From the monthly archives:

April 2009

Podcast Interview of Professor Charles Nesson: Why Statutory Damages Under the Copyright Law are Unconstitutional in the Tenenbaum Case

April 7, 2009

As everyone in the copyright law community knows by now, Harvard Law School Professor Charles Nesson, and a team of HLS students, are defending Joel Tenenbaum in an RIAA action. Nesson’s primary argument is that the copyright statute’s statutory (aka punitive) damages of as much as $150,000 per infringement is unconstitutional, least as applied to

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Whither Antitrust?

April 6, 2009

A new administration often means a new approach to federal agency enforcement of the antitrust laws.  And, a shift from Republican to Democrat often means more aggressive enforcement by the DOJ and FTC.  The business and legal communities want to know, what can we expect? James W. Lowe and Thomas Mueller of Wilmer Hale attempt

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Second Circuit: Google Keyword Ad Practices Are "Use in Commerce"

April 6, 2009

A few days ago I discussed a decision by Massachusetts U.S. District Court Judge Nancy Gertner holding that purchase of a trademarked keyword to trigger a sponsored link on a search engine constitutes a “use in commerce” of the trademark under the Lanham Act (the Federal Trademark statute). (Earlier post here). In that post I

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Expect a "Perilous Future for Most Business Method Patents," Saith Judge Marylin Patel

April 6, 2009

Judge Marylin Hall Patel, a federal district judge in the North District of California (San Francisco/Silicon Valley) since 1980 and Chief Judge in the District from 1997 – 2004, is a well known federal judge when it comes to intellectual property matters. For example, Judge Patel decided the Grokster case at the district court level,

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In Search of the Perfect Search

April 3, 2009

The issues associated with Electronically Discoverable Information (ESI) hang over the legal profession like the threat of Katrina II hangs over New Orleans. Lets face it: most judges and attorneys would do anything to avoid confronting the complexities of ESI. However, judges are good at forcing lawyers to face up to bad stuff, so it’s

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Who Watches the Watchmen?

April 2, 2009

“How does the court have confidence that the public integrity section has public integrity?” Judge Emmett Sullivan, during the trial of former Senator Ted Steven Prosecutor: I already got no proof how the victim got hold of that heroin. Now you’re saying I can’t put Hodgins on the stand? Why? FBI Agent: You don’t wanna

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A Blog Symposium, Hosted by Truth on the Market

April 1, 2009

Take a book: Innovation for the 21st Century, Harnessing the Power of Intellectual Property and Antitrust Law, by Michael A. Carrier.  Invite several IP and antitrust luminaries to comment on the book.  The result: a  “Blog Symposium” on the book organized by Truth on the Market.  The Symposium is described as follows: The format will

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Hearts on Fire v. Blue Nile: Judge Gertner Rules That Keyword to Trigger Search Engine Ads Is a "Use" Under Lanham Act

April 1, 2009

The issue here, presented in the context of a motion to dismiss, is whether adoption of a trademark as a search engine keyword constitutes a “use” under the Lanham Act.  The Lanham Act requires “use in commerce” as a condition of infringement, and as Judge Gertner points out, various courts have taken different positions on

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