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Category: Blog

WHY THE SUPREME COURT’S DENIAL OF CERTIORARI IN ERICSSON WAS PROPER

By: Sloane Kyrazis

In TCL Comm’n Tech. Holdings v. Telefonaktiebolaget LM Ericsson, 943 F.3d 1360 (Fed. Cir. 2019) (“Ericsson”), the Federal Circuit held that Ericsson’s Seventh Amendment rights guaranteed a jury trial in its suit against TCL involving the royalty dispute between the two parties related to the fair, reasonable, and non-discriminatory (“FRAND”) licensing of Ericsson’s patent portfolio. The case was closely watched because many thought it was finally the time when the Federal Circuit, and possibly the Supreme Court, would provide some guidance over what constitutes a FRAND licensing scheme for standard essential patents. Instead of providing much needed guidance, the Federal Circuit reversed the district court decision below, holding that the district judge’s announcement of a FRAND royalty in a bench trial violated Ericsson’s Seventh Amendment right to a jury trial. The Supreme Court denied certiorari on appeal. This blog post discusses why such a denial was well-founded.

STAY ON TARGET: MODERN ADVERTISING, THE TORT OF PUBLIC DISCLOSURE, AND THE CASE FOR EXPANDED PRIVACY PROTECTIONS

By: Jake Knanishu

Advances in advertising delivery and targeting technology pose a new, unique, and rapidly developing threat to individual privacy. Now, you can safely assume any advertisement you see on television or on a webpage has in some way been targeted at you—and so can anyone else who happens to see the ad. The finer points of this interaction among an advertiser, you, and a secondary audience prevent this invasion of privacy from being actionable under traditional common-law theories. The novelty, scope, and probabilistic nature of the harm suggest that regulation should be handled by an administrative agency, but which one? And how? Although not quite an “unfair or deceptive act or practice” in the familiar sense, this seems to be a modern twist on exactly the kind of thing the FTC was commissioned to police. Regardless of whose responsibility it becomes, something must be done before this practice gets too far out of hand.

A FREDDY KRUEGER BY ANY OTHER NAME IS STILL A FREDDY KRUEGER: WHY HAVEN’T HALLOWEEN STORES BEEN SUED FOR SELLING COSTUMES THAT MIMIC WELL-KNOWN FICTIONAL CHARACTERS?

By: Kristen Van Dyke

Halloween stores sell costumes that clearly mimic the appearance of well-known fictional characters. Profiting from consumers’ association of these costumes with the fictional characters they resemble potentially infringes trademark rights. So why haven’t these Halloween stores been sued yet? This blog explores how the uncertainty of fictional character trademark law and additional non-legal considerations may be tipping the scales away from litigation.

TURNING CHARACTER COPYRIGHT ‘INSIDE OUT’: THE MOODSTER CO. V. WALT DISNEY CO. CASE

By: Taylor Pernini

The Supreme Court recently received a petition for a writ of cert from the Moodsters Company, which sued Disney for copyright infringement over the emotional characters from the movie “Inside Out”. The Supreme Court has never ruled on character copyright, making the jurisprudence a mess of conflicting circuit tests. The Moodsters lost at the Ninth Circuit under the stringent Towle test and now allege that none of the current circuit tests fit the key purposes of copyright. They might be right—the Supreme Court’s focus should be on uniqueness and originality—but it is still unlikely that they win under that standard. This blog will address the differing circuit tests, why each one suffers weaknesses in copyright law, and what the appropriate standard should be going forward.

GET YOUR HEAD OUT OF THE CLOUDS: TRADE SECRET LAWS DON’T ACTUALLY PROTECT TRADE SECRETS FOR USERS OF CLOUD COMPUTING

By: Abbey Duhé

Cloud computing, whether that refers to data storage or service models like Software as a Service (SaaS) offers businesses an attractive cost-saving opportunity but leaves users at risk of losing valuable trade secrets. This blog post argues that the current avenues for legal recourse, though bountiful, are not enough to actually protect the value of these assets. The cloud computing industry imposes expanding demands on the reasonableness requirements to keep trade secret information confidential, but merely provides as a default the opportunity to litigate once the trade secret has already been lost. Solutions for companies may include keeping trade secret information out of the cloud altogether, but also more formalized standards to adapt to growing cybersecurity concerns.

ALL DRESSED UP WITH NO PLACE TO GO: WHEN THE COPYRIGHT INFRINGEMENT PLEADING STANDARD CONFUSION MEANS CASES CAN’T GET BEYOND THE COMPLAINT AND ANSWER

By: Brittany Blanchard

The pleading standard for copyright infringement claims is shockingly unsettled. It is unclear what elements must be pled to establish the claim and what proof is required for those elements. Despite this ambiguity in the law, the Supreme Court has not clarified this issue. This lack of clarity has resulted in a Ninth Circuit case being stuck in the complaint stage for four years. H&M and Malibu Textiles have spent the past four years litigating the issue of what is required in pleading copyright infringement claims. This case exemplifies the harm in a lack of a judicially establish pleading standard for copyright infringement claims. The Ninth Circuit decision in the H&M case lowers the pleading standard beyond what is established in Supreme Court precedent and argues that the Supreme Court decision not to review this case means that the law in this area will continue to be ambiguous.

STATE COPYRIGHT PIRACY: AN ANALYSIS OF ALLEN V. COOPER AND ITS IMPACT ON LEGISLATIVE ATTEMPTS TO ABROGATE STATE SOVEREIGN IMMUNITY IN COPYRIGHT SUITS

By: Grant Daniel Cole

The power struggle between the federal and state governments is a hallmark of the American Legal system. With the Supreme Court’s recent decision in Allen v. Cooper, 140 S. Ct. 994, (2020), the balance of power has shifted back to the states. The Court in Allen held that Congress lacked the constitutional authority to abrogate States’ Eleventh Amendment sovereign immunity and allow States to be sued in federal court for copyright infringement. Thus, the CRCA, the statute Congress passed that purportedly abrogated States’ sovereign immunity from copyright suits, was deemed unconstitutional. However, the Court in Allen should have held the statute was constitutional as applied underUnited States v. Georgia rationale.Furthermore, despite holding that the CRCA was unconstitutional, the Court lays out a blueprint for further legislative action. This post explores both the alternative arguments in Allen and the impact the case will have on future legislative action in this area.

YOUR FACE IS THE PRODUCT: FACIAL RECOGNITION TECHNOLOGY AND THE RIGHT OF PUBLICITY

By: Emily Hanson

Tech companies like Google, Amazon, and IBM have developed facial recognition technology by feeding the enormous number of publicly available photos on social media through highly advanced machine-learning algorithms. Facial recognition technology has serious implications for privacy both when it malfunctions and when it functions as intended. Social media users need an extension of right of publicity doctrine to keep these companies from profiting from their images and using them to develop technologies that break down the right to move through the world without being recognized.

A LICENSE TO KILL: WHY HITKANSUT LLC V. UNITED STATES SPELLS THE END OF PATENT RIGHTS

By: Ian Kecskes

Patent holders have the right to exclude others from their patented technology, including the U.S. government. Patent holders are given a cause of action against infringers; 28 U.S.C. § 1498 gives patent holders a cause of action against the government. § 1498 entitles the patent holder to the costs of the infringement and, if the government is not substantially justified, the costs of litigation. Recently, in Hitkansut LLC v. United States, the United States Federal Claims Court held that, when evaluating whether the government was substantially justified, the court can evaluate the prelitigation conduct, including the nature of the infringement itself. This blog will examine the underlying yet significant ramifications of this decision. Because of the incredibly high costs of patent litigation, the government can easily abuse this system. Patent holders will be more reluctant to bring a claim and risk spending significantly more on litigation costs than what the patent is worth. Ultimately though, since there has not been a significant change in government infringement since § 1498 was expanded, it is unclear how significant of an impact Hitkansut will have.

ROMAG FASTENERS, INC. V. FOSSIL, INC.’S POTENTIAL EFFECTS ON THE FUTURE OF THE NOMINATIVE FAIR USE DOCTRINE IN TRADEMARK LAW

By: Lillian Fant

In Romag Fasteners, Inc. v. Fossil, Inc., the Supreme Court held that there is no requirement of showing willful infringement for a plaintiff to be awarded with profits as damages for a violation of 15 U.S.C. § 1117 (a) or (b). The Court reasoned that because Congress specifically stated that there is a willfulness requirement for a violation of section 1117(c), this meant that the willfulness was intentionally left off of the other provisions. In light of the Romag decision, the four-way circuit split on nominative fair use should be reconciled with this reasoning. Thus, this blog post argues that the proper approach to nominative fair use is that of the Second Circuit in International Information Systems Security Certification Consortium, Inc. v. Security University, LLC.