After working for over 30 years as an intellectual property lawyer, I retired from Wilson Sonsini Goodrich & Rosati in January 2010. I'm now doing some volunteer work at the Electronic Frontier Foundation in San Francisco.
I'm already planning a Florida vacation to visit "Googleland"! Should be great, with a search window just past the entrance gates to take me wherever I want to go.
In the Seventh Circuit, fair use can be decided as a matter of law at the pleading stage. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012). So why can't copyrightability of short phrases be decided as a matter of law?
Seems like there's a circuit split here.
This case is another example of how dangerous and harmful the Oracle v. Google opinions are. The district court in this case is in the Ninth Circuit, and there are plenty of Ninth Circuit fair use decisions to guide its district courts. Since those cases apparently weren't working for the plaintiff, it instead cited the Federal Circuit's Oracle opinions and argued that they should control the case.
What's worse here is that the district court didn't reject the plaintiff's argument out of hand. The district court should have said, "Oracle isn't binding, rather Ninth Circuit law is binding." Instead, the district court treated Oracle as controlling law, but was able to distinguish it on the facts.
If the Supreme Court doesn't review the Oracle decisions, we can expect them to be cited in many future cases, instead of Ninth Circuit law, and in cases where Oracle can't be meaningfully distinguished on its facts.
(Disclosure: I'm counsel of record on an amicus brief asking the Supreme Court to review Oracle v. Google.)
Since the "Streisand Effect" isn't adequate to describe this degree of shooting oneself in the foot, Mr. Masnick needs to come up with another moniker that will make him even more famous
Thanks for confirming I wasn't missing something. I read Eichenwald's article three times and couldn't figure out where his conclusion came from. Turns out it wasn't there.
There are two glaring and interesting omissions in the cert petition: (1) The petition doesn't discuss the fact that the Authors Guild failed to petition for cert. after it lost the related HathiTrust case. There, the Second Circuit held that (a) the libraries' use of the digitized books was a fair use, and (b) the Authors Guild didn't have standing to bring an copyright claim as an association. The Authors Guild should be precluded from rearguing these points any further. This should dispose of the 3rd and 4th questions presented. (2) In 1990, Judge Pierre Leval wrote what is widely accepted as the leading article on fair use. The Supreme Court cited the article about 16 times in the Campbell case. The article is highly instructive on the 1st question presented . . . yet the petition doesn't mention or cite it at all. Perhaps that's because Judge Leval wrote the Second Circuit opinion under review here.
Re: Re:
Silly me not to think about that
(untitled comment)
2018: The Federal Circuit should be abolished
2021: The Fifth Circuit should be abolished
Good job there getting ratioed, Governor
As of 11am PDT on Friday morning, this tweet had 5.7K replies and 971 likes.
Good job there getting ratioed, Governor!
Can't wait to visit "Googleland"!
I'm already planning a Florida vacation to visit "Googleland"! Should be great, with a search window just past the entrance gates to take me wherever I want to go.
Taylor Swift already wrote a song lyric to explain this
Taylor Swift once wrote: "There is nothing I do better than revenge."
Evermore Park should have figured this out before filing its trademark suit.
(untitled comment)
This is why we can't have nice things
"folkore" is a very common term in the USPTO databases
If you go to the USPTO trademark search database (TESS) and search for "folklore," you get 73 hits.
http://tmsearch.uspto.gov/bin/showfield?f=toc&state=4802%3Ak3nd54.1.1&p_search=searchs s&p_L=50&BackReference=&p_plural=yes&p_s_PARA1=&p_tagrepl%7E%3A=PARA1%24LD&e xpr=PARA1+AND+PARA2&p_s_PARA2=folklore&p_tagrepl%7E%3A=PARA2%24COMB&p_op_ALL=AND&a_d efault=search&a_search=Submit+Query&a_search=Submit+Query
So "folklore" is a very common term, and a descriptive one at that.
I wouldn't criticize Taylor Swift for naming an album "folklore" when the album is an indie folk album whose subject matter is, well . . . folklore.
Split in the Circuits?
In the Seventh Circuit, fair use can be decided as a matter of law at the pleading stage. Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687 (7th Cir. 2012). So why can't copyrightability of short phrases be decided as a matter of law?
Seems like there's a circuit split here.
Sign spotted somewhere or the other
You don't even need a whiteboard for this sign, permanent ink is fine:
"It has been zero days since Facebook's most recent privacy violation"
Oracle v. Google causing mischief again
This case is another example of how dangerous and harmful the Oracle v. Google opinions are. The district court in this case is in the Ninth Circuit, and there are plenty of Ninth Circuit fair use decisions to guide its district courts. Since those cases apparently weren't working for the plaintiff, it instead cited the Federal Circuit's Oracle opinions and argued that they should control the case.
What's worse here is that the district court didn't reject the plaintiff's argument out of hand. The district court should have said, "Oracle isn't binding, rather Ninth Circuit law is binding." Instead, the district court treated Oracle as controlling law, but was able to distinguish it on the facts.
If the Supreme Court doesn't review the Oracle decisions, we can expect them to be cited in many future cases, instead of Ninth Circuit law, and in cases where Oracle can't be meaningfully distinguished on its facts.
(Disclosure: I'm counsel of record on an amicus brief asking the Supreme Court to review Oracle v. Google.)
I smell a rat. No, make that a mouse.
The Internet: It wasn't broken, but they fixed it anyway
Need update to the "Streisand Effect"
For some odd reason, this reminds me of the Erdős–Bacon number
https://en.wikipedia.org/wiki/Erd%C5%91s%E2%80%93Bacon_number
For some odd reason, this post reminds me of that number.
TL;DR?
Do you have a specific donation page to fund your defense?
Thanks for confirming I wasn't missing something
Compared to monkey selfies, sure
Two glaring omissions in the cert petition
(1) The petition doesn't discuss the fact that the Authors Guild failed to petition for cert. after it lost the related HathiTrust case. There, the Second Circuit held that (a) the libraries' use of the digitized books was a fair use, and (b) the Authors Guild didn't have standing to bring an copyright claim as an association. The Authors Guild should be precluded from rearguing these points any further. This should dispose of the 3rd and 4th questions presented.
(2) In 1990, Judge Pierre Leval wrote what is widely accepted as the leading article on fair use. The Supreme Court cited the article about 16 times in the Campbell case. The article is highly instructive on the 1st question presented . . . yet the petition doesn't mention or cite it at all. Perhaps that's because Judge Leval wrote the Second Circuit opinion under review here.
There are times when Techdirt needs a "like" button
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