Canadian Supreme Court Says Government Needs To Get A Warrant To Get Your Internet Info

from the big-win-for-privacy dept

While we're still struggling with this stuff down here in the US, the Canadian Supreme Court made a huge decision earlier today, saying that the government must get a warrant to demand your information from an internet provider. In other words, your information is private, even if it's held by an internet company. The full ruling in this case, R. v. Spencer is worth reading, but the key finding is that there is an expectation of privacy in this information, and thus, searching it requires a warrant:

In my view, in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.

As Michael Geist points out, not only does this mean ISPs now need to change their procedures, but also (importantly) it should destroy the rationale for two new attempted bills concerning "legal access" (i.e., expanding the government's ability to get information via internet service providers without a warrant). This kind of ruling should fit equally at home with the 4th Amendment here in the US, but the issue still really hasn't been tested at the Supreme Court. Congrats up north, though, for actually recognizing the value of a warrant and just a bit of oversight on government surveillance.

Filed Under: canada, expectation of privacy, internet info, privacy, supreme court, third party doctrine, warrants

Quick Hack Will Now Alert People When The Supreme Court Quietly Changes Rulings On Its Site

from the but-only-if-they're-updated-there dept

A few weeks ago, we covered a NY Times article about how the Supreme Court was quietly changing rulings well after they had been released -- and often doing so without notifying anyone other than a few big legal publishers. Because of that, many people were still relying on the old and outdated versions. A few people suggested setting up an automated system to just check the Supreme Court website for changing documents and monitor those changes -- and that's exactly what someone has done.

Lawyer David Zvenyach quickly hacked together a system to check the Supreme Court's website every five minutes for any opinion that changes, and to then automatically tweet out an announcement @SCOTUS_servo. He then follows it up with a manual explanation of the change, and recently added a feature that will highlight the actual change in the document.

This is great -- though, it assumes that the Supreme Court will always update its website with the latest rulings. As the original article pointed out, that doesn't always happen. Still, it's a step in the right direction, though there's absolutely no reason that the Supreme Court doesn't do this itself. And, in the meantime, as I discovered earlier this week in looking up a certain case, it's not just the Supreme Court that does this, but many other courts as well. Perhaps we'll need to get Zvenyach to set up similar feeds for each of the different circuit appeals courts as well...

Here's the change. pic.twitter.com/nwh3txJ06C

— SCOTUS Servo (@SCOTUS_servo) June 12, 2014

Filed Under: changes, court rulings, david zvenyach, supreme court

Best Reporters On The Supreme Court Forced To Grovel Before Competitors To Prove They're Worthy Of A Press Pass

from the ridiculousness-defined dept

Back in April, we wrote about the travesty of the very best reporters on everything Supreme Court related, SCOTUSblog, still not having a press pass to the Supreme Court. The issue is somewhat complicated, in part because of the seriously arcane credentialing process involved. Basically, the Supreme Court looks kindly on reporters who already are credentialed by the Senate. But the Senate credentialing process involves the "Standing Committee of Correspondents" who get to decide who else to let in. The committee, basically, are journalists who have already been let into the club deciding who else can join them. When you set up a guild that lets you exclude innovative and disruptive players, guess what happens?

While the Senate had allowed a SCOTUSblog reporter, Lyle Denniston, in the past, it revoked that credential and said that it wouldn't give him or SCOTUSblog a new credential. While they don't say why, the main issue seems to be that the blog's publisher is Tom Goldstein, a practicing lawyer who does, on occasion, practice before the Supreme Court. Yet, there's a clear separation between the reporters covering the various cases and Goldstein's legal work. In fact, SCOTUSblog will not cover cases Goldstein's firm is involved in. And no one seems to deny that the reporters who work for the blog do great work.

In an effort that seemed to only highlight the ridiculousness of the situation, the "Standing Committee of Correspondents" decided to hold "a hearing" about the issue, which seemed merely designed to make them look as pompous and out of touch as possible. Or, at the very least, to show what happens when petty people are put in a position of power over others. Goldstein notes that the "hearing" seemed to involve all of their (apparently jealous) competitors on the "Standing Committee" digging up any reasons they could think of to deny them a press pass:

But the Standing Committee seems committed – having previously granted us a credential – to reaffirm its decision revoking our pass.  In listening to our appeal, which the chair labeled a “hearing,” the Committee members carefully divided up materials that they could use in an effort to undermine our qualifications.  (My favorite by far is that, unbeknownst to us, the Gallery’s staff director came to our office to take pictures of our signage and doors.)  No member of the Committee even acknowledged the recognition by others that the blog is engaged in high-quality journalism.  The closest it came was the chair’s firm statement that the Committee had a duty not to bow to “public pressure.”  That seems to miss the point.

It appears to be nothing more than a guild process to exclude competitors.

The main point that critics of SCOTUSblog have, concerning Goldstein's day job, is that publications are supposed to be "editorially independent from any organization that is 'not principally a news organization.'" And, specifically, they are supposed to avoid giving press credentials to someone who may be lobbying Congress. But Goldstein quickly points out that the Committee appears to have no problems violating those rules for other publications that either are controlled by foreign governments and/or large companies:

• Several credentialed organizations are government agencies:  Xinhua News Agency, the official press agency of the People’s Republic of China; Saudi Press Agency, an organ of the Saudi Ministry of Information; Itar-Tass News Agency, the central information agency of Russia;  Akahata, the official paper of the Japanese Communist Party; and Notimex Mexican News Agency, which has an executive editor appointed by the President of Mexico and a governing board of representatives of five government agencies.
• Several credentialed organizations are affiliated with commercial businesses directly related to the subjects they cover:  Energy Daily has several credentialed reporters, and it is owned by a substantial provider of energy consulting services, IHS, Inc.; LRP Publications has credentialed reporters, and also puts on trade shows and conferences; MLEX has credentialed reporters, and provides clients with “Market Insight” and “Predictive Analysis of Regulatory Risk.”

Goldstein wonders how it could be that SCOTUSblog, which is widely respected for its reporting on the Court, somehow creates "a greater risk of entanglement of journalism and other activities than state-sponsored news organizations."

A NY Times article about this quotes someone noting that the whole setup is one of "the fox guarding the henhouse." Though, it's not even clear that's the right analogy. This seems more like petty tyrants using their power to exclude someone who often does their job better than they do. And the whole show trial aspect of forcing SCOTUSblog to attend a "hearing" where a giant stack of "evidence" is presented against them merely confirms the travesty of the whole situation. The members of the Standing Committee of Correspondents should be ashamed of themselves. Just admit the facts and grant SCOTUSblog a press pass.

Filed Under: accreditation, journalism, lyle denniston, press, press pass, scotusblog, senate, standing committee of correspondents, supreme court, tom goldstein

Judge Says Supreme Court Should Overturn Awful Surveillance Precedent, But Until It Does, He Has To Reject Case Against NSA

from the a-small-step dept

We've written plenty about the case Smith v. Maryland, which established the dangerous Supreme Court precedent that there is no 4th Amendment expectation of privacy to be found in any data or information you give to a third party. Judge Richard Leon, back in December, ruled that the NSA surveillance efforts were so different from the situation in Smith (involving police getting dialing information on a single person from the phone company) that it wasn't an applicable precedent in the case in front of him, brought by Larry Klayman. That case is now being appealed.

In a new case, Smith v. Obama (assuming no relation to the "Smith" in the Maryland case), Judge Lynn Winmill, in the Idaho district court, has said that Judge Leon's ruling should be the model for a Supreme Court ruling overturning Smith v. Maryland. However, since no such ruling has taken place, he has to reject the claim in this case:

Judge Leon's decision should serve as a template for a Supreme Court opinion. And it might yet. Justice Sotomayor is inclined to reconsider Smith, finding it “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” See U.S. v. Jones, 132 U.S. 945, 957 (2012) (Sotomayor, J., concurring). The Fourth Amendment, in her view, should not “treat secrecy as a prerequisite for privacy.”

But Smith was not overruled, and it continues – along with the Circuit decisions discussed above – to bind this Court. This authority constrains the Court from joining Klayman. Accordingly, the Court will grant the defendants’ motion to dismiss and deny Smith's motion for injunctive relief.

There's a bit more to the case overall, as it focuses on "location" data, and it's not entirely clear if the NSA is really collecting location data. However, as Judge Winmill notes, the Supreme Court's rulings in Jones suggest that the Supreme Court may be finally recognizing how outdated Smith v. Maryland is -- and it's good to see other judges recognizing this as well, even if they're constrained by existing precedent elsewhere.

Filed Under: layman, lynn winmill, nsa, richard leon, smith v. maryland, supreme court, surveillance, third party doctrine

Supreme Court Won't Hear Reporter's Appeal; James Risen May Now Face Jail For Not Revealing Sources

from the shameful dept

Unfortunately, it appears that the Supreme Court has decided not to hear reporter James Risen's appeal in the case in which he has been subpoenaed to testify, concerning CIA leaks. Risen had refused to testify, claiming that as a reporter he was entitled to keep his sources confidential. Last summer, the 4th Circuit appeals court said that Risen could be compelled to testify and to give up his sources. The court refused a request to rehear the case en banc (with a full slate of judges, rather than just a 3 judge panel). He then appealed to the Supreme Court, leading to today's rejection.

The DOJ, of course, had vigorously argued that the Supreme Court should reject Risen's appeal (ridiculously, it did this the same day the State Department launched a "free the press" campaign). Last week, we noted that some were interpreting Eric Holder's comments to mean that he would not seek jail time for Risen, should he continue to refuse to testify, but a closer reading of Holder's comments said no such thing.

It appears we may now find out the truth. If Risen continues to protect his sources, the ball will be in the DOJ's court: will it give up or will it pursue throwing a widely respected reporter in jail? One would hope that a basic sense of common decency would lead the DOJ to give up this ridiculous fight, but the DOJ doesn't have much of a history of common decency.

Filed Under: doj, eric holder, first amendment, james risen, protecting sources, shield law, supreme court

Supreme Court Unanimously Smacks Down CAFC Two More Times

from the because-cafc-is-a-joke dept

What do you know? The Supreme Court has completely shot down two more decisions from the "patent appeals court," which is supposed to be an expert in patent law. The court of appeals for the Federal Circuit (CAFC), which was set up explicitly to cover "complicated" patent cases, has been getting shot down by the Supreme Court left and right over the past few years, often unanimously. It happened a month ago on fee shifting and it happened twice more today on key patent cases: Limelight v. Akamai and Nautilus v. Biosig.

In the Limelight case, CAFC had made the somewhat ridiculous ruling that companies can be guilty of inducing infringement even if there is no direct infringement. Basically, everyone agreed that at no point did Limelight actually infringe on Akamai's patents, because part of the steps are actually completed by Limelight's users, rather than Limelight itself. The CAFC felt that was good enough, and even though at no point does Limelight do everything in Akamai's patent, it still infringed. The Surpeme Court, thankfully, found this ruling to be nonsensical. And, once again, the Supreme Court smacks around the CAFC in its ruling:

Neither the Federal Circuit... nor respondents... dispute the proposition that liability for inducement must be predicated on direct infringement. This is for good reason, as our case law leaves no doubt that inducement liability may arise “if, but only if, [there is] . . . direct infringement.”...

One might think that this simple truth is enough to dispose of this appeal. But the Federal Circuit reasoned that a defendant can be liable for inducing infringement under §271(b) even if no one has committed direct infringement within the terms of §271(a) (or any other provision of the patent laws), because direct infringement can exist independently of a violation of these statutory provisions...

The Federal Circuit's analysis fundamentally misunderstands what it means to infringe a method patent.

Yes, the Supreme Court is saying that the CAFC -- which is supposed to be the expert in understanding patents and patent law -- fundamentally misunderstands what it means to infringe on a patent. Ouch.

The ruling by Justice Alito goes on to point out that the CAFC seems to be trying to set up an entirely new concept of inducing infringement where there is no direct infringement -- and that's clearly not what the law allows. As the ruling notes, if Congress wanted that to be the law, it could write that into the law. But it has not. The Supreme Court further notes (importantly) that "inducement" is different than the criminal standards of "aiding and abetting" (this is an issue we've discussed repeatedly in copyright law -- so everyone insisting that inducing and aiding & abetting are equivalent may want to read carefully what SCOTUS has to say here).

The Nautilus case involved "ambiguous" patent claims -- a major problem in the patent world today. Once again, CAFC took a rather patent maximalist view of things, allowing many ambiguous claims, but the Supreme Court unanimously rejects that as ridiculous:

We conclude that the Federal Circuit’s formulation, which tolerates some ambiguous claims but not others, does not satisfy the statute’s definiteness requirement.

The CAFC standard was that you could reject the claim only if it was "insolubly ambiguous" -- in other words, only if a court couldn't work through multiple interpretations to pick a reasonable one. But, as noted above, the Supreme Court says that goes against the very basic idea of patent law. As the ruling (by Justice Ginsburg) notes:

It cannot be sufficient that a court can ascribe some meaning to a patent’s claims; the definiteness inquiry trains on the understanding of a skilled artisan at the time of the patent application, not that of a court viewing matters post hoc. To tolerate imprecision just short of that rendering a claim “insolubly ambiguous” would diminish the definiteness requirement’s public-notice function and foster the innovation-discouraging “zone of uncertainty,” ... against which this Court has warned.

Rather than choose a different standard, however, the Supreme Court punts the case back to CAFC to see if it can try again, this time with a better standard that maybe, just maybe, the Supreme Court will accept next time around.

Between these recent decisions and the current ethics scandal at CAFC, at what point will we finally consider just putting the court out of its misery. It has never served any purpose other than to massively expand patent law way outside of what the law is supposed to do. It's great that the Supreme Court has finally been putting it back in line, but it seems like there must be a more effective way of doing this than having CAFC hand down so many bad decisions.

Filed Under: ambiguous claims, cafc, claims, direct infringement, indirect infringement, inducement, insolubly ambiguous, patent trolls, patents, supreme court
Companies: akamai, biosig, limelight, nautilus

Patent Troll That Accused FindTheBest Of 'Hate Crime' For Fighting Back Now Has To Pay FTB's Legal Fees

from the fee-shifting-ftw dept

We've been talking about the importance of fee shifting in deterring bogus patent trolling suits for a while now. And while the trial lawyers fear of fee-shifting stupidly led them to kill the patent reform bill that included them, thankfully, the Supreme Court made fee shifting in patent cases more reasonable after smacking down the Federal Circuit (CAFC) once again.

The impact of the Supreme Court's ruling in the Octane Fitness case around fee shifting is already being felt. We already noted that NewEgg was able to pursue fees against a troll, but in another high profile case, a court has already ordered a patent troll to pay up for the bogus lawsuit it brought.

You may recall this case: After patent troll Lumen View went after startup FindTheBest, FTB's CEO Kevin O'Connor announced that he'd spend $1 million fighting the troll rather than settling for the $50,000 offered. In response, Lumen View accused O'Connor of "hate crimes" for calling Lumen View a patent troll. Later, Lumen View sought (and thankfully failed) to get a gag order on FTB for revealing information that was perfectly fine to reveal. In fact, Lumen View demanded that FTB try to remove prior disclosures from the internet.

Of course it was all just posturing. While this was going on, Lumen View kept making more and more desperate attempts to get FTB to settle. But FTB knew it didn't need to settle because it wasn't violating the patent -- something it made clear to Lumen View right at the beginning. In the end, the court not only found that FTB didn't infringe, it invalidated the patent itself (US Patent 8,069,073, in case you were wondering).

And, now, Judge Denise Cote has also told Lumen View that, in light of the Octane Fitness ruling, it has to pay FTB's legal fees as well. The ruling notes that it was clear from the outset that FTB didn't infringe (whether or not the patent was valid), and Lumen's continued pursuit of FTB was clearly abusive.

First, Lumen’s lawsuit against FTB was “frivolous” and “objectively unreasonable.” “To be objectively baseless, the infringement allegations must be such that no reasonable litigant could reasonably expect success on the merits.” .... No reasonable litigant could have expected success on the merits in Lumen’s patent infringement lawsuit against FTB because the ‘073 Patent claimed a bilateral matchmaking process requiring multiple parties to input preference information, while FTB’s “AssistMe” feature utilizes the preference data of only one party. Lumen’s own claim construction brief construed the independent claim of the ‘073 Patent as requiring two or more parties to input preference data. That submission urged the term “preference data” to be construed “in conjunction with its plain and ordinary meaning.” And Lumen’s Complaint alleged that FTB’s infringement was predicated on the alleged use of bilateral preference matching. But FTB does not employ bilateral preference matching.

And the most basic pre-suit investigation would have revealed this fact.... And if there were any confusion on this score -- and Lumen has provided no basis to find it was confused by the website -- Lumen was certainly on notice of this fact from the outset of the litigation. FTB’s Seigle and O’Connor informed Lumen that FTB’s AssistMe feature did not use the bilateral or multilateral preference matching process in a telephone conversation of June 19. And FTB’s attorney again informed Lumen by telephone and by letter of June 26. Yet Lumen proceeded with an obviously baseless lawsuit, failing to point to any specific way in which FTB infringed the patent.

The Judge makes it clear she knows that this was purely about trolling for settlement money all along:

Lumen’s motivation in this litigation was to extract a nuisance settlement from FTB on the theory that FTB would rather pay an unjustified license fee than bear the costs of the threatened expensive litigation. Lumen never sought to enjoin FTB from the allegedly infringing conduct in its prayer for relief. Lumen’s threats of “full-scale litigation,” “protracted discovery,” and a settlement demand escalator should FTB file responsive papers, were aimed at convincing FTB that a pay-off was the lesser injustice.

Furthermore, the judge notes that since Lumen filed a bunch of very similar complaints, fees are certainly justified since the company seems to be using patent lawsuits as "part of a predatory strategy aimed at reaping financial advantage from the inability or unwillingness of defendants to engage in litigation against even frivolous patent lawsuits."

This is a great win for a company that was willing to stand up against a bogus patent troll lawsuit, and it's great to see that the troll will now have to pay up (how much will be determined later). Once again, we see how badly CAFC had screwed things up (for years!) with its ridiculously high standard for patent fees. Thanks to the Supreme Court fixing things in the Octane ruling, hopefully, we'll see more companies willing to stand up to trolls and not having to worry so much about how much it will cost to defend themselves against obviously bogus claims.

Filed Under: cafc, fee shifting, kevin o'connor, patent trolls, patents, supreme court
Companies: findthebest, lumen view, octane fitness

Supreme Court Quietly Changes Rulings After Releasing Them; Refuses To Reveal What Those Changes Are

from the supreme-court-needs-a-public-diff dept

The NY Times has a fascinating article about how the Supreme Court often changes rulings long after they've been released, sometimes changing them significantly, but rarely doing anything to alert the public (or lawyers and legal scholars) of those changes. The article is based on a forthcoming paper by Richard Lazarus on the (Non)Finality of Supreme Court Opinions. While many of the changes are small edits to fix errors, sometimes they can be fairly big deals. In some cases, the errors were so egregious that the change makes news:

Last month, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the agency for seeking such authority in a 2001 case. But he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.

Law professors pointed out the mistake, and Justice Scalia quickly altered his opinion, revising the text and substituting a bland heading: “Our Precedent.”

But, as the article notes, there are times when these changes slip by almost entirely unnoticed, even when they're considered rather important:

A sentence in a 2003 concurrence from Justice O’Connor in a gay rights decision, Lawrence v. Texas, has been deleted from the official record. She had said Justice Scalia “apparently agrees” that a Texas law making gay sex a crime could not be reconciled with the court’s equal protection principles.

Lower court judges debated the statement, and law professors used it in teaching the case. The statement continues to appear in Internet archives like Findlaw and Cornell Law School’s Legal Information Institute.

But it has vanished from the official version published in 2006 and from the one available on Lexis, a legal database.

In another case, the article notes that even the version of a ruling on the Supreme Court's own website is outdated.

This is an easy problem for the Supreme Court to fix: they should make their change page open to the public and post the diff whenever they make a change, so that anyone can quickly see how a change was made. But they don't do this. While the Supreme Court does have change pages that show all the revisions, they are blocked from public view, and only four private legal publishers are given access. There is simply no reason for this, and it again leads to a situation where we have private, secret law, rather than a public law. It's a dangerous and shameful practice, and one that the Supreme Court could easily end tomorrow. It should do so.

Filed Under: changes, diffs, laws, legal scholars, rulings, secrecy, supreme court, transparency

Newegg Given The Go Ahead To Pursue 'Douche Bag' Patent Troll For Fees

from the go-for-it dept

A few weeks ago, the Supreme Court smacked down the Federal Circuit (CAFC) for its made up rules that made it almost impossible to enable victims of patent trolls to get the courts to order the trolls to pay legal fees. As the Supreme Court noted, CAFC seemed to set up arbitrary rules for no reasons at all. And this is important, because courts almost never award legal fees, and with the untimely death of patent reform, hopefully this small change will at least help in the meantime.

Because of that Supreme Court ruling, CAFC has already sent one case back to the lower court to see if fees should be awarded. It's a case involving Newegg, the online retailer who has put a firm stake in the ground concerning its unwillingness to deal with patent trolls. In this case, a company called Site Update Solutions sued a bunch of companies, including Newegg. Newegg got out of the case and then sought to recover legal fees, but had that rejected... under the old rules. Now a chastened CAFC has sent it back to the district court to review.

Newegg is certainly happy about this -- putting out a press release with a quote from their top lawyer, Lee Cheng, about how they want to make life as difficult as possible for patent trolls who get in the way of innovative companies:

At Newegg, we've always believed paying off extortionists only encourages more extortion, and there had to be a negative consequence of suing Newegg without just cause," Cheng added. "We insisted on seeking a return of our legal fees from Site Update. We [believe] Site Update's demand that we waive our right to seek fees for dropping a lawsuit that should not have been filed in the first place was outrageous. What a joke. We believe that trying to make a patent troll pay, no matter what amount, sends the clearest possible message to all abusive patent asserters and their contingency fee lawyers that if they file a frivolous lawsuit against Newegg, they will suffer some consequence, even if it is only making less money or having to do more work than they planned to. This case also provides an excellent template for how a well-managed and organized joint defense effort allows participants to not just bask in the glow of beating a patent troll, but also save money compared to paying off a patent troll. We hope that our work will provide a beacon of hope for real innovators and honest entrepreneurs facing demands from abusive patent asserters. We want to encourage other defendants to create as much friction as possible, rather than feeding the beast with easy settlement checks."

In talking to Cheng directly (who is not known for holding back his opinions), he was even more direct in his feelings about patent trolls and having to deal with these lawsuits:

People who assert bad quality patents or demand ridiculous amounts of money for patents that do not add any value to society are douche bags. They have gotten away with their abusive practices far too long. I think I can safely say that our customer base approves of the spankings we administer.

As a Newegg customer, I can safely say I agree with that.

Filed Under: cafc, fee shifting, lee cheng, patent trolls, patents, supreme court
Companies: newegg, site update solutions

Supreme Court Admits Copyright Infringement May Actually Help The Copyright Holder

from the some-good,-some-weird dept

We've written a few times about the mess in the law concerning how to figure out the statute of limitations on copyright. The law says its 3 years, but it's been interpreted very differently as to which three years it means. Is it three years after the first act of infringement? Or if something is "ongoing" (such as posting something online) can you then sue for the most recent three years? In a case that went to the Supreme Court concerning the movie Raging Bull, MGM argued that because the plaintiff, Paula Petrella, waited nearly two decades to bring a lawsuit over the script, the lawsuit should be barred based on the doctrine of laches (which has come up in other cases as well). Laches, of course, says that you can't wait that long to bring a lawsuit, because you're just piling up liability for the defendant. In short, the concept is that it's inherently unfair to know about a situation, but not to bring suit, because you're knowingly just letting the amount you'll sue for stack up before finally suing.

In this case, the two lower courts sided with MGM and said that based on the laches doctrine, Petrella could no longer bring her lawsuit. The Supreme Court reversed that ruling, noting that the statute of limitations issue (allowing a "look back" of just three years) more or less overrides, but also that since laches is common law doctrine, and not a part of copyright law, it doesn't count. As Matt Schruers notes, this is an odd ruling, in that the Supreme Court seems to have no problem bringing in other common law doctrines when it suits the court (or, really, when it suits Justice Ginsburg, who quite frequently is found leading the charge on these decisions):

It is somewhat curious that the Supreme Court comfortably imports some common law principles into copyright, such as doctrines associated with secondary liability, but not others, such as the equitable application of laches here.

But there's another, perhaps more important point, that is unrelated to the direct issue in the case, but which Schruers again highlights as quite important: and that's that Ginsburg -- a notorious strong copyright supporter -- appears to admit in a Supreme Court ruling that there may be benefits to the copyright holder from people infringing. This is a somewhat startling admission in a Supreme Court ruling:

It is hardly incumbent on copyright owners, however, to challenge each and every actionable infringement. And there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on the original work, or even complements it. Fan sites prompted by a book or film, for example, may benefit the copyright owner. See Wu, Tolerated Use, 31 Colum. J. L. & Arts 617, 619–620 (2008)

While it is admittedly troubling that she seems to suggest that fan sites are infringing, it's still progress that the Supreme Court has now stated, clearly, in a majority decision that infringement can, at times, benefit the copyright holder. This matters because so many people in policy and legal circles like to insist that this is impossible. In fact, Schruers himself notes that when he recently suggested something not even as broad as that, they got slammed with offensive comments:

A more interesting wrinkle is Justice Ginsburg’s explicit embrace of a point that I had previously characterized as “taboo” — that not all infringements impose costs on the rights holder.  In fact, when I wrote last year that some infringements have no economic cost, and that other infringements will reallocate wealth instead of destroy it, the site admins had to install a profanity filter for the comment section.  Yet today, Justice Ginsburg goes a step further and states that some infringement “may benefit the copyright owner.”  (To my knowledge, Supreme Court opinions don’t have a comment section.)

We actually had written a post discussing Matt's original post ourselves, and ran into similar issues with folks insisting that what we were discussing was nothing more than "theft" and "re-distribution to grifters." Yet, here we now have the strongest copyright maximalist on the Supreme Court flat out admitting that sometimes copyright infringement benefits the copyright holder.

While there may be other issues with the ruling, this is at least nice to see.

Filed Under: copyright, laches, paula petrella, raging bull, ruth bader ginsburg, scotus, statute of limitations, supreme court
Companies: mgm