Author - Web Editors

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Sometimes Borrowing Isn’t Stealing: De Minimis Sampling of Music Sound Recordings Isn’t Copyright Infringement, Say Two Key Courts in the United States and Germany
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Federal Circuit Holds That an Offer to Sell a Drug Product Was a Patent-Invalidating Offer for Sale under Pre-AIA § 102(b) Even Though the Offer Lacked “Safety and Liability Terms”
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ANDA Filing May Subject a Pharmaceutical Company to Personal Jurisdiction in Patent Infringement Suits Anywhere in the U.S.
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What You Need to Know About the Recent Federal Circuit Rule Changes
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European Court Considers Whether Hyperlinking to Unauthorised Content on Third-party Websites Infringes Copyright

Sometimes Borrowing Isn’t Stealing: De Minimis Sampling of Music Sound Recordings Isn’t Copyright Infringement, Say Two Key Courts in the United States and Germany

Setting music sampling up for a potential U.S. Supreme Court battle, the Ninth Circuit sided with Madonna Louise Veronica Ciccone and her producer (Shep Pettibone) in emphatically rejecting the Sixth Circuit’s bright-line rule that all unlicensed sampling constitutes copyright infringement.  Just days earlier, Germany’s highest court ruled against seminal electronic band Kraftwerk in a similar dispute. While the reasoning in both cases overlapped in some respects, the German court went further by expressly protecting the artistic freedom of samplers and rejecting the requirement — which the Ninth Circuit embraced — that the sample not be recognizable as coming from the plaintiff’s song.

Music sampling, which is common in some musical genres, is the use of snippets from a sound recording — often altered or enhanced in some manner — in a new sound recording.  In Ciccone, the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of defendants Madonna, Pettibone and their associated record labels, music publishers and distributors on the grounds that — contrary to the Sixth Circuit rule set forth in Bridgeport — the de minimis exception to copyright infringement applies to sound recordings just as it does to other types of copyrighted works.  The samples in question were “horn hits” (punctuation-like snippets of horn section chords) that lasted, respectively, less than a second and less than a quarter-second, and the court found that the average listener was unlikely to recognize their source.  In the Kraftwerk case, which involved a two-second drum loop, Germany’s Federal Constitutional Court overturned a finding that electropop producer Moses Pelham had infringed, reasoning that the lower court had not sufficiently considered whether the impact of the sample on Kraftwerk might be negligible.

To read the full alert, please click here.

By Mark Wittow and Eliza Hall

Federal Circuit Holds That an Offer to Sell a Drug Product Was a Patent-Invalidating Offer for Sale under Pre-AIA § 102(b) Even Though the Offer Lacked “Safety and Liability Terms”

On May 13, 2016, the Federal Circuit determined that Merck’s crystalline calcium salt of tetrahydrofolic acid (“MTHF”) had been the subject of a commercial offer for sale, and held Merck’s MTHF claim in U.S. Patent No. 6,441,168 is invalid under the on-sale bar provision of pre-AIA § 102(b).  Specifically, the Federal Circuit held that Merck made an invalidating offer to sell MTHF when it sent a fax that included price, quantity, and delivery terms, and rejected the district court’s determination that additional, industry standard “safety and liability terms” were required for there to have been an “offer for sale.”

Please click here to view the alert.

Trevor M. Gates, Theodore J. Angelis, Peter Giunta

ANDA Filing May Subject a Pharmaceutical Company to Personal Jurisdiction in Patent Infringement Suits Anywhere in the U.S.

By: Trevor M. Gates, Theodore J. Angelis, and Peter Giunta

The Federal Circuit recently held that filing an abbreviated new drug application with the FDA for a generic drug product, and thus indicating an intention to sell that product in every state (including Delaware), subjected Mylan to specific personal jurisdiction in Delaware.

To read the alert, click here.

What You Need to Know About the Recent Federal Circuit Rule Changes

By: Devon C. Beane, Jason A. Engel, and Theodore J. Angelis

The U.S. Court of Appeals for the Federal Circuit recently implemented significant amendments to its Rules of Practice.  The changes apply to all cases docked on or after April 1, 2016.  In large part, the amendments were made to comport existing practices or requirements for electronic case filing with the Rules.  Other changes, such as those relating to confidentiality, reflect a wholesale shift in Federal Circuit practice.  This alert provides a brief overview of some of the more significant amendments.  Please click here to read the full alert.

European Court Considers Whether Hyperlinking to Unauthorised Content on Third-party Websites Infringes Copyright

By Alessandra Feller and Alessia Castelli

Following the provision of a recent Advocate General opinion, the Court of Justice of the European Union (CJEU) is expected to give further guidance on hyperlinking soon.

A dispute arose in the Netherlands between Sanoma Media Netherlands BV (and others) and GS Media in relation to the posting of website hyperlinks to third party sites which contained photographs the communication of which was not authorised by Sanoma and the other right holders.

Specifically, the Dutch Supreme Court has referred certain questions to the CJEU, asking whether

  1. hyperlinks to a freely accessible third party website which displays material without the consent of the copyright owner should be considered a “communication to the public” within the meaning of Art 3(1) of the Directive no. 2001/29 (“InfoSoc Directive”).
  2. In such circumstances, whether the following factors are relevant:
    • the awareness of the hyperlinker of the failure of authorisation from the copyright owner, and/or
    • the facilitation role played by the hyperlink on the accessibility of the material.Such conclusions were based on the grounds that the photographs were “freely accessible” to the general internet public on third party websites.

The CJEU decision on this case is much awaited, and it will be complementing the argument introduced by the Svensson case on hyperlinking. The decision in Svensson left some ambiguity as to whether it made a difference that works had been published on a site linked to without the copyright owner’s consent.

On April 7, 2016, Advocate General Wathelet  released an opinion that hyperlinking to unauthorised content does not constitute an act of communication to the public under Article 3(1) of the InfoSoc Directive, because the intervention of the hyper linker is not essential to the making available of the copyright works to users. He also held that it is irrelevant whether the hyperlinker is aware that the linked content is unauthorised. In the AG’s view, the only criterion that mattered is whether the linked website is freely accessible or whether the hyperlink is used to circumvent a restriction put in place in order to limit access to a protected work. Only in the latter case would a hyperlink constitute a communication to the public.

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