Global Music Rights filed a motion in U.S. District Court in Philadelphia seeking to dismiss the Radio Music License Committee's antitrust lawsuit against the performing rights organization or to transfer the venue. RMLC sued in November (see 1611210011), claiming GMR was seeking “monopoly” licensing rates from member terrestrial radio stations that are about three times the fees paid by the American Society of Composers, Authors and Publishers and Broadcast Music Inc. GMR subsequently sued RMLC in U.S. District Court in Los Angeles on antitrust claims (see 1612090062). The entities reached a temporary licensing agreement in late December that didn't end their suits (see 1612270052). GMR said in Friday's motion (in Pacer) that the Philadelphia court is an improper forum for litigating RMLC's claims, and also doesn't have “personal jurisdiction” over the Los Angeles-based PRO. RMLC's claim fails to include any “direct evidence” of “actual prices” to back up its claim about GMR's market power, the PRO said. “This defect is critical, since market power is the ability to 'control prices' without forfeiting market share,” GMR said. “RMLC has not alleged that GMR controls market prices, much less that it could profitably do so.” RMLC's claims rest only on licensing offers “that GMR allegedly made in the course of unsuccessful negotiations,” the PRO said. “Market power cannot be inferred from price demands that were rejected.” RMLC's pursuit of a rate court process for GMR's licensing prices “would stifle competition, neutralize GMR as a competitor in the music licensing market, rewrite the Copyright Act, and usurp the legislative prerogative of Congress, since the Copyright Act expressly does not require a compulsory license or rate for public performance licenses of compositions,” GMR said. RMLC didn't comment Monday.
The Copyright Office is initiating a study on how existing U.S. law protects the moral rights of attribution and integrity, it said Monday. The CO had been expected to initiate a formal analysis of the moral rights issue after it held a symposium on the topic last year. House Judiciary Committee ranking member John Conyers, D-Mich., also sought the study (see 1604180069). Stakeholders said then that a formal analysis of moral rights probably won’t lead to the CO changing its position on how U.S. law should deal with moral rights to satisfy the requirements of the Berne Convention (see 1604150074). The moral rights study will examine whether changes in U.S. law are needed to protect moral rights, the CO said in Monday's Federal Register. The House and Senate Judiciary committees previously accepted that moral rights are protected under the Lanham Act and other statutes. The CO sought feedback on how effective those existing laws are in protecting moral rights and whether updates to those laws are needed. The CO sought feedback on how “stronger protections” for either the right of attribution or the right of integrity would affect the First Amendment. The office also sought input on possible exceptions to an explicit moral rights statute, and possible voluntary actions to strengthen moral rights protections. Comments are due March 9, replies April 24.
If plaintiffs CBS Studios and Paramount Pictures seek statutory damages in their copyright infringement lawsuit against the makers of an online Star Trek fan film (see 1609300002), the court should let defendants Axanar Productions and principal Alec Peters present evidence to the jury about all the factors relevant to a statutory damages analysis, including CBS/Paramount's "lost revenues (or lack thereof) and the conduct and attitude of the parties," Axanar/Peters said in a brief (in Pacer) Wednesday in U.S. District Court in Los Angeles. Such evidence would include public statements by J.J. Abrams, director of the 2009 Star Trek motion picture, and Justin Lin, director of 2016's Star Trek Beyond, supporting the end of the suit since the statements show the Axanar defendants "acted in good faith and with the reasonable belief that they were operating within the enduring tradition of accepted and celebrated Star Trek-inspired fan fiction," they said. Axanar defendants said if CBS and Paramount aren't allowed to offer evidence about actual damages to the plaintiffs, they should be precluded from offering evidence about Axanar's purported profit. CBS/Paramount didn't comment Thursday.
The U.S. Court of Appeals for the Federal Circuit upheld a 2015 Patent Trial and Appeal Board ruling rejecting a patent violation claim by Monkeymedia against Apple, Buena Vista Home Entertainment, Lions Gate Entertainment, Paramount Home Entertainment, 20th Century Fox Home Entertainment, Universal Studios Home Entertainment and Warner Brothers Home Entertainment. Wednesday's ruling without comment came less than a week after Jan. 13 oral argument before Judges Alan Lourie, Evan Wallach and Todd Hughes. According to court filings, the patent described systems and methods for transmitting interactive media content that would let the user choose to play optional content such as an additional video, still images or text. Monkeymedia is pursuing similar patent violation claims involving a related patent against Apple and Buena Vista.
News reports that Michelle Lee will keep her job as Patent and Trademark Office director in the Trump administration are welcome, said Computer & Communications Industry Association Thursday in a statement. "This is a wise decision, bringing continuity to critical issues at a critical time. It supports the patent office’s ongoing efforts to improve patent quality under Lee’s leadership," said CCIA President Ed Black. The group's patent counsel, Matt Levy, said Lee's initiatives to enhance patent quality should be continued under her leadership. "There is still much work remaining to streamline and enhance the process of reviewing patent applications, and I think that Director Lee has shown that she is someone who can move that work forward," he said. Politico had reported that Rep. Darrell Issa, R-Calif., told a tech industry gathering about the reappointment of Lee, who met with commerce secretary-nominee Wilbur Ross earlier in the week (see 1701180069). The Trump transition team didn't comment.
President-elect Donald Trump will likely take “a businessman’s approach" to intellectual-property issues, said American Enterprise Institute Visiting Fellow Thomas Sydnor. That means “one that focuses on practical issues, like cost-effective enforceability,” Sydnor wrote in a Wednesday blog post. What Trump will do on intellectual property may be easier to predict than other policy areas, Sydnor said. “President-elect Trump will soon become -- by far -- the most experienced user of domestic and international IP rights ever to serve as the President of the United States,” he said. “During his long business career, Mr. Trump pursued sophisticated, usually unified, branding strategies based upon his last name, had great success in the copyright industries, and has used the IP-like rights granted by state laws that protect reputational, privacy, and publicity rights.” Trump should focus on making it easier for businesses to enforce their IP rights, said Sydnor. He should support legislative efforts to overhaul the Copyright Office, like the one by House Judiciary Committee Chairman Bob Goodlatte, R-Va., the AEI fellow said. Trump should oppose sub-market compulsory licenses including American Society of Composers, Authors and Publishers/Broadcast Music Inc. consent decrees from the 1940s, Sydnor said. Trump opposed free trade agreements, but he should consider renegotiating the Trans Pacific Partnership, Sydnor said. Or the U.S. Trade Representative could better enforce existing trade agreements, he said.
Customs and Border Protection revoked its ruling that a redesign of network switches by Arista Networks kept the merchandise beyond the scope of an International Trade Commission limited exclusion order (see 1611300020), Cisco said in a Saturday blog post. Cisco, litigating over patent issues with Arista in multiple venues, sought the ruling revocation in December. The CBP notice to Cisco's lawyers on the revocation doesn't provide details. Cisco said it means "Arista has lost the authorization to import or continue selling its products in the U.S., or to import components to build those products." Arista disagreed. "CBP has not ruled that Arista’s products infringe," the company said. "Instead, CBP has expressed concern that its original ruling was incorrect, based on input provided by Cisco." Arista said it's "working to engage with CBP to respond to those arguments as soon as possible."
Lenz v. Universal -- popularly known as the “dancing baby” case -- is “too idiosyncratic” to “produce a broadly useful” Supreme Court decision on the fair use doctrine, said Tom Sydnor of the American Enterprise Institute's Center for Internet, Communications and Technology in a Friday blog post. The court is considering whether to grant twin petitions for review of the 9th U.S. Circuit Court of Appeals’ ruling in Lenz. The 9th Circuit ruled in 2015 that the Digital Millennium Copyright Act (DMCA) “requires copyright holders to consider fair use before sending a takedown notification” (see 1509140070). The Electronic Frontier Foundation and Universal Music Group separately petitioned the high court for a writ of certiorari to review the 9th Circuit’s ruling. The top court is awaiting an opinion from the U.S. Solicitor General's office (see 1611010024). Sydnor said a broad Supreme Court decision on fair use needs to decide whether the 2nd Circuit correctly decided the DMCA’s Section 512 safe harbors protect online service providers from civil copyright infringement lawsuits “that could still be punished as criminal racketeering enterprises under existing law.” The Supreme Court would also need to consider whether it’s “time to retract the judge-made ‘transformative-use’ component of statutory fair-use analysis that has become so confusing that the federal judge who created it has claimed that ‘transformative’ uses of works are those in which works are not ‘transformed,’” Sydnor wrote: Lenz “doesn’t raise either of those issues clearly enough to seem worthy of Supreme Court review.” The case involves a mother who uploaded to YouTube a video of her toddler dancing to a snippet of Prince's song "Let's Go Crazy."
The DOJ and FTC issued a final version of their update of joint guidelines for enforcing antitrust policy on IP licensing Friday. The agencies’ original proposal got a mixed reaction in September, with several tech sector groups criticizing them for not addressing controversial IP issues like patent assertion entities and standard-essential patents (see 1609280063). The update's final version retains much of the original proposal, including the agencies’ high-level approach to enforcing antitrust policy on IP licensing matters and avoidance of the controversial IP issues. The updated guidelines reflect “intervening changes in statutory and case law, as well as relevant enforcement and policy work, including the agencies’ 2010 Horizontal Merger Guidelines,” said DOJ Antitrust Division head Renata Hesse in a blog post. The update was aimed at reflecting recent IP-related court cases, the 2016 Defend Trade Secrets Act and changes in the lengths of copyright and patent terms (see 1608120045 and 1608180056). The revised guidelines reaffirm the FTC’s “commitment to an economically grounded approach to antitrust analysis of IP licensing,” said outgoing Chairwoman Edith Ramirez in a news release. Commissioners voted 3-0 in favor of the final guidelines. The revised guidelines “are a welcome guidepost,” said Commissioner Maureen Ohlhausen in a statement. The update embraces “principles of commendable flexibility,” including that IP licensing is generally pro-competitive, she said. Ramirez is leaving the FTC next month, she announced separately Friday (see 1701130030).
The Association of American Publishers said it selected former Register of Copyrights Maria Pallante as its next president and CEO. Pallante will succeed retiring AAP President Tom Allen Tuesday, the group said Thursday. Two months ago, Librarian of Congress Carla Hayden ousted Pallante as head of the Copyright Office. Pallante resigned from the LOC entirely shortly after being reassigned to be an adviser on the library's digital strategy (see 1610210061, 1610240052 and 1610250062). Pallante previously worked at the Guggenheim Museums, the Authors Guild and National Writers Union. Pallante “is a creative, forward-thinking leader who has earned the deep respect of members of Congress as well as intellectual property experts,” said AAP Chairman YS Chi in a news release.