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Trademark Infringement or First Amendment Right of Freedom of Speech?

By Yunnan Jiang – Edited by Paulius Jurcys

On October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint brief in the U.S. Court Of Appeals, urging  that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”. The brief argues that the use of the names of organizations to comment, critique, and parody, is constitutionally protected by the speaker’s First Amendment right of freedom of expression.

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Twitter goes to court over government restrictions limiting reporting on surveillance requests

By Jens Frankenreiter – Edited by Michael Shammas

Twitter on Oct. 7 sued the government, asking a federal district court to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail. Twitter opposes complying with the rules agreed upon by the government and other tech companies in a settlement earlier this year, and argues that the rules violated its rights under the First Amendment.

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Popular Samsung Phones under Investigation for Patent Infringement

By Asher Lowenstein – Edited by Saukshmya Trichi

The US International Trade Commission has instituted an investigation of patent infringement involving some of Samsung’s most popular smartphones. ITC will have to decide whether it is in the public interest to ban a major producer from selling its phones in the US.

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Federal Circuit Flash Digest: News in Brief

By Kathleen McGuinness

Two contested patent terms upheld as means-plus-function

Judgment of damages sufficient to render plaintiff a prevailing party for fee awards

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Google Faces Potential Lawsuit in Connection with Celebrity Photo Leaks

By Amanda Liverzani – Edited by Mengyi Wang

Celebrities impacted by the theft and distribution of personal images stored on Apple’s iCloud service may soon head to court seeking damages from Google for continued copyright infringement and privacy violations. Google is accused of failing to remove the private pictures pursuant to the Digital Millennium Copyright Act (“DMCA”) and threatened with a lawsuit for compensatory and punitive damages that could reach over $100,000,000 unless the offending content is promptly taken down.

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Ass’n for Molecular Pathology v. Myriad Genetics
By Alex Shank – Edited by Kathleen McGuinness

Ass’n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 (569 U.S. ___ June 13, 2013)
Slip opinion

Photo By: Stew DeanCC BY 2.0

In a unanimous decision, the Supreme Court held that “a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated.” Ass’n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398, slip op. at 1 (U.S. June 13, 2013). However, “cDNA is patent eligible because it is not naturally occurring.” Id. The Court thus affirmed in part and reversed in part the Court of Appeals for the Federal Circuit’s prior opinion upholding the patent eligibility of isolated DNA.

Bloomberg provides perspectives from groups with a special interest in the case—including the ACLU, university researchers, diagnostic testing companies, the Biotechnology Industry Organization, and Angelia Jolie—and speculates on the impact of the opinion on personalized medicine. Professor Paul Cole, writing for Patently-O, discusses the mismatch between the Supreme Court’s holding and the international consensus on the patentability of isolated DNA. JDSupra highlights the narrowness of the holding and the Supreme Court’s failure to clarify the bounds of patentable subject matter under 35 U.S.C. § 101.

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Posted On Jun - 25 - 2013 Comments Off READ FULL POST

Good Morning to You Productions v. Warner/Chappell Music
By Samantha Rothberg – Edited by Gillian Kassner

Photo By: Kanko*CC BY 2.0

Complaint, Good Morning to You Productions Corp. v. Warner/Chappell Music, Inc., 1:13-cv-04040 (S.D.N.Y., June 13, 2013)

Complaint hosted by The Wall Street Journal, online.wsj.com

Good Morning to You Productions Corp. (“GMTY”), a film production company, filed suit in federal court against Warner/Chappell Music, Inc. (“Warner/Chappell”), which holds the copyright to “Happy Birthday to You.” GMTY seeks to have the court invalidate the Happy Birthday copyright, declare the song to be in the public domain, and force Warner/Chappell to repay millions of dollars in licensing fees. GMTY’s complaint alleges that “[i]rrefutable documentary evidence” proves that any valid copyright in the song expired nearly a century ago. Complaint at 2. Although the copyright has been the subject of several prior lawsuits, its validity has never been adjudicated. Id. at 15–16.

The New York Times and Ars Technica both provide an overview of the case. Forbes provides some historical background for GMTY’s allegations. TechDirt notes that while commentators have argued for years that “the song is almost certainly in the public domain,” no one had thus far challenged the copyright in court because it was more cost-effective to pay the $1,500 licensing fee. This lawsuit’s multi-million-dollar class action structure changes that economic calculation.

GMTY is producing a documentary about the song “Happy Birthday to You.” Id. at 17. GMTY approached Warner/Chappell about using the song in their film, and were told that they could either pay a $1,500 license fee or pay statutory fees of $150,000 for copyright infringement. Id. at 17. GMTY paid the licensing fees. Id. at 18. However, they did not stop there. On behalf of a proposed class comprised of anyone who paid a licensing fee to Warner/Chappell for the use of “Happy Birthday to You” in the past four years, GMTY brought suit in the U.S. District Court for the Southern District of New York, seeking a declaratory judgment that Warner/Chappell does not actually own a valid copyright for “Happy Birthday.” Id. at 21. If declaratory judgment is granted, GMTY requests injunctive relief and restitution of all license fees paid for the use of the song. Id. at 23.

GMTY’s complaint offers a wealth of historical detail. The complaint traces the song’s origins back to 1893, when the melody was first published as the song “Good Morning to You” by sisters Mildred and Patty Hill. Complaint at 3.  The Hill sisters assigned their rights to Clayton F. Summy in exchange for 10% of the proceeds from Song Stories for the Kindergarten, a compilation that included the song. Id. at 3–4. Summy obtained a copyright for the compilation in 1893, and another copyright in a reissued version in 1896. Id. at 4–5.

In 1899, Summy published and copyrighted ”Good Morning to You” and 16 other songs by the Hill sisters in a new compilation, Song Stories for the Sunday School. Id. at 5–6. In 1907, he obtained a copyright for the song “Good Morning to You” as an individual musical composition. Id. Summy did not renew the 1893, 1896, 1899 or 1907 copyrights, which fell into the public domain when their 28-year copyright terms expired in 1921, 1924, 1927 and 1935, respectively. Id. at 8, 21.

The lyrics to “Happy Birthday” appear to have arisen more organically. The public began singing the familiar “Happy Birthday” lyrics at some point in the early 1900s, although it is not known who authored them. Id. at 6. The lyrics and music appeared together for the first time in a 1924 compilation by Robert H. Coleman, who neither claimed ownership of the song nor identified the rightful author or copyright owner. Id. at 8–9.

In 1935, Summy filed for a copyright for “Happy Birthday to You,” a piano arrangement of “Good Morning to You” that included the “Happy Birthday” lyrics. Summy did not attribute authorship of the lyrics or claim a copyright in the lyrics. Id. at 14–15. GMTY’s complaint alleges that this copyright was invalid for lack of original authorship. Id. at 15. In 1938, Summy granted the American Society of Composers, Authors and Publishers (“ASCAP”) the right to license “Happy Birthday to You” and to collect fees on Summy’s behalf. Id. at 15. Summy’s company renewed the copyrights it obtained in 1934 and 1935, and was eventually acquired by Warner/Chappell in 1998. Id. at 16. Today, Warner/Chappell claims to own the exclusive copyright to “Happy Birthday to You.” Id. at 16–17.

If GMTY’s suit succeeds, Warner/Chappell and its parent company, the Warner Music Group, will lose a lucrative source of licensing revenue estimated at $2 million per year. They may also be obligated to pay back millions in licensing fees. However, the effects could resonate beyond this particular suit — a successful outcome in this case may turn the class action lawsuit into a popular tool for challenging copyrights.

Posted On Jun - 24 - 2013 Comments Off READ FULL POST

Maracich v. Spears
By Natalie Kim – Edited by Mary Grinman

Photo By: . .CC BY 2.0

Maracich v. Spears, No. 12-25, 570 U.S. ___ (June 17, 2013)
Slip Opinion

On Monday, the Supreme Court held that the “litigation exception” of the Driver Privacy Protection Act (“DPPA”), 18 U.S.C. §§ 2721–2725, did not apply to attorney solicitation of clients, vacating a decision of the 4th Circuit. On remand, the lower court must determine whether Spears’ communications were sent with “the predominant purpose of solicitation.” Maracich, slip op. at 29.

Overlawyered summarizes the holding, speculating which points may be more relevant on remand. Cato expresses surprise at how every Justice switched sides since another significant privacy case two weeks ago, Maryland v. King, No. 12-207, 569 U.S. ___ (June 3, 2013) (holding that post-arrest cheek swabs were legitimate police booking procedures under the Fourth Amendment). NYTimes mentions that this could expose routine attorney activity to “huge” civil and criminal liability.

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Posted On Jun - 23 - 2013 1 Comment READ FULL POST

By Kathleen McGuinness

Icon-newsGoogle News Becomes Opt-In in Germany

Following Germany’s recent broadening of copyright protection for news “snippets,” Google News changed their user policy for publishers in Germany, requiring publishers to opt in to Google News participation using a new confirmation system. Forbes provides a translation of the new policy. Tools like robots.txt, which prevent Google from indexing a page, will still be recognized. In all other countries, Google News remains opt-out; publishers who do not want excerpts of their work reprinted in search results must use tools like robot.txt or inform Google that they do not want their pages to be indexed, both of which prevent results from appearing in Google searches. TechCrunch gives an explanation of the history of the new law and its implications.

Federal Circuit Rules that Software Patent Is Not an “Abstract Idea”

On Friday, the Federal Circuit in Ultramercial v. Hulu, No. 2010-1544 (Fed. Cir. June 21, 2013), found to be valid a patent protecting a method of distributing copyrighted content online without user payments, in exchange for the user viewing an advertisement which would pay for the copyrighted content. The court focused on the pro-protection history of the most recent changes to the Patent Act, the fact that the patent did not cover every application of the abstract idea, and on Supreme Court precedent indicating that a patent tying an abstract idea to a specific method for doing something with a computer is not too abstract to merit protection. IP Spotlight describes the holding and its implications in more detail.

Tokyo Court Rules for Apple, Against Samsung in Bounce-Back Patent Dispute

On Friday, a Tokyo court ruled that Samsung had infringed Apple’s controversial “bounce-back” patent on certain earlier models of Samsung smartphones. The status of Apple’s U.S. patent on the bounce-back user interface element remains in contention; the PTO ruled that the patent was invalid earlier this year, but recently decided that some elements of the interface were patentable. Reuters has a short summary. Apple and Samsung have gone back and forth in their Tokyo patent disputes; last August, Apple lost a suit against Samsung over music and video synchronization on smartphones. Bloomberg describes the business history and implications of the decision.

Posted On Jun - 22 - 2013 Comments Off READ FULL POST

Organic Seed Growers and Trade Ass’n v. Monsanto Co.
By Kathleen McGuinness – Edited by Jennifer Wong

Photo By: the yes manCC BY 2.0

Organic Seed Growers and Trade Ass’n v. Monsanto Co., 2012-1298, (Fed. Cir. Jun. 10, 2013).
Slip Opinion

On June 10, the U.S. Court of Appeals for the Federal Circuit dismissed an action seeking a declaratory judgment of non-infringement and invalidity with respect to three biotechnology patents owned by Monsanto, affirming the lower court’s holding that there was no justiciable case or controversy and dismissing for lack of jurisdiction. The court held that Monsanto’s assurances that it would not take legal action in cases of inadvertent contamination by their proprietary transgenic seeds constituted a legally binding disclaimer of intent to sue. Since the plaintiffs had taken no steps to remove themselves from the protection of this disclaimer, any controversy was moot.

Reuters provides a summary of the case. Bloomberg discusses the factual background in more detail. Patently-O briefly explains the legal holding. (more…)

Posted On Jun - 20 - 2013 Comments Off READ FULL POST
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