Contemporary Intellectual Property, Licensing & Information Law

DMCA Section 512 gives copyright owners an efficient means of responding to online infringements and provides a safe harbor protection for online providers.  But some courts suggest that “good faith” in sending a take-down notice may require the copyright owner to evaluate whether the online copying is fair use, these decisions undermine the notice and take down system.

Intellectual Property
Comments / Questions (1) | Permalink

The proposed draft of the fundamentally flawed ALI Principles of the Law of Software Contracts has been published and, given the in-bred politics of the American Law Institute, will almost certainly be approved.  But then the Principles should be left to die a quiet and quick death.

   Although written by two respected academics, the Principles are fundamentally flawed in part because they were drafted with virtually no input from commercial software producers and drafted under the influence of a group dominated by people and companies who failed to achieve their goals in UCITA or in drafting revisions of Article 2.  They thus shifted over to a friendly forum they could dominate.  I will have more to say about this, but let’s start with an illustration – a misguided, non-disclaimable warranty that no “hidden” “defects” exist in software.

Licensing Law Issues , Licensing Law Issues
Comments / Questions (4) | Permalink

Widespread adoption of rules regarding security of personally identifiable information has been paralleled by a surge of class-action litigation against companies whose databases have been breached. They are a potential target beyond modern parallel. This setting potentially offers class action lawyers bountiful fuel. But courts and legislators should take a different path.

Privacy, Data Protection and Security
Comments / Questions (6) | Permalink

Who should derive revenue from remote DVR systems?  According to a panel of the Second Circuit Court of Appeals Cartoons case, the revenue should not go to the content providers.  This decision, grounded in three very narrow interpretations of the Copyright Act, works a shift of potentially significant revenue away from content providers.  Hopefully, it will be challenged and reversed on rehearing.

Intellectual Property
Comments / Questions (3) | Permalink

Some courts mistakenly view transformative use as merely using a work in a way different from that which the copyright owner currently does.  The true meaning is that transformative use is a use that transforms portions of the original into an entirely new work that does not simply supersede the original in a market or use to which the original may not yet have been applied.

Intellectual Property
Comments / Questions (0) | Permalink

FOSS licensors applaud the Federal Circuit decision in Jacobson, but the real winners are the vastly more numerous software producers who reject the “free” software model. Why………?

Licensing Law Issues
Comments / Questions (0) | Permalink

The answer should be when a copy is placed (distributed) into an environment from which third parties are invited and expected to acquire their own copies by downloading or otherwise.

Intellectual Property
Comments / Questions (2) | Permalink

The Supreme Court in Quanta Computer, Inc. v. LG Electronics, Inc., 2008 WL 2329719, 86 USPQ2d 1673 (US 2008)  confirmed both the importance of patent exhaustion as a doctrine and the appropriate limitations of that doctrine – the doctrine does not apply to transactions that are conditional in nature.  That means, simply, that the terms of a contract determine when or if exhaustion or first sale occurs.  That is how it should be.

Intellectual Property , Intellectual Property , Licensing Law Issues
Comments / Questions (0) | Permalink

I truly enjoy it when a court catches an administrative agency expanding their scope to advocate a particular view of what economic or political life should entail, and then tells the agency that it cannot rewrite law to suit its own preferences.  That happened to the FTC in Rambus, Inc. v. FTC dealing with standards-setting.  In most cases, conduct by an individual firm in an SSO creates no antitrust issues even if the firm failed to disclosure patents or other potential proprietary rights related to the standard. The Rambus court reaffirmed this rule.

Licensing Law Issues , Licensing Law Issues
Comments / Questions (6) | Permalink

Licensing unrelated to any intellectual property right has been a common practice for generations - since at least the time of the civil war.  But there are some who think of licensing as only appropriate if there are rights to license and that, if the rights do not exist, the contractual license terms must be abrogated.  This is wrong, but a recent case indicates that drafting agreements in this context must be done with care.

Licensing Law Issues
Comments / Questions (3) | Permalink