Author: Mary P. Ray

Justices decline Apple’s appeal on e-books

Apple is on the hook now to the tune of $400 million to consumers after the U.S. Supreme Court declined to take up an appeal of an adverse decision against the tech company by the U.S. Court of Appeals for the Second Circuit. The appellate court upheld a lower court ruling that Apple conspired to fix the prices of some e-books in in violation of the Sherman Antitrust Act. The justices did not comment in rejecting Apple’s bid for certiorari. The Justice Department sued Apple in 2012, asserting the Cupertino tech giant led a horizontal conspiracy among publishers, who were frustrated with Amazon’s low prices, to raise e-book prices. The parties sought to raise prices above Amazon’s standard $9.99. To do this, Apple introduced a  “agency pricing,” where publishers set the e-book price, and then Apple would get a percentage of each sale. The publishers settled before trial, but Apple held out. The 2013 trial took a month. The most damaging evidence was an email from Steve Jobs, then CEO and Apple co-founder, stating: “I can live with this, as long as they move Amazon to the agent model too for new releases for the first year. If they don’t, I’m not sure we can be competitive.” The appellate court upheld the lower court in a 2-1 decision in 2015. Apple had argued that its entry into e-publishing created “long-term competition” and...

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Barbs over ‘safe’ arrows raise legal quivers

The movie studios, television networks, video game makers, and big-time music businesses on both coasts may wish to take note of a curious case playing out in the nation’s heartland. It’s raising some novel issues about how small defendants soon may fund and sustain themselves in lawsuits with powerful plaintiffs over a range of IP disputes, including contested copyrights, trademarks, and patents. The defendant in this peculiar matter has taken to, a popular online crowdfuding source, to raise money for his case. Is this a new way to level the playing field between corporate IP Goliaths and David defendants? Could this create a new way for IP suits to make it to trial rather than settling out? Or could crowdfunding become a way for attorney’s to take on challenging cases–while ensuring they’ll get paid? And what are the ethics of fund-raising for lawsuits? The controversies have gotten sufficiently acute that the Electronic Frontier Foundation, which calls itself the “leading nonprofit organization defending civil liberties in the digital world,” has asked to enter the case, particularly over questions it may raise about litigants’ First Amendment rights. What case could parties to take arms in such noisy fashion? This one, no kidding, involves safe arrows and fans who like to play fantasy games with them. So come, shall we, upon a quest to discover this new source of magical power? Where the...

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Pro librarian up for top job with copyright sway

The Obama Administration has announced that Carla Hayden will be its nominee as the fourteenth U.S. Librarian of Congress. This is a position with great influence on copyright law, and, therefore of considerable interest to Entertainment Law practitioners. She would replace James H. Billington, who was nominated by President Reagan and has come under fire for failing to keep up with technological advancements. Hayden must confirmed by the U.S. Senate, not an easy task these days. She would be the second professional librarian to hold the position, and her nomination has been applauded by both the American Library Association and the American Association of Law Libraries. The U.S. Copyright Office, which administers and records copyrights and provides public services about these key elements of intellectual property law, is part of the Library of Congress. Hayden would be the first woman and the first African-American to be the congressional librarian. She also has deep experience updating library technology, sure to be a priority after the widespread criticism of her predecessor. Hayden has served as the longtime head of Baltimore’s library system, the Enoch Pratt Free Library. She was named National Librarian of the Year in 1995, and was honored as recently as last year for keeping Baltimore’s libraries open during the riots. Of interest to Entertainment attorneys, Hayden’s record includes a role as a privacy advocate. In 2003, while president of the librarians’ association, she...

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Warner runs up white flag on ‘happy birthday’

It’s the end of an era, in case you missed it: Copyright professors have lost the best example of a right owner’s legal stranglehold, Happy Birthday. Now performers, movies, and television shows can freely use the tune that is sung, nearly universally, at birthdays across the country. There have been creative alternatives to this tune over the years, but none could hold a candle. A federal court in Los Angeles ruled that the song was, and has been, in the public domain. That’s because the company that Warner bought the rights from, Summy Co., never actually acquired the lyrics from the original owners; Warner, thus, does not have a valid copyright in the lyrics. This ruling compelled Warner to seek a settlement to avoid hefty damages claims. Just before the case was set to go to trial, last December, the two parties reached a settlement. The details of which have just been released. In settlement papers filed on Feb. 8, which, interestingly enough, Warner still asserts that they have a valid copyright in the lyrics, the company has agreed to pay out claims for those who were charged for using Happy Birthday up to $14 million. Half of that money, $6.25 million, is dedicated for claimants who have paid to use the song since June 15, 2009 while the other half can be used for claims going all the way back...

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A textbook case on deciding attorney’s fees?

To the justices of the U.S. Supreme Court, this case has offered a legal challenge, an opportunity to reconsider how copyright applies to works lawfully made abroad. To the original defendant, this matter seemed like a smart business approach, a way to take stuff available cheaply in his native land and to resell it in another market with a premium markup. To plaintiff John Wiley & Sons, this was a seemingly straight-forward infringement claim that has boomeranged in ways unimaginable not that long ago. Someone now may be on the hook for more than $2 million in lawyer fees. To intellectual property practitioners, especially Entertainment Law specialists, Kirtsaeng v. John Wiley, which is potentially up for another round in the nation’s highest court, may be a pivotal case in figuring if and how they get paid. It is still unclear what to expect from the high court, which has granted certiorari but has not assigned the case a hearing date. Because real money’s involved, let’s keep close book on this dispute: How the dispute began Supap Kirtsaeng and John Wiley battled before the High Court in 2013 over the First Sale doctrine and whether it applies to works lawfully made and sold in a foreign country.  Kirtsaeng, a Thai, was studying for his math Ph.D. at Cornell University. He realized that texts he was using in the United States also...

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The Biederman Blog is now ranked NUMBER ONE on Feedspot's Top 20 Entertainment Law blogs (May 2018). It is very exciting to top this list. We are extra proud of number six - Entertainment Law Offices of Gordon P. Firemark. Mr. Firemark graduated from Southwestern in 1992, and is a top entertainment blogger and webinar presenter in addition to being a world class entertainment attorney!

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