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Indigenizing the Intellectual Property System

On August 9, we once again observe the International Day of the World’s Indigenous Peoples. Traditionally, international organizations take advantage of this time to promote the contributions of indigenous peoples across the globe. However, the day also presents an opportunity for States and international organizations to reflect on collective efforts to protect and preserve the culture and heritage of our indigenous communities. There are many threats to the rich cultures of our indigenous populations. These threats have remained widely unresolved despite the fact that indigenous peoples make up around 370-500 million of the world population. Included in these overlooked issues is the lack of protection given to the intellectual property (IP) of indigenous peoples. It is high time that we push for more accessible, effective, and durable protective measures for indigenous creations.

Investor Group Buys Half of Prince’s Tightly Controlled but Intellectual Property-Attractive Estate

With the value of his music catalogue still subject to an ongoing dispute between the trust managing his estate and the IRS, Prince, who died in 2016, has a new partner. Primary Wave, whose catalog includes songs by Nirvana, Bob Marley, Ray Charles and Smokey Robinson, has taken a roughly 50% stake in Prince’s estate, buying out the interests of three of the late musician’s siblings. Primary Wave is said to have $1.6 billion in investible assets. A highly creative and successful writer, producer and performer, Prince was also a savvy IP strategist, who sought to control his work, name and image. He was a fierce defender of his intellectual property rights, and was involved in a series of legal actions against businesses and individuals using his music and other IP without his authorization. He also railed against his record company, which sought to assert ownership rights over his catalogue and name.

Federal Circuit Nixes Appeal on Claims of Unfair Treatment by California Court in Pro Se Lawsuit Over Restrictions to Cancer Research

On July 20, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a non-precedential decision in Siegler v. Sorrento Therapeutics, Inc. in which the appellate court affirmed a series of rulings on motions in a copyright and trade secret lawsuit filed in the Southern District of California. Although the Federal Circuit panel in the case “[understood] that Siegler feels unfairly treated as a result of the events she outlines, she was treated more than fairly by the district court,” said the CAFC, and the court did not err or abuse its discretion in reaching decisions to deny several motions for default judgment and reconsideration, as well as dismissing a pair of amended complaints filed by Siegler.

The Biden Executive Order’s Restraint on Freedom of Contract: Regulation by Anecdote May Lead to Unintended Consequences

Capping months of anticipation, President Joe Biden on July 9 unveiled his Executive Order on Promoting Competition in the American Economy, which he argues will “lower prices for families, increase wages for workers, and promote innovation and even faster economic growth.” To achieve these lofty goals, the order prescribes regulatory interventions that interfere with property and contract rights in industry after industry. Undergirding the order is the premise that “competition has weakened in too many markets, denying Americans the benefits of an open economy and widening racial, income, and wealth inequality.” The White House offers only a handful of anecdotes to justify this sweeping conclusion, which remains highly disputed. In fact, few sectors of the U.S. economy are especially concentrated, and many markets that have become concentrated at the national level have become less concentrated at the local level, as national chains open up in more areas.

Davis v. Pinterest: Pinterest Pins Victory in Contributory Copyright Infringement Claim – But Decision May Open a Door for Future Suits

On March 9, 2021, a federal court in the Northern District of California dismissed the contributory infringement claim first filed by Harold Davis (hereinafter, “Davis”), the Plaintiff, on November 20, 2019 against Pinterest, Inc. (hereinafter, “Pinterest”), the Defendant, in Davis v. Pinterest, Inc., 2021 WL 879798 (N.D. Cal. Mar. 9, 2021). Davis filed a complaint for both direct and contributory copyright infringement. The order of March 9, 2021 was, however, limited to Pinterest’s challenge to the claim of contributory infringement.

First Circuit Rules Markham’s Development of ‘The Game of Life’ Was Work Made For Hire Not Subject to Termination Rights

On June 14, the U.S. Court of Appeals for the First Circuit issued a decision in Markham Concepts, Inc. v. Hasbro, Inc. affirming a lower court’s ruling that the game design firm that developed classic board game, “The Game of Life,” possessed no termination rights in Hasbro’s copyright to that game. In so ruling, the First Circuit reiterated that the “instance and expense” test to analyze work for hire status applies to works governed by the Copyright Act of 1909, and found that the district court properly applied that test in determining that Markham’s successors-in-interest had no termination rights.

Game On: How IP Helps the Video Game Industry Level Up

While countless industries have been forced to adapt to the COVID-19 pandemic, the video game industry has been on a winning streak. Historic numbers of people have turned to video games for social connection, competitive sport, and everything in between. By the numbers, one in three people on the planet play video games and, this week, millions of those people tuned into E3, the premiere event for game players and game creators alike.

Scholars, Register of Copyrights Reinforce Opposition to American Law Institute’s Restatement of Copyright Project

The American Law Institute (ALI) is under fire this week for its Restatement of Copyright Law project, which it was set to vote on during its Annual Meeting this week. According to the Copyright Alliance, ALI members on June 8 approved many sections that will make up the first three chapters of the Restatement. In 2019, members of Congress sent a letter expressing serious concerns over the project. Senator Thom Tillis (R-NC) and Representatives Ben Cline (R-VA), Martha Roby (R-AL), Theodore Deutch (R-FL) and Harley Rouda (D-CA) sent a letter to ALI stating that laws created through federal statute like copyright are “ill-suited for treatment in a Restatement” and threaten to muddle the law. The U.S. Copyright Office, the American Bar Association (IP Law Section) and the U.S. Patent and Trademark Office raised similar concerns.

Friends Reunion: The One with the Copyright Battle

Friends is one of the most beloved American shows. The characters and the scenes from the series have remained in the heart of fans for almost two decades. The last episode aired nearly 17 years ago, but recently the cast gathered for a special episode titled “Friends Reunion.” This was also loved by fans across the world who watched the series. The exclusive streaming and broadcasting rights were conferred upon HBO Max for five years. In the countries, where HBO Max does not operate, these rights were sold to different channels and Over-the-Top (OTT) media service platforms such as the OTT giant Zee5 in India.

Do Your Due Diligence Before Participating in an NFT Transaction

Nonfungible tokens, or “NFTs,” are dominating the news cycle lately. From the $69.3 million sale of digital artist Beeple’s “Everydays — The First 5000 Days,” at Christie’s Auction House, to a $9.00 three-pack of NBA digital trading cards, NFTs with varying price tags are everywhere. Whether this new craze is a bubble waiting to be burst or whether it is here to stay, those wishing to take part in an NFT transaction need to be aware of everyone’s roles. Here’s what buyers and sellers should know.

IBM-IPwe Partnership Hopes to Increase Patent Efficiency, Propel Transactions

Investors, both speculative and strategic, are adjusting to the emergence of a bold new category of assets—digital collectibles. NFTs, or Non-Fungible Tokens, are so called because they are irreplaceable or one-of-a-kind artifacts–effectively, digital “limited editions.” NFTs trade on blockchains or distributed ledgers, typically without middlemen or brokers. The primary advantage of most blockchains is transparency and efficiency. Agreements are recorded on an open ledger for all to see. This is especially attractive to frequent traders who require accurate pricing and full disclosure for difficult-to-value assets. Now, two stalwarts in the intellectual property world, IBM and IPwe, believe that NFTs can be used to take patent monetization to new heights.

Supreme Court Grants Cert in Unicolors v. H&M to Consider Whether Section 411 Includes Intent-to-Defraud Requirement

On Tuesday, June 1, the U.S. Supreme Court granted a petition for writ of certiorari filed by fabric designer Unicolors seeking to challenge the U.S. Court of Appeals for the Ninth Circuit’s ruling last May that reversed a jury verdict finding Swedish multinational clothing firm Hennes & Mauritz (H&M) liable for copyright infringement. The district court eventually entered a judgment awarding more than $500,000 to Unicolors. The case will ask the nation’s highest court to decide whether the Ninth Circuit properly construed the language of 17 U.S.C. § 411 in determining that the district court was required to refer Unicolors’ copyright registration to the U.S. Copyright Office because it contained inaccurate information with no evidence that the inaccurate information contained any indicia of fraud or material error regarding the work covered by the copyright registration.

Other Barks & Bites for Friday, May 28: China’s Drug Patent Linkage System Goes Into Effect Next Week; Tillis Asks Copyright Office to Conduct Examination, State Bill Studies; and New USPTO Code of Conduct Rules

This week in Other Barks & Bites: the USPTO promulgated a final rule aligning the agency’s code of conduct with the ABA’s Model Rules, as well as a notice of proposed rulemaking to allow high-capacity physical media submissions for certain patent applications; China’s drug patent linkage system, similar to the U.S. system enacted under the Hatch-Waxman Act, goes into effect next Tuesday; the EUIPO released a study showing that IP-intensive industries, although among the most harmed by the COVID-19 pandemic, are expected to bounce back quickly from economic shutdowns; the Second Circuit affirms a district court’s dismissal of copyright infringement claims involving a 2016 Super Bowl commercial aired by Pepsi; Senator Tillis sends letters to the Copyright Office asking Register Perlmutter to study state bills on compulsory copyright licenses as well as the feasibility of deferred examination for copyright registrations; and strong earnings for Nvidia, Dell and HP this week show that computer and GPU sales have not been negatively impacted by the global chip shortage.

Why SCOTUS’ Decision to Sidestep Copyrightability in Google v. Oracle is Problematic for Cases Involving Command Codes

On April 5, the U.S. Supreme Court held 6-2 that Google’s copying of 11,500 lines of code from the Java SE Application Programming Interface (API) in creating its Android operating system was a fair use. The ruling ends a decade-long battle between Google and fellow software giant Oracle, which purchased Java developer Sun Microsystems in 2010. It also overturns the Federal Circuit’s 2018 ruling in favor of Oracle, which could have led to a multi-billion dollar award against Google. Oracle Am., Inc. v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018). A recent decision from a district court in the Western District of Pennsylvania emphasizes the relevance of the Supreme Court decision in Google v. Oracle. While the case predates the Google decision, it brings up some important issues that were sidestepped in the opinion itself but were raised in the arguments presented in briefs and oral arguments for the Google case.

Putting COVID IP Waiver and IP Piracy in Context: Consumers and Producers, Pirates and Police Officers

The Office of the United States Trade Representative’s (USTR’s) 2021 Special 301 Report, published late last month, brought into sharp relief one of the ongoing issues the United States has with China. The country was again listed on its “Priority Watch List” in this annual review of the state of intellectual property (IP) protection and enforcement in the United States’ international trading partners, and the report explained that the United States remains unsatisfied with China’s failure to grant IP protection and enforcement to foreign rights holders. On the surface, very little is surprising about the USTR’s statement concerning China’s approach to the enforcement of IP rights. By now, China’s failures in the context of IP enforcement are a well-known refrain in the Western media. But dig beneath the surface, and the statement raises a multiplicity of issues that have gone unaddressed. Which IP rights are at issue? Whose IP rights are not being enforced? Should one country enforce the IP rights of the citizens of another country? If so, how and in what way does it do that? Last but not least, has the United States enforced the IP rights of the citizens of other countries?