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Intellectual Property Westlaw Journal INTELLECTUAL PROPERTY Litigation News and Analysis • Legislation • Regulation • Expert Commentary VOLUME 25, ISSUE 12 / SEPTEMBER 26, 2018 COPYRIGHT WHAT’S INSIDE PATENT 5 Federal Circuit sides with Music Modernization Act gets Senate approval DuPont, Archer Daniels By Patrick H.J. Hughes in plastics patent fight DuPont Co. v. Synvina CV The U.S. Senate on Sept. 18 unanimously passed the Orrin G. Hatch Music (Fed. Cir.) Modernization Act of 2018, which claims to “provide clarity with respect to, 6 Patents for drug to help MS patients walk and to modernize, the licensing system for musical works.” deemed obvious Acorda Therapeutics v. Roxane Music Modernization Act of 2018, 2017 CONG Laboratories (Fed. Cir.) US S 2823 (Sept. 18, 2018). In addition to approving several amendments COPYRIGHT to the Copyright Act, the Senate agreed to 7 Copyright Board defeats SoundExchange’s appeal name the law after the retiring Hatch, a Utah over webcasting rates Republican who introduced the latest version SoundExchange v. Copyright of the bill earlier this year with Sen. Lamar Royalty Board (D.C. Cir.) Alexander, R-Tenn. 8 Porn producer may not reveal “With this bill, we are one step closer to historic alleged downloader’s identity, judge says reform for our badly outdated music laws,” Hatch said in a statement after the Senate vote. Malibu Media v. Doe (D. Md.) Hatch, a songwriter on the side, has a platinum Republican Sen. Orrin Hatch REUTERS/Joshua Roberts 9 Music groups blame record. Copyright Office’s lag time options for digital music companies and ways of in Supreme Court dispute The House of Representatives passed the bill verifying that songwriters are compensated for Fourth Estate Public Benefit earlier this year. The legislation now goes back their works. Corp. v. Wall-Street.com (U.S.) to the House for approval of the Senate Another section, called the Allocation for Music amendments and then to President Donald TRADEMARK Producers Act, or Amp Act, allows the royalty Trump. 10 PTO asks justices to keep ban distribution organization SoundExchange to on ‘scandalous’ trademarks According to the Congressional Record, the directly compensate music producers and Iancu v. Brunetti (U.S.) part of the bill called the Musical Works engineers. 11 High court should reject Modernization Act provides blanket license CONTINUED ON PAGE 16 review of ‘first ever’ circuit split, trademark holder says Mission Product Holdings v. Tempnology (U.S.) 13 Wall Street Journal imposter’s EXPERT INTERVIEW social media presence dilutes mark, suit says Dow Jones & Co. v. Bourbon Q&A: Copyright expert Christopher Beall (N.Y. Sup. Ct.) 14 TTAB denies Ask.com on the European Union Copyright Directive search engine’s request to cancel ‘Askbot’ trademark Christopher P. Beall from Fox Rothschild LLP clarifies what the European Parliament’s IAC Search & Media Inc. v. recent vote for the EU Copyright Directive means for copyright laws in the digital age. Askbot S.p.A. (T.T.A.B.) SEE PAGE 3 42089391 TABLE OF CONTENTS Westlaw Journal Intellectual Property Published since August 1989 Copyright Music Modernization Act gets Senate approval .................................................................................................1 Director: Nadia Abadir Editor: Expert Interview Patrick H.J. Hughes Q&A: Copyright expert Christopher Beall on the European Union Copyright Directive ................................. 3 [email protected] Patent: DuPont Co. v. Synvina CV Desk Editors: Federal Circuit sides with DuPont, Archer Daniels in plastics patent fight (Fed. Cir.) ....................................5 Jennifer McCreary, Elena Neuzil, Abbie Sarfo, Maggie Tacheny Patent: Acorda Therapeutics v. Roxane Laboratories Graphic Designers: Patents for drug to help MS patients walk deemed obvious (Fed. Cir.) ..........................................................6 Nancy A. Dubin, Ramona Hunter Westlaw Journal Intellectual Property Copyright: SoundExchange v. Copyright Royalty Board (ISSN 2155-0913) is published biweekly by Copyright Board defeats SoundExchange’s appeal over webcasting rates (D.C. Cir.) ................................... 7 Thomson Reuters. Copyright: Malibu Media v. Doe Thomson Reuters Porn producer may not reveal alleged downloader’s identity, judge says (D. Md.) ........................................8 175 Strafford Avenue, Suite 140 Wayne, PA 19087 Copyright: Fourth Estate Public Benefit Corp. v. Wall-Street.com 877-595-0449 Music groups blame Copyright Office’s lag time in Supreme Court dispute (U.S.) ........................................9 Fax: 800-220-1640 www.westlaw.com Trademark: Iancu v. Brunetti Customer service: 800-328-4880 PTO asks justices to keep ban on ‘scandalous’ trademarks (U.S.) ................................................................ 10 For more information, or to subscribe, please call 800-328-9352 or visit Trademark: Mission Product Holdings v. Tempnology legalsolutions.thomsonreuters.com. High court should reject review of ‘first ever’ circuit split, trademark holder says (U.S.) ................................11 Reproduction Authorization Authorization to photocopy items for internal Trademark: Dow Jones & Co. v. Bourbon or personal use, or the internal or personal Wall Street Journal imposter’s social media presence dilutes mark, suit says (N.Y. Sup. Ct.) ......................13 use by specific clients, is granted by Thomson Reuters for libraries or other users regis- Trademark: IAC Search & Media Inc. v. Askbot S.p.A. tered with the Copyright Clearance Center TTAB denies Ask.com search engine’s request to cancel ‘Askbot’ trademark (T.T.A.B.) ................................14 (CCC) for a fee to be paid directly to the Copyright Clearance Center, 222 Rosewood Trade Secrets: E-Trade Financial Corp. v. Pospisil Drive, Danvers, MA 01923; 978-750-8400; E-Trade wins TRO against ex-worker accused of stealing clients (N.D. Ill.) ...................................................15 www.copyright.com. Case and Document Index ...............................................................................................................................17 Thomson Reuters is a commercial publisher of content that is general and educational in nature, may not reflect all recent legal developments and may not apply to the specific facts and circumstances of individual transactions and cases. Users should consult with qualified legal counsel before acting on any information published by Thomson Reuters online or in print. Thomson Reuters, its affiliates and their editorial staff are not a law firm, do not represent or advise clients in any matter and are not bound by the profes- sional responsibilities and duties of a legal practitioner. 2 | WESTLAW JOURNAL n INTELLECTUAL PROPERTY © 2018 Thomson Reuters EXPERT INTERVIEW Q&A: Copyright expert Christopher Beall on the European Union Copyright Directive By Patrick H.J. Hughes Thomson Reuters: On Sept. 12, European the display of copyright-protected content for content-recognition procedures in Parliament members voted in favor of two without permission from (or payment to) the Article 13, will have what some might controversial parts of the European Union rights holder. The provision is a governmental think of as the perverse impact of locking Copyright Directive. What are those articles imposition of the kind of content-recognition in the dominance of the existing internet and what are the issues at stake? measures that Google’s YouTube privately behemoths because of the stunningly huge Christopher Beall: The two controversial conducts against music and video content financial cost of creating effective content- provisions, Articles 11 and 13, are parts of a that YouTube users upload to that platform. recognition and user-appeal procedures. larger package of measures in the Directive on Copyright in the Digital Single Market, The 2016 draft met with strenuous opposition from which is an outgrowth of years of consultation internet libertarian advocates, and indeed, the measure and study by EU officials and stakeholders actually failed initially when it was brought to a vote concerning copyright issues in the internet age. in the European Parliament this past summer. Article 11, pejoratively labeled the “link tax” by opponents, implements a copyright right for The provision goes beyond the affirmative Google employs thousands upon thousands news publishers that gives press publishers notice-and-takedown approach of the U.S. of employees to implement its content- the right to control republication of their copyright law, and instead implements a recognition mechanisms for YouTube and news coverage on the internet, including negative automatic-takedown approach its other platforms, and that kind of cost will as against the use of “snippets” of a news driven by automatic algorithms that identify likely ensure that no new competitors could story on a third-party news aggregator’s site. a rightsholder’s content when it is included in arise to challenge the dominance of Google Although this article was amended during a posting. The article includes a requirement or Facebook’s platforms for user-generated the legislative process to create an exception that countries establish mechanisms that content. to the “publisher’s right” for the use of a would allow opportunities for users to TR: When and why were these articles one-word hyperlink to the publisher’s news challenge the automated blocking of their proposed? uploads through appeal procedures. story, it is
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