EMINENT DOMAIN - State legislator threat against recipient of tax breaks House of Cards

Links:

http://www.huffingtonpost.com/2014/03/28/maryland-house-of-cards_n_5049092.html

http://www.foxnews.com/politics/2014/03/28/maryland-pulls-underwood-on-house-cards-with-vote-to-seize-property-if-cast/

COPYRIGHTS - Wu Tang's $1M sale

As long as they sell the rights, and not the album, a first sale would not exhaust copyrights.

But that doesn't seem to be the plan: "the iconic hip-hop collective will make and sell just one copy of the album."

More here.

Here is Wikipedia's entry on the First Sale Doctrine.

Here is the DoJ's take on the doctrine:

The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy.

INNOVATION - Philadelphia, gunshot victims, and resuscitation

The novel innovation includes suspended animation of human organs.

INNOVATION

http://yupthatexists.com/

COPYRIGHT - Tarantino v. Gawker, Tarantino's response to motion to dismiss.

Tarantino's lawyers say that Gawker "contrived the very 'news story' that it now seeks to hide behind."

Gardner has more, here.

SHERMAN Section I Class Action - Jenkins v. NCAA

ESPN coverage here

Forbes here

ESPN posts the complaint here

PATENTS - Who owns hologram technology?

Gardner: 

[Possible plaintiff] says he's about to file a slew of lawsuits. This Michael Jackson one is the first.

The new lawsuit mentions two patents at issue: One for a device for displaying moving images in the background of a stage and one for a projection apparatus and method for pepper's ghost illusion.

"Although it has been widely acknowledged that Defendants employ the technology to create a three-dimensional hologram of Michael Jackson in Cirque du Soleil's Michael Jackson: One, Defendants do not possess a valid license to practice that technology.

Full article is here. 

LANHAM ACT - Standing to sue

Justice Scalia, for a  unanimous court: 

In sum, the question this case presents is whether Static
Control falls within the class of plaintiffs whom Congress
has authorized to sue under §1125(a). In other words, we
ask whether Static Control has a cause of action under the
statute.
 …
 We thus hold that to come within the zone of interests in
a suit for false advertising under §1125(a), a plaintiff must
allege an injury to a commercial interest in reputation or
sales. A consumer who is hoodwinked into purchasing a
disappointing product may well have an injury-in-fact
cognizable under Article III, but he cannot invoke the
protection of the Lanham Act—a conclusion reached by
every Circuit to consider the question. See Colligan v.
Activities Club of N. Y., Ltd., 442 F. 2d 686, 691–692 (CA2
1971); Serbin v. Ziebart Int’l Corp., 11 F. 3d 1163, 1177
(CA3 1993); Made in the USA Foundation v. Phillips
Foods, Inc., 365 F. 3d 278, 281 (CA4 2004); Procter &
Gamble Co., 242 F. 3d, at 563–564; Barrus v. Sylvania, 55
F. 3d 468, 470 (CA9 1995); Phoenix of Broward, 489 F. 3d,
at 1170. Even a business misled by a supplier into pur­
chasing an inferior product is, like consumers generally,
not under the Act’s aegis.

Per Tom Goldstein: "The cause of action extends to the zone of interests protected by the Lanham Act and whose injury was proximately cause."

INNOVATION - creating markets

Elephant dung coffee.

INNOVATION - Projections via folded paper

Projecting papered idea. 

Manu Prakash, a professor at Stanford University and his students have developed a microscope out of a flat sheet of paper, a watch battery, LED, and optical units that when folded together, much like origami, creates a functional instrument with the resolution of 800 nanometers – basically magnifying an object up to 2,000 times.

UNFAIR COMPETITION - Seafood

"Bycatch" products in seafoods. Here.

PATENTS - Software and Abstract Ideas

Ronald Mann, getting to the heart of the Alice brief:

....Alice Corp. boldly proposes a return to first principles, advising the Court that its opinion in Bilski (and its predecessors) reflects a wrong turn that needs to be corrected now.  It concedes that there is an exception from the Patent Act for “fundamental truths,” but in its view the category is limited almost exclusively to mathematical formulations “equivalent to a law of nature.” 

HERE

Also noting an amicus brief:

In past cases (most obviously Bilski), IBM has supported the idea that a “technical contribution” requirement would limit the “abstract idea” exception appropriately.  In this case, however, IBM explains that the pervasive inability of the Federal Circuit to apply any such test has convinced IBM that the entire enterprise should be abandoned.

PRIVACY and INTERNET SCRAPING TECHNOLOGY - US v. AUERNHEIMER

Coverage here

Audio here

Bashman coverage here and here.

The pro bono counsel's reasons for taking the case are here.

PRIVACY - Corporations viewing third party's emails

Microsoft is the corporation, and a blogger is the third party.


Full article here, explaining why an attorney refers to the steps by Microsoft as legal but "stupid."

From paragraph 13:

Microsoft examined the blogger's private Microsoft email and instant messaging accounts and discovered evidence that the blogger had received confidential information and Windows software code....

COPYRIGHTS - Innocence of Muslims and one actor's copyrights holding up the show

“Innocence of Muslims” is a copyrightable “work.” But Garcia has emphatically disclaimed any ownership interest in that work, even as a joint author. See ADD6 (“Garcia doesn’t claim a copyright interest in ‘Innocence of Muslims’ itself”). Instead, Garcia claims—and the panel majority held—that she has a copyright in “her own performance within the film” that is distinct from the copyright in the film as a whole. ADD7. That is incorrect.

Google's brief is here. 

Here is one interpretation that the actor owns copyrights:

The court concluded that Garcia’s performance is an independent work of authorship on her part, though she didn’t write the script. I think that’s right, just as a recorded performance of a song is an independent work of authorship on the singer’s part, though the singer didn’t write the song.

...

The court concluded that Garcia’s performance wasn’t a “work made for hire”under the Copyright Act. If I hire you as an employee to write (or act or sing) something for me, then the work becomes my intellectual property, not yours; but the court concluded that Garcia wasn’t an employee, but was rather a contractor asked to do a particular brief task. “Youssef hired Garcia for a specific task, she only worked for three days and she claims she received no health or other traditional employment benefits.” (The dissent disagreed, and the question on this point is a bit technical; I think the majority was probably right.)

INNOVATION - Kickstarter standing desks vs "deadly" standard desks

Rotholz believes the desk will be especially attractive to people who want to experiment with standing desks without a huge monetary commitment up front. For everyone else, there's an element of fun that's hard to match with traditional desks. "We want people to hack it, customize it, cut a hole for the power cord, color on it, print on it. We want it to be a blank slate for people," he says.

                                       

More Chairigami here.

COPYRIGHT - Tarantino v. Gawker - Gawker's 12(b)(6) motion

Gardner discusses.

Gawker asserts that even if Tarantino could state such a claim, the website's linking to "source material" is protected as fair use.
...
"Gawker did not 'scoop' plaintiff's right of first publication as the script was online prior to Gawker's links, and Tarantino himself set in motion the circumstances by which the script circulated. Gawker made minimal use of the script -- it reproduced no part of it but merely linked to another publication. Gawker's use was, at most, incidentally commercial and did not usurp the primary market for and purpose of the script: to make a movie."

WEBSITE TERMS OF SERVICE - Unilateral modifications

Not a breach of covenant of good faith and fair dealing, per Judge Alsup. 

Instagram included a provision in the agreement that “it reserve[d] the right, in [its] sole discretion, to change [its] Terms of Use from time to time”. Instagram also changed its terms of service for existing users without using a leakproof clickwrap implementation and changed its terms in a backward looking way as to users who may have never agreed to the new terms. All of these approaches have encountered contractual roadblocks in court, most prominently in cases such as Zappos and Harris v. Blockbuster. (As best as I can recall, existing users were not required to click “I accept” to signify their assent to the revised agreement. Instagram simply relied on the fact that it provided notice and anyone who continued to use the site would have impliedly agreed to the terms.) So what happened here? 

Goldman covers.

TRADEMARKS - 30-year old conversations and Mattel's rights

But as the new film is being developed, out came Glut, a former freelancer for Western Publishing Company, who according to Mattel, was hired in 1981 to write a "backstory" for the characters in what was then the company's new boys' brand. Three decades later, the nature of Glut's working relationship became the focus of the lawsuit.

Eriq Gardner discusses Mattel's legal victory.



Per Gardner:

But Mattel's lawyers including Larry Iser at Kinsella Weitzman were able to rebut this by framing the dispute as one over ownership. If Glut's comics were created as a work-for-hire, Mattel said, Glut never owned the copyright, could never have licensed it and therefore couldn't have terminated it. Given Mattel's exploitation of the brand over the years, Glut could have filed a lawsuit earlier.

TRADEMARKS - Value of Chevron's marks, in foreign country

First, defendants' enforcement of the Judgment in Ecuador already has resulted in the loss by Chevron of Ecuadorian trademarks and related revenue streams, which are being applied to the satisfaction of the Judgment.1247 The value of those trademarks is between $15,703,986 and $23,195,020, and the value of lost future royalties amounts to $5,138,596.

Chevron Corp. v. Donziger, 11 CIV. 0691 LAK, 2014 WL 815923 (S.D.N.Y. Mar. 4, 2014)

These are some of the results of the defendant's bribery and coercion acts, according to Judge Kaplan. 

TRADEMARKS - University phrase ownership

From Language Log:

The details:

• first-year experience has been trademarked by the University of South Carolina

• fast-track MBA has been trademarked by Eastern University

• be the difference has been trademarked by Marquette University

• cure violence has been trademarked by the University of Illinois

• student life has been trademarked by Washington University in St. Louis

• students with diabetes has been trademarked by the University of South Florida

• one course at a time has been trademarked by Cornell College

• touched by a nurse has been trademarked by the University of Colorado

• we're conquering cancer has been trademarked by the University of Texas

• working toward a world without cancer has been trademarked by the University of Kansas Hospital

• imagination beyond measure has been trademarked by the University of Virginia

• tomorrow starts here has been trademarked by East Carolina University

TRADEMARKS - False advertising vs. Infringement

First, the district court abused its discretion when it did not separately consider the false advertisement claim. The district court included that claim in its trademark infringement analysis because it found false advertisement to be “derivative of Wells Fargo's trademark infringement claim.” However, the two claims are distinct and require the application of separate tests. To succeed on a false advertisement claim under Lanham Act § 43(a), a plaintiff must prove:

(1) a false statement of fact by the defendant in a commercial advertisement about its own or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by lessening of the goodwill associated with its products.

Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir.1997) (citations omitted). The false advertisement test requires a plaintiff to show all five elements. Id. By contrast, a claim for trademark infringement requires only two elements: (1) ownership of a trademark, and (2) that the plaintiff show a likelihood of confusion through the balancing of eight factors. Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1202 (9th Cir.2012). These tests are distinct, and the district court abused its discretion when it did not separately consider the false advertisement claim.

Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 13-15625, 2014 WL 806385 (9th Cir. Mar. 3, 2014)

PATENTS - Ancora v. Apple

Ancora Technologies, Inc. v. Apple, Inc., 2013-1378, 2014 WL 803104 (Fed. Cir. Mar. 3, 2014)

Regarding the scope of programs in the claims:

[A]lthough the examiner stated in his reasons for allowance that “the closest prior art systems, singly or collectively, do not teach licensed programs running at the OS level interacting with a program verification structure stored in the BIOS,” Notice of Allowability dated Feb. 20, 2002, at 4, in Appl. No. 09/164,777, that statement is at worst a slip: under the claims, it is indisputably the verifying software that interacts with the verification structure. In any event, the statement is not the applicants' statement. See Salazar v. Procter & Gamble Co., 414 F.3d 1342, 1345 (Fed.Cir.2005) (remarks in the examiner's statement of reasons for allowance insufficient to limit claim scope). And, as quoted above, the applicants were clear that the OS-level language referred to the verifying software.

Regarding definiteness:

In this case, moreover, a skilled artisan would appreciate that the passages at issue have a possible meaning that is not (what would be surprising) starkly irreconcilable with the clear meaning of “volatile” and “non-volatile” memory, which are the claim terms.

... 

Although oddly phrased, the reference to a “hard disk” as an example of RAM suggests that the patentee meant to refer to the hard disk only in its capacity as supplemental memory in conjunction with the main RAM-rather than to assert, in a passing and indirect manner, a meaning sharply in conflict with clear usage.

PATENTS

1. Alex Tabarrok: Software Patents are Not Good Property Rights. Also cites to amicus brief with Meurer et al. 

2. Google and Samsung's patent agreement: 

In a bold move aimed at stymieing the rampant lawsuits over the infringement of patented technologies, Google has signed a global patent cross-license agreement that allows the two firms access to each other’s key technologies and patents. This agreement grants the two firms access to all current patents and the patents filed in the next ten years. Samsung, in particular stands to gain from this agreement. Allen Lo, the Deputy General Counsel for Patents at Google has said that by working together on agreements, companies can reduce the potential for litigation.