Today's unavoidably detained theme is "goofy IP litigation." I could easily fill two or three platters with sausages like these... every week. But that would be both boring and too easy.
- Sometimes damages claims have to be excessive to get noticed, like a recent shocking case from Russia. First, it's shocking because an infringer actually lost — Russian courts are notoriously prone to throwing claimants out on their ears, or at best awarding nominal damages and shaking a finger in the face of the infringer (before going out for drinks with the infringer, but that's another issue not limited to IP). On the other hand, calculating damages for infringing a book based on a £2,400 leather-bound edition when there's a casebound £84 edition also in the marketplace seems a bit excessive, particularly when the infringing edition sold for £3.40.
- And at the opposite end of the spectrum, in US litigation one must provide (too early in the process) an estimate of damages... and then back it up, usually with an expert opinion. It helps if the expert actually calculates damages, or you might lose your entire claim.
- As a big surprise — that is, just as surprising as gambling at Rick's Café Americaine — the record companies have filed an appeal against the Tenenbaum remittitur (reduction in damages ordered by the judge after trial). As much as I dislike the RIAA's tactics in general, I think this is as close to a slam-dunk appeal as possible, for two reasons. First, regardless of the characterization as such by some people, statutory damages — and, in particular, copyright statutory damages — are not punitive damages; they are much more akin to liquidated damages. More to the point, there is an unclear standard for determining when liquidated damages are unconstitutional... and copyright statutory damages are not even close to that standard, despite its lack of clarity. So, instead, the underlying rationale must have been that the damages awarded in Tenenbaum were so excessive as to "shock the conscience" on the record; that, however, is not what was done. Instead, this was one of the very, very few clear instances of judicial activism that I've seen in IP litigation; Judge Gertner substituted her judgment for Congress's judgment on the appropriate limit of statutory damages. However foolish Congress may be — and however much I wish the standard reflected the reality of what passes for "legislative factfinding" better than it does — she doesn't have that power, so long as Congress made some findings of fact based on "substantial" evidence (that is, evidence good enough to persuade a sixth-grader in the absence of any opposing evidence)... and the text and legislative history of the 1976 Act pass that test. "Stupid" and "arbitrary wild-ass guess" and "prone to distortion" and "counterproductive" do not equate to "unconstitutional."
- On the patent front, Professor Crouch notes Abbott Labs' brief on "inquitable conduct" as a ground for revoking a patent. This bears considerable thought, especially if one compares the work for hire analog in the Patent Act (35 U.S.C. § 118) with the draconian work for hire provision in the Copyright Act (17 U.S.C. § 201(b))... and with the text of the enablishing constitutional provision (Art. I, § 8, cl. 8).
- Enforceability of electronic signatures is back in the news. The interesting thing about this is that I'm not at all certain that even the most generous interpretation of e-SIGN gets around the Copyright Act's signed writing requirement... because the Register of Copyright has not issued a regulation or interpretation that clearly so allows.
- First, zombies and Jane Austen. Now, media-conglomerate zombies in your computer. Sort of. This is as much about Adobe's reprehensibly insecure Flash system as it is about anything else... but it also, arguably, relates to the actions earlier this week on exemptions from Chapter 12 of the Copyright Act, because these "zombie cookies" are at least arguably related to preventing unlawful copying and access... since you can't see the video unless you accept the cookie first. Hmm.