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Two April 2019 circuit court cases clarified copyright infringement of photographs on the Internet. In a case of first impression before the Ninth Circuit, the court opined on the degree of financial benefit required to prove vicarious liability for copyright infringement. In addition, the panel examined jury instructions regarding willfulness in the context of statutory damages. In the Fourth Circuit, the court examined how the infringer’s motives could affect the affirmative defense of fair use. Both cases serve as cautionary tales for those who takes photographs for their websites from the Internet without investigating copyright rights.
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By Li-Jen Shen, Cory Smith and George C. Chen
The Trademark Trial and Appeal Board (TTAB) has finally filled a gap left by the U.S. Court of Appeals for the Federal Circuit in the standard for finding deceptive intent when trying to prove fraud on the USPTO.
By Robert W. Clarida and Robert J. Bernstein
The Ninth Circuit ruling in Flo & Eddie may turn out to be last stop on the long and winding road the owners of pre-1972 recordings have traveled in their efforts to obtain compensation for public performances through platforms like Sirius.
By Willem Klein
Patent marking is an important step in the patent lifecycle as it is generally required to seek damages from infringers prior to the date the suit is filed. While virtual marking has somewhat reduced the overhead of marking, it suffers from the same problems all Internet-based evidence runs into in court: websites are ephemeral and have intermittent accessibility, as well as poor public logging of when information existed where, and for how long. NFTs on a digital blockchain could potentially overcome these hurdles, while still providing the benefits of virtual marking via websites.
By Joshua R. Stein and Jeffrey S. Ginsberg
Pair of Federal Circuit Decisions Address Standing to Appeal Adverse IPR Decision