Thursday, May 20, 2010

2nd Circuit applies Patent Injunction Standard of eBay v. MercExchange to Copyright Infringement: Injunctive Relief granted Only Upon Establishment of Irreperable Harm

Lexology in Don’t presume anything: copyright holders must establish irreparable harm to be entitled to an injunction has an article by Joel D. Leviton, Amy L. Brosius and Kristen McCallion of Fish & Richardson PC regarding an important decision by the Second Circuit Court of Appeals which applies the patent injunction standard of the U.S. Supreme Court in  eBay, Inc. v. MercExchange, 547 U.S. 388 (2006) to copyrights. They write inter alia:
"What is clear is that, at least in the Second Circuit, copyright holders may no longer rely on the presumption of irreparable harm that normally arose upon a showing of likelihood of success on the merits. Instead, preliminary injunctions require a showing of each of the equitable principles without the benefit of any presumption."
Here is the U.S. Supreme Court precedent in  eBay, Inc. v. MercExchange, 547 U.S. 388 (2006):

The "Right" to Anonymity and Free Speech Limitations

Jonathan Turley, author of Registering Publius: The Supreme Court and the Right to Anonymity, reports in

Pennsylvania Attorney General Tom Corbett Issues Subpoenas To Strip Anonymity From Critics that:
"Pennsylvania Attorney General Tom Corbett has subpoenas to learn the identity of two critics on Twitter who chastised Corbett for his “Bonusgate” investigation of legislative corruption. The tweets objected to Corbett’s handling of the trials of 25 former and current state lawmakers charged with using taxpayer dollars for campaign purposes....

The prosecutors insist that Signor Ferrari is ... a former legislative aide who was convicted on charges of theft of service, conflict of interest and conspiracy to commit conflict of interest. Corbett wants to show that ... is using a pseudonym to “deny responsibility for his criminal conduct and to attack and malign the investigative and prosecutorial process.”"
Anonymous speech online has opened up a real weakness in modern legal interpretation because maliciously false and/or libelous material posted to the Internet has a nearly unlimited life, creating a far greater danger to the reputation of persons targeted now than in the days when all that one had to fear was merely the printed word, where nothing was as old as yesterday's news.

"Libel today, gone tomorrow" was often the state of the art prior to the digital age. The libel wandered into the archives. Today on the Internet it is "libel today, still there tomorrow, for everyone to see". The damage that one can inflict on others is far out of proportion to the alleged free speech right involved.

Hence, courts must be much more severe in their treatment of online libel and/or the posting of maliciously false information than they have been up to now because the damage inflicted to the reputation of persons can otherwise be permanent. The alleged right to freedom of speech involved here is much smaller than the need to protect every person's right to be able to challenge libelous statements and defamatory utterances. It can not be that be criminals have greater rights than law-abiding citizens. Freedom of speech does not mean the freedom to libel or the freedom to maliciously publish false information. The rights of anonymous Internet posters can not be greater than the rights of online posters who reveal their true identities.

The theoretical standard is that "legal speech" is constitutionally protected, also if it is anonymous, though the Constitution does not explicitly say that. However, illegal speech has no constitutional protection and libeled parties should not be forced to have to move heaven and earth to obtain the identity of libelers or people who maliciously post false information. Quite the contrary, the criminal penalties for such criminals should be increased to create a deterrent to a breakdown of normal standards of discourse on the Internet. quotes Eugene Volokh, Professor of Law at UCLA, in the year 2009 about a case in which an Illinois politician sought to identify an anonymous poster who allegedly libeled her son during a hotly contested political election:
"[T]he case [in question in the respective article] serves as another reminder that online anonymity does not provide immunity against libel charges.

Individuals who libel or defame others online, anonymously or otherwise, are just as exposed to lawsuits as they are in the physical world and cannot expect First Amendment rights to automatically protect them."
We have posted about the topic of anonymity before at:

Anonymous Heinous Postings Directed at Two Female Yale Law School Students Lead to Revelation of Poster Identities : Free Speech Law in Need of Change

EU Digital Agenda Foresees Higher R&D Investment in Information and Communication Technology (ICT)

As reported at CORDIS News, the European Union Digital Agenda unveiled on May 19, 2010, "focuses on more investment in research and development (R&D)" in the EU.

By way of comparison, for example, the US earmarked €88 billion Euros for information and communication technology (ICT) in 2007 as compared to €37 billion in the European Union. Europe seeks to close that gap.

European Union (EU) Commission Unveils Digital Agenda to Boost Prosperity and Well-Being in Europe

EUROPA - Press Release:
Digital Agenda: Commission outlines action plan to boost Europe's prosperity and well-being

"[Abstract ]Implementing the ambitious Digital Agenda for Europe unveiled today by the European Commission would contribute significantly to the EU's economic growth and spread the benefits of the digital era to all sections of society. Half of European productivity growth over the past 15 years was already driven by information and communications technologies (see IP/10/571) and this trend is likely to accelerate. The Agenda outlines seven priority areas for action: creating a digital Single Market, greater interoperability, boosting internet trust and security, much faster internet access, more investment in research and development, enhancing digital literacy skills and inclusion, and applying information and communications technologies to address challenges facing society like climate change and the ageing population. Examples of benefits include easier electronic payments and invoicing, rapid deployment of telemedicine and energy efficient lighting. In these seven areas, the Digital Agenda foresees some 100 follow-up actions, of which 31 would be legislative. The Digital Agenda is the first of seven flagship initiatives under the Europe 2020 strategy for smart, sustainable and inclusive growth (see IP/10/225).

"We must put the interests of Europe's citizens and businesses at the forefront of the digital revolution and so maximise the potential of Information and Communications Technologies (ICTs) to advance job creation, sustainability and social inclusion", said Commission Vice-President for the Digital Agenda Neelie Kroes. "The ambitious strategy set out today shows clearly where we need to focus our efforts in the years to come. To fully realise the potential of Europe's digital future we need the full commitment of Member States, the ICT sector and other vital economic players.""
Read the full press release here.

Peter Thiel, the Stanford Law School Connection to Facebook: PayPal Founder was First Angel Investor in Facebook

What makes a successful company? Money helps.

We were reading up on Facebook
and discovered that the first Angel Investor to invest in Facebook
(in 2004, when Facebook was just a small operation running out of an apartment)
was Peter Thiel,
a 1992 Stanford Law School graduate.

See what is written about Thiel at the Wikipedia.

At the Washington Post - Speeches and writings show fuller picture of Kagan

At the Washington Post, Julie Hirschfeld Davis points out that Speeches and writings show fuller picture of Kagan.

Facebook Privacy Rights Violations: Does Facebook Privacy Even Matter asks Nick O'Neill at All Facebook

Nick O'Neill discusses in an insightful posting the question of Does Facebook Privacy Even Matter?

Jury finds Callaway Golf Ball Patents Invalid for Obviousness in Patent Infringement Lawsuit against Acushnet, the maker of Titleist Golf Balls

We are a bit late in our comment, but we are dealing here with a patent decision that truly matters - the jury invalidation for obviousness of four Callaway patents on golf ball technology. All the world's golfers, especially the users of Titleist Pro VI golf balls, can breathe a sigh of relief.

Ever since the LawPundit began playing golf, which is more than 50 years ago, Titleist golf balls, as made by Acushnet (now a part of Fortune Brands), have led the golf ball market. As written at the Wikipedia under Titleist:
"The Titleist Pro V1 and Pro V1x are the most used golf balls on the PGA Tour, European Tour, Japanese Tour, LPGA Tour, Asian Tour, and Nationwide Tour.
First played in the U.S. Open in 1949, Titleist golf balls are the top-selling golf balls in the United States.[1]"
So what was the Callaway patent claim? The Wikipedia tells the story:
"The [Titleist] Pro V1 made its debut on the PGA Tour at Las Vegas on October 11, 2000, the first week it was available to the pros. A longtime Titleist user, Billy Andrade, won that first tournament with the new ball. The Pro V1 was available to the public by December. The Pro V1 was a dramatic departure for Titleist, which had traditionally used a wound-ball construction (with a liquid-filled core center) for its top-of-the-line golf balls
In December 2007, Titleist lost a patent infringement suit brought by Callaway.[1] The following November, Callaway won an injunction in a Delaware court, ruling that sales of the Pro V1 golf balls should be stopped from January 1, 2009, with professionals being able to continue with their use until the end of the year. Acushnet immediately announced that they would be appealing against the decision.[2] Titleist has redesigned the Pro-V1 with a more durable shell and other minor changes that saved the acclaimed performance but differentiated the ball enough to continue distributing the ball without a concern of patent infringement. However, on August 14, 2009, the Court of Appeals for the Federal Circuit vacated the judgment against Titleist and ordered a new trial.[3]"
See the Jolt Digest and the Slip Opinion in Callaway Golf Co. v. Acushnet Co., 2009-1076 (Fed. Cir. Aug. 14, 2009).

The jury in the subsequent trial in the case Callaway Golf Co. v. Acushnet Co., 06cv91 (SLR), U.S. District Court, Delaware (Wilmington) determined that the four patents in question -- 6,210,293, 6,503,156, 6,506,130 and 6,595,873 -- were obvious.

As written at the Los Angeles Times by Nathan Olivarez-Giles:
"Callaway had patented the use of multiple layers of different materials inside its golf balls, which Titleist contended was an obvious approach to construction."
The court order that Callaway had initially obtained against Acushnet to stop it from selling Titleist VI golf balls can now be ignored.

One thing is sure after this legal case - we will NEVER buy a Callaway product again. The place for golf ball manufacturers to win or lose customers is on the golf course, on the pro golf tours, in the golf pro shops and golf stores -- but not in patent court. This is especially true since the unnecessarily strict regulations of golf's ruling bodies on golf clubs and golf ball specifications make any real innovation in golf ball design unlikely. The balls must meet certain standards and limitations, so, beyond changing the number, size, shape and depth of dimples and playing around with the surface and interior layers, what's to invent? The "window of invention" allowed in golf has been rendered very small by the United States Golf Association and the Royal and Ancient Golf Club of St. Andrews.  Any really significant innovational change would make golf balls non-conforming.

Hat tip to at Court rules Callaway Golf patents invalid in patent infringement lawsuit against Acushnet.

Germany Puts the Clamps on Money Speculators by Prohibiting Naked Short Sales

Germany declares solo war on speculators is the headline at Reuters, where Holger Hansen and Andreas Rinke write that:
"Germany banned naked short-selling of shares in its 10 top financial institutions, naked short sales of euro zone government bonds, and naked transactions in credit default swaps (CDS), which are used to insure against debt defaults."
Read the details here.

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