Posts in Copyright Litigation

I have heard it said that a right without a remedy isn’t really a right. This saying completely and accurately sums up my experience with copyright infringement in the modern age. I am not an attorney, let alone a copyright lawyer. I am a small business owner whose livelihood is constantly affected by the lack of reasonable avenues for pursuing infringement of my work. For more than a decade, I have been making my living as a commercial photographer and filmmaker. During that time I have witnessed my works infringed online—an exceedingly easy thing to do in the digital age—but also in print. A most memorable example of this was finding my photo enlarged as the backdrop to a competitor’s trade show booth while my paying client was rightfully using the same artwork across the room at their own booth. An act like this is both unlawful and egregious. But the extraordinary costs of pursuing a copyright infringement suit in federal court prohibit me from seeking recourse this way without taking on the additional risk of bankruptcy.

This week in Other Barks & Bites: Chinese state political advisors suggest changes to the country’s copyright law, including stronger punitive measures for infringement; President Donald Trump bans Huawei telecommunications equipment from use on U.S. networks; Korean IP offices get ready to study inter-Korean IP cooperation; Huawei and Samsung reach a conclusion to their worldwide patent litigation; AbbVie okays a generic Humira treatment in 2023; Disney escapes Pirates of the Caribbean copyright suit unscathed; Guns N’ Roses files a trademark suit over a beer; Qualcomm enters into another worldwide patent license for 5G technology; and Procter & Gamble unveils its largest research and development center after $400 million upgrade to Ohio facility.

This week in Other Barks & Bites, IPWatchdog’s IP news roundup: the House of Representatives passes drug patent legislation, while antitrust legislation targeting patent-related activities is introduced into the Senate and the Trump administration mandates pricing information for pharmaceutical ads; the Patent Trial and Appeal Board (PTAB) issues a pair of precedential decisions on cases with multiple petitions; the USPTO issues marijuana-related trademark guidelines and a notice on modifying patent term adjustment practices; Gilead strikes a settlement with Teva to bring generic Truvada to the U.S. market in 2020; a new music licensing entity is created in Canada; Fourth Circuit rules that bankruptcy can eliminate damages for trade secret violations; and several amicus file briefs asking the U.S. Supreme Court to eliminate the Federal Circuit’s “blocking patent” doctrine.

Jenna Close is a freelance commercial photographer and owner of a small business that licenses still images and videos to both domestic and international clients. She and her partner work 60-80 hours a week booking work, shooting, billing, accounting, marketing, and continuing to develop and maintain their skills. Jenna’s images are widely infringed online. She’s found exact reproductions of her work on competitors’ websites, on websites falsely advertising that the photographs are free to use, and she’s even come across instances where companies have photoshopped their own products into her images. Despite the brazen misuse of her images that she frequently encounters, Jenna does not generally pursue claims against her infringers because it is too expensive and time consuming to do so. It’s just not worth the cost—even though she registers at least some of her images for copyright protection, and so would be entitled to statutory damages and attorneys’ fees with respect to those images in case of a court victory. Unfortunately, Jenna’s story is not unique. For countless individual artists and small businesses, combating the unauthorized use of their creative works online is a source of enduring frustration. The frequency and ease with which photographs, sound recordings, videos, and other works of authorship are shared on the Internet leaves those without significant time and resources little recourse when they encounter infringement. But now, after years of advocacy by creators like Jenna, new legislation promises long-overdue support for these marginalized groups in the ongoing fight against overwhelming infringement in the digital age.

On May 1, Representatives Hakeem Jeffries (D-NY) and Doug Collins (R-GA) officially reintroduced H.R. 2426, the Copyright Alternative in Small-Claims Enforcement (CASE) Act, into the U.S House of Representatives. The bill was originally introduced in 2017 during the 115th Congress but expired after committee review. Along with the House bill, S. 1273, the U.S. Senate version of the bill, has been introduced by another bipartisan group including Senators John Kennedy (R-LA), Thom Tillis (R-NC), Dick Durbin (D-IL) and Mazie Hirono (D-HI). The proposed legislation seeks to establish an alternative forum for resolving disputes involving small claims of copyright infringement. If passed, the CASE Act would create the Copyright Claims Board, which is served by three full-time officers and two full-time attorneys who are appointed by the Register of Copyrights. The Board would be able to render determinations on copyright infringement, declarations of non-infringement or claims for misrepresentation in association with claimed infringement, and would also be able to award damages up to $30,000 to aggrieved parties. The bulk of the bill’s language deals mainly with how the Board will operate as an alternative forum to U.S. district court, with final determinations ultimately reviewable by district court.

On Monday, the U.S. Supreme Court invited the United States Solicitor General to file a brief expressing its views in the long-running case of Google LLC v. Oracle America Inc. The case highlights the complexities of protecting software via IP rights. As with patents, the courts often struggle to apply copyright concepts to software, leaving companies bleeding time and resources. Determining what can be protected and what can’t be is complex—even for appellate courts.“ These software piracy cases are convoluted because there can be both literal and nonliteral copying, as shown by the Google v. Oracle case,” said Brian Darville, chair of the trademark and copyright practice group at Oblon. “It’s critical for companies to legally safeguard their software and ensure they’re not infringing on their competitors.”

This week in Other Barks & Bites, governments and intellectual property offices around the world celebrate World IP Day; the U.S. Trade Representative releases its most recent Notorious Markets List; TiVo subsidiary Rovi files another patent suit against licensing holdout Comcast; Amazon ramps up program for connecting sellers with lawyers for patent infringement issues; the USPTO seeks public comments on gathering data for SUCCESS Act study; music industry groups submit letter to Copyright Office regarding Mechanical Licensing Collective membership; and weak China data center sales sends Intel stock tumbling by 7.5 percent.

This week in other IP news, recently released data shows that worldwide revenues for music copyright exceeded $28 billion in 2017, up $2 billion over 2016; reports surface about the  “reverse patent trolling” issue in China; Google retains Williams & Connolly for Supreme Court battle with Oracle despite Shanmugam exit; the Copyright Office holds roundtable discussions on detecting online copyright infringement; Twitter takes down a tweet from President Donald Trump after a copyright complaint; “KINKEDIN” trademark for computer dating site successfully opposed in the UK by LinkedIn; EU antitrust regulators are petitioned to look into Nokia patent licensing practices; and loss of patent exclusivity leads to major job cuts at Gilead Sciences. 

On March 14, Senators Thom Tillis (R-NC) and Chris Coons (D-DE), respectively the Chairman and Ranking Member of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, sent a letter addressed to Karyn Temple, Acting Register of Copyrights at the U.S. Copyright Office expressing concerns that Tillis and Coons share about the U.S. Supreme Court’s recent decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. As the letter from Sens. Tillis and Coons notes, it takes an average of about six months for the Copyright Office to fully process registration applications. Given that the Supreme Court has now ruled that these applications must be fully processed prior to the filing of a suit, Senators Tillis and Coons said the real impact of the Fourth Estate decision “will be the extended unlawful exploitation of a copyright owner’s intellectual property.”

This week in Other Barks & Bites: the Supreme Court asks for the U.S. Solicitor General’s view on whether patents that claim a method of medically treating a patient automatically satisfy Section 101; a jury gives Qualcomm a win in its ongoing patent battle with Apple; the World Intellectual Property Office announces record-breaking totals for international patent applications and cybersquatting actions; Cisco avoids a nearly $60 million damages award at the Federal Circuit; McDonald’s appeals its loss in the EU over its Big Mac trademark; Tesla files trade secret lawsuits against former employees; Peloton faces a copyright suit from music publishers who are seeking $150 million; and Google gets another billion-dollar-plus fine from antitrust regulators in the EU.

This week in Other Barks & Bites: the U.S. Patent and Trademark Office promotes Scott Boalick to Chief Judge of the Patent Trial and Appeal Board (PTAB); the agency also announces a new pilot program for motions to amend at the PTAB; India’s Cabinet votes to bring trademark and industrial design law into accord with international standards; a trial date is set in the copyright case brought by the heirs of Marvin Gaye against Ed Sheeran; a Southern California district judge rules that a Dr. Seuss/Star Trek mash-up is a transformative fair use; Apple alleges that someone has tampered with a key witness in the Qualcomm patent infringement case; and UK finance ministers issue a report calling for more antitrust activity against American tech giants, including Facebook and Google.

This week in Other Barks & Bites: The United Nations highlights the importance of women in innovation on International Women’s Day; Comments due today on USPTO Section 101 Guidance; FDA Commissioner Scott Gottlieb resigns; a Senate bill with six bipartisan co-sponsors would increase requirements on patent disclosures for biologics; USPTO Director Iancu speaks out on Alice; Apple announces its intention to increase its presence in San Diego while its patent battle with Qualcomm heats up; Chinese copyright registrations increased by double digit percentage points in 2018; Stanley Black & Decker faces off against Sears in a trademark infringement battle over branding for Craftsman tools; Amazon announces that it will close dozens of pop-up stores in the U.S.; and Democrats from both houses of Congress introduce a new net neutrality bill.

Justice Ruth Bader Ginsburg delivered the opinion for a unanimous Supreme Court in Fourth Estate v. Wall-Street.com, et. al. Monday morning, March 4, holding that copyright registration occurs—and thus, an infringement action can only be brought—once the Copyright Office officially registers a copyright. The case considered whether “registration of [a] copyright claim has been made” within the meaning of Section 411(a) of the Copyright Act “when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the Fifth and Ninth Circuits have held, or only once the Copyright Office acts on that application, as the Tenth Circuit and, in the decision below, the Eleventh Circuit have held.” In the end, the Court unanimously agreed that registration is a requirement to commence suit, but, once granted, the copyright owner can sue for infringement that occurred both before and after registration.

On Monday, March 4, Justice Brett Kavanaugh issued the decision for a unanimous Supreme Court in Rimini Street, Inc. v. Oracle USA, Inc., which asked whether the meaning of “full costs” under 17 U.S.C. § 505 of the U.S. Copyright Act extends to damages outside of the six categories of costs that U.S. district courts can award against a losing party as outlined in 28 U.S.C. § 1821 and 28 U.S.C. § 1920. In siding with petitioner Rimini Street, the Supreme Court held that “full costs” in the copyright litigation context are limited to Sections 1821 and 1920, reversing the Court of Appeals for the Ninth Circuit’s decision to award $12.8 million to Oracle covering litigation expenses outside of the statutory schedule of costs.

Under normal circumstances, infringement and misappropriation of the intellectual property (IP) rights of others are subject to civil liability under U.S. federal (and some states’) law; the remedies for those whose rights have been violated typically include money damages or some form of equitable relief, such as an injunction. However, sometimes the conduct of offenders is so egregious and the remedies so inadequate that pursuit of a private cause of action is insufficient to make IP owners whole. To make matters worse, civil remedies do little to deter further infringement or misappropriation on the part of individuals and entities with more than enough money to game the system. Known as efficient infringers, according to some IP practitioners, they have mastered the business practice of paying out as little in damages as possible and refusing to negotiate licenses with IP owners, all the while bullying IP owners into spending their much smaller fortunes in order to defend their IP rights or to forfeit them—the end result sometimes being the invalidation or cancellation of their IP. Accordingly, lawmakers have enacted legislation with the goal of creating true deterrents against infringement and misappropriation by imposing criminal sanctions on a narrow set of conditions associated with infringement and misappropriation. However, the law does not criminally punish infringement of a particular type of IP: patents.