The Prior Art

Hangover Cure: Warner Bros. Settles Copyright Suit Over Tyson Tattoo

By Andrew Goldberg

It looks like the tattoo on Ed Helms's face in The Hangover Part II is there to stay after all. 

Warner Bros. has inked a deal to settle the copyright infringement suit brought by S. Victor Whitmill, the tattoo artist who claimed that the body art encircling the left eye of the character played by Helms in the movie duplicates the one that Whitmill designed for the same spot on boxer Mike Tyson's face. 

"Warner Bros. and Whitmill have amicably resolved their dispute. No other information will be provided," Whitmill's attorney, Geoff Gerber, said in a joint statement with the studio, according to NBC News. 

Hollywood, Esq. reports that the confidential deal was reached on Friday during an all-day mediation session attended by Whitmill, his lawyers and the Warner Bros. legal team, which included attorneys from Schiff Hardin.

Previously, the studio said that if a deal could not be reached by the time the movie ended its run in theaters, it would digitally alter the tattoo in the DVD version of the movie. 

Although the terms of the settlement were not disclosed, Whitmill's bargaining position was probably not hurt by news that The Hangover Part II just became the highest-grossing R-rated comedy ever.

This Week in IP: Apps, Tats, and Patent Reform Hits a New Snag

By Andrew Goldberg

Apple Steps in for App Developers

Good news for app developers and iPhone users! Apple has decided to intervene on behalf of the seven iOs app developers sued for patent infringement by Texas-based patent-holding company Lodsys.

In its motion to intervene, filed late Thursday in the Eastern District of Texas, Apple argues that it should be permitted to participate in the case because it has a financial stake in its outcome.

"Apple's rights will not be adequately protected by the current defendants in the case, because Lodsys has chosen to assert these claims against Developers who are individuals or small entities with far fewer resources than Apple and who lack the technical information, ability, and incentive to adequately protect Apple's rights under its license agreement," Apple's lawyers--Eric Findlay, of Tyler, Texas, firm of Findlay Craft, and by lawyers at Simpson Thacher--write. [Download Apple's Motion to Intervene].

Along with its motion to intervene, Apple also filed a proposed answer and counterclaim, asserting that its license to Lodsys's patents also covers its independent app developers. "Because Apple is licensed to offer products and services that embody the patents in suit to its Developers, under the patent law doctrines of exhaustion and first sale, Developers are entitled to use, free from infringement of the patents in suit, those products and services to which Apple is licensed," the company's lawyers argue. [ Download Apple's Proposed Answer and Counterclaim].

For more on the Lodsys litigation, see The Prior Art's earlier post, App Backwards: Lodsys, Texas Troll, Targeted in Patent Suit.

Tattoo Removal Gets the Hollywood Treatment

How do you remove a really costly tattoo?

As the legal wrangling continues between Warner Bros. and S. Victor Whitmill, the tattoo artist who designed Mike Tyson's famous face art, over the allegedly infringing tattoo that found its way onto the face of the character played by  Ed Helms in The Hangover Part II, a resolution to the Hollywood copyright fight could ultimately turn on... special effects.

Hollywood, Esq, The Hollywood Reporter's legal blog, reports that if the parties are unable to reach a settlement by the time the movie is released on DVD, the studio has offered to digitally alter the tattoo that encircles Helms' left eye in the movie.

"Warner Bros. does not intend to make any use of the allegedly infringing tattoo after the film ends its run in theaters because Warner Bros. will digitally alter the film to substitute a different tattoo on Ed Helms’s face," lawyers from Schiff Hardin, counsel for the studio, wrote in a brief opposing an expedited trial in the case.

As The Prior Art previously reported, Whitmill sued Warner Bros. in April for copyright infringement, alleging that the tattoo in the movie is a duplication of the distinctive design he created on Mike Tyson's face. While Whitmill sought an injunction that would have kept the film out of theaters, a Missouri federal district court judge declined that request but allowed the infringement suit to proceed.

Even if the famous Tyson tattoo is ultimately replaced by a different design in the DVD version of the movie, Whitmill is sure to ask for a substantial sum in damages. The blockbuster sequel, which opened over the Memorial Day weekend, has already grossed close to $350 million at the box office.     

A New Hurdle for Patent Reform

In early March, not long after the U.S. Senate passed patent reform by a vote of 95-5,  Patent and Trademark Office Director David Kappos told The Prior Art in an interview in his suburban Virginia office that he was "off the charts optimistic" that a similar bill would come out of the House. "[House Judiciary Committee] Chairman [Lamar] Smith has already stated that a bill will be coming out this month-- the month of March," he said.

Three months later, that bill still hasn't reached the House floor. What's behind the hold up in the House?

The latest hurdle, according to Politico, appears to be Republican infighting. Just this week, two powerful Republicans--Appropriations Committee Chairman Hal Rogers and Budget Committee Chairman Paul Ryan--sent a strongly worded letter to Smith demanding changes to the patent reform bill. Their gripe? The bill would give the PTO the power to collect and spend its own fees, thereby insulating it from Congress's appropriation power.

The Republican objections, couched in terms of the deficit, threaten to scuttle a planned vote on the measure before the July 4 recess.

“Putting PTO funding on auto-pilot is a move in exactly the wrong direction, given the new Republican majority’s commitment to restrained spending, improving accountability and transparency, and reducing the nation’s unparalleled deficits and debt,” Rogers and Ryan wrote in their letter. 

Even David Addington, a former top aide to Vice President Dick Cheney and longtime advocate for the expansion of executive branch authority with regard to Congress, weighed in this week, authoring a Heritage Foundation memo on patent reform that also took issue with the provision that would make the PTO self-financing.

“Neither the junior most clerk in a federal agency nor the President of the United States may spend a dollar from the Treasury for any purpose unless Congress has by law appropriated that dollar for that purpose,” he wrote.

But most observers agree that the huge backlog hampering innovation at the PTO exists largely because the agency is underfunded, in part because Congress doesn't allow it to hold onto the money it collects in fees.

As it turns out, Kappos was right to add a caveat to his optimism about getting patent reform out of Congress. "If there’s anything I’ve learned here in my 18 months in Washington, D.C., it’s that prognosticating on Congressional cycles is a very, very risky thing to do," he said after the Senate vote.  "It’s easier to predict whether the Yankees are going to have another great season this year and win another pennant."

Copyright Suits Can't Keep Potential Blockbusters out of Theaters

By Andrew Goldberg

Copyright infringement suits hang over two highly anticipated blockbuster sequels set for release over the Memorial Day weekend.

In one case, a federal district court judge in Missouri ruled Tuesday that The Hangover Part II could open as scheduled Thursday, despite an attempt by tattoo artist S. Victor Whitmill to enjoin the film over its use of boxer Mike Tyson's famous face tattoo. Whitmill created the tattoo for Tyson, and it appears in the movie encircling the left eyes of both Tyson, who makes a cameo appearance, and the character played by actor Ed Helms.

Whitmill sued Warner Bros. in April for copyright infringement, alleging that the tattoo in the movie is a duplication of his distinctive creation.

“There is substantial similarity between the copyrightable expression in the Original Tattoo and the Pirated Tattoo,” Whitmill argued in his complaint, filed by lawyer Geoffrey Gerber of the St. Louis-based BrickHouse Law Group, on April 28 in the Eastern District of Missouri. [Download Whitmill Complaint]

“Mr. Whitmill has never been asked for permission for, and has never consented to, the use, reproduction, or creation of a derivative work based on his Original Tattoo, including the Pirated Tattoo,” the suit argues. “Nor has he ever been asked or agreed to the public display and distribution of a motion picture containing the Pirated Tattoo, or to the use of any of his other exclusive rights in the Original Tattoo under the Copyright Act.”

Represented by attorneys with Schiff Hardin, Warner Bros. argued that any delay in the release of the movie would cause it enormous financial losses while also subjecting the studio to massive damages claims by movie theaters over lost ticket sales.

“Plaintiff seeks to enjoin the distribution of a major motion picture--and to do so just days before its national release on more than 7,000 screens in over 3,600 theatres,” the Schiff Hardin lawyers wrote in their brief opposing a preliminary injunction. “The harm to Warner Bros. and numerous third parties from such an injunction would be devastating.”

District Court Judge Catherine D. Perry agreed, declining to deprive Hangover fans of a chance to see the sequel over the holiday weekend, but also, according to Gerber, delivering some sobering news to the studio about its potential liability at trial.

“Judge Perry said that my client has a ‘strong likelihood of success’ on the merits and will probably win the case at trial for money damages,” Gerber--who noted that the judge said most of Warner Bros.’ defenses were “just silly”--said in an interview with The Prior Art.

 “We lost a motion for a preliminary injunction, so we’re obviously disappointed that our client is being irreparably harmed by the widespread release of the movie,” said Gerber. “But at the same time, we understand and appreciate the judge’s concern for innocent third parties likely to be harmed by an injunction – like movie theaters – who shouldn’t be held responsible for Warner Bros.’ conduct.”

Frederick Sperling, a partner in Schiff Hardin’s Chicago office who is representing the studio, says that  “the court’s ruling protects the interest of the public as well as those of Warner Bros.” Sperling adds that “Warner Bros. believes the claims against it are without merit and intends to vigorously defend its rights.”

Although the amount Whitmill ultimately decides to ask for in damages will be based on how well the movie does at the box office and in DVD sales, there’s reason to believe the figure will be substantial. The Hangover grossed over $277 million in the U.S. and over $467 million worldwide, according to Box Office Mojo, a site that tracks box office results. Still, to be compensated, Whitmill must show how much the infringement itself contributed to Warner Bros.’ profits from the film.   

Calling Whitmill’s copyright claim “radical,” Warner Bros. argues in its opposition brief that “the very copyrightability of tattoos is a novel issue,” and that the plaintiff is not entitled “to control the use of a tattoo that he created on the face of another human being.” In any event, the studio says, the tattoo on the face of Ed Helms in the sequel constitutes a fair use parody of Tyson’s tattoo, and the plaintiff shouldn’t be allowed to sue over it now because he never objected to the use of tattoo in the first movie (Tyson made a brief, memorable appearance in that film as well). [ Download Warner Bros. Opposition to Injunction]

“They put the tattoo in every trailer and every single television commercial, and almost all of the print advertising. And they put an $80 million marketing budget behind it to sell this movie. That’s not a parody. It’s a straight up commercial use of someone else’s art,” Gerber told The Prior Art. “I saw absolutely no parody and the judge saw no parody,” he said.

Another film that won’t be prevented from opening this weekend but also still faces a copyright infringement suit is DreamWorks Animation’s Kung Fu Panda 2. That suit was filed against DreamWorks in February by Jayme Gordon, another artist.

Unlike Whitmill, Gordon, who is represented by Fish & Richardson and Duane Morris, never sought  to block the nationwide premiere of the sequel over the copyright issue. He is, however, hoping to take a big bite out of the studio’s past and future profits from the movies about Po, the paunchy Kung Fu-fighting panda.

Gordon claims that the studio copied many of the characters, plot elements, and settings in the movie from his illustrated literary works. Specifically, he alleges that Po, the portly panda voiced by Jack Black, is a virtual double for Kidd, a giant panda that Gordon first drew in the early 1990s. Gordon further contends that both pandas are supported by a group of the same five fighting animals and befriend small red panda kung fu masters who use chopsticks while fighting.

In an answer to the complaint filed on May 6, DreamWorks, represented by Foley Hoag and Loeb & Loeb, denies Gordon’s allegations. It acknowledges that while the plaintiff did indeed submit an unsolicited package to DreamWorks in October 1999, that package was rejected and returned uncopied in accordance with the company’s policy regarding unsolicited material. [ Download Panda - Answer by Dreamworks]. (Gordon filed an Amended Complaint in the case on April 19, reasserting his claims against the studio.) [ Download Gordon Amended Complaint]

DreamWorks also asserts several affirmative defenses in its court filing, including that its work was independently created and that Gordon’s suit, which wasn’t filed until more than two years after the release of Kung Fu Panda in 2008, is no longer timely.

Whatever happens at the box office, it’s sure to be a busy summer in court for Hollywood’s copyright lawyers.

Standing Still: Righthaven Litigation Campaign Hits New Roadblock

By Andrew Goldberg

Could it be the beginning of the end for Righthaven?

The Las Vegas-based copyright holding company, which has endured a string of legal setbacks in the last couple of months, suffered another one last week when a federal judge in Colorado halted all the copyright infringement suits brought by Righthaven in the state pending a review of whether the company has the legal standing to sue over an airport security pat-down photo originally published in the Denver Post.

"Because there are serious questions as to whether my exercise of subject matter jurisdiction over Righthaven's claim of copyright infringement is proper, I think it most prudent to stay the proceedings in all pending cases in this District in which Righthaven is the named Plaintiff," wrote Judge John Kane in an order issued last Thursday. "Should I find that I lack subject matter jurisdiction over Righthaven's claim of copyright infringement, it is likely that I will be required to dismiss all pending actions." [ Download Righthaven - Judge Kane Order]

The stay issued by the court in Colorado follows a decision last month by a federal judge in Nevada to unseal the licensing agreement Righthaven signed with its other newspaper partner, the Stephens Media-owned Las Vegas Review-Journal. That agreement, which was unsealed at the request of the Electronic Frontier Foundation, revealed that Righthaven had been granted the right to bring infringement actions but had not actually been granted full copyrights in the articles over which it was suing. 

Google Loses Newspaper Copyright Case in Belgium

By Andrew Goldberg

Google is prohibited from publishing snippets of, or even linking to, articles and photos from Belgian newspaper websites, a Belgian appeals court ruled this week.

The decision, which upholds a lower court’s 2007 copyright ruling forcing Google to remove all content and links from French-and-German-language newspapers in Belgium, is surely a setback for the search giant, but is also potentially an even bigger blow to innovation in Europe.

“We believe that referencing information with short headlines and direct links to the source -- as it is practiced by search engines, Google News and just about everyone on the web -- is not only legal but also encourages web users to read newspapers online," Google told Bloomberg in a statement following the ruling.

The court's decision could impact Google's ability to introduce other news initiatives. More than a year before Google announced One Pass in the U.S., -- its forthcoming effort to help publishers sell digital subscriptions -- it unofficially unveiled Fast Flip, an experimental future news service designed to revolutionize the way readers browse their favorite publications on the web.

Cloudy Copyright Forecast for New Amazon Music Service

By Andrew Goldberg

Amazon's push to beat Google and Apple to the punch in unveiling its new "music locker" service this week could cause the company to face a combination of new copyright challenges.

The e-commerce giant's new cloud-based music service known as Cloud Drive, which lets users store the songs they purchase on Amazon's servers and play them from almost anywhere, is certainly convenient. The problem is that it might not be entirely legal under copyright law, according to some people in the music industry.

At issue is whether a service that offers consumers access to music via the cloud must first acquire licenses from the music labels that control the copyrights on that music. Amazon says that it doesn't need a license. Company spokesperson Cat Griffin tells Ars Technica that "the functionality of saving MP3s to Cloud Drive is the same as if a customer were to save their music to an external hard drive or even iTunes."

Peter Kafka at All Things Digital points out that many people in the industry agree. Sony spokeswoman Liz Young, however, told Reuters that it's "keeping all our legal options open."

MP3Tunes CEO Michael Robertson, whose startup has been embroiled in a closely watched case after offering a similar "music locker" service, told Techcrunch that “Amazon’s entrance into the business is enormously significant because it will dictate whether Apple or Google enter into a license for their own service or go the unlicensed path. If the labels take no action against Amazon, then expect Apple and Google to follow in their footsteps."

The copyright issue presented is one of first impression for the courts, and the debate will remain unsettled at least until the EMI v. MP3tunes case is resolved. In that case, which is pending in the Southern District of New York, various record labels and music publishers sued MP3tunes, alleging--among other things--that MP3tunes is directly liable for copyright infringement for allowing users to publicly perform, reproduce, and distribute their copyrighted works. [Download EMIvMP3tunes Complaint.]

Specifically, plaintiffs argue that by allowing multiple users to stream songs from the same storage system, MP3tunes violates the labels’ exclusive right to publicly perform those works. In its motion for summary judgment, MP3tunes counters that argument by claiming that it actually maintains a separate copy of each song for every user that uploads it.

"What is retrieved from the system is the user's own unique copy--that is a copy of the music file that was created as a result of that user's direction to store the original file on the MP3tunes system," the company’s lawyers from Duane Morris wrote in their brief. "To our knowledge, no court has ever ruled that rudimentary software storage functionality constitutes copyright infringement..."

Indeed, the Second Circuit's ruling in the 2008 Cablevision case (Cartoon Network, LP v. CSC Holding, Inc.) offers hope to MP3tunes, and in turn to Amazon. There, the court ruled, much to the relief of couch potatoes everywhere, that a DVR system that allows cable viewers to record their favorite shows does not violate copyright law. The court reasoned that Cablevision was not violating the plaintiff's exclusive public performance right because it was only transmitting s single copy of show recorded by a single user, and was not transmitting that show publicly to multiple subscribers.

Provided that Amazon--by storing separate copies of every song purchased and uploaded to the locker--is providing a service similar to Cablevision’s, it should enjoy the same immunity from liability under copyright law. The music labels could take their chances and challenge Amazon in court, but they're not likely to prevail, according to former e-Music CEO David Pakman. Then again, copyright law is likely to remain murky in this area for quite some time.

They don't call it the cloud for nothing.

Monday Miscellany

The Patent Litigation Weekly column took a hiatus last week as I worked on IPLB's annual patent litigation survey and an upcoming cover story. To hold over readers, here's some interesting copyright & patent reading from the past week:

• News companies filed an amicus brief denouncing a judge's order in the "Catcher in the Rye" copyright case, saying she didn't take proper note of the First Amendment before enjoining publication: "Here a book was banned on the basis of a two-hour hearing with no witnesses."
• When The Prior Art last checked in on mystery inventor Gregory Bender, he and his lawyer had filed patent-infringement lawsuits against 28 companies. Now it's up to 37 defendants in 24 different suits, and Judge William Alsup has declined to relate the cases, despite the request of Bender's lawyer. 
• Zusha Elinson on the advantages and disadvantages of joint defense groups in patent lawsuits. (free reg. required)

Update 8/11/09: To clarify, Judge Alsup's order told the parties that it may be possible to coordinate hearings on claim construction and invalidity issues, but infringement issues will remain separate.

 

News exec to Google: We've got "Hot News," and we know how to use it.

Last week, a U.S. Senate committee engaged in the sort of navel-gazing about the future of journalism that is usually confined to, well, journalists. And this week, the usual suspects are pontificating about what the hearing meant.

There's a lot that could be said, but my attention was caught first and foremost by a sharp exchange between James Moroney, publisher and CEO of the Dallas Morning News, and Google Vice President Marissa Mayer. Moroney showed himself to be particularly well-informed about a certain legal doctrine, created for The Associated Press and recently reinvigorated in a lawsuit brought by that journalism organization: the "Hot News" doctrine. 

Committee chairman Sen. John Kerry (D-Massachusetts) teed up the exchange between Moroney and Mayer by asking the latter if she thought news organizations were paid enough for readers finding stories through a news aggregator like Google News. Kerry said:

"If you're you're out there doing the footwork and you've got a top level reporter in a bureau somewhere in the world, or you're doing a major investigative story and you put the pieces together... that takes money, it takes time, it takes skill... They're not going to get remunerated, for the level they put into that ... Is there a fairer way to try to spread the cost here?"

TPA Reading for the Week

A TPA extra edition--our mix of IP-related notes from this week:

• PatentFreedom, the patent defense consultancy run by Dan McCurdy, first talked to us about its database of NPEs (patent trolls) when the firm launched almost a year ago. Now, PatentFreedom is offering some of the basics from its database to the public--interesting stuff. Take a look, via Against Monopoly.

• French reject "three-strikes" law that would ban copyright infringers from the Internet. Lots of artists and content-side lawyers thought this one was going to pass. Not this time. Via Wired.com.

• Big Verdict: Mintz Levin won a $388 million patent infringement verdict against Microsoft for a case brought on behalf of a small California outfit, Uniloc. But will it stick?

• Big Verdict II: W.L. Gore & Associates (of Gore-Tex fame) must pay out $410 million to medical device company C.L. Bard. Via The Am Law Litigation Daily. Gore will appeal.

• Big Verdict III: A U.S. Court of Federal Claims judge has ordered NASA to pay a 1.25 percent royalty to Boeing because an aluminum alloy it used to build the space shuttle infringes Boeing patents. Damages still being briefed but looks like 9 digits. Seattle Times via IPO News, and The Am Law Daily.
  

• EFF senior attorney Fred Von Lohmann asks if President Obama violated copyright law when he gave an iPod to Queen Elizabeth.

• U.K. newspaper The Guardian showcases 15 years of anti-piracy videos.

Photo: L. Hine / Wikimedia

 

Challenges to the Google Book settlement, and a connection to Microsoft

The New York Times noted Friday that some challenges are being raised to the Google Book settlement; my colleagues at The Recorder are more interested in the fact that some of the opposition is funded by Google's rival, Microsoft. One of the New York Law School professors whose research is funded by Microsoft is James Grimmelmann. I've never spoken to him, but his lengthy analysis of the Google Book settlement, published in November, is the most insightful thing I've read about it. After reading the post, it really struck me how important this settlement will be to the future of reading as we know it.

Grimmelmann is also a former Microsoft employee, and wrote a great essay about working for the company back in 1997. The law professor made it clear to the NYT that he doesn't believe he or his colleagues' work has been influenced by Microsoft. He generally supports the settlement but also noted that he had concerns about antitrust and consumer rights, and suggested:

"Hot News" claims fail against Perez Hilton and newspaper obituaries

In February, I wrote about how a judge allowed The Associated Press' "hot news" lawsuit against an online news service to move ahead. I also wrote up a bit of the history of the "hot news" doctrine, which was created to give news organizations a "quasi-property" right in certain facts, even though facts cannot be copyrighted.

Readers who were interested in that post, and there were quite a few, would be interested to know that cyberlaw guru Eric Goldman has written recently about two more cases that involved "hot news" claims; that's three times it's come up in one month, leading Goldman to conclude that it must be "something in the water." One of those "hot news" claims was against celebrity gossip writer Perez Hilton, while another was part of a newspaper-on-newspaper fight in Pennsylvania over obituaries.

In one way, it's hard to think of anything less "hot" than an obit, but as the judge in that case notes, they do contain certain time-sensitive information. I can confirm, without any joy in my heart, that obits and funeral notices are some of the more popular content in smaller newspapers. When I worked at The Bakersfield Californian as an intern reporter, the funeral notices for the week frequently made it on to the "most read stories" list on the paper's web site. The "hotness" of that feature was always a bit depressing to us reporters, who spent the day pounding pavement to report news that was only occasionally more popular than a list of people have recently died. 

Image: Wikimedia / Sensor

The AP's "hot news" lawsuit lives on; are scoops "quasi-property?"

A New York federal judge ruled Tuesday that The Associated Press can sue its competitors not merely for copyright infringement, but for a "quasi property" right in the news known as the "hot news" doctrine. See the AP's own coverage.

Well, let it not be said that I fell down on the job when "hot news" crossed my beat. I took a look at both sides' motions and the judge's ruling to learn more about the case. The doctrine raises some questions for me about journalistic practice and ethics. And, it has some interesting history to boot.

According to 2nd Circuit law quoted in the order in this case [PDF], a "hot news" misappropriation claim is viable when:

(i) a plaintiff generates or gathers information at a cost;

(ii) the information is time-sensitive;

(iii) a defendant's use of the information constitutes free riding on the plaintiff's efforts;

(iv) the defendant is in direct competition with a product or service offered by the plaintiffs;

(v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

Personally, I can't see how all five of these don't apply to any news organization that's writing a story that follows a "scoop" by a competitor. 

The Gnu heads to court, files lawsuit against Cisco

The Free Software Foundation filed its first-ever copyright lawsuit yesterday, against Cisco Systems. The FSF accuses Cisco of not complying with the terms of the FSF's popular viral license, the General Public License, in the company's Linksys line of products. Anyone who distributes software or products that are GPL-licensed must provide source code when distributing it; by falling down on the GPL-vigilance front, "Cisco has denied its users their right to share and modify the software," say FSF lawyers.

The non-profit FSF has never before gone to court as a plaintiff to enforce the GPL, the license that founder Richard Stallman has called his "hack" of copyright law. But it has provided pro-bono legal services to open source developers who want to enforce their own GPL'd code, most notably in the BusyBox litigations.

A Cisco spokesperson stressed the company's commitment to open source, and responded that "We are currently reviewing the issues raised in the suit but believe we are substantially in compliance. We have always worked very closely with the FSF and hope to reach a resolution agreeable to the company and the foundation." (via Ars Technica)

Two big IP verdicts slip away from plaintiffs

Two historic verdicts, one copyright and one patent, were overturned this week.

• The recording industry's sole jury win in a music downloading case was overturned on appeal Wednesday. The problem was Jury Instruction No. 15, which told the jury the record companies don't have to prove any copyrighted files were actually transferred. Defendant Jammie Thomas was found liable and ordered to pay $222,000. But a federal judge in Duluth, Minnesota said that instruction was wrong, and Thomas will get a new trial. [Wired]

• Alcatel-Lucent's $1.5 billion jury verdict against Microsoft, for infringing patents on mp3 technology, was overturned  by the Federal Circuit. (That award had already been overturned by a district court judge; and the appeals court upheld that judge's decision.) If the Alcatel-Lucent award had been reinstated, it would have been the largest patent infringement verdict ever. [AP] [MarketWatch]

The biggest patent verdict instead remains Polaroid's lawsuit against Kodak's line of instant cameras; the suit wiped out Kodak's instant camera business by the late 1980's and awarded $910 million to Polaroid in 1991.

Alcatel-Lucent was represented by Kirkland & Ellis; Microsoft by Fish & Richardson.

 

EFF's "Dancing Baby" lawsuit will proceed; can fair use be "self-evident?"

This afternoon, a San Jose federal judge cleared the way for the Electronic Frontier Foundation's YouTube "dancing baby" lawsuit, Lenz v. Universal, to move forward. The case has been underway for about a year, and defendant Universal Music has twice tried to have the case dismissed; today the company failed definitively. Lenz, represented by lawyers from EFF, will be allowed to prosecute the case.

It started like this: the plaintiff, Stephanie Lenz, posted a 29-second video of her son Holden (at right) dancing to the Prince song "Let's Go Crazy." Universal Music sent her a takedown notice; Lenz shot back an email complaining about the takedown; she contacted EFF; her video went back up; she sued anyway. EFF and Lenz are seeking a declaration that she does not infringe copyright, and most importantly, damages under section 512(f) of the Digital Millennium Copyright Act.

Reading the EFF lawsuit and press release it's easy to forget that EFF actually initiated the litigation. What damages exactly did Lenz suffer?