Copywrite

I haven’t gone through both new versions of the Orphan Works bills (House, Senate). However, this month the Journal of the Copyright Society of the USA published my article detailing problems with all previous versions of orphan works legislation. Here is a PDF of the article, Darrin Keith Henning, Copyright’s Deus Ex Machina: Economic Fostering of Orphan Works through Reverse Registration, 55 J. COPYRIGHT SOC’Y U.S.A. 201 (2008).

I will have more on the new bills next week.

110th CONGRESS 
2d Session 
S. 2913

To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

IN THE SENATE OF THE UNITED STATES 

April 24, 2008

Mr. LEAHY (for himself and Mr. HATCH) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

Six months ago, the last version of an Orphan Works bill died in Congressional committee. Now, a new Orphan Works bill has surfaced in two different versions, one in the House and one in the Senate. Here is the House version:

110th CONGRESS 
2d Session 
H. R. 5889  

To provide a limitation on judicial remedies in copyright infringement cases involving orphan works.

IN THE HOUSE OF REPRESENTATIVES 

April 24, 2008

Mr. BERMAN (for himself, Mr. SMITH of Texas, Mr. CONYERS, and Mr. COBLE) introduced the following bill; which was referred to the Committee on the Judiciary

Sorry, I have been slacking lately on posts as I try to make things happen at work, move houses, and grade finals. New posts on the way. -Keith

Rep. Berman: Pro-IP bill will become law in 2008

Rep. Howard Berman, who heads a congressional panel in charge of writing copyright legislation, lashed out at Internet pirates this week and defended his effort to add stiffer anticopying penalties to federal law.
Berman, a Democrat who represents the congressional district near Hollywood, said at a technology policy conference here that he was on track to enact the so-called Pro-IP Act by the end of 2008. The bill ratchets up civil penalties for copyright infringement and creates a new federal agency charged with bringing about a national and international copyright crackdown.

“I don’t think there’s a lot of controversy,” Berman said on Wednesday. “This one is not like the patent bill.”

This month, in Marketing Information Masters v. The Trustees of the California State University (full PDF of decision here), the US Dist. Ct. for the S. Dist. of Cal. found the Copyright Remedy Clarification Act to be unconstitutional for removing sovereign immunity for state workers working in their official capacity. The court determined that Congress exceeded its power under the 14th Amendment and that state employees retain immunity for copyright infringement.

 See also Dear Professor: “You’ve Been Sued” 

For more history, specifically the Puerto Rico case of De Romero v. Institute of Puerto Rican Culture, 2006 WL 3735352 (D.P.R. Dec. 15, 2006) in which the court also found that Congress exceeded its power under 14th Amendment, read this article by Prof. Patry, and the last paragraph of that case.

Hot Springs National Park logo challenged

The Interior Department is moving to block a city tourism board from attaining a trademark for the “Hot Springs National Park” logo, a symbol that is used throughout the resort town and in promotional advertising.

The logo does not delineate between the national park itself and the city, and the federal agency said in a filing that the two should be kept distinct.

Here is a link to the registration

Aside from what the article implies, the Hot Springs National Park TM was granted in 2003 (TM # 2706344). The 5 year period for incontestibility was about to toll, so that is why the challenge is happening now.  You will notice that the registration date was 4-15-2003, and the date of challenge 4-14-2008. The Dept. of the Interior beat the tolling by 1 day.

Here is the status page with notice of cancellation pending.

Here is the TTAB status page.

New Bar exam results are out. Congrats to all of my classmates making it on the 2nd try, and to those of you just now getting around to taking the bar (Vanessa!).  The full list, also available on the Ark. Supreme Court web site, follows:

Read more »

I have gotten a number of phone calls and emails from students (as well as parents and attorneys of students) at the University of Arkansas at Fayetteville. Suffice it to say that there is another rash of RIAA lawsuits on its way. This time, all I have seen have been on the University of Arkansas network. I work for two entities of the U of A system, so can’t comment on the disclosure of student information . . . I will however point out that in Arista v. Does 1-21, Boston Univ. recently fought the RIAA’s subpoenas. The court quashed them based on ”the privacy rights of students, and the existence of First Amendment issues in disclosing the identities of anonymous people accused of copyright infringement, and engaged in a balancing test between those rights and the rights of copyright owners” The 52 page ruling just on the subpoenas is a judicial tour-de-force and a good starting point for any university that would like to fight to uphold the privacy rights of students.

I think that these cases are winnable for the defendant, mostly because no one every forces the RIAA to prove its case and because the argument that “making available” = distribution flies in the face of historical copyright law. Thankfully, the courts have begun to see this as well. . . although to differnet degrees.  William Patry, the author Patry on Copyright and copyright attorney for Google (Prof. Patry . . . if you need a passionate copyright attorney from a state school for your team, just say the word), recently worte about the three recent cases which rejected the “making available” theory on his blog. The documents from the three cases are located here:

Atlantic v. Brennan
London-Sire v. Doe
Elektra v. Barker

The most troubling of this cases is Barker, in which Judge Karas equated distribution with publication - something I do not feel is intended by section 106.

For more on this issue, read The Patry Copyright Blog: The recent making available cases 

All of my email lists are abuzz over the ruling in Tafas v. Dudas, which Patently-O covers much better than I ever could:

Patent Law Blog Patently-O: Tafas v. Dudas: PTOs Proposed Limitations on Continuations and Claims are Invalid

In a twenty-six page opinion, District Court Judge Cacheris has granted GSK’s and Tafas’s Motions for Summary Judgment — finding the PTO’s proposed limitations to the number of continuation applications and claims per patent to be improper extensions of PTO authority:

“Because the USPTO’s rulemaking authority under 35 U.S.C. § 2b2 does not extend to substantive rules, and because the Final Rules are substantive in nature, the Court finds that the Final Rules are void as ‘otherwise not in accordance with law’ and ‘in excess of statutory jurisdiction [and] authority.’ 5 U.S.C. § 7062.”

The documents:

• File Attachment: TafasDudasOpinion.pdf (114 KB)
• File Attachment: TafasDudasOrder.pdf (30 KB)