Posts tagged ‘amicus briefs’

USC News Spotlights Clinic Work in Supreme Court on Patent Policy

Yesterday, USC News spotlighted the work of the IP & Tech Clinic’s own Mikhail Brandon ’14 and Michelle Lee ’15, who filed two briefs in the Supreme Court this year as well as a comment with the Federal Trade Commission.  Read the story here.

You can read our own blog posts about the Clinic’s work this year on patent issues here, here, and here.

Clinic files amicus brief in closely-watched Ninth Circuit copyright case

Guest post by recent USC Law grad Rom Bar-Nissim ’13, who was on the legal team on the brief.  Clinic interns Patrick Boyle and Patrick McCormick also worked on the project.

Today the Clinic filed an amicus brief in the Garcia v. Google case in the Ninth Circuit on behalf of long-time Clinic client the International Documentary Association as well as Film IndependentFredrik Gertten, and Morgan Spurlock.  We were absolutely thrilled to partner on this project with several of the best attorneys in the business:  Gary L. Bostwick, who carried the laboring oar on much of the drafting, Michael C. Donaldson, and Lincoln Bandlow

Garcia v. Google is a copyright case brought by an actress in the highly controversial film The Innocence of Muslims. The actress, who was lied to about the nature of her role, claimed a copyrightable interest in her 5-second performance; the Ninth Circuit Court of Appeals accepted her theory and ordered Google to disable access to all copies of the film.

The Clinic argued that the Ninth Circuit’s opinion will create three forms of chaos for independent filmmakers and will result in a chilling effect on filmmaking activity. First, the opinion makes it unclear to filmmakers when a “copyrightable interest” arises for someone who appears onscreen. Consequently, a filmmaker does not know when or whether to get a release. Second, the court appeared to state that unestablished filmmakers are not “employers . . . in the regular business of filmmaking” for copyright purposes. Employer status is important for burgeoning filmmakers. If a filmmaker is considered an employer of someone who makes a copyrightable contribution to the film, then the filmmaker owns the copyright in that contribution. Third, the court held that even if the filmmaker had an implied license from the actor or other contributor, there are limits on how far the filmmaker can stray from the actor’s understanding. Unfortunately, the court did not articulate how far the filmmaker can stray.

Ultimately, the chaos created by the Ninth Circuit’s opinion creates so much uncertainty for independent filmmakers that the only way forward will be to retain costly legal counsel. But even with counsel, many films may still be more likely to see a lawsuit then the light of day.

In making our argument, we solicited and used statements from Academy Award-nominated filmmakers like Josh Fox (GasLand) and Scott Hamilton Kennedy (The Garden). We also employed a wide array of films and examples to illustrate our arguments, including Easy RiderErrol Morris’s Tabloidskateboard viral videos, and reality TV. We also explored the humble beginnings of filmmakers like Christopher Nolan’s FollowingRobert Rodriguez’s El MariachiJim Jarmusch’s Permanent Vacation, and filmmaker Lee Storey who made the documentary Smile ‘Til it Hurts: The Up with People Story in her spare time while working as a lawyer and then successfully beat the IRS in court to be recognized as a filmmaker.

The brief is available here.

Clinic files second amicus brief on behalf of app developers in the U.S. Supreme Court

Yesterday, the USC IP & Tech Clinic filed another amicus brief with the Supreme Court in the case of Alice Corporation v. CLS Bank concerning the problems with overly broad and abstract patents. The Clinic, again representing the Application Developers Alliance, teamed up with Public Knowledge to co-author the brief to discuss the harmful consequences of the Federal Circuit’s inconsistent and sometimes formalistic approaches to patent subject matter eligibility, leading to flawed patents that cover basic concepts and ideas—the building blocks of innovation.  The brief shows that the central claim in the patent at issue can be implemented in just seven lines of computer code.  This demonstration shows that the claim, despite complex-looking language, covers nothing more than basic concepts dealing with third-party escrow systems.  We then go on to recommend that the Court clarify the law of patent eligibility with three simple pieces of guidance.

 

It was a pleasure to partner with the brilliant Charles Duan and Anna Sallstrom at Public Knowledge on this brief.  We hope that the Supreme Court will reaffirm that subject matter eligibility remains a substantive test, and not one that can be circumvented with clever draftsmanship.

Clinic files amicus brief in U.S. Supreme Court

Wildtangent v. Ultramercial

Today the USC IP & Tech Clinic filed a brief on behalf of the Application Developers Alliance asking the Supreme Court to grant certiorari in the case of WildTangent v. Ultramercial. This is a case about whether a claim on using advertising as a substitute for currency, combined with eleven conventional steps and preformed on the internet via a “facilitator” can be eligible for patent protection. The Federal Circuit said yes. In the brief we argue that with this ill-advised decision, the Federal Circuit has immeasurably worsened critical flaws in the patent system that are already deeply affecting application developers. From the brief [pdf]:

“With this decision, the Federal Circuit has worsened critical flaws in the patent system that deeply affect application developers. Unlike other innovators, app developers work exclusively with software, and most are small businesses with little capital. As overly broad software patents have proliferated in recent years, non-practicing patent assertion entities have launched a wave of litigation and intimidation that has made it extremely difficult for many app developers to  operate. The Federal Circuit’s decision in this case exacerbates these problems by adding to its deep internal divisions over the proper threshold for patent eligibility. Furthermore, by announcing an overly permissive standard for eligibility, the Federal Circuit has immeasurably worsened the patent litigation crisis for app developers and small innovators everywhere.”

UPDATE: Stamped brief here.

 

 

Clinic files amicus curiae brief in the Eleventh Circuit Court of Appeals in a major educational fair use case on behalf of professors

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Today, the USC Intellectual Property and Technology Law Clinic filed an amicus curiae brief in the Eleventh Circuit in the case Cambridge University Press, et al v. Mark Becker, et al. The brief was filed on behalf of American Association of University Professors, International Communication Association, Modernist Studies Association, Society for Cinema and Media Studies, and Professors Peter Decherney and Tsitsi Jaji of University of Pennsylvania.

In the district court case (Cambridge University Press v. Becker), several publishers brought dozens of copyright infringement claims against Georgia State University (GSU). The publishers argue that GSU’s professors are infringing on their copyright when professors post excerpts of copyrighted materials on electronic course reserves–websites that allow professors to interact with, and distribute materials, to students enrolled in their courses. The court held that, in the majority of the instances, the professors’ use of electronic course reserves did not infringe on the plaintiff’s copyrights and that many of the uses constitute fair use.

The publishers appealed the district court’s decision to the United States Court of Appeals for the Eleventh Circuit. On behalf of four national organizations and two professors–together representing over 48,500 professors, scholars, and media professionals–the Clinic filed a brief as amicus curiae asking the Court of Appeals to acknowledge that fair use protects key pedagogical activities. These activities, such as using copyrighted materials for criticism and commentary, are critically important to the educational mission because they add new meaning to the original works and grow our collective knowledge. The  great weight of case law supports that such uses are quintessentially transformative and highly likely to be fair use.

A copy of the brief can be found here.

 

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