I haven’t written a daily roundup in a while. There are a number of recent stories, besides the ACTA leak, that deserve a mention.
The Tennessean is reporting that a suit brought by a music publishing company against A&E over its use of twelve seconds of the song “Rocky Top” has settled. We discussed this case in mid-November when the Middle District of Tennessee found that the use by the network was not fair use, at least without further development of the factual record. No details of the settlement were released.
Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator or I.P. Czar, announced on the White House blog that she formally requested written submissions from the public on the Joint Strategic Plan for intellectual property enforcement:
To further these goals, we are working to find ways of measuring these threats and their impact on us. How many jobs depend on the existence of intellectual property? What are the greatest risks to health and safety? We need better data on these questions and it is part of my job to figure out what the answers are. We cannot do that without your help. So, my office is asking the public to give us information about the costs and the risks – and then give us suggestions for what we could be doing better as a government. As a first step, we are issuing a notice to the public asking for your input. Here’s a link to this request (pdf). You can send your comments to firstname.lastname@example.org. We look forward to hearing from you.
Eleanor M. Lackman, a Senior Associate in the IP, Media & Technology group at Lovells NY, wrote an article in the New York State Bar Association publication Bright Ideas on the standard for obtaining a preliminary injunction in copyright cases. The article, titled “Factoring in the Public Interest: The Impact of eBay on Injunctive Relief in Copyright Cases,” discusses Salinger v. Colting and Winter v. Natural Resources Defense Council, and contains Ms. Lackman’s predictions about the future of the preliminary injunction standard:
Even in advance of that ruling, however, the debate in Salinger and other cases has awakened courts to the fact that injunctive relief in copyright cases may no longer be so easy to obtain—at least not without an evidentiary proffer on each of the four eBay factors, which were rarely addressed in copyright cases prior to eBay. eBay also may have an impact on the negotiation of licensing fees and money-based settlements.
In light of all the ways eBay might affect copyright law, this article addresses the following four questions: (1) Does the four-factor test enunciated in eBay apply to copyright cases? (2) Does the four-factor test apply to both preliminary and permanent injunctions? (3) How will the four factors be addressed by the courts? and (4) What can a potential copyright licensor, licensee, plaintiff, or defendant expect in the post-eBay world?