Friday, December 30, 2011
Petitioner Larry Golan is a symphony conductor and a professor of the University of Denver's Lamont School of Music. Other petitioners are people who claim to rely on the free appropriation of work in the U.S. public domain for their livelihood. The petitioners argue that Congress did not have the power to enact the Uruguay Round Agreements Act of 1994. This legislation added new section 104A to the U.S. Copyright Act, thereby enabling the owner of an eligible foreign work that was in the public domain in the U.S., but still protected under copyright in the foreign source country, to obtain a "restored" U.S. copyright protection in the foreign work. This right to restore a U.S. copyright to a previously "free" foreign work commenced as early as January 1, 1996 if the foreign source country adhered to one of several copyright treaties (the Berne Convention, WIPO Copyright Treaty) or was a WTO member, or if the country was designated in a Presidential proclamation.
Larry Golan complains that prior to January 1, 1996 he was able to perform Prokofiev's Peter and the Wolf and Shostakovitch's Symphony 14, plus many other valuable works, freely -- without paying any royalties. This was so because many great works were created in foreign source countries at a time when the foreign source countries did not adhere to a copyright treaty. As such, these works were not eligible for protection under U.S. copyright law at the time the works were created or at the time the works were introduced into the U.S. Indeed, the current Copyright Act continues to require national eligibility. Current section 104 of the U.S. Copyright Act excludes published works from U.S. copyright protection unless on the date of publication one of the authors was a national or domiciliary of the U.S. or of a treaty country, or a stateless person, or the work was first published in the U.S. or a treaty country, plus other coverage options. So, authors first publishing their work in Ethiopia, Afghanistan, Iran, Iraq or other sourcing states who are not treaty, WIPO or WTO members continue to have their works excluded from copyright protection in the U.S. These works remain free to use today. A complete listing of countries, together with their copyright treaty status, is provided by the U.S. Copyright Office.
There are two primary types of foreign works that are subject to copyright restoration under Section 104A. The first type of work is one that was lost to the public domain because of a mess up. That is, the work is a foreign work that has copyright protection in its source country that is a copyright treaty country, but the owner of the work failed to comply with U.S. formalities. The most common formalities include the obligation to make a timely renewal filing and to include a copyright notice on the published work. The second type of work restored under Section 104A involves a foreign work that was not previously permitted to be copyright protected in the U.S. because of lack of national eligibility. If by January 1, 1996 the foreign source country was a treaty, WIPO or WTO member then this second type of foreign work could receive the benefit of U.S. protection for the first time ever.
Getting back to Larry Golan for a minute, Larry argues that he should be free to use all foreign works in the public domain without paying a royalty notwithstanding how the work came to be in the U.S. public domain in the first place. He argues that once a work is in the public domain, it remains in the public domain forever. To borrow from a religious argument, once a soul arrives in hell it remains in hell forever. This is a stark analogy to be sure, but the impact of Golan's argument on Prokofiev's copyright successors is also stark. Golan does not recognize the possibility of something less stark; such as a temporary or transitional state of purgatory where a soul resides for a period of time subject to removal.
[If the religious analogy is too harsh, then consider a comparable analogy pertaining to a person's presence in jail. A person can be present in jail in one of two ways: by placing himself or herself in jail upon commission of a crime or by being born in jail. Society has completely different interests in a person's presence in jail depending how the person came to be in jail in the first place. It seems to me that we should consider why a person is present in jail before we throw away the key.]
For Golan, the state of copyrightlessness is all or nothing. Either there is a copyright or there is not, he argues, and if there is no copyright then there cannot ever be a copyright. Hence, according to Golan, he should be permitted to conduct Peter and the Wolf, and other nonprotected works, freely without royalty or other restriction.
I do not share Golan's all or nothing views. Indeed, I have two separate views of the restoration of U.S. copyright in foreign works. I have one view as to restored foreign work that was eligible for protection in the U.S. but lost protection due to the owner's mess up -- failure to comply with formalities. I have another, opposite view as to restored foreign works that never previously had the right to U.S. protection.
If a foreign work from a treaty, WTO or WIPO member source country was eligible for copyright protection in the U.S., but if the work lost this protection for failure of the copyright owner to comply with the U.S. recording and notice laws, then I have little sympathy for the resulting public domain status. For the same reason that every person, notwithstanding his or her country of origin or immigration status, who drives a motor vehicle on a U.S. highway is required to comply with U.S. driving laws, every copyright owner was required to comply with U.S. copyright law formalities prior to January 1, 1996. What is good for a U.S. citizen should be good enough for a non-citizen. Everyone should be treated equally. If a foreign citizen does not know the U.S. rules of the road prior to driving in the U.S., then they should read up on the law. If the owner of a foreign work does not know about U.S. copyright formalities, then retain legal counsel or borrow a library book and learn about U.S. copyright law. But it is not appropriate in my view for the owner of a foreign work to bring the work into the U.S. in order to take advantage of the U.S. market and U.S. law, but then complain that the law is too harsh when it comes to failure to comply. To the extent that a foreign work was eligible for copyright protection in the U.S., but lost the protection due to the copyright owner's own conduct, then this type of work should not be given a free pass out of the public domain jail.
A foreign work that was never eligible for U.S. copyright protection, however, is in a completely different circumstance than a work that was eligible but lost protection due to failure to comply with U.S. law. Prokofiev never had an opportunity to obtain U.S. copyright law protection for Peter and the Wolf until January 1, 1996, with the addition of Section 104A to the Copyright Act. Prokofiev never lost pre-existing protection as a result of a mess up on his part. He never had protection -- ever -- because Congress never extended protection to him or to his work created in the early Twentieth Century in the Soviet Union.
I submit that the U.S. public domain should not be viewed as an end in and of itself, but rather as a condition that exists based on how a work is protected, or not protected. If a work is never protected under U.S. copyright, then the lack of any protection is not a condition of being in the "public domain" as much as a condition of non-protection. [The concept of public domain and the concept of non-protection are admittedly nuanced and, in any event, live close to a common border, but they indeed can live separate lives.] In this event, the "public domain" is not a protectable property interest owned by other users but is merely a present condition caused by a lack of protection. Congress has authority in my view to add protection where none ever existed. In this case, the lack of protection is more akin to being born in jail. This is particularly so in that the owner of the work has done nothing to cause the loss of protection. On the other hand, if there previously was protection to a foreign work, but if protection was lost due to a failure on the part of the copyright owner, then this voluntary failure to adhere to required formalities creates a permanent jail -- abandonment to the public domain.
Furthermore, the expectations of users differ depending on how a work came to be placed in the public domain. If a free user knew that the work was protected at a point in time but then lost protection due to faulty conduct by the work's owner, then the free user can be said to have a firmer expectation of continued free use. This differs from the expectation of a free user who knows that a work was never protected through no fault of the work's author. This type of free user expectation is more transitional. Enjoy it while you can, but it may not last.
Public domain need not be considered as an all or nothing proposition. If a copyright owner voluntarily placed a work into the public domain by failing to comply with formalities, or if the copyright terminated for other technical reasons, then the copyright should not be revived. But if an owner of a work never had protection to begin with, then the right to protection should begin at some point. January 1, 1996 is as good a start date as any.
It will definitely be interesting to see how the Supreme Court rationalizes the common restorative treatment that Section 104A provides to two completely different "public domain" conditions. My prediction is that Section 104A will be found to be constitutional as to restorations based on the lack of national eligibility, but unconstitutional as to restorations based on failure to comply with formalities.
Thursday, December 29, 2011
Tuesday, December 27, 2011
This proposed legislation borrows from the European concept of droit de suite which permits a form of resale fee to the original artist. It also borrows from a similar California statute that authorizes resale royalties of art auction sales made in California (the California art resale fee is only 5%). Here is the link for the Resale Royalty Act, Cal. Civil Code §986.
It seems to me that there are some issues to be considered with the proposed legislation:
1. Since failure to pay the 7% resale fee subjects the auction house to an infringement claim, the auction house can perhaps avoid paying the fee if it has no concerns about being sued for infringement. This would be the case if the original artist waived or assigned the copyright interest in the visual art to the first purchaser, and if the waiver or copyright interest is transferred as part of each further resale of the art. In this case, there would not be a likely plaintiff with standing to bring an infringement lawsuit if the 7% is not paid. Indeed, and particularly as to lesser known artists, this proposed legislation may encourage auction houses to obtain a "compulsory" assignment of an artist's copyright interest as part of the first sale of the artwork.
2. The owner of a valuable work of visual art can avoid the 7% tariff by auctioning the work at a small auction house with preceding year sales of less than $25 million. Indeed, this legislation may encourage the development of a greater number of small auction houses specializing in a few high value pieces. One potential problem, though, is that the smaller auction houses may not generate sufficient revenue to pay for errors and omission insurance covering the risks associated with the evaluation, valuation and transfer of valuable high-end art.
3. One portion of the proposed legislation provides that visual art would not be subject to the copyright notice provisions of Section 401 of the Copyright Act. Section 401 as presently written does two things. First, it provides that a copyright notice is discretionary, not mandatory (although, prior to 1989, copyright notice was mandatory). Second, Section 401(d) provides that if the copyright notice is employed then an infringer's evidence of innocence shall be given no weight in an infringement trial. So, for new works created after 1989, the use of a copyright notice makes practical litigation sense in order to receive the evidentiary benefit of Section 401(d). Avoiding this evidentiary benefit makes no sense.
4. The task of keeping track of artists and their heirs may be difficult. The Copyright Office, copyright lawyers and copyright users have collectively encountered considerable difficulty with "orphan works." The lack of an obligation under these new bills to compel the filing of contact information for visual art artists will almost certainly cause the loss of resale payments that may come due to original artists or heirs, who may have long forgotten about a lost piece of art.
No progress has yet been made to these new bills and, given the election uproar expected in 2012, it is not completely clear how well these new bills will advance. Of further note, the artist community has not yet joined together to provide a unifying voice in favor of these bills. We will see how all this works out.
Georgia State University: College Course Electronic Packets ~
Appropriation Art on Appeal: Cariou v. Prince ~
Betty Boop: Lost in the Public Domain ~
Foreign Internet Posting Triggers U.S. Copyright Law ~
Hot News is now Cold ~
Friday, December 2, 2011
Maria Pallante explains it this way: "Have you ever attempted to build an electronic index and searchable database of a complex and diverse collection of 70 million imaged historical records? Neither have we. One of the largest card catalogs in the world, the U.S. Copyright Office card catalog comprises approximately 46 million cards."
The Copyright Office has established a blog to allow public comments and suggestions on how best to digitally index and document its pre-1978 records. It also provides updates on its digitization goals and status.
Note to the Register, call Google.
Wednesday, November 30, 2011
The lack of an accurate database of owners of issued patents can be troubling for the public. The absence of readily accessible patent ownership information can inject an unacceptable level of mystery and risk into patent clearances and chain-of-title searches. This is particularly true if the ownership interests in a patent become fragmented among several parties, including lien holders or other creditors.
Further support for an accurate patent ownership database comes from the “bona fide purchaser for value” rule incorporated into Section 261 of the Patent Act. This section confirms that an unrecorded patent assignment or grant is void as to a subsequent purchaser or mortgagee for value and without notice of the unrecorded assignment or grant. A voided assignment can, in turn, create undesirable liability on the part of an assignor to a patent acquirer.
But, good news. The U.S. Patent Office is presently seeking comment on several rules that would mandate the disclosure of any patent assignment. Specifically, the PTO is proposing to require that disclosure of the current assignee be made:
- At the time the patent application is filed,
- At the time of payment of the patent issue fee,
- Any time an assignment is made after the application filing date,
- Any time an assignment would cause the loss of entitlement to the small entity fee,
- In order to obtain a discount of maintenance fees.
Tuesday, November 22, 2011
Friday, November 11, 2011
Bent double, like old beggars under sacks,
Gas! Gas! Quick, boys!---An ecstasy of fumbling,
In all my dreams, before my helpless sight,
If in some smothering dreams you too could pace
By Lt. Col. John McCrae, written on May 3, 1915 upon witnessing the death in combat of his good friend Lt. Alexis Helmer, 22 years old.
Thursday, November 10, 2011
Apparently, you need to see it to appreciate it.
The article explains that the Dutch court determined that the magic trick is copyright protectable because the "combination is unique."
While there may not be any copyright protection under federal copyright law, there may be protection under a particular state's copyright law. The U.S. Copyright Act preempts any conflicting state law equivalent to "the exclusive rights within the general scope of copyright." But federal preemption exists only as to "works of authorship that are fixed in a tangible medium of expression." 17 U.S. §301(a). There is no preemption under federal law for works not fixed. 17 U.S. §301(b).
Indeed, California has its own version of copyright protection for non-fixed works.Under Cal. Civ. Code §980(a)(1), the state of California grants copyright-like protection to an original work of authorship that is not fixed in a tangible medium of expression. This copyright-like coverage would certainly appear to extend to the public performance of a magic trick, particularly a trick that the Dutch court determined is unique. Indeed, what can be more non-fixed than an act of illusion?
Now you see me, now you ......................................
Friday, November 4, 2011
New Copyright Cases Filed
% Change From Prior Year
Five year change
There may be different reasons for this trend, but the U.S. Copyright Office believes that the cost of copyright litigation, particularly for the small litigant, is one significant contributing factor. As a result, the Copyright Office is undertaking a study of the possibility of establishing a small claims resolution process for certain copyright claims. Possibilities include establishing a small claims department within the federal courts, providing for a small claims procedure through the Copyright Office, or some other small claims process. The Copyright Office wants to hear from interested persons on this issue. Its website provides information on this study, together with a link to provide comment. The comment period runs through January 16, 2012.
No Copyright Infringement By The Oklahoma City Thunder Basketball Team For "Go Thunder." The NBA team and its owner were sued for copyright infringement by the composer of a copyright registered song containing the words "Thunder Up," "Go Thunder," and "Let's Go Thunder," among other phrases. The composer argued that the Thunder cheer group, the team mascot, and members of the crowd often violated his registered copyright by using these words while chanting during Thunder games, plus in advertising and on banners. The composer sought up to 30% of the Thunder net gross as compensation. But, alas, the court gave the composer a slam dunk facial, pointing out that words and short phrases, including slogans, are ordinarily not copyrightable, that these common cheers do not contain minimal creativity supporting copyright protection, and that the idea embodied in these cheers merge into the common expression of the cheers. The court pointed out that merely because a copyright registration issues does not mean that there is copyright protection. Syrus v. Bennet (10th Cir., Nov. 3, 2011).
How To Void Trademark Insurance Coverage. Rockland was sued for trademark infringement, told its insurance company, GAIC, about the lawsuit some seven weeks later, and forwarded a copy of the papers to GAIC after about three months. The Second Circuit held that the obligation to provide immediate or prompt notice of claims to an insurer is breached when the purported covered party waits seven weeks to provide oral notice of a claim and three months to provide written notice of a claim. Rockland Exposition v. Great America Ins. Co. (2d Cir., Nov. 2, 2011).
Marybeth Peters Is Now A Part Of The Public Domain. Marybeth Peters, recently retired as U.S. Register of Copyrights for the past 16 years, has joined the private sector, electing to become a practicing attorney with the Oblon Spivak firm of Alexandria, Virginia. You cannot keep a good copyright lawyer down -- congratulations, Marybeth!
Thursday, November 3, 2011
Monday, October 31, 2011
There is an additional patent that Bramah obtained that in some circles closely compliments the beer engine. That is, Bramah received an English patent for the flushing toilet in 1778.
So, here's to Bramah. Tonight, let us offer up a toast!
A majority of the rest of the Ninth Circuit must believe that Judge Campbell's view has merit. Last Thursday, the Ninth Circuit entered an order agreeing to rehear the Nosal case en banc. The prior Nosal opinion is no longer valid. More to come.
Tuesday, October 18, 2011
But some trademark owners claim the right to a trademark when, in fact, there is no trademark. A case in point pertains to the recent decision of the Trademark Trial and Appeal Board upholding the refusal to register the proposed trademark LOCKBACK pertaining to a folding utility knife. The examiner refused to register based on descriptiveness and the TTAB agreed. Indeed the TTAB determined that the proposed mark is generic and pointed to the product packaging provided by the applicant as proof of genericness.
The term “Lockback” is used to describe the type of utility knife (i.e., “Folding Lockback Utility Knife”). The term “Lockback” is not set off from the other words with which it is used. “Lockback” is displayed in the same size, font, and style as “Folding” and “Utility Knife.” As displayed on the package, consumers would perceive Ser No. 76679933 SHEFFIELD as a trademark, but not “Lockback.” In this regard, applicant’s use of the federal registration symbol does not transform “Lockback” into a trademark. See In re Aerospace Optics Inc., 78 USPQ2d 1861, 1864) (TTAB 2006); In re Brass-Craft Manufacturing Co., 49 USPQ2d 1849, 1853 (TTAB 1998); In re Remington Products Inc., 3 USPQ2d 1714, 1715 (TTAB 1987) (mere use of the “TM” indicator cannot transform an otherwise unregistrable term into aThe lesson: if you want to register a word as a trademark, then it is necessary to treat the word as a trademark. As instructed by the TTAB regarding the LOCKBACK application:
1. Don't use the proposed mark on packaging to describe the product.Cognito ergo sum
2. Set off the proposed mark on the package so that it looks different from surrounding text. Use different font style, font size or graphics to create a different appearance for the proposed mark than the surrounding text.
3. Do not use another word on the packaging that appears to be the trademark, thereby creating confusion as to the true trademark.
4. Merely putting a TM symbol next to the proposed trademark does not create a trademark.
The PTO held a series of roundtables in several Chinese cities this past summer to develop experience-based knowledge into enforcement of patent rights in China. The specific topics of the roundtables included:
1. the ability to acquire and enforce utility model and design patents in China,Now, the PTO is extending an invitation to any member of the public to submit written comments of personal experiences in China dealing with each of the above five patent protection topics.The PTO notice in the Federal Register, published October 17, explains:
2. the process of evidence collection and preservation in Chinese courts,
3. the ability to obtain damages and injunctions in Chinese courts,
4. the enforceability of Chinese court orders, and
5. administrative patent enforcement in China.
To ensure that the USPTO receives a wide array of views, the USPTO would like to invite any member of the public to submit written comments on China’s patent enforcement system, including, but not limited to, the five specific issues listed above. Examples of firsthand experience using China’s patent enforcement system, and recommendations on ways to improve the system, are encouraged. Based on these comments, the USPTO intends to produce a report that details the patent enforcement landscape in China and identifies any challenges faced by U.S. innovators, together with recommendations for improving the system.Written comments can be e-mailed no later than November 4 to IP.Policy@uspto.gov, or mailed to Mail Stop OPEA, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313-1450 USA, Attention: Elizabeth Shaw.
Friday, October 14, 2011
The preliminary drafts of the proposed WIPO Treaty for the Protection of Audiovisual Performances give the exclusive right in the first instance to actors for the download of their performances by wire and wireless means.The current draft of the treaty provides in pertinent part that "Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in audiovisual fixations, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them." In other words, the treaty gives actors the exclusive right to control on-demand downloads of movies. As an alternative to granting actors exclusive rights over movie downloads on demand, the proposed treaty allows a contracting party to "establish a right to equitable remuneration for the direct or indirect use of performances."
A proposed amendment to the current draft would permit the transfer of the actor's exclusive right to the producer of the audiovisual work. "Contracting Parties may provide in their national law that once a performer has consented to incorporate his or her performance in an audiovisual fixation, the exclusive rights of authorization * * * shall be owned or exercised by the producer of the audiovisual fixation."
It will be interesting to understand how the proposed international protection of audiovisual performances will play out in the U.S. Under the U.S. Copyright Act, a motion picture or other audiovisual work is deemed to be a work for hire, meaning that the authorship (and the right to copyright in the first instance) vests with the commissioning party, provided that there is a writing signed by the parties indicating that the work is a work for hire. Since application of U.S. law stops at the border, there may be a real concern on the part of motion picture and audiovisual producers, distributors and lenders regarding an independent performance right of actors in on-demand downloads occurring outside of the U.S. If foreign law does not recognize the U.S. work for hire rule in relation to the actor's performance rights, then the work for hire principle may not have much viability for overseas on-demand downloads of audiovisual and motion picture work. In this case, producers and commissioning parties may need to re-evaluate their actor compensation models and actor assignment agreements. Importantly, given the longevity of copyright interests in motion pictures and audiovisual work, producers, distributors, commissioning parties and actors should begin planning now for the potential impact of WIPO's proposed treaty.
Thursday, October 13, 2011
This past week on October 5, the Supreme Court heard argument in the copyright case of Golan v. Holder. The issue in Golan involves the constitutional ability of Congress to "restore" copyright protection to a work in the public domain under Section 104A of the U.S. Copyright Act. Reports of the oral argument in Golan suggest that Justice Ginsburg may be leaning to upholding the right of Congress to allow copyright protection for a work in the public domain under the view that a foreign work may never have had protection in the U.S. in the first instance (Scotusblog contains a full set of links to the various elements of this case). If an aged, foreign work has never been protected in the U.S., then one line of thinking suggests that there should not be anything wrong with granting full protection once the aged work comes into the U.S., even if the work becomes subject to U.S. copyright law years after its creation, assuming that the work is protectable in its home country.
Which takes us back to the ancient art factory in the Blombos Cave of South Africa. Wondering out loud what Justice Ginsburg's reaction would be to a copyright claim on a piece of art that newly arrives in the U.S. from the Blombos Cave? If the owner of the Blombos Cave art seeks to protect the 100,000 year old work under U.S. copyright law, would such an event not cause Justice Ginsburg, and everyone else, a bit of heartburn, assuming that South Africa would extend copyright protection to the previously unpublished work? Just thinking out loud.
Thursday, September 29, 2011
Tuesday, September 27, 2011
My goodness. Everyone knows that call centers are located all over the place, both inside and outside of the U.S. Does anyone really care where the call center is located? Is it not more important for consumer purposes that the call center employee communicate effectively so as to properly assist the consumer's inquiry? Frankly, I have communicated with call center employees whom I suspect are located within the U.S. yet speak poor English and are difficult to understand. I have communicated with call center employees whom I suspect are located outside of the U.S. who speak English very plainly.
I'm wondering if this type of legislation is really needed. Does this sort of bill speak more to the fear of foreign workers? The location of a call center is not important. Most people would be surprised that when they place a call to a Miami-based cruise line that they are likely speaking to a call center off a land-locked freeway interchange in Springfield, Oregon. This is but one example of how modern communication technology allows the placement of call centers anywhere in the world. The issue should not be where the call center is located. The issue, rather, should be whether the person on the other end of the line knows how to schedule a cruise, answer a question responsibly, and communicate well.
appealed to the TTAB, and the refusal to register was affirmed. The TTAB, citing existing law, confirmed that scandalous material cannot be registered, and confirmed further that vulgar material is scandalous for purposes of denying registration. Of note, the TTAB held that for purposes of defining whether material is scandalous, the PTO examiner can rely on dictionary definitions alone.
Dictionary definitions alone, if a term has no other meaning, are sufficient to satisfy the Office’s burden of showing that the mark is scandalous to a substantial composite of the general public.Indeed, the examining attorney cited to several dictionary definitions of giving the bird to establish that, as far as lexicographers are concerned, the gesture is scandalous. So there you have it. If you can't tell whether material is or is not scandalous, look in the dictionary.
We petition the Obama administration to:
Direct the Patent Office to Cease Issuing Software Patents
The patent office's original interpretation of software as language and therefor patentable is much closer to reality and more productive for innovation than it's current practice of issuing software patents with no understanding of the patents being issued.
Under the patent office's current activity, patents have been come a way to stifle innovation and prevent competition rather than supporting innovation and competitive markets. They've become a tool of antitrust employed by large companies against small ones.
To return sanity to the software industry - one of the few industries still going strong in America - direct the patent office to cease issuing software patents and to void all previously issued software patents.
Saturday, September 24, 2011
Wednesday, September 21, 2011
Saturday, August 6, 2011
The Base Ball Song, by W.J. Bullock, 1874
Thursday, August 4, 2011
WIPO has been pressing since 1996 for some sort of performance rights protection but has not seen much movement. Its historical white paper appears here. WIPO now is exhibiting renewed energy in developing a consensus of members at this time.
The U.S. does not recognize moral rights in the same way as exists in other legal systems, although there is a limited right of attribution and integrity to authors of works of visual arts (Section 106A). Further, the U.S. has in place a "work for hire" rule in which the commissioning party in AV works receives a copyright interest without an assignment or transfer from the actors.
Any adherence by the U.S. to WIPO's proposed treaty would certainly require a re-work of both Section 106A's limited moral rights and the work-for-hire rule. It would perhaps also require new consideration of an actor's performance as a stand-alone work, separate from the AV material, together with re-thinking the early termination right.
Javier Bardem testified at a recent WIPO hearing concerning the proposed treaty, and his statement is set out here.
Two comments. First, if one of the purposes of a trademark registration is to allow registrants to protect the commercial value of their marks, how does the Indian government's failure to manage its trademark files allow for commercial growth and confidence in India, and how does all of this impact U.S. business partners of Indian firms? Very scary. And second, it goes without saying that the annual fee "diversion" from the PTO raises the specter of similar burdensome administrative problems with the PTO. Another very scary concern for commercial business that relies on IP.
Tuesday, August 2, 2011
- It destroyed relevant documents prior to litigation.
- It intentionally did not implement a document retention plan. Indeed, plaintiff’s principal testified that “I don’t save anything so I don’t have to look.”
- It engaged in abusive litigation tactics in that it failed to engage the claim construction process in good faith, it failed to offer a construction for any disputed claim terms, it lodged incomplete and misleading extrinsic evidence and it submitted declarations that contradicted earlier deposition testimony.
- It showed lack of regard for the judicial system by testimonial statements from its principal (“I am so sick of this stuff, especially this haggling over stupidities and trivialities which is the name of the game in litigation.”
- The plaintiff’s patent “clearly refutes Eon-Net’s claim construction.”
- The infringement claim had an “indicia of extortion” because “it was part of Eon-Net’s history of filing nearly identical patent infringement complaints against a plethora of diverse defendants, where Eon-Net followed each filing with a demand for a quick settlement at a price far lower than the cost to defend the litigation.” “[T]hose low settlement offers – less than ten percent of the cost that Flagstar expended to defend suit – effectively ensured that Eon-Net’s baseless infringement allegations remains unexposed, allowing Eon-Net to continue to collect additional nuisance value settlements.”
- As a non-practicing patent plaintiff, Eon-Net had little to lose in the litigation. “In addition to its ability to impose high costs to defend against its meritless claims, Eon-Net placed little at risk when filing suit. As a non-practicing entity, * * * Eon-Net did not face any business risk resulting from the loss of patent protection over a product or process. Its patents protected only settlement receipts, not its own products.”