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Category: Blog

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.