorities and special protects for the next two years in the areas of policy and administrative law. Some highlights are: Treatment of Pre-1972 Sound Recordings, Mass Book Digitization and Rogue Websites.
December 4, 2011
Sam Francis Files Class Action Suit against Art Galleries under California’s Resale Royalty Act
In 1976, Governor Jerry Brown signed into law the Resale Royalty Act, which allows artists to profit from the resale of their visual works in secondary markets. According to the statute, if the artist is a U.S. citizen or California resident for at least two years at the time of resale, if either the seller resides in California or the sale is held in California, and if the work is valued at over $1000, then the artist is entitled to a 5% royalty of the sale price. If the sale price depreciates in value, the artist is owned nothing. When a reseller cannot locate the artist, it is required to transfer the royalty payment to California’s Art Council. The concept that artists should profit from the appreciation of their visual works is called droit de suite, which was borrowed from French law and adopted into the European Union. California is the only state to recognize resale royalties to visual artists.
November 29, 2011
UMG will Continue to Defend Its Accounting Methods in Recording Artists’ Class Action Suit
Rick James, named plaintiff in a class action suit against UMG Recordings, convinced a court in the Northern District of California to deny UMG’s motion to dismiss. James claimed that UMG violated California’s Business & Professions Code Section 17200 which prohibits unfair competition, or “unlawful, unfair or fraudulent business act[s] or practice[s].” Specifically, James contended that companies like Apple/iTunes, Liquid Digital Media, and Rhapsody Music, have entered into licensing agreements with UMG which allow them to distribute and sell musical tracks from UMG’s catalog. However, UMG “improperly characterize[ed]” these agreements as resale agreements. Resale agreements entitle artists to a smaller percentage of income as compared to licensing agreements.
November 14, 2011
The Ninth Circuit Grants En Banc Review to Interpret the Computer Fraud and Abuse Act
The Court of Appeals for the Ninth Circuit recently agreed to rehear U.S. v. Nosal, a decision that interpreted the Computer Fraud and Abuse Act (“CFAA”) to impose criminal sanctions on an employee that exceeded the scope of his computer access privileges. In a rare move, the Ninth Circuit agreed to review the decision en banc, meaning that 10 judges and the Chief Judge of the Ninth Circuit will preside over the rehearing. Commentators on the decision argue that violations of CFAA can now extend beyond the employer/employee context, thus subjecting Internet users to criminal prosecution for violating agreements limiting the users’ scope of computer use.
August 18, 2011
Tough Times for Preliminary Injunctions in Copyright Cases After eBay
In Perfect 10 v. Google, Perfect 10 argued that because it had a strong likelihood of success on the merits of its copyright claim, it was entitled to the long-recognized presumption of irreparable injury and thus issuance of a preliminary injunction. The Ninth Circuit held that the seminal eBay decision from the Supreme Court in 2006, which held that injunctions in patent cases do not issue automatically upon prevailing and rather must issue only in accordance “with traditional principles of equity,” cast a long shadow and reached copyright cases also. Specifically, it reversed the long-standing rule that posited that upon a showing a likelihood of success on the merits, there is a presumption of injury to justify an injunction. That presumption has now been jettisoned, and this is consistent with the Second Circuit’s famed decision in the Salinger v. Colting case in the copyright arena.
August 12, 2011
Yves Saint Laurent vs Louboutin: A New York District Court Orders No Preliminary Injunction Against Yves Saint Laurent and Puts Louboutin’s Red Sole Trademark in Jeopardy
A district court for the Southern District of New York denied Christian Louboutin’s motion for preliminary injunction against high-end shoe competitor Yves Saint Laurent for Lanham Act violations. Louboutin shoes are well known for their red soles, which “[f]ilm stars and other A-list notables equally pay homage” and often cost as much as $1000 a pair. Even though “the red outsole became closely associated with Louboutin” and the United States Patent and Trademark Office granted Louboutin a trademark registration for the color as part of a “lacquered red sole on footware” mark, the Court decided that color, in this context is aesthetic and does not act as a source identifier.
August 11, 2011
The Protect-IP Act: Boon or Bane?
The Protect-IP Act would vest the United State government and intellectual property rights-holders with broad powers to take action against so-called “rogue websites” dedicated to "infringing activities." Using this power, the government can force Internet websites, Internet Service Providers (ISPs), and “information location tools” to deny Internet users access to these rogue websites. The law is written broadly enough that it can force a search engine like Google to remove the rogue websites from its search results altogether, or prevent an ISP like Comcast from connecting their customers to such websites. In essence, the powers enabled by the Protect-IP Act allows the government to make entire websites, even those located abroad, invisible to the American public.
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