Recent Articles

Privacy and personal data security - the new litigation frontier?

Raymond Nimmer
October 11, 2008 17:16

Widespread adoption of rules regarding security of personally identifiable information has been paralleled by a surge of class-action litigation against companies whose databases have been breached. They are a potential target beyond modern parallel. This setting potentially offers class...

Copyright content providers lose control of a DVR market to cable companies.

Raymond Nimmer
September 06, 2008 23:51

Who should derive revenue from remote DVR systems?  According to a panel of the Second Circuit Court of Appeals Cartoons case, the revenue should not go to the content providers.  This decision, grounded in three very narrow interpretations of the Copyright Act, works a shift of...

Some courts are getting fair use analyses about transformative works wrong

Raymond Nimmer
August 29, 2008 20:43

Some courts mistakenly view transformative use as merely using a work in a way different from that which the copyright owner currently does.  The true meaning is that transformative use is a use that transforms portions of the original into an entirely new work that does not simply supersede...

"Proprietary" and "free" licenses get a win, but is it contractual?

Raymond Nimmer
August 19, 2008 05:58

  FOSS licensors applaud the Federal Circuit decision in Jacobson, but the real winners are the vastly more numerous software producers who reject the “free” software model. Why………?   The reason is simple.  The decision expressly...

When does distribution of a copy occur on the Internet?

Raymond Nimmer
August 12, 2008 01:06

The answer should be when a copy is placed (distributed) into an environment from which third parties are invited and expected to acquire their own copies by downloading or otherwise.             The question of when a distribution...

The Supreme Court walked up to the edge, but left first sale and exhaustion doctrine intact.

Raymond Nimmer
July 13, 2008 20:48

The Supreme Court in Quanta Computer, Inc. v. LG Electronics, Inc., 2008 WL 2329719, 86 USPQ2d 1673 (US 2008)  confirmed both the importance of patent exhaustion as a doctrine and the appropriate limitations of that doctrine – the doctrine does not apply to transactions that are...

The DC Circuit restores some rationality to antitrust law re Standards Setting Organizations (SSO) in the Rambus case.

Raymond Nimmer
May 17, 2008 18:35

I truly enjoy it when a court catches an administrative agency expanding their scope to advocate a particular view of what economic or political life should entail, and then tells the agency that it cannot rewrite law to suit its own preferences.  That happened to the FTC in Rambus, Inc. v....

Licensing in the absence of intellectual property rights

Raymond Nimmer
February 28, 2008 17:12

Licensing unrelated to any intellectual property right has been a common practice for generations - since at least the time of the civil war.  But there are some who think of licensing as only appropriate if there are rights to license and that, if the rights do not exist, the contractual...

Does the future of patent law portend compulsory licensing by judicial fiat?

Raymond Nimmer
December 31, 2007 18:29

I hope not, but that is one risk created by the Supreme Court’s decision in the Ebay case and by the actions of some courts who have denied permanent injunctions in successful infringement cases.  But the fact that a permanent injunction does not issue after a judgment of infringement...

Are numbers protected expression?

Raymond Nimmer
December 27, 2007 05:47

No.  At least not according to three judges of the Second Circuit.  And as a result, one company’s valuable market estimates expressed in numerical form were subject to comprehensive misappropriation by a competitor.  But the court allowing this result forgot that numbers can...