Copyright Litigation Blog #1 on Bing

In addition to being the #1 result for a "copyright litigation" search on Google, the Copyright Litigation Blog is also the number one result on Bing.

Thanks, Bing!


 Purchase Copyright Litigation Handbook from West here  

Fair Use Fridays: Statue of Liberty in Public Domain

Fair use Friday photo of yours truly by NY real estate guru Paolo Zampolli.  Good example of photographing a public domain sculpture (the copyright expired) and a U.S. government work - the U.S. flag (not subject to copyright).   Despite Paolo's best efforts and the tour of New York Harbor on his luxury speedboat, I did not purchase the Statue of Liberty, despite the excellent price Paolo offered. :-)

Italicized text and images below from http://www.loc.gov/wiseguide/oct04/statue.html

Designed and executed by French sculptor Frederic Auguste Bartholdi, the Statue of Liberty was presented by the people of France to the people of America to honor the friendship between the two nations. The statue's significance has broadened over the years, and it is now recognized throughout the world as a symbol of liberty and freedom. Erected on Bedloe's Island in New York Harbor and dedicated on Oct. 28, 1886, the statue has stirred the emotions of millions.

On Aug. 31, 1876, the Copyright Office issued copyright registration number 9939-G for the "Statue of American Independence" as the Statue of Liberty was first named. The copyright claim was filed in America's centennial year, a decade before the statue was erected in New York Harbor. Deposited with the application in the Copyright Office were two rare images. The first is a photograph of the artist's final study model, believed to be executed in terra cotta. The second image is an artistic rendering of how the statue would appear against the New York skyline after it was finally erected on the pedestal designed by architect Richard M. Hunt. This second image has great significance because it shows a very early version of the statue that most people would not recognize. In the original design, the Statue of Liberty is shown holding in her left hand a broken chain and shackle, which represent freedom newly achieved. Bartholdi later made a major change to his design by placing the chain and shackle, symbolically broken by Liberty, at her feet. He then positioned the familiar tablet, inscribed "July IV, MDCCLXXVI" (July 4, 1776), in her left hand.

In 1984, curators working on the Copyright Office exhibition "By Securing to Authors: Copyright, Commerce and Creativity in America" came across this copyright with rare attached documentation. The historic images described above are on permanent display in the exhibit on the fourth floor of the Madison Building (Monday - Friday, 8:30 a.m. to 5 p.m.), along with documentation for the copyright on the pedestal.


Many images and renderings of the Statue of Liberty, including some that reveal interesting details of this symbol of American freedom, are in the Prints and Photographs Online Catalog. Just type "Statue of Liberty" in the search box. The Historic American Buildings Survey has also documented this work extensively. These images are in the American Memory collection "Built in America." Type "Statue of Liberty Liberty Island" in the search box. The 230 black-and-white photos are older images; the 51 color transparencies offer extraordinary views of the statue during its most recent restoration.


Since the copyright registration and deposit system was centralized in the Library of Congress in 1870, more than 30 million creative works have been registered for copyright protection.



 Purchase Copyright Litigation Handbook from West here  

ACTA Update: Endorse A Petition Opposing ACTA

If you would like to voice your concern about the pending Anti-Counterfeiting Trade Agreement, a petition is going out soon, to view it and sign up, the link is below:

PIJIP: - American University Washington College of Law

My comments on ACTA here  and here.


Purchase Copyright Litigation Handbook from West here

Fair Use Fridays: Ripping DVDs For Documentary Films - Is There A Right To High Quality Free Speech?

We know from the recent Salinger/Colting case discussed here that prior restraints on speech must be weighed when we look at injunctions in the copyright infringement context.

But what about in the fair use context?  Let's look at the statute and think about a documentary filmmaker who wants to make a "fair use" of someone else's copyrighted work:

Section 107 of the Copright Act - 17 U.S.C. § 107. Limitations on exclusive rights: Fair use provides:


Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—


(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;


(2) the nature of the copyrighted work;


(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and


(4) the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
 
The Digital Millenium Copyright Act makes it a crime to circumvent encryption to rip someone else's copyrighted materials.  So isn't that criminal statute an impermissible prior restraint on free speech?
 
Doc filmmakers can't make good quality films without ripping DVDs.  They can get lower quality elsewhere.
 
The Copyright Office should act soon because the International Documentary Association has asked that the exemptions to the DMCA be reviewed.  HT to Techdirt, Hillicon Valley, reports here.  Mike Masnick at Techdirt is pessimistic, read the link:

Documentary Filmmakers Want DMCA Exemption; But Almost Definitely Won't Get It Techdirt

Purchase Copyright Litigation Handbook from West here

How To File an Appeal: Useful Checklist for Filing Civil Appeals in the Second Circuit

I have attached a checklist for practitioners who must file appeals with the Second Circuit. The Local Rules have changed, and with the changes wrought by electronic filing, it's a whole new world. I will participate in a CLE program today at 5:30 p.m. starring Catherine O'Hagan Wolfe, Clerk of the Second Circuit sponsored by the Federal Bar Association and the Second Circuit Judicial Council, you can find the program here.   If I come across any new surprises tonight, I will post them.

Practitioner's Checklist for Filing Civil Appeals in the Second Circuit


 Purchase Copyright Litigation Handbook from West here  

9th Cir: Bypasses Rule 11 Safe Harbors Whacks Attorney for $258,000

On April 26, 2010 I posted here on the Seventh Circuit hitting an attorney with a $60,000 sanction for litigating a copyright action.  The sanction was based on 28 U.S.C. section 1927 and the court's inherent power.  Notable in that case was that the sophisticated adversary had not made a motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure, nor had the court issued a show cause order pursuant to Rule 11.

Now comes Lahiri v. Universal Music and Video, --- F.3d ----, 2010 WL 2246401 (9th Cir. June 7, 2010).  This time, using 29 U.S.C. section 1927 - and again no Rule 11 motion discernable from the opinion, and the plaintiff's attorney is whacked for $258,206.04.

The facts involve the attorney, supposedly a sophisticated copyright practitioner, who took what the court determined to be a bad faith position based on Indian law of copyright, which governed ownership to the soundtrack of a film.   The court determined that he misrepresented Indian law, that Indian law is written in English, and that there was no need for the attorney to rely on an Indian law expert since Indian law is written in English.

This, like the Seventh Circuit's decision, is terrible precedent.  The Circuit courts are criminalizing the practice of law and depriving attorneys of property without due process of law.  If it took $258,000 in legal fees to prove that the guy was wrong, his error -- or even what the court found to be a misrepresentation -- could not have been so obvious.

If your adversary lies, you bring it to the judge's attention through a Rule 11 motion, which has a 20 day safe harbor.  If the judge thinks the lawyer lied, the judge, following Rule 11 is supposed to order the attorney to show cause under Rule 11 why he ought not be sanctioned.

Now, using 28 U.S.C. section 1927, federal judges are passing the blame for cases that they let languish (here for five years) onto the losing lawyer, criminalizing his actions ex post facto.

§ 1927. Counsel’s liability for excessive costs



Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.
 
In the harsh light of the rear view mirror, attorneys on either side of a case get things wrong, make blunders, or misrepresent facts (sometimes good faith mistakes, sometimes bad faith).  That is the nature of litigation practice.   As we all know, practically every attorney in Los Angeles thinks of him/herself as an experienced copyright practitioner.

When federal judges have decided to take out a pen and criminalize the losing attorney for making losing or unreasonable arguments, it is a very dangerous time for our system of justice.  28 USC 1927 talks about vexatiously multiplying the proceedings.  In this case, the guy made one Lanham Act claim and one copyright claim.  The defendant made two summary judgment motions and won, then claimed over $800,000 from the loser.

If the guy was so wrong, why didn't UMG's counsel Loeb & Loeb make a Rule 11 motion?  If they thought his arguments were frivolous, why did they sit on their hands rather than following Rule 11?   And how did they run up an 800K bill for two summary judgment motions?

In the Copyright Litigation Handbook, I devote much discussion to attorney sanctions: what gets you into trouble, and how to avoid it.   Unfortunately, the situation is getting more dangerous, and no one feels sorry for lawyers.  Put aside your schadenfreude and think hard about what this means for you, your firm, and the quality of justice in America.

 Purchase Copyright Litigation Handbook from West here  

9th Circuit: Through the Brooklyn Lorgnette - EDNY USDJ Sez Copyright Application is "Registration"

"Lady Caroline Lorgnette" from Los Angeles Iptrademarkattorney.com

In Cosmetic Ideas, Inc. v. IAC, No. 08-56079 (May 25, 2020), USDJ David G. Trager from the EDNY (Brooklyn), wrote a thoughtful and sensible opinion that eliminates one of the major annoyances facing copyright litigants in a rush, but who don't want to pay the Copyright Office's spectacularly high "special handling" fees.   The case involved a cosmetic jeweler's case against the Home Shopping Network.

The issue, recently brought to the fore in the recent Supreme Court case Reed-Elsevier, Inc. v. Muchnick, ___ U.S.___, 130 S.Ct. 1237 (2010), was this:

If you file an application with the Copyright Office, but the Register of Copyrights hasn't registered it, can you file a lawsuit before you get the registration certificate?

SCOTUS noted in Reed-Elsevier, Inc. v. Muchnick that the Circuit courts were divided over the issue, but it wasn't the precise issue before them, so declined to resolve it. Reed-Elsevier, Inc. v. Muchnick decided that the Copyright Act 17 usc 411's requirement that a copyright claimant's claim be registered was a "claim processing rule" and did not implicate the court's subject matter jurisdiction.

Cosmetic Ideas, Inc. v. IAC, the Ninth Circuit analyzed seemingly conflicting provisions in the Copyright Act for clues, but didn't find the answer.  Relying on a common sense practical approach, it went with registration occurring upon the filing of the application.

I have had a couple of cases before Judge Trager, and he taught my brother at Brooklyn Law School.  He is liked and respected among the local bar and bench.

Let's hope that the Second Circuit follows the Brooklyn approach adopted by the Ninth Circuit.

Practical Implications:  In the Ninth Circuit (and those Circuits following the application rule), just apply and get proof of receipt by the Copyright Office.  With that in hand, you can sue.  For the rest of us, unless you want to be a test case, get your certificate through the Copyright Office's Special Handling Procedures (Copyright Litigation Handbook Chapter 4)

 Purchase Copyright Litigation Handbook from West here  

From EFF - "Anti-Counterfeiting Treaty Is a Sham"

What is counterfeiting?  In my humble estimation, it is knowingly making large quantities of exact copies of a trademarked, patented, or copyrighted good with the intention of selling such large quantities to defraud consumers and the rights holders.

Thus, any anti-counterfeiting treaty would have the elements:

1. exact copies or copies intended to be so similar that a consumer could not tell the difference;
2. protected goods;
3. large quantities (500?) (2,000?);
4. intent to defraud consumers and rights holders.

Some kid copying stuff to his Ipod is not counterfeiting.   Even 2,000 songs.

So anyone labeling a treaty "anti-counterfeiting" and that does not have the foregoing elements is trying to pull a scam on me.

So when I finally got around to reading the text of ACTA, I thought that I would find the concerns I'd seen floating around the internet to be a little overblown.

In fact, I think that the concerns of the EFF are understated.   I am not so concerned about confidential negotiations to give trade representatives some time to brainstorm.   But the text appears to be so one-sided as to appear to have been spoonfed by certain aggressive Hollywood rights-holders who don't think anyone can make fun of Mickey Mouse and that anyone crossing a border should be frisked for a fake Louis Vuitton handbag.

I am surprised that ISP's and technology users seem to have had so little input into the process.

A treaty that really is focused on anti-counterfeiting would have my support, if it is really necessary (Art 41 of TRIPS looks sufficient to me).  I really also don't see why we need to set up a new international bureaucracy to oversee this, the current institutions appear to be sufficient.

For a thoughtful, colorful analysis from the Canadian perspective, check out Canadian law professor Michael Geist's blog, particularly his audio powerpoint "The ACTA Threat".

A good discussion on the RIAA's wishlist at arstechnica here.

And if foreign Limewires are the concern, why not address that concern directly?

The text of EFF's action letter (reprinted in full below), together with an automated template for you to email a letter to your representatives in Congress can be found here.

As a matter of Capitol Hill etiquette, your letter should be cc'd to the USTR, or your concerns addressed to him in the first place.

EFF seems to be pretty much spot on in its analysis - it appears that US copyright holders are seeking to shift onto ISPs basically unlimited liability and the burdens for policing copyrights, subjecting US ISPs and intermediaries to liabilities in foreign jurisdictions for actions that federal judges have not held them liable for in the US.  The debate is difficult to follow, but wading through the January 18 draft I saw that the US Representative was advocating insertion of the words "substantially similar" in a particular provision.

What the hell is "inciting" copyright infringement?  Shouting "copy" in a crowded movie theater?

ACTA appears to be an attempt to tie Congress's hands in terms of domestic copyright legislation, rather than a legitmate attempt to pursue counterfeiting.

Before accepting the EFF's analysis whole hog, check out the USTR's website with a fact sheet here.  The USTR is Ron Kirk, whose website states:

•The ACTA is not about raising substantive standards of intellectual property protection (IPR) or specifying or dictating how countries should define infringement of those rights.


•The ACTA does not focus on private, non-commercial activities of individuals, nor will it result in the monitoring of individuals or intrude in their private sphere.

Accordingly:

- Civil liberties would not be curtailed by the ACTA.
- There is no proposal to oblige ACTA Parties to require their border authorities to search travelers' baggage for IPR infringing goods or their personal electronic devices for IPR infringing downloads.

- There is no proposal to oblige ACTA Parties to require internet service providers (ISPs) to terminate users' connections on the basis of accumulated allegations of online IPR infringement (the so-called "three strikes" rule).

A tidbit from the Official Text (full text found here)

ARTICLE 2.X: INJUNCTIONS



[1. ]In civil judicial proceedings concerning the enforcement of [copyright or related rights and trademarks] [intellectual property rights], each Party shall provide that its judicial authorities shall have the authority [subject to any statutory limitations under its domestic law] to issue [against the infringer an injunction aimed at prohibiting the continuation of the] [an order to a party to desist from an] infringement, including an order to prevent infringing goods from entering into the channels of commerce [and to law].14]



Option 2


[5. Each Party shall provide that its judicial authorities, [in appropriate cases], shall have the authority to order, at the conclusion of civil judicial proceedings [[at least in cases] concerning copyright or related rights infringement, [patent infringement,] or trademark counterfeiting] that the prevailing party be awarded payment by the losing party of court costs or fees and reasonable [and proportionate] attorney’s fees [, and any other expenses as provided for under that Party’s domestic law].15]

ARTICLE 2.2: DAMAGES



1. Each Party shall provide that:


(a) in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer [who knowingly or with reasonable grounds to know, engaged in [infringing activity] of [copyright or related rights and trademarks] [intellectual property rights] to pay the right holder


(i) damages adequate to compensate for the injury the right holder has suffered as a result of the infringement; or


(ii) [at least in the case of copyright or related rights infringement and trademark counterfeiting,] [in the case of IPR infringements] the profits of the infringer that are attributable to the infringement, [which may be presumed to be the amount of damages] [and that are not taken into account in computing the amount of damages] [referred to in clause (i)]10


[which may be presumed to be the amount of damages referred to in clause (i)]; and


(b) in determining the amount of damages for [copyright or related rights infringement and trademark counterfeiting] [infringement of intellectual property rights], its judicial authorities shall consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price, or [the profits of the infringer that are attributable to the infringement].


So if I understand correctly, if some Dutch kid emailed ONE copyrighted song to a Japanese kid, both the Dutch and Japanese ISPs would be shut down and each have to pay the RIAA for the injury plus the RIAA's attorneys fees?

The EFF letter:

EFF: Action Center
Log In
View Current Action Alerts
Tell A Friend
Tell Your Lawmakers: "Anti-Counterfeiting" Treaty Is a Sham

The U.S. Trade Representative has spent the past two years working with other developed nations on a secret agreement allegedly designed to reduce the flow of fake physical goods across borders. However, the Anti-Counterfeiting Trade Agreement (ACTA) is really a ruse that gives the entertainment industry its wishlist of Internet copyright regulations and enforcement power.

Just look at some of the "anti-counterfeiting" measures included in ACTA. ACTA would set up a global framework that could:

Require Internet service providers (ISPs) to disconnect individuals accused (not convicted) of repeated copyright infringement;
Require ISPs to hand over their subscribers’ identities to copyright owners without any due process or judicial oversight;
Require ISPs to make potentially expensive modifications to their networks in an effort to prevent copyright infringement;
Prohibit the U.S. Congress from reforming the Digital Millennium Copyright Act (DMCA), which makes it a crime to defeat copy protection even when making a copy is perfectly legal;
Require all countries to implement DMCA-like laws for their own populations, without the benefit of fair use or other legal exceptions that provide a modicum of protection for speech;
Threaten potential innovators with outrageous financial penalties for copyright infringement; and
Criminalize even non-commercial uses of copyrighted materials.

Sounds a lot like a copyright law, not an "anti-counterfeiting" agreement, doesn't it?

ACTA is being negotiated by a handful of countries behind closed doors and is on track to be finished by the end of this year. Despite its potentially far-reaching impact for consumers and the future of the open Internet, the U.S. Trade Representative has claimed that it can shut out Congressional oversight by treating ACTA as a "sole executive agreement" under the President's executive power, rather than a treaty.

We can't sit back and let this fake "anti-counterfeiting" agreement become law! If your congressional representative is on one of the committees below that has oversight over the U.S. Trade Representative, tell your lawmaker not to be fooled by this chicanery and demand that ACTA be limited to addressing international counterfeiting.

Senate Finance Committee

Max Baucus, Montana
Jay Rockefeller, West Virginia
Kent Conrad, North Dakota
Jeff Bingaman, New Mexico
John Kerry, Massachusetts
Blanche Lincoln, Arkansas
Ron Wyden, Oregon
Charles Schumer, New York
Debbie Stabenow, Michigan
Maria Cantwell, Washington
Bill Nelson, Florida
Robert Menendez, New Jersey
Thomas Carper, Delaware
Chuck Grassley, Iowa
Orrin Hatch, Utah
Olympia Snowe, Maine
Jon Kyl, Arizona
Jim Bunning, Kentucky
Mike Crapo, Idaho
Pat Roberts, Kansas
John Ensign, Nevada
Mike Enzi, Wyoming
John Cornyn, Texas

House Ways and Means Trade Subcommittee

John S. Tanner, 8th Tennessee
Sander M. Levin, 12th Michigan
Chris Van Hollen, 8th Maryland
Jim McDermott, 7th Washington
Richard E. Neal, 2nd Massachusetts
Lloyd Doggett, 25th Texas
Earl Pomeroy, 1st North Dakota
Bob Etheridge, 2nd North Carolina
Linda T. Sanchez, 39th California
Kevin Brady, 8th Texas
Geoff Davis, 4th Kentucky
Dave G. Reichert, 8th Washington
Wally Herger, 2nd California
Devin Nunes, 21st California

Recipients
Targeted recipients based on your address
Contact
*Required fields
* Title:
Mr. Ms. Mrs. Miss Dr.
* First Name:

* Last Name:

* Your Email:

* Address 1:

Address 2:

* City:

* State / Province:
Choose a State AK AL AR AZ CA CO CT DC DE FL GA HI IA ID IL IN KS KY LA MA MD ME MI MN MO MS MT NC ND NE NH NJ NM NV NY OH OK OR PA RI SC SD TN TX UT VA VT WA WI WV WY AS FM GU MH MP PR PW VI
* ZIP / Postal Code:

Phone Number:


Yes, I would like to receive periodic updates and communications from EFF.


Remember me. What's this? Message
* Subject:

Dear [Decision Maker],


* Please personalize your message
As a consumer and constituent, I am very concerned about the Anti-Counterfeiting Trade Agreement (ACTA) being negotiated by the Office of the United States Trade Representative. The agreement's stated purpose was to coordinate a global effort to fight counterfeit products, but the language recently released by the U.S. Trade Representative -- after two years of secrecy vocally opposed by countless individuals like myself -- shows clearly that ACTA is really a copyright bill in disguise. This "wolf in sheep's clothing" could do serious harm to Americans' right to free speech and innovation on the Internet.

Just look at some of the "anti-counterfeiting" measures included in ACTA. ACTA would set up a global framework that could:

* Require Internet service providers (ISPs) to disconnect individuals accused (not convicted) of repeated copyright infringement;
* Require ISPs to hand over their subscribers' identities to copyright owners without any due process or judicial oversight;
* Require ISPs to make potentially expensive modifications to their networks in an effort to prevent copyright infringement;
* Prohibit the U.S. Congress from reforming the Digital Millennium Copyright Act (DMCA), which makes it a crime to defeat copy protection even when making a copy is perfectly legal;
* Require all countries to implement DMCA-like laws for their own populations, without the benefit of fair use or other legal exceptions that provide a modicum of protection for speech;
* Threaten potential innovators with outrageous financial penalties for copyright infringement; and
* Criminalize even non-commercial uses of copyrighted materials.

ACTA is being negotiated by a handful of countries behind closed doors and is on track to be finished by the end of this year. Despite its potentially far-reaching impact for consumers and the future of the open Internet, the U.S. Trade Representative has claimed that it can shut out Congressional oversight by negotiating ACTA as a "sole executive agreement" under the President's executive power, rather than a treaty.

Please don't be fooled by ACTA's dishonest name. ACTA is not about trade, and it is certainly not limited to counterfeiting. ACTA goes far beyond its original mandate of fighting counterfeit products, and it should not be allowed to damage the growth and development of American innovation. I urge you to protect the American public and insist that ACTA be limited to its purported purpose -- addressing counterfeit goods that pose serious health and safety concerns for consumers.




Sincerely,
[Your Name]
[Your Address]
[City, State ZIP]

Fair Use Fridays - Girl Talk - Overtime

Music and video sampling - pushing the limits of fair use?

Knowledge Management: Third Party Infringers Have No Standing To Challenge Assigment

http://www.kmpro.org/

KMMentor, LLC v. Knowledge Management Professional Soc., Inc., 2010 WL 1946339, 1 (D.Kan.) (D.Kan. May 13, 2010)

“Knowledge is a process of piling up facts; wisdom lies in their simplification.” FN1 This case involves several parties engaged in the knowledge management field, a field that creates and uses data and information to manage knowledge. The proceedings so far have been highly contentious, and the parties have compiled numerous facts but have not simplified the process.

So opens a case involving a bitter struggle among knowledge managers.  Defendant alleges that plaintiff's evidence is insufficient to show copyright ownership, relying on 17 USC 204(a).   204(a) provides
§ 204. Execution of transfers of copyright ownership


(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.

Problem was, the copyright owner (exclusive licensee) listed in the Complaint was not the owner registered with the Copyright Office.  The record owner/author had apparently given an exclusive license that had not been written down or recorded with the Copright Office.

The court said that a third party infringer couldn't invoke 17 usc 204(a) and relied on the following cases:

Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F.3d 586, 592-93 (7th Cir.2003); Imperial Residential Design, Inc. v. Palms Dev. Group, Inc., 70 F.3d 96, 99 (11th Cir.1995). See also X-IT Products, 155 F.Supp.2d at 603-04.


Practice Tip:  We all get caught in certain situations and it's great to have some case law to pull us out.  But the better practice, and I'd say the far better practice is to marshal the evidence that your client owns a copyright, get it in writing, and record it before you start a lawsuit.  For a fuller discussion of these issues. Check out Chapter 3:  The Client Interview and Initial Investigation and Chapter 4:  The Copyright Office: Litigation Practice in my Copyright Litigation Handbook.

In Chapter 9: Motions Attacking the Complaint, I have a section called "Motions to Dismiss for Lack of Standing".  You will find there how to craft an assignment that deals with accrued litigations and what the assignment needs to say to give an assignee standing.

Free IP CLE: The First Sale Doctrine at IP Colloquium

Another supersmart IP Colloquium from Prof. Doug Lichtman, this time on the first sale doctrine and comparison with antitrust law.   This one was economics-heavy, and very interesting.  Unfortunately, there was not really any spirited pro-first sale doctrine point of view - everyone seemed to be perplexed as to its utility and origins - and Doug concludes basically that it should be tossed.  Let's get a libertarian in the next lineup, Doug!

The first sale doctrine says that if someone sells you a book, you can resell it without paying the copyright owner an additional royalty.   I think California is the only state with a resale right for works of fine art (known as a droit de suite).

The first sale doctrine basically tracks the common law invalidation of restraints on the alienability of property.

The droit de suite gives a creator the right to a piece of the action each time the object in which a copyrightable work is embedded is resold.

IMHO, and I have nothing against the French or even Californians, but tossing the first sale doctrine would subject us to eternal digital servitude to a copyright owner and machine-creating industry - the ditigal nightmare that so many technologists keep warning us about.  I think Doug's prognostications about maximizing consumer welfare won't work in reality.

But Doug, I'll still drink French and California wines.   And you were right about the result in the Tenenbaum case.   But I'm not going to support a new copyright toll bridge for consumers to cross if they want to dump their gear on Ebay, on the contrary, any industry resale restraints should be abolished and penalized.  There is already way too much tying and too many restraints on cross-platform interoperability for the average consumer.

SCOTUS will be considering the first sale doctrine in the upcoming Costco/Omega Watch case, so let's hope that fans of the first sale doctrine will articulate their case.

Check out IP Colloquium here.   Anyone listening and remembering the code words will get free CLE credit.

Product Endorsements on Blogs: New FTC Guidelines Explained

An excellent summary of the FTC regulations for blogs that endorse or discuss products from the DuetsBlog, written by Paul W. Mussell, Senior Counsel in Intellectual Property Group, Wells Fargo link below:

Retailer Ann Taylor Dodges FTC's First Endorsement Enforcement Bullet : Duets Blog

SDCA: Perfect 10 v Rapidshare: Preliminary Injunction Denied Against Filesharer Despite Specfic Knowledge of Infringements

In Perfect 10 v. Rapidshare (SDCA 09 CV 2596) May 18, 2010, the District Court denied a preliminary injunction against filesharing service provider.

I visited the company's website and watched the video here.   It looks like a service that would be helpful in our law practice - we are dealing with transmittal of larger and larger files and always interested in bringing down the cost and making it faster.

I couldn't tell from watching the video on the Rapidshare homepage with the nice German accents or reading the decision exactly how the peer-to-peer filesharing (ie accessing someone else's copyrighted works) might work.

But the judge found facts radically different from those in the Limewire case, an example of a a filesharing service that appears to be a pretty good citizen and a plaintiff who seeks to put the burden of policing its content onto a neutral third party.


Perfect 10 v Rapid Share: Denial of Preliminary Injunction of Filesharer Despite Specific Knowledge of Infr...

Copyrights & Campaigns

Ben Sheffner posts SG Elena Kagan's amicus brief on behalf of the RIAA and talks about what music does not turn her on:

Copyrights & Campaigns

Fair Use Friday: How To Create A Music Mashup - Girl Talk

1st Cir: Implied Non-Exclusive License Survives Death of Architect

The First Circuit dealt with the question of whether an architect had granted an implied non-exclusive license, and if so, whether such non-exclusive implied license survived his death.

The architect had been a partner in a group that developed a property the development of which was planned according to his original plans.  Then he died.

Could the partners use the plan?  Yes, the circumstances implied a non-exclusive license.  Do such licenses survive death?  Yes.

1st Cir: Implied Non-Exclusive License In Architect's Plans After His Death

Copyright Lawsuits Plummet in Aftermath of RIAA Campaign | Threat Level | Wired.com

Copyright Litigation Handbook author Ray Dowd quoted in Wired Magazine:

Copyright Lawsuits Plummet in Aftermath of RIAA Campaign Threat Level Wired.com

Justia Ranks Copyright Litigation Blog in Top 10 Copyright Blogs

Of the 59 copyright blogs tracked by the Justia Blawsearch the Copyright Litigation Blog now ranks number 8 in popularity.   Below, the top 10 with their respective Justia Blawgsearch rankings:

1. IPKat 37

2. Recording Industry v the People 95

3. Plagiarism Today 117

4. Chilling Effects Clearinghouse 124

5. Nolo Presents the Law 183

6. Chicago IP Litigation Blog 207

7. Likelihood of Confusion 215

8. Copyright Litigation Blog 292

9. Lessig Blog 359

10. TechnoLlama 360

Unfortunately, Bill Patry stopped publishing his copyright blog, it was unquestionably the strongest player in the field.

Federal Judiciary Channel Launches on YouTube

The Federal Judiciary has launched a channel on YouTube, I subscribed and was number 9.   They have posted a number of instructional videos about the court system.  A series of videos on bankruptcy may be helpful to those in that field.

ABA Journal Blawg Review: Thanks for Covering Copyright Litigation Blog

You can access the Copyright Litigation Blog through the ABA Journal Blawgs directory here.