IP Law Blogger Scott Hervey to speak September 17, 2013 at the Westdoc Conference, the West Coast documentary and reality conference, on various aspects of digital distribution of content. 
Patent Infringement Cases Before The Supreme Court
Two interesting patent cases are before the United States Supreme Court. The first is Akamai Technologies, Inc. v. Limelight Networks, Inc. 692 F.3d 1301 (Fed. Cir. 2012). The second is Medtronic Inc. v. Boston Scientific Corp., 695 F.3d 1266 (Fed. Cir. 2012).
Does Inducing Infringement Require that a Single Party has Performed All of the Steps of a Method Claim?
In Akamai, the issue is whether a plaintiff suing a defendant for inducing infringement of a method patent must show that a single party performed all of the steps of the method.
Inducing infringement exists if a defendant instructs or causes another party to infringe a patent. With respect to a method patent, a defendant has induced infringement if it has instructed another party to perform all of the steps of the claimed method. The party who has induced infringement is an indirect infringer. The party who has performed all of the steps of the method claim is a direct infringer. “Divided infringement” is a phrase used to describe the situation where multiple parties have performed different steps of the claimed method.
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THE NINTH CIRCUIT THROWS A PENALTY FLAG AGAINST ELECTRONIC ARTS
By On July 31, 2012, the Ninth Circuit issued its ruling protecting the right of privacy held by collegiate athletes against the use of their likeness in connection with video games. (Keller v. Electronic Arts, Inc. (2013) 9th Circuit Court of Appeals 10-15387. This decision joins the Third Circuit’s decision in Ryan Hart v. Electronic Arts, Inc., U.S. App. LEXIS 10171 (3d Cir. 2013), finding that the collegiate athletes’ right to publicity outweighs Electronic Arts’ First Amendment rights.
Sam Keller was a starting quarterback for Arizona State in 2005, before joining Nebraska in 2007. Electronic Arts ("EA") is the producer of a series of video games known as NCAA Football, in which EA seeks to replicate a school’s entire team as closely as possible. NCAA Football is an interactive game that allows the video gamer a wide range of playing options including modification of a player’s size and abilities as well as for which team he plays. Keller sued EA and the NCAA in a putative class action. EA filed a SLAPP motion ("Strategic Lawsuit Against Public Participation"), claiming that this conduct was protected by the First Amendment. The District Court denied the SLAPP motion, and EA appealed.
The Ninth Circuit recognized that video games, like books, plays, and movies, are entitled to the full protections of the First Amendment. (Brown v. Entm’t Merchs. Ass’n, 131 S.Ct. 2729, 2733 (2011). However, the First Amendment rights are not absolute, and states may recognize the right of publicity to a degree consistent with the First Amendment. (Zacchini v. Scripps-Howard Broad Co., 433 U.S. 562, 574-75 (1977).)
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UPDATE: You Can Still Hop Through Commercials
By Lisa Y. Wang
In April, we published an article about Fox Broadcasting Co. v. Dish Networks, LLC, where Fox Broadcasting was requesting a preliminary injunction against Dish Network, claiming that were engaged in copyright infringement by offering their Auto Hop on Dish Networks’ DVRs. As of that date, a judge declined to issue a preliminary injunction and Fox had appealed to the Ninth Circuit Court of Appeals. On July, 24, 2013, the Ninth Circuit rejected Fox’s appeal, and affirmed the district court’s refusal to enjoin Dish Network’s features. It affirmed the lower court’s reasoning that the consumer is the party causing a copy to be made, and not Dish Network. So if you subscribe to Dish Network and have the Auto Hop and "PrimeTime Anytime" features, no need to panic and switch cable/satellite providers, you can still watch your favorite television shows, commercial-free, without even touching the fast-forward button.
The Ninth Circuit confirmed that DVR recording is protected fair use, and since Fox did not have any copyright interest in the advertisements (the only content that was being skipped), it could not show that it was irreparably harmed by the features. However, it may be a bit premature for Dish Network to break out the champagne, despite Dish’s executive vice-president’s statement that, "This decision is a victory for American consumers." That is because this decision was made using the very high legal standard required to justify a preliminary injunction, and the deferential standard of review applied to denials of preliminary injunctions.
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Character Copyright — Is Sherlock Holmes in the Public Domain?
Currently pending before the United States District Court for the Northern District of Illinois is a case that will determine whether the Estate of Sir Arthur Conan Doyle has any remaining copyright interest in the iconic character of Sherlock Holmes, and his friend and companion in sleuthing, Dr. John Watson.
The fictional detective and his sidekick first made their appearances in “A Study in Scarlet,” published in 1887. By 1923, Doyle had written and published some fifty-six short stories and four novels wherein Holmes and Watson solved numerous cases through Holmes’ unique analytic and deductive methods, all the while interacting with various supporting characters, including Scotland Yard’s Detective Lestrade, their landlady Mrs. Hudson, Holmes’ brother Mycroft, and his arch-nemesis Professor Moriarty. Each of those pre-1923 works is now in the public domain in the United States. Approximately ten Sherlock Holmes stories, published after 1923, remain protected by copyright.
Malibu lawyer, and Sherlock Holmes aficionado, Les Klinger, is the author of numerous books and articles regarding the Sherlock Holmes canon. In 2011, he published, as co-editor, a collection of new short stories by contemporary writers featuring Sherlock Holmes and some of his supporting characters, titled “A Study in Sherlock.” In connection with that publication, the Doyle Estate demanded, and Klinger’s then-publisher paid under protest, a license fee for the use of Holmes and the other characters in the story collection. Continue Reading Character Copyright — Is Sherlock Holmes in the Public Domain?