Monkey Selfie Update: 9th Circuit Judge Calls for En Banc Rehearing Vote on Ruling

1525792504758-naruto2Two weeks ago, we posted a commentary on the so-called monkey selfie case decided by the U.S. Court of Appeals for the Ninth Circuit, Naruto v. Slater. The court unanimously held that Naruto, a photogenic Indonesian macaque, did not have statutory standing to sue the owner of the selfie-taking camera for copyright infringement. The majority opinion did find that Naruto had Article III standing, a conclusion strongly criticized in a concurring opinion.

Law360 reported yesterday that “an unnamed Ninth Circuit judge had requested sua sponte that the full court vote on whether to rehear the case.” The article speculated that Judge N. Randy Smith, who authored the concurrence in the three-judge-panel opinion, may have made the request. Judge Smith had written that once the court found People for the Ethical Treatment of Animals could not act as a “next friend” to Naruto and prosecute the suit on his behalf, the standing inquiry should have ceased.

A second possibility is that the author of the Slater majority opinion, Judge Carlos Bea, called for the en banc vote. His opinion explicitly called for the Ninth Circuit to reconsider its 2004 decision, Cetacean Cmty. v. Bush, which held that non-humans represented by “competent counsel” can have Article III standing to sue without a “next friend.” The court “wrongly decided” Cetacean, Judge Bea wrote in Slater.

The May 25 Slater docket filing called for new briefs on the rehearing issue, which are due on June 15.

“Monkey Selfie” Copyright Ruling Reflects Key Appeals Court’s Wayward Standing-to-Sue Jurisprudence

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Photo via Wikimedia Commons

We’ve been on a bit of a standing-to-sue kick in this space lately (here, and here, for instance) and in Washington Legal Foundation’s publishing program (here and here). Article III’s standing requirement, the U.S. Supreme Court has explained, is “built on separation-of-powers principles” and “serves to prevent the judicial process from being used to usurp the powers of the political branches.” From a more practical vantage, a predictable body of law that confines courts’ jurisdiction to lawsuits alleging actual, redressable harms helps to limit defendants’—especially business defendants’—litigation costs by facilitating early dismissal of questionable claims.

Two WLF publications referenced above criticize the U.S. Court of Appeals for the Ninth Circuit for issuing decisions that significantly relax the standing requirement of “injury in fact.” While reaching the right result, another recent Ninth Circuit decision, in the famed “monkey selfie” copyright case, exemplifies how truly off course the court’s standing jurisprudence has wandered. Continue reading ““Monkey Selfie” Copyright Ruling Reflects Key Appeals Court’s Wayward Standing-to-Sue Jurisprudence”

Law of Copyright Reinterpretation Project Steers ALI Further Off Course

copyrightIn April 2015, a WLF Legal Pulse post expressed concern with a nascent American Law Institute (ALI) project, Restatement of the Law: Copyright. Three years later, the drafting process continues in the face of increasing criticism from intellectual property scholars, ALI members, and even the federal government’s chief copyright official. Some of those critiques echo and amplify the concerns we expressed initially and have repeated in our posts on ALI’s other troubled project, the liability-insurance-law Restatement.  Simply put, the Institute’s ambition to put its own imprint on the law imperils its credibility. Continue reading “Law of Copyright Reinterpretation Project Steers ALI Further Off Course”

Cutting the Cord: “Smart TV Box” Devices and Copyright Infringement

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Innovative ways to view broadcast content such as scripted shows, sporting events, and recently released movies are advancing at breakneck speed. Buyers should beware, however, that not all methods for accessing entertainment content are on the up-and-up. Several devices, for instance, promise extreme “cord-cutting” and incredibly wide access to content at a relatively low, one-time cost.

There’s a good reason why these devices are so cheap and offer so much: they provide a gateway to pirated content, facilitating copyright infringement on a massive scale. Unsurprisingly, the sellers of two such “smart TV boxes” are embroiled in copyright litigation. Continue reading “Cutting the Cord: “Smart TV Box” Devices and Copyright Infringement”

“Oil States” Oral Argument: Many Nuances Probed, Little Light Shed on Outcome

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

The November 27, 2017 oral arguments in Oil States Energy v. Greene’s Energy Group shed little light on the ultimate fate of inter partes review proceedings (“IPRs”), in which the Patent and Trademark Office (“PTO”) may invalidate an issued patent. As anticipated, much of the discussion focused on whether patents entail public or private rights, but more telling were the justices’ questions emphasizing due-process concerns. Continue reading ““Oil States” Oral Argument: Many Nuances Probed, Little Light Shed on Outcome”

Change in Law of Patent Venue May Not Be Get Out of Texas Card

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

In In re: Micron Technology, Inc., the U.S. Court of Appeals for the Federal Circuit resolved a disagreement among various district courts as to when the U.S. Supreme Court’s ruling in TC Heartland LLC v. Kraft Food Group Brands LLC has changed patent venue law.  The Federal Circuit ruled the law had changed, but each federal district court maintains discretion to apply the new rule in accordance with each court’s respective procedures. Continue reading “Change in Law of Patent Venue May Not Be Get Out of Texas Card”

High Stakes for Patent Holders, Challengers in SCOTUS “Oil States” Case

Kaminski_Jeffri_LRFeatured Expert Contributor, Intellectual Property—Patents

Jeffri A. Kaminski, Venable LLP

The U.S. Supreme Court is set to hear arguments in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, which could strike a devastating blow to extant patent procedure. On November 27, the Court will consider Oil States’ challenge to the constitutionality of the Inter Partes Review (“IPR”) process used by the Patent and Trademark Office (“PTO”) to scrutinize the validity of already-issued patents. While this is not the first constitutional challenge to IPRs, Oil States marks the first time the Supreme Court will confront the issue. Continue reading “High Stakes for Patent Holders, Challengers in SCOTUS “Oil States” Case”