Does the Threat of Future Copyright Infringement Amount to Irreparable Harm?

Chief among the bundle of rights one obtains in property ownership is the right to exclude others from the use and enjoyment of that property.  This “sole and despotic dominion” that an individual commands over their property is placed in danger, of course, when the property becomes subject to the wants and needs of others.  Absent the owner’s consent (as in the case of licensing) or operation of law (as with adverse possession), a property owner would be able to bring an action for trespass for such intrusions.

A judge holding a defendant liable for trespass perhaps carries the vision of plaintiffs having their rights vindicated, but cases do not end at liability.  The judge must also determine whether further remedies beyond damages are appropriate, including whether a permanent injunction should issue.  Such is a weighty decision touches upon an extraordinary remedy: a court order that a defendant must cease and desist its illegal activity or face punishment for contempt.   That being said, in many property cases, a court order only issuing damages would effectuate a judicial licensing of the behavior.  With that result, the incentives are adjusted such that the right to exclude does not rest with the plaintiff; instead, it is determined only by the extent to which the defendant is willing and able to engage in the trespassing behavior.  As such, the courts have presumptively treated infringement of property rights as worthy of injunctive relief.

That has also been the rule in copyright infringement cases for the last few decades. 

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Seventh Circuit Weighs in on Crime-Lab Evidence

seventh circuitThe Supreme Court was not the only court wrestling this week with the admissibility of crime-lab evidence.  A day after the Justices heard oral argument in Briscoe v. Virginia, the Seventh Circuit decided United States v. Turner (No. 08-3109).  Both cases put into question the vitality of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

A jury convicted Turner of selling crack to an undercover police officer.  The drugs were sent to the Wisconsin State Crime Laboratory, where they were analyzed by a chemist named Hanson, who confirmed that they were indeed crack.  The government intended to call Hanson to testify to this effect, but she went on maternity leave before the trial.  So Hanson’s supervisor, Block, was summoned instead.  Based on Hanson’s notes and data, Block testified that he agreed with her conclusion that the drugs were crack.

On appeal, Turner argued that Block’s testimony violated Melendez-Diaz. 

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Seventh Circuit Criminal Case of the Week: More on Other Bad Acts Evidence

seventh-circuit5The Seventh Circuit had only one new opinion in a criminal case this week, and it is not one in which the court broke new legal ground.  In United States v. Harris (No. 07-4017) (Williams, J.), the court affirmed the defendant’s convictions for drug trafficking and unlawful gun possession.  The defendant raised various evidentiary objections on appeal, including a challenge to the use of other bad acts evidence against him.  Specifically, the government introduced evidence of prior drug sales perpetrated by Harris in order to show that he intended to distribute the drugs he was charged with possessing.

Litigation over other bad acts seems a routine feature of appeals in drug-trafficking cases.  As I suggested in this earlier post, it strikes me that the Seventh Circuit has pretty well interpreted the Rule 404(b) restrictions on evidence of other bad acts out of existence, at least in drug cases.  Although not as broadly worded as some other opinions, nothing in Harris seems inconsistent with the view that drug defendants are unlikely to find success with their Rule 404(b) arguments on appeal.

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