Welcome to the Line

Recently, the Federal Communications Commission (FCC) took up and reversed net neutrality.  If you are unfamiliar with net neutrality, it is the principle that Internet Service Providers (ISPs) are not allowed to discriminate against certain users, websites, content, or whatever else.  For example, Spectrum (formerly Time Warner) is not allowed to block its users from or charge them for accessing Facebook.  Or, for a real-life example, Madison River Communications was fined $15,000 by the FCC for restricting their costumers’ access to a rival service. John Oliver explains net neutrality here. (Language warning.)  In a way, you could think of net neutrality as an equal opportunity law for the internet.  Or, at least you could have.  On December 14, 2017, FCC chairman Ajit Pai and the FCC voted to repeal net neutrality, which leaves the internet in the United States in a fairly bad spot.

Luckily, in my opinion, the FCC has a gauntlet of lawsuits to go through now that it repealed net neutrality.  It also seems there is a fair number of people who share my viewpoint.  As it stands, the FCC had something around 22 million complaints filed against its ruling.  FCC Chairman Pai canceled his scheduled appearance at the to the Consumer Electronics Show in Las Vegas due to death threats.  On top of this, the Internet Association is bringing together powerhouse companies to join the fight against the unpopular ruling.  Companies like Google, Amazon, Etsy, and Alphabet have stated they are joining the lawsuit.  The Internet Association’s President and CEO Michael Beckerman stated, “The final version of Chairman Pai’s rule . . . dismantles popular net neutrality protections for consumers.  This rule defies the will of a bipartisan majority of Americans and fails to preserve a free and open internet.”    Netflix even took to Twitter and sent the message, “In 2018, the Internet is united in defense of #NetNeutrality.  As for the FCC, we will see you in court.”  Furthermore, a number of states have come forward stating their opposition to the repeal and have indicated that they, too, will join the fight.

Seeing this net neutrality issue unfold has solidified my choice to attend law school. 

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The Myth About Practicing IP

I was recently visiting a relative in the hospital when the attending physician struck up a conversation with my family.  When he found out that I am an attorney, he asked about my area of practice.  I told him that I practice product liability defense and intellectual property litigation.  He then asked me the following question, a variation of which has been posed to me dozens of times over the past five years:  “What type of engineer are you?”

I am an English major, and I practice IP litigation.  Not only do I not have a science background, but I made a concerted effort to avoid science classes in college.  Law schools precipitate a myth that you can’t practice IP without a science background.  It’s a myth because it’s not true.  I’m proof.  (Disclaimer:  it is true that you can’t prosecute patents before the U.S. Patent and Trademark Office without a science background.  But patent prosecution is only one part of IP.)

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The Copyright Act: Standing and “Right to Sue” Assignments

The symbol representing a copyrighted work, which is the letter "C" within a closed circle.Every now and then, plaintiffs attempt to leap into the shoes of a copyright holder by obtaining permission from the copyright owner to sue an alleged third party infringer.  But these type of bare “right to sue” assignments in many instances fall short of what is required under federal law.

Enforcement Action Rights under the Copyright Act

According to the federal Copyright Act, only “[t]he legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.”  17 U.S.C. § 501(b) (emphasis added).

The Copyright Act lists the following exclusive rights of the owner of a copyright:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

17 U.S.C. § 106. But “a person holding a non-exclusive license is not entitled to complain about any alleged infringement of the copyright.”  HyperQuest, Inc. v. N’Site Sols., Inc., 632 F.3d 377, 382 (7th Cir. 2011).  In order words, to have the requisite standing to sue, a plaintiff must exclusively own one of the enumerated rights listed above.  Consequently, enforcement actions are limited to the specific rights exclusively owned.   For example, a plaintiff who owns the exclusive rights to perform a literary work can only sue to enforce that specific rights. Such a plaintiff, cannot go after alleged infringers making unauthorized copies of the literary work.

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