The Supreme Court’s review of Kirtsaeng v. John Wiley & Sons is likely to turn on whether the justices believe additional factors need to be considered in copyright fee-shifting cases beyond the precedent set in the Supreme Court's 1994 Fogerty v. Fantasy ruling, said attorneys supporting both Kirtsaeng and Wiley in interviews. The Supreme Court is set to hear oral argument on the case Monday. Thai citizen Supap Kirtsaeng sought a review of the 2nd U.S. Circuit Court of Appeals' 2015 ruling that Kirtsaeng wasn’t entitled to receive attorney’s fees from textbook company Wiley after winning a 2013 Supreme Court case (see 1601190071). The court had ruled Kirtsaeng’s resale and import of textbooks from Thailand to the U.S. was covered by the first-sale doctrine (see report in the March 20, 2013, issue).
Jimm Phillips
Jimm Phillips, Associate Editor, covers telecommunications policymaking in Congress for Communications Daily. He joined Warren Communications News in 2012 after stints at the Washington Post and the American Independent News Network. Phillips is a Maryland native who graduated from American University. You can follow him on Twitter: @JLPhillipsDC
Lobbying on encryption policy increased significantly in Q1, while interest in copyright and other tech sector policy issues remained largely on par with previous quarterly filings. At least 60 companies and groups lobbied on encryption issues and specific pieces of legislation during Q1, compared with just seven entities during the same period last year and 24 entities during Q4, according to available lobbying filings. Apple and Google reduced their lobbying expenditures in Q1 from the same period in 2015, while Amazon and Facebook posted significant increases (see 1604200036).
Librarian of Congress nominee Carla Hayden wouldn't address Wednesday whether she believes the Copyright Office should separate from the Library of Congress. Instead, she told the Senate Rules Committee Wednesday that her priority would be to “work with Congress and to examine how we can really make sure” the CO has all of the support it needs to properly function. Most of Senate Rules members' discussion on the LOC-CO relationship during Hayden's confirmation hearing centered on plans to modernize IT within the CO and the LOC, as expected (see 1604190051). Senate Rules Chairman Roy Blunt, R-Mo., and other committee members highlighted Hayden's qualifications, leading an industry lobbyist to tell us he believes Hayden's nomination is on track to “sail through” the Senate.
The Senate Rules Committee’s confirmation hearing Wednesday on Librarian of Congress nominee Carla Hayden will likely include at least a partial focus on issues of interest to the copyright community, but controversial topics like Copyright Office modernization probably won’t be a factor, copyright stakeholders said in interviews. Hayden was considered largely a blank slate on copyright policy issues, but the copyright community lauded Hayden’s work as CEO of Baltimore's Enoch Pratt Free Library system to update that system's technologies (see 1602240054 and 1603080063). The Senate Rules hearing is set to begin at 2:15 p.m. in 301 Russell.
The Supreme Court denied the Authors Guild's petition for a writ of certiorari seeking a review of the 2nd U.S. Circuit Court of Appeals' ruling in the Google Books case, as expected (see 1601040063). Justice Elena Kagan “took no part in the deliberation or decision of this petition,” the Supreme Court said Monday in its brief order denying the guild petition. The guild sought a review of the 2nd Circuit's ruling that the Google Books project to digitize portions of the world’s books is a “transformative” example of fair use, arguing there was a split among circuit courts on how to interpret the fair use doctrine.
Most who spoke at a Copyright Office symposium on moral rights were supportive of CO or congressional action to address those rights in U.S. law, though several said U.S. recognition of moral rights would be different from Europe's approach because of free speech guarantees. The joint CO-George Mason University School of Law Center for the Protection of Intellectual Property event was meant to delve into moral rights issues ahead of a more formal CO examination of those issues (see 1603150067 and 1604150074). A creator's moral rights include the right to attribution, the right to publish anonymously or under a pseudonym, and the right to preserve the integrity of a work from alteration.
The Copyright Office’s Monday symposium on moral rights will provide a solid base for a more formal CO analysis on the subject, but probably won’t lead to the office changing its position on how U.S. law should deal with moral rights to satisfy the requirements of the Berne Convention, participants told us. A creator’s moral rights may include the right to attribution, the right to publish anonymously or under a pseudonym, and the right to preserve the integrity of a work from alteration. The U.S. believes it largely satisfies the convention’s requirements for signatories to provide moral rights protections via existing laws, including the Lanham Act’s provisions on false advertising and a copyright holder’s right under the Copyright Act to control the creation of adapted or otherwise derivative works (see 1603150067).
U.S. District Court in Los Angeles granted DotConnectAfrica Trust's request for a preliminary injunction halting ICANN's delegation of the .africa top-level domain to the ZA Central Registry. DCA Trust sought the preliminary injunction amid its ongoing lawsuit against ICANN, which seeks to require ICANN to follow the terms of independent review process (IRP) proceedings that found ICANN mishandled DCA's 2013 challenge to the nonprofit's .africa delegation decision. DCA Trust also wants ICANN to reconsider the registry's application to be the .africa registry (see 1603070062 and 1603280050). “The evidence suggests that ICANN intended to deny DCA's application based on pretext,” Judge Gary Klausner said in his ruling: ICANN hasn't “introduced any controverting facts. As such, the Court finds serious questions regarding the enforceability of” provisions of a waiver that DCA Trust agreed to when it applied to be the .africa registry that waived DCA Trust's right to sue ICANN over the .africa delegation decision. Evidence “presents serious questions” about whether ICANN followed the IRP decisions in favor of DCA Trust, including “whether DCA's application should have proceeded to the delegation stage” after the IRP decision, Klausner said. DCA “will likely suffer irreparable harm” if ICANN proceeds with the .africa delegation before the lawsuit is concluded, Klausner said. ICANN didn't comment.
House Judiciary Committee Chairman Bob Goodlatte, R-Va., urged the International Trade Commission Thursday to use its authority to take actions stakeholders recommended to address patent assertion entities' abuse of the ITC's process for evaluating Section 337 exclusion orders. PAEs take patent infringement cases that should be litigated in U.S. district courts and bring them to the ITC in a bid to force entities to pay licensing fees, Goodlatte said during a House IP Subcommittee hearing. Stakeholders recommended the ITC return to a previous evaluation standard that “does not allow legal expenses, airplane flights, and the like to satisfy the domestic industry requirement,” Goodlatte said. The ITC should apply the public interest test and the economic interest test at the beginning of a Section 337 review when determining claims consideration and the issuance of exclusion orders, Goodlatte said. The ITC should also use its public interest and economic interest analyses to articulate agency standards to “clarify which patent disputes should be adjudicated by the ITC and those which are more properly addressed by U.S. district courts,” Goodlatte said. House IP ranking member Jerry Nadler, D-N.Y., questioned whether Congress needs to act to curb PAE abuses of the ITC process because the agency is already beginning to address the issue.
Supporters of the Securing Participation, Engagement and Knowledge Freedom by Reducing Egregious Efforts (Speak Free) Act (HR-2304) said Thursday it or other legislation to create a national statute to curb strategic lawsuits against public participation (SLAPPs) is needed to encourage further growth of U.S. e-commerce. Congressional action on anti-SLAPP legislation also would give legislators a chance to foster a national environment that encourages free speech, anti-SLAPP stakeholders said during an Information Technology and Innovation Foundation briefing.