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The Supreme Court of the United States has held that the state government is free to infringe copyrights without fear of retribution. In Allen v. Cooper, the Supreme Court decided whether the state of North Carolina could be held liable under the Copyright Act for infringing filmmaker Frederick Allen’s copyright relating to Queen Anne’s Revenge. If that name sounds familiar, it’s probably because it is, in fact, the flagship of the infamous pirate Blackbeard.

The facts giving rise to this dispute go back to the 1990s. Well, to be clear, the facts giving rise to the dispute go back to 1717 when Blackbeard was using Queen Anne’s Revenge to carry out his plunderous activities. In any event, in the 1990s, a research firm located the shipwreck and hired Frederick Allen to film their recovery efforts. During this process, Allen’s company recorded video and took photographs, which were registered with the United States Copyright Office.
Continue Reading SCOTUS Rules That North Carolina is Protected from Copyright Infringement Claims by Sovereign Immunity

Call me a pessimist, but it was surprising to me when I recently checked the USPTO trademark database that I did not find an application to register “Social Distancing” for some other novelty item.  (It is also surprising that the tag #socialdistancing has only 159,000 uses on Instagram.) Nevertheless, I am sure some entrepreneurs will use it on a t-shirt or coffee mug, file a trademark application for “Social Distancing” and then try to prohibit others from using the term.  Chances are, however, that this entrepreneur will not be successful.

The trademark examiner assigned to an application to register SOCIAL DISTANCING will likely refuse registration because it fails to function as a trademark because it merely conveys an informational message. Where a term is merely informational, the context of its use in the marketplace would cause consumers to perceive the term as merely conveying an informational message, and not a means to identify and distinguish goods/services from those of others.
Continue Reading Stay Away; No Trademark for Social Distancing and other Informational Terms

On March 6, 2020, a Central District Court in UPL NA Inc. f/k/a United Phosphorous, Inc. v. Tide International (USA), Inc. et al, 8-19-cv-01201 (CDCA 2020-03-06, Order) (Ronald S.W. Lew), issued an order that may become more common place across courts.  At the request of the parties, the Court issued a temporary stay of all discovery in the action because of the threat posed by the Coronavirus.

Specifically, the Court noted that the parties had jointly stipulated that “discovery efforts are being significantly impacted by the outbreak of coronavirus. Both parties have sought materials and testimony from witnesses who are located outside of the United States, including in China, and given current travel restrictions and quarantine rules, obtaining the discovery sought at this time is impractical, if not impossible.”  Therefore, the Court found good cause to temporarily vacate the discovery dates presented in the parties’ joint request.
Continue Reading District Court Stays Discovery Deadlines Because of Coronavirus Threat but Keeps Markman Hearing on Calendar

Is the privately-owned YouTube site really a “state actor” subject to judicial scrutiny under the First Amendment? That’s the claim made in a lawsuit by Prager University, which is not really a university. The Ninth Circuit was recently called upon to address PragerU’s claim that the widely popular internet site operated by a private entity should be treated as a “state actor” subject to the First Amendment.  Unsurprisingly, the Ninth Circuit reaffirmed well-established case authority to hold that the First Amendment’s protections apply only as to protect against governmental action, not to private companies such as YouTube.

PragerU claims that its mission is purportedly “to ‘provide conservative view points and perspective on public issues that it believes are often overlooked.’”  PragerU creates videos that target younger audiences and has posted hundreds of videos on YouTube.
Continue Reading YouTube and the First Amendment

It has become commonplace for companies such as Google to use local servers to provide faster service to customers.  This practice has raised the question as to whether those local servers constitute “a regular and established place of business” for the purposes of establishing venue in patent infringement suits in the districts where the servers are located.

Specifically, the patent venue statute, 28 U.S.C. § 1400(b), limits the districts where patent infringement cases can be filed to either (1) where the defendant resides, which for a corporation is where it is incorporated, or (2) where the defendant has a regular and established place of business and has committed acts of infringement.
Continue Reading Google’s Servers Do Not Constitute a Regular and Established Place of Business for Patent Venue