Contemporary Intellectual Property, Licensing & Information Law

I hope not, but that is one risk created by the Supreme Court’s decision in the Ebay case and by the actions of some courts who have denied permanent injunctions in successful infringement cases.  But the fact that a permanent injunction does not issue after a judgment of infringement does not mean that the infringer (by losing the case) obtains a right to use the patent owner’s property in the future.  It simply means that the court declined to add the coercive force of an injunction to the statutory right to exclude as to future infringing conduct.

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No.  At least not according to three judges of the Second Circuit.  And as a result, one company’s valuable market estimates expressed in numerical form were subject to comprehensive misappropriation by a competitor.  But the court allowing this result forgot that numbers can be as expressive as words and sometimes are much more communicative.

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The Supreme Court has accepted cert in the LG Electronics case.  The issue involves patent exhaustion doctrine.  This is an opportunity for the Court to affirm the right of a patent (or copyright) property owner to control the terms on which its invention or work is provided to the public – by license or sale.  But unless the rights-owner community pitches in, the Court may get it wrong.

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Many industries function under technological standards that shape the technology, the products, and the focus of competition. But standards-setting groups have become competition focuses themselves, such as in the debate about “open document” vs “open xml” as a standard. The standards groups should follow a simple premise: standards-setting organizations should not dictate among competing technologies vying for market dominance.

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The Ninth Circuit failed to acknowledge the relevance of obvious future markets when it ruled in favor of Google in Perfect 10, Inc. v. Amazon.com, Inc.  In doing so, it effectively awarded to Google and others a market that that rightfully belongs to the copyright owner.

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I have accepted the interim deanship at the University of Houston Law Center. I am eleated at the opportunity this creates. With the help of others, this will be an exciting time. I attach my first thoughts.

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The U.S. Supreme Court rendered its much-anticipated ruling in Ebay v. Merchexchange and the U.S. remains safe for property rights, although more complex. The Court held that injunctions are an appropriate remedy for infringing a patent, but not in all cases.

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No, not unless the copyright owner permitted or invited that. The idea that downloading a file is permitted because it is so easy on Internet is simply wrong. Downloading is copying and infringement. Indeed, it can have massive adverse effects on copyright owners.

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The Supreme Court in Grokster established an action for "inducing" copyright infringement. This changes the context of debate between "rights enforcers" and "rights restrictors" and benefits protection of property rights. But the rule raises questions about its scope and how it affects other relationships.

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The inevitable lawsuit has been filed against Google. The Authors' Guild and others assert in the complaint that the Google Print Project infringes their copyrights. That lawsuit should succeed. As portrayed in the statements of the company, the Google project broadly infringes the copyrights of numerous companies and individuals for Google's own commercial purposes.

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In a world that enables rapid and widespread duplication and transfer of information, law needs to adjust to preserve and protect social values and legal rights. All of those that provide incentives for the creative works that have contributed to the explosion of works that drives the information age. That being said, there are a large number of people who apparently believe that ownership of a copyright should mean relatively little when compared to the desire to allow virtually anyone to copy and distribute a work with or without permission if that is made possible by new technology. These people are arguing for immediate gratification at a sacrifice of long-term social benefits.

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In Davidson & Associates v. Internet Gateway, the Court of Appeals held that a shrinkwrap license that barred reverse engineering was not preempted by federal fair use law. The court thus joined the chorus of courts that enforce licenses for software and data, regardless of whether the terms of those licenses match limitations in copyright law. These courts make the distinction between property law on one hand, and contract law on the other. While reverse engineering is sometimes protected by a defense to a claim copyright infringement, the possible existence of that defense to a claim of infringement of a property right does not preclude an agreement to not reverse engineer.

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