Tuesday, January 18, 2011

Banned in the United States (and Canada)

As a follow up to the Second Circuit decision in the Salinger case, there is a reported settlement. Defendant Colting wrote an alleged sequel to the Salinger book The Catcher in the Rye. As part of the settlement, Colting's book will not be sold in the U.S. and Canada. The book will be available in other countries.
Further, Colting's book will make no references to Salinger or his book nor can the author use the copyright lawsuit to promote the book.

Opening arguments are set to begin soon on a jury trial on remand regarding the Mattel (Barbie) vs. MGA (Bratz). Link to previous blog entry. There are several copyright claims remaining from the first generation of Bratz dolls and a few others; however, copyright infringement claims on many subsequent generations of Bratz dolls were thrown out by the Ninth Circuit. The trial will also include trade secret misappropriation claims stemming from MGA's hire of Carter Bryant from Mattel.

Thursday, January 13, 2011

If the Damages Were Not Big Enough....

Following up on the recent lawsuit between Oracle and SAP and the $1.3 billion in damages awarded Oracle (the largest copyright damage award in U.S history), the parties were fighting over 2 other important remedies in copyright infringement actions - interest and attorneys fees.

An award of costs may include attorneys fees to a prevailing party under Section 505 of the Copyright Act. It has been reported that Oracle is seeking over $100 million in attorney's fees.

In addition, Oracle sought over $200 million dollars in interest. SAP argued that interest need not be paid. The court ruled that interest would be awarded but would not be the amount that Oracle sought but based on Treasury rates and calculations would be a much smaller figure (approx. $16 million).

Tuesday, January 11, 2011

Show Me...Damages

Clearly, damages are a form of monetary compensation. The question is how to assess damages. It is more than difficult to assess. Two recent damages cases prove this point: Oracle v. SAP and RIAA v. Thomas. In both instances, liability was established and now damages have become the major issue.

In Oracle v. SAP, the jury awarded $1.3 billion when SAP copied Oracle’s software and customer manuals. Oracle claimed that a license for such software to SAP would have been around $2 billion dollars. SAP countered that because it was only able to get sway a few of Oracle’s customer to buy from SAP that the damages in the $30-40 million dollar range was more appropriate. Following the verdict, a representative from SAP indicated that “[SAP] will pursue all available options, including post-trial motions and appeal if necessary.”

In November, the third trial in RIAA v. Jammie Thomas-Rassett, a case involving illegal music downloads of 24 songs was held. In 2007, the jury initially awarded the RIAA $222,000. However, due to a jury instruction error, the judge declared a mistrial and the verdict was thrown out. Rather than settling outside of court, Thomas-Rassett opted for a second trial, and in 2009 the second jury awarded the RIAA just under $2 million. The judge in the case subsequently lowered the award to over $50,000.

Both parties appealed the decision and a third jury awarded the RIAA $1.5 million or $62,500 per song. A copy of the verdict is available here via Copyrights and Campaigns. Lawyers for Thomas argued that because the downloads themselves were worth $1 a piece that the damages should be $24. The RIAA had sought a maximum amount of $3.6 million.