Copyright

Capitol Records Bares Knuckles in Redigi Suit, Goes After Founders

It’s a sad reality that when the record companies want to get serious, they sue not only companies that they claim have infringed their copyrights, but the owners of those companies. Capitol Records pursuit of Michael Robertson, despite the bankruptcy of MP3tunes, is a classic example. MP3tunes declared bankruptcy and shuttered its service, but Capitol Records (part of UMG), pursued Robertson individually, and obtained a $41 million verdict against him personally.

Capitol is using the same strategy against Redigi (“the world’s first pre-owned digital marketplace”). I’ve written about Redigi several times (see here, here and here). The last of these, Federal Judge Tells Redigi to Shut it Down, posted April 2, 2013, describes the New York federal court’s decision holding that Redigi’s digital resale business is not protected by the first sale doctrine. In that post I noted that Redigi could face millions of dollars in damages, and that liability might not be limited to the company:

Capitol may seek leave of court to add as defendants the individual owners and employees of Redigi that exercised control over or benefited from the infringement.  

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Ninth Circuit Hands Oracle a Tough Choice in Oracle v. SAP Copyright Ruling

Oracle faces a tough call following the Ninth Circuit’s August 29, 2014 decision in Oracle Corp. v. SAP AG. Should Oracle accept the $ 356.7 million in copyright damages the Ninth Circuit authorized on appeal, or roll the dice for a new trial, gambling that it can do better?

I’ve written about this case before (see Oracle and SAP Avoid a Retrial, Go Directly to Appeal, in the Other “Tech Trial of the Century”). As I discussed in that September 2012 post, in 2010 Oracle won a record $1.3 billion copyright infringement jury verdict against SAP.  However, the trial judge held that the jury’s “hypothetical-license” damages award was based on undue speculation, and ordered remittitur, reducing the judgment to $272 million, and giving Oracle the choice of accepting that amount or retrying its damages case. Oracle and SAP then entered into a complex stipulation that allowed the parties to avoid an immediate retrial and permitted Oracle to appeal the district court remittitur order.Read the full article

The U.S. Supreme Court IP Year in Review

by Lee Gesmer on September 3, 2014

[As initially published in the September 1, 2014 issue of Massachusetts Lawyers Weekly]

A lot has changed in the realm of intellectual property law following the record-breaking ten intellectual property cases decided by the U.S. Supreme Court in its 2013 term. Highlights of the six unanimously decided patent cases include suits in which the Court narrowed the scope of patent protection for inventions implemented on computers, made it easier to invalidate a patent for indefiniteness, and made it easier for the district courts to shift attorneys’ fees to prevailing defendants.

The Court issued two copyright decisions, including an important ruling that may have implications for cloud computing. And, one of the Court’s two Lanham Act opinions established a new doctrine for standing in false advertising cases.

Patent

Medtronic v. Mirowski Family Ventures (Jan. 22, 2014) was the first of five decisions overruling the Federal Circuit outright. The Court held that in a declaratory judgment action for non-infringement brought by a patent licensee, the burden of proving infringement lies with the licensor/patent holder, not the licensee. … Read the full article

Seventh Circuit Finds That Copyright Protection for Sherlock Holmes "Character" Has Expired

It may come as a surprise to some readers that fictional characters are protected by copyright law.  Even if the actual words used to describe a character are not copied, a “well delineated” or “especially distinctive” character may  receive copyright protection. Prominent examples from decided court cases include Rocky (under-appreciated, sullen, heroic boxer) and James Bond (British accent, tuxedos, “license to kill,” “stirred not shaken”). Unlike stock/stereotypical characters, Rocky and Bond have specific character traits and characteristics that entitle their creators (or owners) to claim copyright in these fictional characters. The more the character has unique, identifiable traits and plays a central role in the work in which the character appears, the stronger the copyright protection permitted by the courts. (If you’ve seen Guardians of the Galaxy, “Rocket Raccoon” is a classic example of a protectible character).

Who then, could be more entitled to a “character copyright” than the solitary, tobacco and cocaine-loving, deductive genius-detective Sherlock Holmes, one of the most popular and enduring fictional characters of the last century?*… Read the full article