The Supreme Court Left Most Copyright Litigants Wanting in 2010

Guest Commentary

Brad R. Newberg, Reed Smith LLP

 It has been a busy month for the Supreme Court not tackling copyright issues.  On November 29, 2010, the Court denied certiorari in two copyright cases, Harper v. Maverick Recording Co., No. 10-94, and Bryant v. Media Right Productions, No. 10-415.  Then, on December 13, it announced that no decision would be issued in Costco Wholesale Corp. v. Omega, S.A., No. 08-1423, due to a 4-4 split (Justice Kagan was recused).  Along with the Court’s decision back in March to avoid the Section 411 registration/application issue in Reed Elsevier, Inc. v. Muchnick, 2010 will end with the Supreme Court having missed some opportunities to clarify parts of the Copyright Act that have real-world ramifications for copyright owners, users, and legal practitioners.

That is not to say that the Court should have taken every opportunity.  The denial of certiorari in Harper does indeed make sense.  In Harper, a 16-year-old girl infringed the respondents’ copyrights by digitally sharing 544 sound recordings without permission.  After winning on liability, the record labels asked for the typical statutory minimum of $750 per work infringed.  Harper, however, successfully argued to the district court that she should be subject to a lower minimum of $200 per work, which comes into play for “innocent infringers” under 17 U.S.C. § 504, who did not know and “had no reason to believe” that their acts constituted infringement. Continue reading “The Supreme Court Left Most Copyright Litigants Wanting in 2010”

Court Ruling Will Embolden An Already Aggressive Federal Trade Commission

Watson Pharmaceuticas and its CEO, the targets of some seemingly heavy-handed investigation tactics by Federal Trade Commission (FTC) officials this year, suffered another setback last week to their forceful efforts to oppose the Commission.  In a case which The Legal Pulse has reported on over the past several months, the CEO of generic drug maker Watson Pharmaceutical has opposed a subpoena for his deposition in a FTC investigation into whether Watson had signed what the Commission believes is an anticompetitive deal with the maker of the branded drug Provigil.  The investigation is part of FTC’s ongoing crusade against settlements of drug patent litigation where the branded drug maker provides payment to the generic producer to keep its drug off the market for a period of time (although such settlements bring the generic drug to market more quickly that it would had the litigation gone forward). 

Despite expressing disdain for FTC’s “questionable” conduct surrounding the pursuit of a subpoena, Magistrate Judge Alan Kay recommended to Judge Colleen Kollar-Kotelly that the subpoena be enforced and Watson CEO Paul Bisaro be compelled to testify.  On December 2, Judge Kollar-Kotelly accepted Judge Kay’s recommendation with an opinion that is remarkably deferential to FTC.  Continue reading “Court Ruling Will Embolden An Already Aggressive Federal Trade Commission”