By Anji Mandavia

The big news in copyright jurisprudence is, of course, last week’s landmark ruling in Kirtsaeng v. John Wiley & Sons, in which the Supreme Court, in a 6-3 decision, definitively ruled that the “first sale” doctrine — which allows the owner of a copyrighted good to sell or dispose of that particular item without the permission of the copyright proprietor — applies to all goods legitimately manufactured with the permission of the copyright owner, whether made in the United States or abroad. 

By this decision, the Supreme Court resolved a split in the Circuits: The Third Circuit had adopted a similar position, that the first sale doctrine applies to lawful foreign-made copyrighted works; the Second Circuit had adopted the contrary position, that the first sale doctrine applies only to copyrighted goods made in the United States, and does not apply to foreign-made goods even if they were lawfully made; and the Ninth Circuit had adopted a hybrid position, that the first sale doctrine applies to lawful foreign-made goods if they have first been imported into or sold in the United States with the permission of the copyright proprietor.

While the Court’s decision will have broad ramifications across a number of business sectors regarding the foreign manufacture, sale, and potential importation of copyrighted goods (over 20 amicus briefs were filed, most on behalf of multiple parties and business organizations), the majority opinion itself had a very narrow, semantic focus — namely, what do the words “lawfully made under this title,” as used in section 109(a) of the Copyright Act, mean.

Continue Reading The Supreme Court Clarifies the Application of the “First Sale” Doctrine to Copyrighted Works Manufactured Abroad

Join us March 26!

Weintraub Tobin and the LAVA Digital Media Group will host a panel discussion: "The Role of Digital Media in Influencing Public Perception and Behavior" on Tuesday, March 26.

Digital Media plays a significant role in creating and defining cultural norms and influencing individual behavior. Join our panel of experts in a discussion about how digital media shapes public perception, influences individual beliefs and triggers events in the physical world.

This evening event is designed to bring together entrepreneurs, start-ups, accelerators, venture capitalists, and businessmen and women alike to discuss the role of digital media and the way it shapes our culture. Enjoy a social hour from 6:30-7 p.m. followed by the panel discussion and a Q&A session.

Panelists include:

  •     Anton Vuljaj, Analytical Lead, Google Elections and Issue Advocacy
  •     Joe Mathews, California editor, Zocalo Public Square (zocalopublicsquare.org) fellow
  •     Joel Fox, Editor-In-Chief of FoxAndHoundsDaily.com
  •     Bryan Merica, founder and president of ID Media
  •     Gary Brown, President of Political Data (politicaldata.com)
  •     Moderated by Scott Hervey, Shareholder, Weintraub Tobin

"The Role of Digital Media in Influencing Public Perception and Behavior" takes place Tuesday, March 26th at ROC, 604 Arizona Street in Santa Monica. Register here.

Follow the event on Twitter: @weintraub_law
#wtdmg

On February 27, 2013, Congress proposed the “Saving High Tech Innovators from Egregious Legal Disputes (SHIELD) Act.” This bill is designed to stem the tide of patent litigation initiated by non-practicing entities, also known as “patent trolls.” A non-practicing entity (“NPE”) generally operates by forming a shell corporation to acquire and hold patents, then litigating against anyone who uses the covered technology without a license. The NPE’s goal is to monetize its patent portfolio through license revenues obtained in connection with patent infringement settlement agreements. According to President Obama, the NPE business model is designed to “leverage and hijack somebody else’s idea and see if [the NPEs] can extort some money out of them.”

Business is booming. Numerous NPEs have come into existence in recent years, initiating hundreds of patent infringement lawsuits. Estimates from 2011 show that NPEs received as much as $29 billion from U.S. companies. At the heart of the NPE business model is the stark reality that defending a patent infringement lawsuit costs hundreds of thousands, and often millions of dollars. Some patent trolls therefore assert dubious claims against accused infringers knowing that most defendants will settle by executing a patent license rather than risk the costs and uncertainty of patent litigation. The SHIELD Act is designed to address this issue by shifting risk back to the NPEs. Its authors hope that shifting enough risk to NPEs who instigate frivolous patent infringement lawsuits will discourage and reduce such meritless lawsuits.

Continue Reading The SHIELD Act – Death of the Patent Troll, or Incentive to Infringe?

By Lisa Y. Wang

One usually thinks of a librarian as a calm and lawsuit-free job. However, a librarian in Canada is facing a $3.5-million lawsuit over a personal blog post he wrote three years ago. Dale Askey, an associate librarian at McMaster University, is being sued by Edwin Mellen Press Ltd., an international academic publishing company, who filed two lawsuits last June.

Mellen Press alleges that Askey accused them of “accepting second class authors” and urging “university libraries not to buy (their) titles because they are of poor quality and poor scholarship.” While this lawsuit will be heard in Canadian court under Canadian law, bloggers have been threatened with lawsuits in the US for articles they’ve written and opinions they’ve expressed. This brings up a whole slew of First Amendment issues and the SLAPP statute. 

If this lawsuit were filed in the United States, it might be considered a “SLAPP” (Strategic Lawsuit Against Public Participation) lawsuit. SLAPP refers to a lawsuit or legal threat intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Typically SLAPP lawsuits target ordinary citizens who cannot afford to pay the hefty legal fees it takes to defend such a lawsuit. They are a method used to intimate others from participating in debate and free speech and can be a strong method of silencing critics. SLAPP lawsuits often come in the form of a lawsuit claiming defamation or libel. The defining characteristic of a SLAPP lawsuit is that the plaintiff usually loses the case. However, a typical SLAPP lawsuit does not get to the trial phase as it is method used to chill the speech of citizens.

Continue Reading Bloggers’ Rights and anti-SLAPP

By Scott Hervey

This isn’t the first time a songwriter has used a celebrity’s name in a song, but it may be the first time a celebrity sued over such use. Musical writer and performer Armando Perez, well known by his rap name Pitbull, wrote and recorded the song “Give me Everything.” Approximately one third of the way through the song, Lohan’s name is used as follows: “So, I’m tiptoen’, to keep floin’ / I got it locked up like Lindsay Lohan”. Lohan, who did not grant consent to the use of her name in the song, sued Pitbull and his record label, Sony Music Entertainment, for violating Sections 50 and 51 of the New York Civil Rights Law, for unjust enrichment and for intentional infliction of emotional distress. The court dismissed Lohan’s complaint on the grounds that it fails to state a claim. While most are chalking this up as another legal loss for the challenged Lindsay Lohan, this case is an interesting commentary on the reach of New York’s right of publicity statutes.

Although New York does not recognize a common-law right of privacy, the State sought to provide a limited statutory right of privacy when it enacted Sections 50 and 51 of the New York Civil rights Law. Section 50 makes it a misdemeanor for any person to “use… for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without first having obtained the written consent of such person.” Section 50 provides:

Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as provided [in Section 50] may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.

Continue Reading Lindsay Lohan Finds Herself on the Wrong Side of New York’s Right Of Publicity Statute