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Indiana Intellectual Property Blog

~ Trademark and Copyright Law Developments in Indiana

Indiana Intellectual Property Blog

Category Archives: Supreme Court

Stories from the Week that Was – 7/1/12-7/7/12

08 Sunday Jul 2012

Posted by Kenan Farrell in Copyright, Litigation, Patent, Stories from the Week that Was, Supreme Court, Tech Developments, Trademark

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Drones, Facebook, Nike, Righthaven, Yahoo

Here are the top stories I followed this week:

Supreme Court to Decide Whether Patent Bullies Can Hit and Run

Defunct copyright troll Righthaven seeks resurrection

Hold Your Flow! Yoga Sequences Not Copyrightable

Drones decimating Taliban in Pakistan

U.S. drone ‘hijackings’ raise security concerns

Charles Carreon drops lawsuit against @TheOatmeal’s Matthew Inman

Facebook Users Hijack Walmart Campaign to Exile Pitbull to Remote Island

Yahoo and Facebook settle patent lawsuit with strategic deal

“Man is a slow, sloppy and brilliant thinker; the machine is fast, accurate and stupid.”  ~William M. Kelly

Stories from the Week that Was – 6/24/12-6/30/12

01 Sunday Jul 2012

Posted by Kenan Farrell in Indiana, Litigation, Stories from the Week that Was, Supreme Court, Tech Developments, Trademark

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FTC, MySpace, Nike

Here are the top stories I followed this week:

Indiana Court Upholds Social Media Ban for Sex Offenders

USPTO seeks to intervene in publisher’s copyright infringement suit against law firm

FTC v. Myspace Part II – The Takeaways

U.S. Supreme Court to hear Nike trademark case

“As far as I’m concerned, progress peaked with frozen pizza.” -Die Hard 2, spoken by the character John McClane

Stories from the Week that Was – 6/17/12-6/23/12

24 Sunday Jun 2012

Posted by Kenan Farrell in Branding, Social Media, Southern District of Indiana, Stories from the Week that Was, Supreme Court, Tech Developments, Trademark

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BitTorrent, Drones, Google

A week spent getting caught up from vacation. I had a great time giving a seminar at the office on Tuesday, Trademark and Brand Protection for Communicators. Look out for more of those in the future. It’s also about time to start preparing for Art & Museum Law, so expect more art world news in these posts in the upcoming months. Here are the top stories I followed this week:

Google reports ‘alarming’ rise in government censorship requests

Why brands are leaning towards minimalism

More Download Cases filed in Indiana

Washington’s 5 Worst Arguments for Keeping Secrets From You

U.S. rejects requests for documents regarding targeted killings with drones

Supreme Court cops out, again, on “fleeting expletives”

Louisiana Sex Offenders Must List Status on Social Media Profile

“One machine can do the work of fifty ordinary men.  No machine can do the work of one extraordinary man.” -Elbert Hubbard, The Roycroft Dictionary and Book of Epigrams, 1923

Supreme Court to Hear Oral Arguments in Copyright Case

03 Monday Oct 2011

Posted by Kenan Farrell in Copyright, Intellectual Property, Litigation, Supreme Court

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Copyright

The Supreme Court of the United States gets back to work this week and will be hearing oral arguments on a copyright case, Golan v. Holder. [FULL SCHEDULE] Here’s the skinny on what you’ll want to know about the case going into Wednesday morning’s arguments:

GOLAN V. HOLDER

DECISION BELOW: 609 F.3d 1076

Section 514 of the Uruguay Round Agreements Act of 1994 (Section 514) did something unique in the history of American intellectual property law: It “restored” copyright protection in thousands of works that the Copyright Act had placed in the Public Domain, where they remained for years as the common property of all Americans. The Petitioners in this case are orchestra conductors, educators, performers, film archivists and motion picture distributors, who relied for years on the free availability of these works in the Public Domain, which they performed, adapted, restored and distributed without restriction. The enactment of Section 514 therefore had a dramatic effect on Petitioners’ free speech and expression rights, as well as their economic interests. Section 514 eliminated Petitioners’ right to perform, share and build upon works they had once been able to use freely.

The questions presented are:

  1. Does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?
  2. Does Section 514 violate the First Amendment of the United States Constitution?

Stay tuned to the Indiana IP&T blog for a transcript and summary of the oral arguments. Go here for links to the Merit Briefs and a long list of Amicus Briefs.

Former Officer’s Arson Case May Challenge GPS Tracking

20 Wednesday Oct 2010

Posted by Kenan Farrell in Indiana, Indianapolis, Supreme Court, Tech Developments

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The legality of tracking suspects with GPS will likely be challenged in the case of a former Indianapolis police officer accused of setting a string of apartment fires.  Prior to the arrest of Officer Jesse Russell Jr., investigators obtained a search warrant and judicial authority to place a tracking device on his police car for 30 days.

The question of whether GPS technology violates a person’s right to privacy is getting growing attention around the country, particularly in the wake of conflicting opinions issued by different appellate courts.

Indianapolis police and the Marion County Prosecutor’s Office have declined to discuss their use of GPS to keep tabs on suspects. In California, a court ruled that police didn’t need a search warrant or probable cause to attach a GPS tracking device to a suspect’s car. But a Washington, D.C., court ruled against the warrantless use of GPS tracking by police and ordered the evidence obtained against the suspect tossed out of court. The U.S. Department of Justice has asked for an advisory opinion in the matter, which could send the case to the U.S. Supreme Court.

For more info, see TheIndyChannel.com.

Indiana’s New Lawyer Advertising Rules, Social Media and Me

18 Monday Oct 2010

Posted by Kenan Farrell in Bloggers, Indiana, Intellectual Property, Legislation, Social Media, Supreme Court, Tech Developments

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I’ve been using social media heavily for years.  Blogs, Facebook, Twitter, Linkedin, etc. They have been an integral part of the marketing strategy for KLF Legal, my Intellectual Property and Entertainment Law practice, since the beginning.

Therefore, I’ve been particularly keen to see the Indiana Supreme Court’s new advertising rules, in the works since 2006 and previously unchanged for most of my lifetime.  The prior rules addressed a pre-internet, pre-social media legal industry. The rules were strained but workable, yet increasingly irrelevant. Indiana lawyers have been operating in a gray area for years with very little guidance from above. I’ve spoken to several Disciplinary Commission members at seminars and events about appropriate guidelines for attorneys using social media but all were equally in the dark.

Unfortunately, the new rules still do not specifically address blogs or social media. Sigh. We may wait yet another generation before we finally get some guidance on that front. However, there are some revisions in the new rules that I believe could adversely impact an Indiana attorney’s use of social media (or, more specifically, his ability to practice law if he uses social media incorrectly).

Here’s the good news…the overriding theme of the new rules is “No matter the advertising channel, lawyers should tell the truth.” I’m down with that. In fact, I think everyone should tell the truth. Regardless, it’s a fine way to start a rule revision:

Rule: 7.1.  A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

The rules turn quickly downhill after 7.1. To start, it looks like I will be modifying the print ad that I’ve been running the last few months in Nuvo and Urban Times. Under the working assumption that my ideal prospective clients can and will find and research my pertinent info online, I’ve preferred to use a clean, simple design, listing only the website address and social media icons:Under the new revisions, it seems I’ll have to clutter that ad with my name and office address. No big deal for me other than requiring an ad redesign, but I’m curious to see how lawyers with a virtual practice (i.e. no office address) will maneuver the following requirement. If you’re virtual, is the web your office, and thus your web address the office address?

Rule 7.2(c).  Any communication subject to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. The lawyer or law firm responsible for the content of any communication subject to this rule shall keep a copy or recording of each such communication for six years after its dissemination.

I can’t tell whether the following rule is taking a swipe at services like Skype and instant messaging or just capitalism in general:

Rule 7.3.  A lawyer shall not by in-person, live telephone, or real–time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain…

No doubt, my primary goal when communicating with prospective clients is to figure out how I can best help them.  But in running a business that provides legal services, how can I really say that pecuniary gain is not a significant motive? Trust me, I’d be happy to do this all for free if, oh, the grocery store, my landlord, utility companies, Federal and State governments and the Indiana Supreme Court among others stop making a priority of my pecuniary LOSS.

Rule 7.3(c).  Every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client potentially in need of legal services in a particular matter shall include the words “Advertising Material” conspicuously placed both on the face of any outside envelope and at the beginning of any written communication, and both at the beginning and ending of any recorded or electronic communication…

So do I now have to write “Advertising Material” at the beginning and ending of every blog post? Newsletter? Email? Every Facebook post? Every tweet? What about the sign hanging on the front of my office?

Here’s where the new rules really get interesting…say hello to a new Advertising Tax, payable directly to the Supreme Court Disciplinary Commission Fund:

Rule 7.3(c).  Every written, recorded, or electronic communication from a lawyer soliciting professional employment from a prospective client potentially in need of legal services in a particular matter shall include the words “Advertising Material” conspicuously placed both on the face of any outside envelope and at the beginning of any written communication, and both at the beginning and ending of any recorded or electronic communication…A copy of each such communication shall be filed with the Indiana Supreme Court Disciplinary Commission at or prior to its dissemination to the prospective client. A filing fee in the amount of fifty dollars ($50.00) payable to the “Supreme Court Disciplinary Commission Fund” shall accompany each such filing.

$50 per ad may be small potatoes to BigLaw, but it quickly adds up in a small firm budget. After all, the ads themselves aren’t cheap. And, as if a $50 tax for each communication weren’t enough, there are a few extra requirements:

Rule 7.3(c).  The lawyer shall retain a list containing the names and addresses, including email addresses, of all persons or entities to whom each communication has been mailed or distributed for a period of not less than one (1) year following the last date of mailing or distribution. Communications filed pursuant to this subdivision shall be open to public inspection.

I’m assuming this means my list will be Nuvo and Urban Times, not a list of all Nuvo and Urban Times readers. Actually, I’d love to have that list. I’m sure Nuvo and Urban Times would also.

Rule 7.5(a)(4)(ii).  A trade name may be used by a lawyer in private practice subject to the following requirements: the name shall include the name of a lawyer (or the name of a deceased or retired member of the firm).

KLF Legal ok or not ok?  KLF is Kenan Larry Farrell. That’s me. Has been since shortly after I was born. Legal denotes a law practice.  I really don’t know if the rulemakers considered initials when drafting this rule. Either way, I sign plenty of communications as KLF, so I’m going with it being a “name of a lawyer.” @kenanlarryfarrelllegal isn’t a great Twitter handle.

As far as I’m concerned, these rule revisions don’t cut the mustard. Lots of hard work by what I’m certain is a group of bright lawyers who unfortunately don’t really understand modern communication. The Indianapolis Bar Association‘s Solo and Small Firm Committee, of which I am currently Chairman, submitted proposed language earlier this year, none of which was utilized.

We could still use more guidance on just what is a “prospective client.” At my bar admission ceremony, we were sagely advised by a federal judge that EVERYONE is a prospective client, some right away and some not for many years. What amounts to “soliciting professional employment?” I’m constantly sharing news on intellectual property, technology and social media, my areas of interest, but I do so freely and with no expectation of remuneration. On the other hand, I know that the type of clients I want to work with will be doing due diligence in selecting an attorney and expect to see such content.

Ultimately, the question of whether information submitted by lawyers to the Internet, blogs, and social media is considered a “communication” within the meaning of the advertising rules is left unanswered.  Maybe these rules worked in a time when a lawyer placed one ad a month in a newspaper, but it’s kind of difficult to fit an attorney’s name and address, disclaimers and an actual message into a 140-character tweet. I love writing you all, but $50 per Facebook post is a little steep. Indiana lawyers, you’ll definitely want to give the new rules a read, as there are other provisions that may apply to your practice.

It’s the type of situation where you wonder, “Should I have done more?” Should I have been in the ISBA meeting rooms lobbying for a better version of the rules? Probably. If I had felt that strongly about my views, I would’ve been at the meetings arguing for them. But I had other things to do (like build a memorial library to my favorite author, start Indiana’s only official Premier League supporters club,  join a new business collective that is helping put Indy’s music scene on the national stage, and promote the amazing work of Indianapolis’ local artists).  So now I’ll find a way to operate within these rules while we wait for the update. But once the meetings start for the next revisions, you can bet I’ll be there.

Here’s a link to the new rules. Rule changes take effect Jan. 1, 2011.

Disclaimer: This blog post is NOT soliciting professional employment. This blog post is strictly for the personal enjoyment and education of the author.

-Advertising Material?-

Bilski Patent Decision Affirmed by Supreme Court

29 Tuesday Jun 2010

Posted by Kenan Farrell in Intellectual Property, Litigation, Patent, Supreme Court

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Bilski

The much-awaited Bilski decision was handed down by the Supreme Court yesterday.

The Court holds: the specific invention in this case, a method of predicting business or economic cycles, was ineligible for a patent. In discussing the proper test for patentability, the Court says the “machine or transformation” test may be a useful and important investigative tool, but it is not the sole test for determining whether a “process invention” is patentable. The Kennedy opinion for the majority is not supported in all respects by those who join in part.

The NY Times comments: “there was a clear message for patent trolls, patent brokers and licensing companies, patent lawyers and lobbyists: Play on!”

Full decision here (.pdf)

Indiana Copyright Litigation Update – Supreme Court Decision

29 Friday May 2009

Posted by Kenan Farrell in Copyright, Litigation, Supreme Court

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Copyright Litigation Decision – Supreme Court of Indiana

justices2

Conwell v. Grey Loon Outdoor Marketing Group, Inc.
No: 82S04-0806-CV-00309 (May 19, 2009)
Supreme Court of Indiana
Before: Sullivan, Dickson, Shepard, Rucker, and Boehm

Click here for full opinion.

COPYRIGHT; OWNERSHIP (A contractor who created copyrighted material for a principal was the owner because the work for hire doctrine applies only to employees, and the contractor never transferred the copyright.)

Opinion (Shepard): Plaintiff Piece of America (POA) contracted Grey Loon Outdoor Marketing Group (Grey Loon) to build a website. Grey Loon subsequently finished the website, and hosted it as well.  Eventually, POA failed to pay for ongoing hosting and work, and Grey Loon removed the website without making backup copies.  POA sued Grey Loon for conversion of the website.  Conversion requires ownership of the object converted.  If an employee creates copyrighted material in the scope of employment, the material belongs to the employee.  However, Grey Loon was an independent contractor, and therefore was the owner of the website.  Grey Loon also never transferred ownership of the website to POA. The court held that Grey Loon had merely granted an implied nonexclusive license to POA and therefore, Grey Loon was the owner of the copyright for the website.  Affirmed.

Source:  Willamette Law Online

People, be sure you clarify ownership of your website in your Website Design and Hosting Agreement.  More often than not, the copyright will remain with your designer unless you negotiate for it, which could raise the designer’s fees.

For a complete analysis of the facts of the case, check out Exclusive Rights, a copyright law blog.

Sotomayor's Supreme Court Case History – Intellectual Property

28 Thursday May 2009

Posted by Kenan Farrell in Copyright, Intellectual Property, Litigation, Supreme Court

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During Supreme Court nominee Sonia Sotomayor’s 17 years as a federal judge, the U.S. Supreme Court has reviewed her decisions on at least eight occasions, including the following copyright case:

Tasini vs. New York Times, et al (1997), 972 F. Supp. 804: As a district court judge in 1997, Sotomayor heard a case brought by a group of freelance journalists who asserted that various news organizations, including the New York Times, violated copyright laws by reproducing the freelancers’ work on electronic databases and archives such as “Lexis/Nexis” without first obtaining their permission. Sotomayor ruled against the freelancers and said that publishers were within their rights as outlined by the 1976 Copyright Act. The appellate court reversed Sotomayor’s decision, siding with the freelancers, and the Supreme Court upheld the appellate decision (therefore rejecting Sotomayor’s original ruling). Justices Stevens and Breyer dissented, taking Sotomayor’s position.

Source: CNN

Obama's Pick for Supreme Court, Sotomayor, has Intellectual Property Background

26 Tuesday May 2009

Posted by Kenan Farrell in Intellectual Property, Litigation, Supreme Court

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sotomayor

President Obama has selected Sonia Sotomayor to fill the Supreme Court seat left vacant by retiring Justice Souter.  Prior to being selected to the federal bench in 1991 by George Bush, Sotomayor was in private practice in New York…and her specialty was intellectual property law.  She represented clients like Ferrari and Fendi in intellectual property, commodities trading and business cases.

The president had said publicly that he wanted a justice who combined intellect and empathy — someone who could understand the troubles of everyday Americans.

From an IP viewpoint, let’s hope her background can help the Supreme Court make some sense out of upcoming copyright and patent litigation.

Here is a brief biography of federal Judge Sonia Sotomayor:

Age 54 (Born June 25, 1954)

Judicial Career
– U.S. Appeals Court judge, 2nd Circuit, 1998-present
– U.S. District Court judge, 1992-1998
– Nominated to federal bench by Bush in 1991, Clinton in 1997

Government/Legal Career
– Former N.Y. County Assistant District Attorney, 1979-1984
– Former private practice attorney, Pavia & Harcourt, New York, 1984-1992

Politics
– Confirmed by Senate 67-29 in 1998
– Confirmation to current seat took over 1 year
– Was opposed by majority of Republican senators
– Was unopposed in 1991 confirmation process

Education
– J.D., Yale Law School, 1979
– B.A., Princeton, 1976 (summa cum laude)

Academic Positions
– Adjunct Professor, New York University School of Law since 1998
– Lecturer-in-law, Columbia Law School since 1999

Professional Associations
– American Bar Association
– Puerto Rican Bar Association
– Hispanic National Bar Association
– Association of Judges of Hispanic Heritage
– New York Women’s Bar Association

Judicial Committees & Activities
Former Member, Second Circuit Task Force on Gender, Racial and Ethnic Fairness
in the Courts

Other Activities
– Former Member, Board of Directors, New York City Campaign Finance Board
– Former Member, Board of Directors, State of New York Mortgage Agency
– Former Member, Board of Directors, Puerto Rican Legal Defense & Education
Fund
– Former Member, Board of Directors, Maternity Center Association
– Former Member, New York City Campaign Public Finance Board (Mayor’s
Appointee)
– Former Member, Board of Directors, State of New York Mortgage Agency
(Governor’s Appointee)

Honors & Awards
– Herbert L. Lehman College, Degree of Law Honoris Causa, 1999
– Brooklyn Law School Degree of Juris Doctor Honoris Causa, 2001
– Princeton Univ., Degree of Juris Doctor Honoris Causa, 2001

Publications
– Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed
Rights, 88 Yale Law Journal 825 (1979)
– Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and
Politics: A Modern Approach, 30 Suffolk U.L. Rev. 35 (1996)

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