In Derek Andrews v. Poof Apparel, the defendant had copied the decorative tags that the plaintiff attached to its clothing items, and attached them to its own clothing line.  The tags gave rise to the copyright claim (the case also involved trademark infringement claims).  On the copyright claim, the District Court awarded the plaintiff $15,000 in statutory damages and  $296,090.50 in attorneys' fees.  The Court of Appeals stated that the Copyright Act leaves no room for discretion on this point: “in order to recover statutory damages, the copyrighted work must have been registered prior to commencement of the infringement, unless the registration is made within three months after first publication of the work.”  The court noted that other courts have construed Section 412 in a similar manner, finding that infringement commences for the purposes of § 412 when the first act in a series of acts constituting continuing infringement occurs. Accordingly, “the first act of infringement in a series of ongoing infringements of the same kind marks the commencement of one continuing infringement under § 412.”

The case highlights the importance of registering copyrights early.  One of the most frequent areas of copyright infringement we see involves software and content from websites (or entire websites themselves).  In these situations actual damages can be very difficult to prove, and the availability of attorneys fees and statutory damages greatly enhances your case, and ability to resolve these issues quickly and on favorable terms.

Interestingly, with the alleged "explosion" in patent litigation, there were no identifiable increases in time-to-trial. In fact, since 2005, the median time-to-trial has dropped by more than 6 months.

Regarding the "Top Ten" Rocket Dockets, the breakdown is as follows, along with the median time-to-trial (in years):

1) ED Virginia - 0.88
2) WD Wisconsin - 0.91
3) CD California - 1.71
4) MD Florida - 1.71
5) ED Texas - 1.79
6) Delaware - 1.89
6) Kansas - 1.89
8) ED Pennsylvania - 1.91
9) SD Texas - 1.99
10) ED Michigan - 2.03

Some notable "Crawler" dockets include Massachusetts (3.76 years) and Connecticut (4.66 years).

The "Top Five" patent-friendly jurisdictions, along with overall success rates, include:

1. Increased use of the vendor hosted software model. A few years ago, it seemed like the vast majority of software licensing transactions that passed across our desks were traditional software on a disk or downloaded software hosted on the servers of the customer. This year, we saw a significant increase in vendor hosted applications, often referred to as ASP or Application Service Provider

The equivalent of this scenario is playing out in child pornography cases around the country, where the alleged pornographers have used widely available public encryption products (which are very secure), to lock up the damning content on their computers. Without the magic words (or encryption key), law enforcement will, as a practical matter, never know what is on that drive. Law enforcement argues that where the intent is purely to hide evidence of a crime, there needs to be some way for the courts to allow law enforcement to access the evidence.  They are starting to ask the courts to compel the bad guys to cough up the passwords. 

Interestingly, in the case that is currently getting all of the attention on this, US v. Boucher, federal Magistrate Judge Jerome J. Niedermeier has addressed the “opening of the safe” analogy, concluding that if the safe requires a physical key, a suspect can be compelled to turn it over, but if it is a combination that exists in the persons head, disclosing that is tantamount to a “testimonial act” implicating the 5^th Amendment. Therefore, he ruled that requiring the suspect to enter his password would violate his right against self-incrimination. (So what if the combination is written down – is that writing the equivalent to a physical key? And even if it is the same as a physical key, isn’t the knowledge of the location of the writing in that person's head - the disclosure of which would involve a “testimonial act”, and on and on). The government has appealed, and the case is currently being investigated by a grand jury.

The case is unique to digital information, because the analogy that there is just no other way to get the evidence does not really hold up in the physical world. There is always some way to get into the safe. However, using widely available open source encryption software, such as PGP, it is virtually impossible to unencrypt files without the password. The only thing to do is to use automated guessing software, that systematically and repeatedly guesses at the password - a process that could take many years, even with a lot of computing power. The Feds are scared, because an adverse ruling here could create a safe harbor for information that would be essentially unreachable, potentially benefiting drug dealers, terrorists, and the child pornography industry. Civil Liberty groups such as the EFF say unbreakable encryption “is one of the few ways people can protect what they write, read and watch online,” and support the application of 5^th Amendment rights in cases such as these.  This will be interesting to follow.  It is definitely one where the new technology is creating some interesting challenges for the application of existing laws.

The Washington Post article on this topic is here.

Related New York Times article is here.

Photo complements of Colin Ashe under creative commons

Meanwhile, on the other end of the country, an LA federal grand jury is issuing subpoenas in a  case involving MySpace postings and a Missouri teenager who committed suicide after rejection by a person she thought was a sixteen year old boy.  The poster was actually the mother of a former friend.   Prosecutors in Missouri declined to take action against the mother.  LA authorities are proceeding under a theory that the mother may have defrauded the social networking community on MySpace. 

Cases like these may raise interesting issues for ISP and web site immunity.  Section 230 of the Communications Decency Act provides immunity against an ISP being held to be a "publisher or a speaker," clearly focusing on defamation.   Does aiding a harassment claim in a divorce fall outside of those protections or chip away at them in some form?  Does a harassment claim on a social networking cite fall outside of 230? Does a criminal prosecution protecting a site against fraud frustrate any attempt to tear down immunity by the party truly harmed by the

Happy Holidays, and Best Wishes for a prosperous 2008 from the TechKnowledgy Blog!

On October 16, 2007, the Eighth Circuit ruled that the First Amendment protected the use of player names and statistics on fantasy baseball sites established by C.B.C. Distribution and Marketing, Inc.    C.B.C.  brought a declaratory judgement action against Major League Baseball Advanced Media, L.P. to permit the unlicensed use of names and statistics of major league baseball players in connection with fantasy baseball products available on-line.   The district court granted summary judgment in favor of C.B.C and the Eighth Circuit Court of Appeals completed the sweep by affirming the district court in

 In affirming the district court, the 8th Circuit seemed to espouse the broader proposition that the use of information in the public domain is protected by the First Amendment.  "First, the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone."    The court also countered arguments that the use of statistics wasn't speech at all.  One particularly interesting argument by the Court related to the protection of economic interests under the right of publicity,  stating that "major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements."  Sounds like the court followed the Red Sox media hyped romp through the playoffs to the exclusion of the 8th Circuit's own small market Kansas City Royals team.    (Image licensed from Jeffrey Beall under Creative Commons)

Several of the largest media companies have agreed to use technology to eliminate copyright-infringing content uploaded by Web users and to block any pirated material before it is publicly accessible.  That is part of a set of principles designed to "offer a road map for unlocking the enormous potential of online video and user-generated content," Disney Chief Executive Bob Iger said in a statement issued by the participating companies.

Some of the other companies involved are Viacom Inc, Walt Disney Co, Microsoft Corp, News Corp's Fox and MySpace units, CBS Corp, General Electric Co's NBC Universal, and online video services such as Veoh Networks and Dailymotion.  Notably absent was Google, owner of YouTube.

Essentially, the copyright holders in the group have agreed not to pursue Internet companies for infringement claims if their sites adhere to certain principles. Those principles include eliminating copyright-infringing content uploaded by users to Web sites, and blocking any infringing material before it is publicly accessible.  The pact reportedly is not legally binding, but more of a trust-building exercise among the companies, according to the Wall Street Journal report.