Tuesday, July 30, 2013

Ideas versus their expression in copyright law.

Copyright protects the expression of ideas, but not the ideas themselves. An idea is conceptual; a product of the mind. Expression is the tangible result of an idea. The same idea usually produces multiple different forms of expression.

There are relatively rare scenarios when expression is not copyrightable. This happens when there is only a limited number of ways to express an idea. In such cases it would be unfair to hold someone liable for copyright infringement when he or she had no choice but to infringe when expressing an idea. Generally, however, expression of ideas is copyrightable.

Monday, July 29, 2013

Dealing with patent trolls in litigation.

Currently, patent trolls are a problem in intellectual property litigation. They opportunistically seek and enforce patents to make money, not bringing lawsuits in good faith. This is a good article from a patent litigator about dealing with patent trolls.

During the summer of 2013, there have been a few legislative proposals aimed at stopping patent trolls. It remains to be seen whether the proposals will become law or not.

Friday, July 26, 2013

Providing or promising a reward for student-athletes is a crime in a number of states: Shawn Carter (Jay-Z) must be careful.

In the past few days, stories broke that the rapper Shawn Carter (a/k/a "Jay-Z") is cavorting with University of South Carolina defensive end, Jadeveon Clowney. Clowney is projected to be the number one pick in next year's NFL Draft, and is famous for this hit. Although the University said Clowney did not violate NCAA rules by speaking with Carter, the rapper should be careful about his dealings with college athletes. Carter just recently became a sports agent, and his visibility may work against him if continues to meet with college athletes while they are still eligible with their schools.

In a number of states, it is a crime to give student-athletes a reward for their performance. For instance, Iowa's law addressing the matter was enacted in 1988. Presumably, this was in response to the 1986 Iowa State recruiting scandal. Iowa is not unique. The state prohibitions are not easily enforced because of the veil of secrecy under which impermissible benefits are given, but Carter's visibility destroys that secrecy.

College athletes are undoubtedly attracted to Carter, and they risk becoming ineligible if they contract with Carter for future representation before their eligibility expires. But Carter risks criminal offenses if he runs afoul of the wrong school, and gives or promises anything to an athlete as a reward while eligible. Oral contracts are valid, so even if Carter and a prospective student-athlete do not put anything in writing, an agreement for future representation could be a crime.

Thursday, July 25, 2013

Ad-skipping technology does not violate copyright law.

Just this week, the Ninth Circuit decided that "ad-skipping" technology allowing people to completely bypass commercials and advertisements does not violate copyright law. The ruling pertains to recent DVR technology that allows viewers to automatically bypass a commercial break without any human intervention (i.e., without having to press fast-forward on a remote control).

Basically, the rationale is that ad-skipping technology is a fair use, because it does not make any copies of a copyrighted work. Additionally, nothing forces viewers to pay attention to commercials anyway, and viewers have long had the ability to skip commercials manually, by fast-forwarding.

Tuesday, July 23, 2013

Six current student-athletes join NCAA student-athlete likeness antitrust litigation.

In the NCAA student-athlete likeness antitrust litigation, the judge said last month that she would not rule on the former student-athletes' motion for class certification until at least one current student-athlete joins the lawsuit. In the past week, six current student-athletes have joined. The current student-athletes represent four of the five "major" conferences: the ACC, Big Ten, Pac-12 and SEC. The Big 12 is the lone major conference without a current player in the lawsuit.

Having current student-athletes join the lawsuit is not a sufficient condition for class certification, but the judge considered it necessary before she would rule on whether the case can proceed with two classes in the class action: former and current student-athletes.

Tuesday, July 16, 2013

How to respond to a lawsuit.

So, you have been sued. You received the petition (in state court) or complaint (in federal court), and have a set number of days to respond. What do you do?

First, you will want to file a motion to dismiss or answer. To do either, you will need an attorney. A motion to dismiss is granted if the court where the lawsuit was filed does not have jurisdiction over the person or the subject matter in dispute, or if there is no set of facts on which the plaintiff would be entitled to judgment. Motions to dismiss are infrequently granted. An example of when dismissal is granted is when a legislator files a frivolous lawsuit for purely political reasons.

In conjunction with an answer, defendants regularly file counterclaims or third-party complaints. A counterclaim is what the defendant uses to sue the plaintiff for a claim arising out of the same transaction or events as the original lawsuit. A third-party complaint is what the defendant uses to sue a third-party for a claim arising out of the same transaction or events as the original lawsuit. Later, if the third-party brought into the lawsuit files suit against the original defendant, this is called a cross-claim. No matter how complex a case is, these are the basic options a defendant has in responding to a complaint.

Affirmative defenses are always included in an answer. If they are not, you lose the opportunity to argue them. An affirmative defense is a "yeah but" argument. It provides that even if the plaintiff's version of events is correct, the plaintiff should not be able to recover on his or her claim because of something he or she did or did not do.

Even though affirmative defenses are always in an answer, they are not always utilized to their full extent, because they uncommonly defeat a plaintiff's claim in its entirety. As a result, attorneys end up waiving their right to argue the defense because they proceed with litigation of the case.

Ultimately, when or if you are sued, one of the first things you should ask yourself is if an affirmative defense applies that would defeat the plaintiff's claim. I will discuss affirmative defenses in greater depth in a future post.

Monday, July 15, 2013

The duration of copyright protection.

Original works of authorship are protected by current copyright law for the life of the author, plus 70 years. For joint works, it is 70 years after the death of the last surviving author. If the work is anonymous, it is protected for 95 years after the first publication, or 120 years after its creation, whichever occurs first.

This has not always been the case. The English Statute of Anne in 1710 protected works for 14 years if published before 1710 and 21 years if published after. If the author survived until the end of the term, it was extended for another 14 years. The Statute of Anne influenced the American Copyright Act of 1790, which protected works for 14 years, with the possibility of another 14 if the author was still alive.

Lobbying and longer life spans contributed to extensions in copyright duration. It is possible copyright duration will be extended again in the future. This article provides an interesting perspective on copyright duration. It argues that current law provides too much protection, and harms the public. The purpose of copyright grants is to promote progress, which does not occur if the law provides too much protection. Copyrights are not simply a reward to the author. They are granted to spur innovation insofar as they do not harm the public.

Thursday, July 11, 2013

When is multidistrict litigation strategically advantageous?

I previously provided a primer on multidistrict litigation (MDL). Basically, MDL is appropriate when there are common questions of fact in two or more cases in different federal district courts. MDL consolidates the pretrial proceedings and places them in one forum. When the pretrial proceedings are complete, the cases are sent back to the courts from which they came.

MDL is a strategic consideration. In the paradigmatic example, a group of plaintiffs is not certified for a class action, and a corporate defendant tries to use MDL. In such a case, MDL is beneficial for both the defendant and plaintiffs, because it lowers litigation costs, and promotes efficiency and consistency. If the defendant's strategy is to delay litigation, which is common but ethically improper, MDL may not in the defendant's best interest.

Wednesday, July 10, 2013

A primer on Multidistrict Litigation.

If you are familiar with legal process, you may have heard of multidistrict litigation (MDL). Even if you are familiar with legal process, you may not be aware of MDL. Not all attorneys are familiar with it because it is an uncommon procedure used in complex civil litigation. As its name suggests, MDL deals with multiple cases involving common questions of fact in multiple federal district courts. In cases where class certification is appropriate for purposes of a class action, the case would previously have been appropriate for MDL as well. However, MDL is not appropriate once a class has been certified.

Not all cases appropriate for MDL are appropriate for class certification. Class certification requires common questions of law or fact, as well as a number of other criteria. With class certification, the preceding cases can, but need not be, in different federal district courts. In cases where MDL and/or class certification are available, the particular method selected is a strategic consideration.

Any real similarities or comparisons between the two methods ends there. There is a Judicial Panel on MDL made up of seven judges from different federal districts, appointed by the Chief Justice of the Supreme Court. During cases involving common questions of fact, any party in any of those cases can file a motion to transfer the actions under the MDL statute (28 U.S.C. 1407). The Judicial Panel can transfer cases on its own, but usually a party has to file a motion. The Judicial Panel decides whether to grant or deny motions to transfer before MDL, and whether to grant or deny motions to remand when MDL is complete. Here is a handy checklist for attorneys filing a new MDL motion.

Once a party files a motion to transfer any number of cases (two or more), the Judicial Panel sets the motion for hearing, notifying all parties in all districts that would be affected by the transfer. Filing a motion to transfer is an exercise in transcription, because one must include all parties in all cases where transfer is sought. If the motion is granted, copies of the order transferring the case are sent to each court from which a case is transferred. If the motion is denied, the order is filed only in districts where there is a pending motion to transfer.

If the motion is granted, MDL is only operative in pretrial proceedings. Pretrial proceedings in MDL cases are not conducted before the Judicial Panel, but are instead conducted in the court specified in the motion to transfer and its resultant order. When the cases are ready for trial, they are remanded to the district court from which they were transferred. If the Judicial Panel sees fit, it has discretion to separate claims, counterclaims and cross-claims before the pretrial proceedings are complete.

Tuesday, July 9, 2013

Student-athletes allowed to amend complaint to include current players in NCAA student-athlete likeness antitrust litigation.

In the June 20th hearing on class certification in the NCAA student-athlete likeness antitrust litigation, the judge said a current student-athlete must join the lawsuit before she would consider certifying the classes made up of former student-athletes and current student-athletes. This meant that the judge allowed the former student-athletes to amend their complaint to include at least one current student-athlete. This suggests that the judge is at least considering certifying the classes, because she likely would not have allowed the former student-athletes to amend the complaint if she was going to summarily deny the motion for class certification.

As discussed earlier, there are two proposed classes: former student-athletes and current student-athletes. The former student-athletes are seeking damages for past use of their likenesses in television broadcasts and video games. Any current student-athletes joining the suit would seek injunctive relief, which would operate to prevent the NCAA from future use of their likenesses in television broadcasts and video games without their consent and some licensing revenue. The longer the NCAA waits to settle, the higher percentage of licensing revenue it will likely have to give to the student-athletes.

The former student-athletes sought a written stipulation from the NCAA providing that the NCAA would not retaliate or harm current student-athletes joining the suit. This is a fair stipulation, but any current student-athletes joining should also be concerned about retaliation from disgruntled fans and teammates.

Monday, July 1, 2013

NFL granted default judgment against merchandise counterfeiters.

The NFL was recently granted $273M in a default judgment against approximately 1,000 online counterfeiters who were selling NFL merchandise. A default judgment is what happens if you do not respond to a lawsuit. In such a case, the plaintiff gets everything he or she requests in the petition or complaint. 

Here, the NFL's damages might not have been $273M, or some of the alleged counterfeiters may not have been culpable. But without filing a response or addressing the lawsuit, the courts accept the NFL's version of the truth.