Tuesday, December 28, 2010

"Possibly the Most Comprehensive Array of Legal Humor Ever Assembled"

Postings like THIS could put at least half of my blog out of business.  Unless I simply re-post them, of course.

Venn Diagram of the Day

Click HERE to see who gets paid to touch your junk.

UPDATE:  It turns out that the original Venn diagram is all messed up.  As explained HERE.

Thursday, December 23, 2010

Tuesday, December 21, 2010

Unclear Sign of the Day

If you understand THIS sign -- that's what comments are for.

And Now A Word From Our Sponsor

Duck Poster of the day.

Federal Circuit Holds that eBay Doesn't Apply to ITC Injunctions

Today the Federal Circuit decided Spansion v. U.S.I.T.C.

You have to read to the very end of this long opinion, but in the case, the Federal Circuit ruled that eBay doesn't apply to ITC injunctions.  Specifically, while there is still a "public welfare" component to an ITC injunction, the "irreparable harm" element seems to be absent.

UPDATE: (a brief explanation of what this means for people who don't know just by reading it):
A patent owner who wants to enforce its patent can file a lawsuit in Federal District Court.  If the patent owner wins the case, it might or might not get an injunction forcing the losing infringer to stop its infringing activities, based on the case of eBay v. MercExchange. Under that case, to get an injunction the patent owner must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.  What this means in practice is that if the patent owner has a competing product -- it is in the market -- it usually can get an injunction.  If the patent owner does not practice its patent, it usually can't get an injunction, and only gets money damages (royalties).

Alternatively, some patent owners can file a proceeding in the U.S. International Trade Commission (ITC).  There are a number of differences between an ITC proceeding and a district court proceeding; some of them are discussed here and here.  For the purposes of today's case, the Federal Circuit ruled that eBay's four part test, above, doesn't apply to ITC injunctions -- specifically, the patent owner doesn't have to prove irreparable harm to get an ITC injunction.  This has been an open question after the eBay decision.

Friday, December 17, 2010

Post-Bilski Case From the Federal Circuit: Claims Still Patentable

Today the Federal Circuit released an opinion in Prometheus v. Mayo.  This case was on remand from the Supreme Court after the Bilski decision in June 2010.  The claims in question are directed to certain medical diagnostic treatments.  The Federal Circuit had originally found the claims patentable under 35 U.S.C. §101 in view of its strict "machine or transformation" test in its Bilski decision.  After the Supreme Court's Bilski case had modified the Federal Circuit's test to something less strict (the Supreme Court test is less than a model of clarity, but it's less strict than the Federal Circuit's test), the Supreme Court granted cert in Prometheus, vacated the Federal Circuit opinion, and remanded the case so the Federal Circuit could reconsider the issue.

I thought it odd that after its Bilski decision, the Supreme Court granted cert and remanded the case to the Federal Circuit.  If the Federal Circuit found the claims patentable under its stricter Bilski test, surely it would do the same under the Supreme Court's less strict test?  Today's answer to that question is "yes."

Sunday, December 12, 2010

Opening Briefs in Viacom v. YouTube and Premier League v. YouTube

Viacom v. YouTube is an important copyright case on appeal to the Second Circuit Court of Appeals (Appeal No. 10-3270).  A related case is a class action brought by The Football Association Premier League and others against YouTube, which is also on appeal (Appeal No. 10-3342).  For the purposes of this post, I'll just discuss the Viacom case; the claims in the Premier League case are similar, although there are some differences.

As summarized on EFF's case page, in 2007 Viacom sued YouTube, claiming that YouTube should be liable for its users' posting of Viacom's copyrighted videos on YouTube.  Although YouTube acts promptly to take down infringing videos once a copyright owner gives YouTube notice of infringements -- you doubtless have tried to look at a video on YouTube and have seen a message that the video was removed due to a copyright claim -- Viacom asserts that YouTube is liable for postings of infringing works anyway.  The potential damages are a billion dollars or more.

At issue is Section 512 of the Copyright Act, which is part of the Digital Millennium Copyright Act.  Subsection (c) of that statute gives an Internet service provider such as YouTube a defense to copyright claims, provided that it satisfies certain conditions.  One condition is that the ISP registers an agent for service of notifications of claimed infringements, and then acts promptly to remove infringements upon receipt of such notices.  There's no dispute that YouTube did that in the Viacom case; Viacom sent YouTube more than 100,000 takedown notices, which YouTube promptly complied with.  Section 512(c) is sometimes called the "DMCA safe harbor."

Viacom claims that YouTube isn't entitled to the "safe harbor" for three reasons that can be briefly summarized as follows: (1) YouTube's general knowledge that infringements occur on its website defeats the safe harbor under § 512(c)(1)(A); (2) YouTube receives "a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity," disqualifying YouTube's safe harbor under § 512(c)(1)(B); and (3) that "storage" in § 512 is limited to uploading of stored files only, not downloading of them by another user.  While all issues are being contested in the case, the most important issue is probably the first one.  Does an ISP lose its immunity under § 512 because it has "general" knowledge of infringements on its website (as Viacom and the Premier League argue), or is the safe harbor lost only if the ISP has specific knowledge of infringements that the website doesn't then remove (as YouTube argues)?  This is a very important distinction that affects all user-generated content on the Internet in general.  Most UGC sites are "generally" aware that some users post infringing material, so if "general" awareness subjected UGC sites to suit, they would probably have to stop operating.

On June 23, 2010, the district judge agreed with YouTube and granted YouTube summary judgment against Viacom and the Premier League.  The district court agreed that generalized knowledge isn't enough to defeat the safe harbor.  Discussions of that decision are here, here, here, here, and here.

Viacom and the Premier League have now filed their opening briefs in the Second Circuit.  Fifteen amicus briefs have also been filed (at least ones that I have found).  Techdirt has this discussion of the Viacom opening brief.  While under normal court procedure only the amicus briefs favoring Viacom and the Premier League were filed at this time, at least one of the amicus briefs filed so far favors affirmance of the summary judgment rulings, by the American Intellectual Property Law Association.  Techdirt discusses that brief here.

YouTube's opposition brief will likely be due on March 31, 2011, with amicus briefs supporting YouTube due a week later.  I was one of the co-authors of an EFF amicus brief supporting YouTube at the district court level, and expect that the EFF will file an amicus brief supporting YouTube on appeal.

UPDATE:  Here is Eric Goldman's analysis of the briefs. EFF's discussion is here.

Here are links to the briefs filed so far:

Plaintiffs' Opening Briefs:
Viacom's opening brief
Premier League's opening brief 

Amicus Briefs:
Brief of America Intellectual Property Law Association
Brief of Advance Publications et al
Brief of American Federation of Musicians et al
Brief of Audible Magic
Brief of BMI-ASCAP et al
Brief of BSA
Brief of CBS
Brief of Intellectual Property Law Professors
Brief of International Intellectual Property Institute
Brief of Matthew Spitzer et al
Brief of Microsoft-EA
Brief of MPAA
Brief of Stuart Brotman et al
Brief of Vobile
Brief of Washington Legal Foundation

Saturday, December 11, 2010

Wednesday, December 8, 2010

Intellectual Ventures Files Its First-Ever Patent Lawsuits

Intellectual Ventures is an invention development and patent holding company.  It was originally founded in 2000 by Nathan Myhrvold and Edward Jung of Microsoft.  The Wikipedia article about the company is here.  The company's website is here.

Despite its impressive patent portfolio, up until today Intellectual Ventures never filed a lawsuit on its patents, preferring to license its patents.  In some cases, it sold patents to other companies (some of whom filed lawsuits).  However, today Intellectual Ventures filed three patent lawsuits, for the first time.  An article about the lawsuits is here.

The lawsuits are Case Nos. 1:10cv1065, 1:10cv1066, and 1:10cv1067 in the U.S. District Court for the District of Delaware.

Quiz: What Starts With F and Ends with K?

Totally suitable for work.  At least the answers.

Monday, December 6, 2010

Recipe of the Day!

During the holiday season, everyone needs THIS recipe.

Saturday, December 4, 2010

Happy Hanukkah!

But you might not want to eat one of THESE.