Copyright Catch-22

With the closing of Bill Patry’s Copyright Blog, there’s a distinct absence of copyright wonkery on the web. So I will occasionally do my best to chip in. Today’s case raises the following possibility: Suppose you run a business heavily dependent on a certain software program. And suppose the owner of that program keeps writing you cease and desist letters, saying that your copy is infringing and that each passing day accumulates more actual damages, as well as your profits attributable to the infringement. You want to clear this cloud from your business, and heaven forfend, if you are found to be infringing, put a cap on the damages. But let’s suppose the owner hasn’t gotten around to actually registering the copyright yet. Can you sue for a declaratory judgement action?

In Weitzman v. Microcomputer Resources, the Eleventh Circuit said no. That intolerable situation can persist until the owner finally decides to sue you instead.

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More From the Seventh Circuit on the Scope of “Crime of Violence”

Following on the heels of yesterday’s post on United States v. Smith, the Seventh Circuit issued another opinion considering the use of prior convictions to enhance a sentence. In United States v. Jennings, the court held that an Indiana conviction for resisting a law enforcement officer could be considered a “crime of violence” for purposes of a career offender enhancement under the federal sentencing guidelines. As I explained yesterday, the Supreme Court’s recent decision in Begay v. United States has altered the framework courts must use in determining whether a prior conviction counts as a crime of violence. In Smith, the Seventh Circuit interpreted Begay such that a crime of negligence and recklessness, even though it may result in serious injury, can no longer be considered a “violent felony” for purposes of the Armed Career Criminal Act. Although Begay (like Smith) involved an ACCA sentence enhancement, Jennings makes clear that the Begay standards also govern sentence enhancements under the career offender guideline. At the same time, Jennings seems to conduct the Begay analysis in a considerably less rigorous manner than Smith.

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Public Employee Enjoys Rare First Amendment Retaliation Success

First_amendment_3 From mlive.com, comes this First Amendment retaliation case that reminds me of the old days of public employee free speech rights before the Garcetti decision of the U.S. Supreme Court eviscerated free speech protection for these employees in 2006.

Hughes v. Region VII Area Agency on Aging, 07-1570 (6th Cir. Sept. 8, 2008) considered the claims of a former public employee who alleged that she was fired for her conversations with a local newspaper reporter. Because defendants did not claim that she spoke in accordance with her official duties, Garcetti v. Ceballos, was found inapplicable.

Instead, the court concluded that the trial court was in error and the plaintiff spoke on a matter of public concern protected by the First Amendment when she discussed with a newspaper reporter issues concerning a number of incidents relating to the former executive director of the agency, including alleged sexual harassment, a lawsuit settlement, and other turmoil surrounding the agency.

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