This is an interesting conference as it divides the first half of the day between soft and hard IP. Soft IP being copyright and trademark and hard IP being patents. It was a tough choice for me as I am taking both trademark and patents currently. I also strongly respect Joseph Miller, Associate Professor at Lewis and Clark, and he is speaking on the patent side. Despite that, I chose the copyright side due to a speaker talking directly to Fair Use and the First Amendment.
Associate Professor of Law
University of Washington
Laster spoke on several cases from a practical perspective here the two that I think are most interesting.
The Freecycle Network, Inc. v. Oey, — F.3d —-, 2007 WL 2781902 (9th Cir. September 26, 2007) The defendant was a former member of the Freecycle network and is now trying to kill the potential mark through using it in a generic way. The District Court granted an injunction against the defendant stopping him from engaging in acts against the mark. The appeals court vacating the ruling stating that their is no trademark action for disparagement under the Lanham Act. The court had the opportunity to avoid the first amendment issue.
Keyword advertising- can Google sell keywords of someone else trademark? The second circuit says you must have use in commerce. Merck & C. v. Mediplan Health Consulting Inc.(2nd) draws the analogy that keyword advertising is merely product placement. 7th circuit disagrees with the 2nd and views keywords as use in commerce. In the 9th circuit things are up in the air.
I also recommend Burnett v. Century Fox Film Corp. 491 F. Supp. 2d 962(2007) for parody rights.
Copyright Year In Review
Spelman recommends Be Kind Rewind, not as a good movie but to understand the public opinion on copyright. “We need to stop using piracy as a term.”
Takedown notices can give minimum contacts. (Dudnikov v. Chalk & Vermillion 2008) This is a huge development as it can add a large risk to sending takedown notices.
Gladwell Gov’t Servs, Inc. v. Country of Marin No. (9th Cir. January 28, 2008) – This case reads the work for hire provisions as very limited and does not extend work for hire to clause that merely state work for hire in contracts.
Cases to watch:
Greenberg v. NAt’l Geographic Soc’y, et al., 488 F.3d 1331 (11th Cir. 2007) Does copyright include the right to organize? This case was just argued last week.
Jacobsen v. Katzer (N.D. Cal. August 17, 2007) Defendant tried to patent GPL License derivative work. Damages were limited to contract and copyright has been forfeited under GPL. This is a real bad outcome for the GPL as it removes the teeth of the copyright act from the GPL limiting enforcement.
Perfect 10 v. Google 416 F.Supp.2d 828 (C.D. Cal 2006) – miniaturization is Fair Use, this case shows how fair use is being asked to do too much in the digital age and how we need other exceptions to copyright.
On the Negative side: This is the first conference I have been to in a long time with only 1 power outlet per 60 people and very bad wifi (part of the room has no wifi). Coming from a techy background I forget sometimes that computers are not the norm in all professions.