By Galen Gentry
On July 22nd the Ninth Circuit Court of Appeals overturned almost all of a Riverside federal court judge’s rulings and jury’s findings in the $100 million Bratz v. Barbie case. Judge Stephen Larson presided over the trial which ultimately found that Mattel Inc. had the rights to the Bratz dolls produced by rival MGA Entertainment Inc.
The appeals court ruled that most of the jury instructions and conclusions reached during the 2008 trial between Mattel and MGA were incorrect. “Because several of the errors we have identified appeared in the jury instructions, it’s likely that a significant portion – -if not all — of the jury verdict and damage award should be vacated, and the entire case will probably need to be retried,” said the appellate panel in an opinion written by Chief Judge Alex Kozinski. See our orgininal blog post on this topic here.
The panel stated in the opinion“Even assuming that MGA took some ideas wrongfully, it added tremendous value by turning the ideas into products and, eventually, a popular and highly profitable brand.” And went on to say “It is not equitable to transfer this billion-dollar brand, the value of which is overwhelmingly the result of MGA’s legitimate efforts, because it may have started with two misappropriated names.”
Wow. Talk about a difference of opinion. The trial judge and the appeals court saw this one very differently.
Quoting Statement of the Librarian of Congress Relating to Section 1201 Rulemaking:
Section 1201(a)(1) of the copyright law requires that every three years I am to determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work. I make that determination at the conclusion of a rulemaking proceeding conducted by the Register of Copyrights, who makes a recommendation to me. Based on that proceeding and the Register’s recommendation, I am to determine whether the prohibition on circumvention of technological measures that control access to copyrighted works is causing or is likely to cause adverse effects on the ability of users of any particular classes of copyrighted works to make noninfringing uses of those works. The classes of works that I designated in the previous proceeding expire at the end of the current proceeding unless proponents of a class prove their case once again.
This is the fourth time that I have made such a determination. Today I have designated six classes of works. Persons who circumvent access controls in order to engage in noninfringing uses of works in these six classes will not be subject to the statutory prohibition against circumvention.(emphasis added)
The fifth class would seem to bear on the 5th Circuit ruling mentioned in our previous post.
(5) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace…
Judge Garza of the New Orleans based 5th Circuit has ruled that circumventing software protection is not per se a violation of DMCA. Courthouse News reports:
General Electric did not infringe on a power supplier’s digital copyrights when it used protected software unlocked through a hacked security key, the 5th Circuit ruled.
“Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the (Digital Millennium Copyright Act’s) anti-circumvention provision,” Judge Garza wrote for the New Orleans-based court.
“The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.”
The ruling represents a parting of the way with the current prevailing view in most of the nation’s courts, according to author and digital rights activist Cory Doctorow. Such a split, says Doctorow, is often the precursor to seeing the ruling challenged in the Supreme Court. Doctorow also points out that Judge Garza’s ruling, which might otherwise be viewed as a victory for proponents of a less rigid enforcement of the DMCA, is nonetheless a victory not of an underdog hacker but instead is an example of a large and powerful corporation prevailing. Quoting Doctorow’s July 25th post at boingboing.net,
What’s more, the defendants here are General Electric, not hackers in black t-shirts or sketchy offshore Xbox-modchip vendors (theoretically the law shouldn’t care if the defendant is a hobo or a billionaire, but in practice, billionaires usually get better precedents, and not just because they can afford better lawyers).
Galen Gentry
In an article in the Wall Street Journal yesterday, Justin Scheck, described the short lived trademark category for marijuana. The article reports that the USPTO plans on ‘shutting things down’ by the end of the month, but apparently there was a brief period in which the U.S. Patent and Trademark Office created a new trademark category dedicated to medical marijuana, spurring a hoards of applications from people and businesses in the 14 states where the drug is legal for medicinal purposes. Among the trademarks: Chronic, Mellow Yellow, and Maui Wowie.
The trademark agency said it was “highly unlikely” that the office would grant a medical marijuana trademark anytime soon because a product must be legal for interstate trade to be eligible for trademark protection…and so it goes. An interesting but at least for now academic argument is whether whether long-used names for the drug could be trademarked if..uh it was legal it sell it.
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