Posts in Copyright Litigation

This week in Other Barks and Bites: the Senate Judiciary Committee plans to go after drug patents to promote access to generic medications; Apple faces another patent suit in the Eastern District of Texas in the midst of attempts to remove its business presence from the district; China enacts a code of conduct for patent agents; Samsung and Huawei enter into an agreement to terminate their multi-year legal battle in the Android sector; the makers of Fortnite face yet another copyright suit over dance moves; Warner Bros. strikes down a Kickstarter campaign intending to distribute edited versions of The Departed; and a Delaware jury upholds cholesterol treatment patents owned by Amgen.

Mozilla, Mapbox, Medium, Patreon, Etsy, and Wikimedia have filed an amicus brief in support of Google in its case against Oracle at the U.S Supreme Court. The platforms disagree with the Federal Circuit’s March 27, 2018, ruling that Google’s use of Oracle’s Java application programming interface (API packages) was not fair as a matter of law, reversing the district court’s decision on the matter. The brief is the latest of 14 that have been filed in the last week in support of granting the petition.

This week in Other Barks & Bites: the Chinese and U.S. governments hash out intellectual property issues; a prominent New York City politician joins the effort to break the patent on Gilead’s Truvada; Qualcomm tells the ITC that Apple’s design around undermines the agency’s finding that an exclusion order shouldn’t be entered against infringing iPhones; the Fortnite copyright cases take a new turn; Babybel loses the trademark on its red wax cheese coating in the UK; Fisker & Paykel and ResMed settle their worldwide patent dispute; Facebook could face major FTC fines for payments from children playing video games on the platform; and reports indicate that Pinterest is pursuing an initial public offering.

This week in Other Barks & Bites: the USPTO appoints a new Chief Information Officer; Apple uses Qualcomm chips in Germany while American professors urge the ITC to deny exclusion of iPhones found to infringe Qualcomm patent claims; two important IP cases will be heard by the U.S. Supreme Court next week; the EU approves copyright reforms, including the hotly-debated Article 13; Fresh Prince of Bel-Air star Alfonso Ribeiro runs into issues at U.S. Copyright Office; Facebook could owe billions in fines for consumer data practices; a jury verdict dings Walmart for nearly $100 million in trademark infringement case; and Google announces multi-billion dollar plan to expand offices and data centers across the United States.

This week in Other Barks & Bites: the Federal Circuit affirms a Section 101 invalidation of patent claims in favor of Mayo Collaborative Services; Apple wins an order to limit damages in Qualcomm patent case; Google frets over proposed European Union copyright rules; India proposes jail time for film piracy; patent validity challenges drag down the stock of a major pharmaceutical firm; and a snag in the U.S.-China trade talks throws Wall Street for a loop.

This week in Other Barks & Bites: Huawei is in hot water with both the U.S. and UK governments, while Qualcomm has just completed a new patent licensing deal with Huawei; IBM tops a new global list for most artificial intelligence-related patent applications filed; Apple files another appeal of a major patent infringement damages award handed to VirnetX in the Eastern District of Texas; and see how the biggest IP players are doing Wall Street.

Following a Federal Circuit ruling last March in which Google lost the latest in a nine-year battle with Oracle over Google’s unauthorized use of nine lines of code and 37 packages of Oracle’s Java API packages in its Android operating system, Google has once again petitioned the Supreme Court to step in.

On the morning of January 14th, the U.S. Supreme Court heard oral arguments in Rimini Street v. Oracle USA, a case that asks the nation’s highest court to decide whether the recovery of “full costs” in a copyright infringement suit as governed by 17 U.S.C. § 505 is limited to taxable costs under 28 U.S.C. § 1920 and 28 U.S.C. § 1821 or whether non-taxable costs can also be recovered. Much of the day’s discussion centered on the meaning of “full costs” and how that term had evolved under various revisions of U.S. copyright law, going back to the Copyright Act of 1831… Clement argued that Rimini Street’s interpretation of full costs renders both the word full completely superfluous and the first sentence of Section 505 without any meaning. “The better course [is] to say that ‘full’ means full, rather than nothing at all,” Clement argued.

On December 28, 2018, the limited liability company representing famed Seattle-area grunge rock band Nirvana sued clothing designer Marc Jacobs and fashion retailers Neiman Marcus and Saks Fifth Avenue in the U.S. Federal District Court for the Central District of California. At the center of the lawsuit are copyright and trademark infringement allegations regarding the use of Nirvana’s “smiley face” logo on a line of designer clothing made by Marc Jacobs. Nirvana alleges that Marc Jacobs has used the band’s common law trademarks and infringed the band’s copyright in the smiley face logo in a misleading way in order to make it appear that Marc Jacobs’ “Bootleg Redux Grunge” clothing line is endorsed by or somehow associated with Nirvana. Nirvana first licensed the use of the smiley face logo, designed by deceased Nirvana front man Kurt Cobain in 1992, and it has been continuously used to identify Nirvana’s music and licensed merchandise since.

On January 8th, the Supreme Court heard oral arguments in Fourth Estate Public Benefit Corporation v. Wall-Street.com [Case No. 17-571 (Jan. 8, 2019)] to settle a longstanding circuit split on the copyright registration prerequisite to a copyright infringement suit… The Justices gave little indication as to how convincing they found either party’s policy arguments. The first rule of statutory interpretation, however, is that if the plain meaning of the text is clear, the inquiry ends. Here, at least two of the Justices acknowledged that the term “registration” is flexible, so the issue may end up turning on how far outside the four corners of Section 411(a) the Court is willing to look to determine its meaning.

Rentmeester is asking the nation’s highest court to answer the question of whether copyright protection for a photograph is limited solely to the photographer’s selection and arrangement of unprotected elements or rather that such protection also covers elements of the photograph that express original creative judgments of the photographer. At issue in this case is an iconic image of basketball superstar Michael Jordan captured by Rentmeester in a 1984 photograph shot for LIFE Magazine. The image, which features Jordan mid-air and flying towards a basketball hoop with his left arm and both legs outstretched, was ranked by TIME Magazine as one of the most influential images of all time.

Just after Capitol Records filed its complaint in this litigation, ReDigi launched a new service, called ReDigi 2.0. With ReDigi 2.0, customers would originally download iTunes music files directly from Apple onto a specific physical location on ReDigi’s server, from which they could then stream their music or download it for personal use on their own media devices.  When a customer chose to sell a digital file, ReDigi would retain the file in the same server space and simply assign “title” to the new owner.  Thus, there would be no duplication of files, and the content would be transferred along with the original physical media. For now, we don’t know the legal status of such a system because it was introduced too late for it to be reviewed in this litigation.

On December 3rd, the U.S. Supreme Court denied a petition for writ of certiorari in TVEyes, Inc. v. Fox News Network, LLC, declining the opportunity to decide what would have been the Court’s first case on fair use in a copyright context in 20 years. Denying the petition, the Supreme Court declined to answer whether a transformative use of a copyrighted work causes a cognizable market harm under 17 U.S.C. § 107(4) if it is used in connection with a commercially successful business that the author is unlikely to enter or authorize.

The Court of Appeals for the Second Circuit recently issued a decision in Capitol Records, LLC v. ReDigi Inc. affirming a previous finding out of the Southern District of New York that ReDigi’s digital music file reselling platform infringed upon the plaintiffs’ copyright to the music files being resold. The Second Circuit panel upheld the lower court’s decision over ReDigi’s arguments that its platform enabled the lawful resale of digital music files under the first sale doctrine.

An analysis of the Official Code of Georgia Annotated led the appellate court to find that the annotations, while not having the force of law, are part and parcel of the law. First, the Eleventh Circuit found that the Georgia General Assembly was the driving force behind the annotations in the OCGA. Although the annotations were prepared by LexisNexis, those annotations were drafted based upon highly detailed instructions contained within its publishing agreement with the Code Revision Commission, making Georgia’s legislators the creators of the annotations.