Archive for the ‘Intellectual Property’ Category

“The Ninth Circuit — and two subsequent federal appeals courts — has emphatically refused to turn violations of use restrictions imposed by employers or websites into crimes under the CFAA.”

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via the Consumerist

WHAT HAPPENED:  The U.S. Patent and Trademark Office has a rule that prohibits trademarking any name that “disparages” any living or dead individual, belief or national symbol.  Two such entities that have had their trademarks rescinded by Federal Circuit Courts include THE SLANTS (the rock band shown above) and the WASHINGTON REDSKINS (image not shown as it is too offensive).

WHY IS THIS BEFORE ANY COURT:  The argument goes that the PTO’s denial of trademark protection violates the First Amendment.  For the Slants, their use of the term represents reclaiming offensive terminology.  For the Redskins, their use of the term represents sticking with racist words because it costs too much to change it.

WHAT WAS THE RULING:  The Slants won, and the Redskins lost.  The Redskins have now petitioned the Supreme Court to get priority review of their claim since they lost at the lower level.

WHAT ARE THE RAMIFICATIONS:  At the heart of it, the concern in this case is whether you can get priority use of an offensive term.  If that applies to you, you probably stink.

WILL THIS GO BEFORE THE SUPREME COURT:  More likely than not this will have some life at the Supreme Court next term.  There is a split in jurisdictions in regard to whether this rule is Constitutional or not, so that needs some clarity.  One interesting issue would be whether or not the Court makes a factual distinction between these two cases, or makes a rule that applies to all similar situations across the board.

WHAT HAPPENED:  An intrepid young student from overseas made the insightful discovery that his textbooks were considerably cheaper back home than in America.  The student then made approximately one million dollars shipping the textbooks and keeping the profit.  The textbook provider who held the copyright on those textbooks was not happy about it and sued.  Unfortunately for the textbook provider, the Court is bound by the First Sale Doctrine, an exception to copyright law that allows the first purchaser of a product to sell at will.  The textbook provider lost the case, but not after considerable legal wrangling.

WHY IS THIS BEFORE THE SUPREME COURT:  The student, not satisfied by just making millions of dollars off the textbook, also wants the publisher to pay his attorney fees.  Generally, American Courts follow the “American Rule” on attorney fees, which says that everyone must pay their own way.  The Copyright Act allows the Court to award attorney fees, but only within the Court’s discretion.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS:  Presumably an award of attorney fees in this case could make it less likely that big corporations will sue little guys for using their copyright, which is a good thing.  On the other hand, this could embolden people to continue breaching copyright law, thus resulting in less compensation for artistic endeavors, which is a bad thing.

ROOT FOR KIRTSAENG IF:  If you’ve ever bought textbooks in higher education.

ROOT FOR JOHN WILEY & SONS IF:  You miss paying for artistic things like music and TV shows.