The U.S. 11th Circuit Court of Appeals has affirmed the award of fees for defence attorneys in an "objectively unreasonable" copyright action - here brought by InDyne Inc., against Abacus Technology Corporation. The District Court in Florida had previously found that InDyne failed to present evidence sufficient for a reasonable jury to find that the copied portions of software were “original and thus deserving copyright protection.” - and indeed the Plaintiffs no longer possessed a copy of the software or even a clear software revision history. Indyne, Inc. v. Abacus Technology Corporation, Jerry Reninger, and Matthew Boylan, Case Number 14-11058, decided September 24, 2014. Echoes of Judge Richard Posner's criticism of the actions of the Conan Doyle Estate in the Sherlock Holmes litigation when he awarded costs $30,679 to defendant Leslie Klinger sprang to mind: Here Judge Posner in 7th Circuit appellate court said that the Doyle estate's business strategy was plain; "charge a modest fee for which there is no legal basis, in the hope that the 'rational' writer or publisher will pay it rather than incur a greater cost in challenging the legality of the demand.". Calling the model 'a form of extortion' Judge Posner said 'It's time the estate changed its business model' and complemented Klinger for performing a "public service" for fighting against a “disreputable” business practice and further noted that the Estate, which had suggested in a letter to Mr. Klinger’s publisher that it might prevent the book from being sold at Amazon or Barnes & Noble unless a $5,000 use fee were paid, had been “playing with fire,” calling such an action a violation of antitrust law. More on Sherlock here and here.
Law.com has an interesting follow-up to the surprise settlement in the five-year-old legal battle between Marvel Comics and Jack Kirby’s heirs, noting that a major copyright issue remain unresolved. The children of the legendary artist filed 45 copyright-termination notices in September 2009, seeking to reclaim what they saw as their father’s stake in such Marvel characters as the Avengers, the X-Men, the Fantastic Four and the Incredible Hulk. Marvel, joined by its then-new parent company Disney, responded with a lawsuit, which ultimately saw the Second Circuit Court of Appeals affirm that Kirby’s contributions to the publisher between 1959 and 1963 were on a “work for hire” basis and therefore not subject to copyright termination. A Supreme Court hearing was expected but the settlement means the grey area surrounding work for hire before 1978 remains, although experts say given that 56-year window — or 35 years for copyrights transferred after 1979 — it’s only a matter time before another case, more likely to involve a musician/songwriter than a comics artist, makes its way to the Supreme Court, requiring the Supreme Court justices to weigh in.
Straying into designs: Along with additions to the copyright exceptions for format shifting, quotation and parody, the Intellectual Property Act also became law on the 1st October in the UK, meaning it is now a crime to intentionally infringe on a registered design. The changes set out in The Intellectual Property Act have been introduced to reduce the scale of registered design infringement by acting as a deterrent. The changes also increase protection for the holders of registered designs and more effectively deter and punish perpetrators of blatant design infringement. The new Act also outlines that individual board directors can be held accountable for infringement. The Act means that intentionally infringing a registered design and producing a copy that differs from an original in only immaterial respects now becomes a criminal offence punishable by up to 10 years in prison.
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