Cyberlaw Cases

Case and Court:

Jacobsen v. Katzer, (N.D. Cal.)

We recently covered the summary judgment arguments in the model railroad free software case. Just days later a decision from the court granted Jacobsen victories on virtually every issue suitable for resolution on summary judgment.

Summary judgment was granted in favor of Jacobsen on the Anticybersquatting Consumer Protection Act (ACPA) claim, on his copyright infringement claim, on Defendant’s counterclaim for copyright infringement, and partial summary judgment on the DMCA Copyright management information claim (on everything but the knowledge and intent elements).

We had previously highlighted the actual damages issue as particularly noteworthy, and while the court does not reach an award of damages in this ruling, the court wrote,

“[T]he Court may assume at this procedural stage that there is some value for the expenditure of time invested in the JMRI Project and that it therefore has some monetary value.”

and

“[T]he Court is unpersuaded that Plaintiff cannot prove damages.”

The parties are supposed to attend another settlement conference shortly and the writing is on the wall on this one, so if both parties adopt reasonable positions going in to that conference, they should come out with a resolution. Timing will be interesting, however, as the Federal Circuit appeal on irreparable harm is slated for oral argument on Jan. 4, 2010, and that appeal might not go forward if a settlement is finalized beforehand.

Case and Court:

Jacobsen v. Katzer, (N.D. Cal.)

Occasionally we will blog about “Other cases to watch” that are not on our Top 10 list.

On Friday, Dec. 4, 2009, I attended the oral argument in Jacobsen v. Katzer on the parties’ cross-motions for summary judgment. This case has made one trip to the Federal Circuit already and has oral argument in another appeal scheduled for Jan. 4, 2010. It seems to be less recognized that at least two interesting issues remain in the case at the district court level: 1) the alleged infringement of the selection and arrangement of certain data, and 2) the appropriate method of calculating actual damages to a free software project that, through failure to timely register its copyrights, is not eligible for statutory damages.

Background

In Jacobsen’s first appeal, the Federal Circuit vacated and remanded the denial of Jacobsen’s motion for a preliminary injunction premised on an allegation of copyright infringement. Jacobsen, a UC Berkeley physics professor, leads the Java Model Railroad Interface (JMRI) free software project which, at the time of this dispute, was provided under the Artistic license. The key issue on the first appeal was whether the alleged breach of a free software license, such as the Artistic License, provided JMRI with a cause of action for copyright infringement or merely for breach of contract.
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Cases and Courts:

• Rescuecom Corp. v. Google, Inc. (2d Cir.), on remand to (N.D.N.Y).
• Ezzo v. Google, Inc. (M.D. Fla.).
• FPX, LLC v. Google, Inc. (E.D. Tex.).
• John Beck Amazing Profits, LLC v. Google, Inc. (E.D. Tex.).
• Google, Inc. v. John Beck Amazing Profits, LLC (N.D. Cal.).
• Stratton Faxon v. Google, Inc. (New Haven, Conn. Sup. Ct.).
• Soaring Helmet Corp. v. Bill Me Inc. (W.D. Wa.).
• Rosetta Stone Ltd. v. Google, Inc. (E.D. Va.).
• Flowbee Int’l, Inc. v. Google, Inc. (S.D. Tex.).

Background:

Google’s AdWords program, its primary source of revenue, generated over $20 billion in 2008. AdWords allows advertisers to purchase keywords that trigger the display of ads, or “sponsored links,” in response to user search queries. AdWords enables advertisers to purchase not only generic keywords to trigger their ads, but trademarks as well. So Boylan Bottling might purchase both “soda” and “Pepsi” as part of its AdWords buy.

In addition, Google’s Keyword Tool recommends keywords to advertisers; these recommendations likewise include trademarks. And although Google does not permit the use of marks in the titles of sponsored links, it does allow their use in the text of ads under some circumstances. When a mark is used in a descriptive or generic way, rather than as a reference to the trademark owner or its goods or services, its use is permitted. More recently, Google began allowing use of marks in ad text for certain classes of advertisers. Those who resell trademarked goods or services, or sell components, or replacement parts related to trademarked goods or services, or provide non-competitive informational sites that refer to trademarked goods or services are now able to use the relevant marks in the text of their ads.

Trademark holders, unhappy with the use of their marks by both Google and their competitors have filed numerous suits. As a result, AdWords has proven not only a remarkable source of revenue, but a reliable generator of litigation as well. By Eric Goldman’s count, after two recent voluntary dismissals by plaintiffs, there are eight pending AdWords cases. Continue Reading »