Tuesday, April 6, 2021

U.S. Court of Appeals for the Federal Circuit, WI-LAN INC. v. SHARP ELECTRONICS CORPORATION, Docket No. 2020-1041

 

Patent Infringement

Evidence

Discovery

Source Code Printout

Expert as a Substitute for a Fact Witness?

 

Wi-LAN Inc. appeals two related judgments of the United States District Court for the District of Delaware, on summary judgment in one instance and by stipulation in the other, holding that Sharp Electronics Corporation and Vizio, Inc. did not infringe the asserted claims of U.S. Patent No. 6,359,654 (“the ’654 patent”) and U.S. Patent No. 6,490,250 (“the ’250 patent”). We affirm.

 

(…) Here, the district court concluded that the source code printout could not be admitted under Rule 703 because it was not authenticated and, as a result, Wi-LAN was attempting to use Rule 703 as a “‘backdoor’ to allow the admission into evidence of otherwise inadmissible declarations and other materials simply because they might assist the jury’s evaluation of an expert’s opinions.” J.A. 31. We agree. Wi-LAN attempts to do exactly what is impermissible under Rule 703 by using its expert as a substitute for a fact witness to circumvent the rules of evidence to admit otherwise inadmissible evidence.

 

Wi-LAN argues that experts typically rely on material, like source code, in reaching opinions about infringement. That is obviously correct. But Wi-LAN has not made a showing that source code experts reasonably rely on unauthenticated source code printouts.

 

In light of these admissibility issues, Wi-LAN’s fallback position is that the district court should have granted it additional time to obtain an admissible version of the source code. We disagree. Wi-LAN had ample time to obtain the source code and to find custodial witnesses to authenticate the source code over the course of discovery but failed to do so.

 

Wi-LAN had been on notice since early 2016 that it was going to need the system-on-chip source code from third parties to prove its direct infringement case. Throughout the litigation, Wi-LAN repeatedly requested extensions of time to obtain the source code from the third-party manufacturers. Ultimately, however, Wi-LAN only procured a single printout version of the source code with declarations after suing the third-party manufacturers.

 

Wi-LAN, as the district court found, “had ample time and opportunities over years of litigation to obtain evidence of infringement from the system-on-chip manufacturers” but failed to do so. J.A. 32. Given this record, the district court did not abuse its discretion in denying Wi-LAN an additional opportunity to obtain an admissible form of the source code.

 

Secondary Sources: Charles Alan Wright, Arthur R. Miller & Victor J. Gold, Federal Practice and Procedure § 6274 (2d ed. 2020).

 

 

(U.S. Court of Appeals for the Federal Circuit, April 6, 2021, WI-LAN INC. v. SHARP ELECTRONICS CORPORATION, Docket No. 2020-1041)

 

 

 

Monday, April 5, 2021

U.S. Supreme Court, Google LLC v. Oracle America, Inc., Docket No.18-956

 

Copyright

 

Computer Programs

 

Software Platform

 

Fair Use

 

Market Substitute

 

Unrealized Licensing Opportunities

 

 

 

Google’s limited copying of the Java SE Application Programming Interface allowed programmers to put their accrued talents to work in a transformative program and constituted a fair use of that material under copyright law.

 

 

Appendix A: Computer System Diagram:  Some readers might find it helpful to start with an explanation of what a “software platform” is. Put simply, a software platform collects all of the software tools that a programmer may need to build computer programs. The Android platform, for instance, includes an “operating system,” “core libraries,” and a “virtual machine,” among other tools. App. 197–198.

 

 

Oracle America, Inc., owns a copyright in Java SE, a computer platform that uses the popular Java computer programming language. In 2005, Google acquired Android and sought to build a new software platform for mobile devices. To allow the millions of programmers familiar with the Java programming language to work with its new Android platform, Google copied roughly 11,500 lines of code from the Java SE program. The copied lines are part of a tool called an Application Programming Interface (API). An API allows programmers to call upon prewritten computing tasks for use in their own programs. Over the course of protracted litigation, the lower courts have considered (1) whether Java SE’s owner could copyright the copied lines from the API, and (2) if so, whether Google’s copying constituted a permissible“fair use” of that material freeing Google from copyright liability. In the proceedings below, the Federal Circuit held that the copied lines are copyrightable. After a jury then found for Google on fair use, the Federal Circuit reversed, concluding that Google’s copying was not a fair use as a matter of law. Prior to remand for a trial on damages, the Court agreed to review the Federal Circuit’s determinations as to both copyrightability and fair use.

 

 

Held: Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law.

 

 

To decide no more than is necessary to resolve this case, the Court assumes for argument’s sake that the copied lines can be copyrighted, and focuses on whether Google’s use of those lines was a “fair use.”

 

 

To determine whether Google’s limited copying of the API here constitutes fair use, the Court examines the four guiding factors set forth in the Copyright Act’s fair use provision: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The Court has recognized that some factors may prove more important in some contexts than in others.

 

 

The nature of the work at issue favors fair use. The copied lines of code are part of a “user interface” that provides a way for programmers to access prewritten computer code through the use of simple commands. As a result, this code is different from many other types of code, such as the code that actually instructs the computer to execute a task. As part of an interface, the copied lines are inherently bound together with uncopyrightable ideas (the overall organization of the API) and the creation of new creative expression (the code independently written by Google). Unlike many other computer programs, the value of the copied lines is in significant part derived from the investment of users (here computer programmers) who have learned the API’s system. Given these differences, application of fair use here is unlikely to undermine the general copyright protection that Congress provided for computer programs.

 

 

The inquiry into the “the purpose and character” of the use turns in large measure on whether the copying at issue was “transformative,” i.e., whether it “adds something new, with a further purpose or different character.” Campbell, 510 U. S., at 579. Google’s limited copying of the API is a transformative use. Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language. Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective. The record demonstrates numerous ways in which reimplementing an interface can further the development of computer programs. Google’s purpose was therefore consistent with that creative progress that is the basic constitutional objective of copyright itself.

 

 

Google copied approximately 11,500 lines of declaring code from the API, which amounts to virtually all the declaring code needed to call up hundreds of different tasks. Those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole. As part of an interface, the copied lines of code are inextricably bound to other lines of code that are accessed by programmers. Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment. The “substantiality” factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose.

 

 

The fourth statutory factor focuses upon the “effect” of the copying in the “market for or value of the copyrighted work.” §107(4). Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE. The record also showed that Java SE’s copyright holder would benefit from the reimplementation of its interface into a different market.

 

 

(…) The Court does not overturn or modify its earlier cases involving fair use.

 

 

(…) Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1521–1527 (CA9 1992) (holding that wholesale copying of copyrighted code as a preliminary step to develop a competing product was a fair use).

 

 

(…) See also Brief for American Antitrust Institute as Amicus Curiae (“Copyright on largely functional elements of software that have become an industry standard gives a copyright holder anticompetitive power”).

 

 

(…) Several features of Google’s copying suggest that the better way to look at the numbers is to take into account the several million lines that Google did not copy. For one thing, the Sun Java API is inseparably bound to those task-implementing lines. Its purpose is to call them up. For another, Google copied those lines not because of their creativity, their beauty, or even (in a sense) because of their purpose. It copied them because programmers had already learned to work with the Sun Java API’s system, and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them. Further, Google’s basic purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective. The “substantiality” factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose.

 

 

(…) Google’s economic expert told the jury that Android was not a market substitute for Java’s software. As he explained, “the two products are on very different devices,” and the Android platform, which offers “an entire mobile operating stack,” is a “very different type of product” than Java SE, which is “just an applications programming framework.” App. 256. Taken together, the evidence showed that Sun’s mobile phone business was declining, while the market increasingly demanded a new form of smartphone technology that Sun was never able to offer. Finally, the jury also heard evidence that Sun foresaw a benefit from the broader use of the Java programming language in a new platform like Android, as it would further expand the network of Java-trained programmers. Id., at 131–133; see also id., at 153 (“Once an API starts getting reimplemented, you know it has succeeded”). In other words, the jury could have understood Android and Java SE as operating in two distinct markets. And because there are two markets at issue, programmers learning the Java language to work in one market (smartphones) are then able to bring those talents to the other market (laptops). See 4 Nimmer on Copyright §13.05[A][4] (explaining that factor four asks what the impact of “widespread conduct of the sort engaged in by the defendant” would be on the market for the present work). Sun presented evidence to the contrary. Indeed, the Federal Circuit held that the “market effects” factor militated against fair use in part because Sun had tried to enter the Android market. 886 F. 3d, at 1209 (Sun sought licensing agreement with Google). But those licensing negotiations concerned much more than 37 packages of declaring code, covering topics like “the implementation of Java’s code” and “branding and cooperation” between the firms. App. 245; see also 4 Nimmer on Copyright §13.05[A][4] (cautioning against the “danger of circularity posed” by considering unrealized licensing opportunities because “it is a given in every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical market for licensing the very use at bar”). In any event, the jury’s fair use determination means that neither Sun’s effort to obtain a license nor Oracle’s conflicting evidence can overcome evidence indicating that, at a minimum, it would have been difficult for Sun to enter the smartphone market, even had Google not used portions of the Sun Java API.

 

 

 

(U.S. Supreme Court, April 5, 2021, Google LLC v. Oracle America, Inc., Docket No.18-956, Justice Breyer, revised April 6, 2021)

 

(BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined. BARRETT, J., took no part in the consideration or decision of the case)

 

 

Friday, April 2, 2021

Certification - CE Marking - Certifying Labs

 

About CE Marking

International Trade Administration Website

Republication

https://www.trade.gov/ce-marking

 

The CE marking certifies that a product has met European Union health, safety, and environmental requirements, which ensure consumer safety. Manufacturers must meet CE marking requirements where applicable in order to market their products in Europe.

A manufacturer who has gone through the conformity assessment process, may affix the CE marking to the product. With the CE marking, the product may be marketed throughout the EU. CE marking now provides product access to 32 countries with a population of nearly 500 million.

Testing/Certifying Labs

If you are not permitted to self-certify your product, you will need to employ the services of a testing laboratory that is affiliated with a “European Notified Body” to test and certify your product for the CE marking. There are labs in the U.S. that subcontract for European notified bodies and are qualified to do the testing and certifying. We have provided a list of labs, including labs affiliated with notified bodies as well as labs that are not authorized with a notified body, but which are independent labs and can test that a product covered by a non-regulated directive (such as the EMC or Low Voltage Directives), has met a European standard.

See the Testing/Certifying Labs.

Consultants/Ordering Standards

If you are permitted to self-certify your product, you may need to order the standards that apply to your product, particularly in the case of the Low Voltage and EMC Directives. We have provided sources for ordering standards and for locating CE Marking consultancy services:

See the Consultants/Ordering Standards.

For more information and FAQs on CE marking, visit the 
National Institute of Standards and Technology (NIST).

 

Wednesday, March 31, 2021

ICC Compendium of Antitrust Damages Actions

 

Launch of the ICC Compendium of Antitrust Damages Actions

31.03.2021

Republication

 

Free publication of the ICC Compendium of Antitrust Damages Actions which addresses the evolution of private competition law enforcement over recent years, and how the proliferation of legal practices across the globe, following in part the adoption of the EU Damages Directive in 2014 and its transposition by the EU Members States into national laws, has engendered concerns within the business community and beyond.  

 

The ICC antitrust Compendium is the fourth publication of the Competition Commission and was produced by its Task Force on Antitrust Damages Actions comprised of over 80 antitrust and litigation experts from 21 jurisdictions.  

 

Designed to be a reference for business, ranging from multinational companies to SMEs, private practitioners, judges, and economists, the Compendium is a unique collection of court proceedings and decisions from landmark cases related to damages actions from a variety of key jurisdictions.  Opening with a chapter on the European Damages Directive, the Compendium includes 21 chapters, organized around nine key topics, and counts a total of 275 decisions.











Sunday, March 7, 2021

U.S. Supreme Court, Uzuegbunam v. Preczewski, Docket No. 19–968, J. Thomas

 

Nominal Damages v. Actual, Compensatory or Statutory Damages

 

Article III Standing

 

Common Law

 

 

 

To establish Article III standing, the Constitution requires a plaintiff to identify an injury in fact that is fairly traceable to the challenged conduct and to seek a remedy likely to redress that injury. Spokeo, Inc. v. Robins, 578 U. S. 330, 338.

 

 

We granted certiorari to consider whether a plaintiff who sues over a completed injury and establishes the first two elements of standing (injury and traceability) can establish the third by requesting only nominal damages.

 

 

The dispute here concerns whether the remedy Uzuegbunam sought—nominal damages—can redress the completed constitutional violation that he alleges occurred when campus officials enforced the speech policies against him. The Court looks to the forms of relief awarded at common law to determine whether nominal damages can redress a past injury. The prevailing rule at common law was that a party whose rights are invaded can always recover nominal damages without furnishing evidence of actual damage. By permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury, the common law avoided the oddity of privileging small economic rights over important, but not easily quantifiable, nonpecuniary rights.

 

 

The common law did not require a plea for compensatory damages as a prerequisite to an award of nominal damages. Nominal damages are not purely symbolic. They are instead the damages awarded by default until the plaintiff establishes entitlement to some other form of damages. A single dollar often will not provide full redress, but the partial remedy satisfies the redressability requirement.

 

 

(…) An award of nominal damages constitutes relief on the merits.

 

 

A request for redress in the form of nominal damages does not guarantee entry to court. In addition to redressability, the plaintiff must establish the other elements of standing and satisfy all other relevant requirements, such as pleading a cognizable cause of action. Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.

 

 

(…) The parties here agree that courts at common law routinely awarded nominal damages. They, instead, dispute what kinds of harms those damages could redress.

 

 

(…) Dissenting, Lord Holt argued that the common law inferred damages whenever a legal right was violated. Observing that the law recognized “not merely pecuniary” injury but also “personal injury,” Lord Holt stated that “every injury imports a damage” and that a plaintiff could always obtain damages even if he “does not lose a penny by reason of the violation.” Id., at 955, 92 Eng. Rep., at 137. Although Lord Holt was in the minority, the House of Lords overturned the majority decision, thus validating Lord Holt’s position, 3 Salk.17, 91 Eng. Rep. 665 (K. B. 1703), and this principle “laid down . . . by Lord Holt” was followed “in many subsequent cases,” Embrey v. Owen, 6 Exch. 353, 368, 155 Eng. Rep. 579, 585 (1851).

 

 

The dissent correctly notes that English courts differed in some respects from courts under our system, but Lord Holt’s position also prevailed in courts on this side of the Atlantic. Applying what he called Lord Holt’s “incontrovertible” reasoning, Justice Story explained that a prevailing plaintiff “is entitled to a verdict for nominal damages” whenever “no other kind of damages be proved.” Webb v. Portland Mfg. Co., 29 F. Cas. 506, 508–509 (No. 17,322) (CC Me. 1838). Because the common law recognized that “every violation imports damage,” Justice Story reasoned that “the law tolerates no farther inquiry than whether there has been the violation of a right.” Ibid. Justice Story also made clear that this logic applied to both retrospective and prospective relief. Id., at 507 (stating that nominal damages are available “wherever there is a wrong” and that, “a fortiori, this doctrine applies where there is not only a violation of a right of the plaintiff, but the act of the defendant, if continued, may become the foundation, by lapse of time, of an adverse right”).

 

 

Respondents and the dissent thus get the relationship between nominal damages and compensatory damages backwards. Nominal damages are not a consolation prize for the plaintiff who pleads, but fails to prove, compensatory damages. They are instead the damages awarded by default until the plaintiff establishes entitlement to some other form of damages, such as compensatory or statutory damages.

 

 

(…) A plaintiff must maintain a personal interest in the dispute at every stage of litigation, including when judgment is entered, Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992), and must do so “separately for each form of relief sought,” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 185 (2000).

 

 

Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right.

 

 

 

Secondary sources: D. Laycock & R. Hasen, Modern American Remedies 636 (5th ed. 2019).

 

 

 

(U.S. Supreme Court, March 8, 2021, Uzuegbunam v. Preczewski, Docket No. 19–968, J. Thomas)

 

 

Tuesday, March 2, 2021

U.S. Court of Appeals for the Eleventh Circuit, MidlevelU, Inc. v. ACI Information Group, Docket No. 20-10856

 

Blogs

 

Search Engine

 

Web Crawlers

 

RSS Feed

 

Copyright Infringement

 

Implied License

 

Statutory Damages 17 U.S.C. § 504

 

Eleventh Circuit Pattern Jury Instructions (Civil Cases)

 

 

Appeal from the United States District Court for the Southern District of Florida.

 

This appeal involves a blog operator that sued a content aggregator for copyright infringement after the aggregator copied and published the blog’s content. A jury sided with the blog operator. The main issue for us is whether the district court should have allowed the jury to decide whether the aggregator had an implied license to copy and publish the blog’s content. Although the district court employed a too narrow understanding of an implied license, we conclude that a jury could not have reasonably inferred that the blog impliedly granted the aggregator a license to copy and publish its content.

 

MidlevelU makes the full text of its blog articles available in an RSS—or “really simple syndication”—feed. It has used the RSS feed since the blog’s inception to allow readers to easily read its articles. MidlevelU designed its blogging platform so that its RSS feed would distribute the full text of the blog instead of only headlines and summaries of recent articles. It also coded its website to instruct search engines that they may copy and archive every page on the site. MidlevelU included a copyright notice on its website and RSS feed, with a date range from 2012 to the present year, but it did not include a copyright notice for each article.

 

Through the RSS feeds, Newstex received new articles posted to the blogs. It ran the articles through software that generated summaries of the articles. The entries in the Index for these blog articles included bibliographic information about the author and the blog, the computer-generated summary of the article, and a link to the original post. Newstex also added a tab labeled “original” to each entry, available only to subscribers. It embedded an “iFrame” in that tab so that clicking on the tab opened a window showing the original, fully browsable web page, including the full-text content of each article—a “live snapshot”— within the Index website.

 

(…) In June 2018, MidlevelU sued Newstex for copyright infringement. In response, Newstex asserted copyright-registration invalidity, implied license, and fair use as affirmative defenses.

 

(…) A nonexclusive license to use copyrighted material “may be granted orally, or may even be implied from conduct.” Jacob Maxwell, Inc. v. Veeck, 110 F.3d 749, 752 (11th Cir. 1997) (internal quotation marks omitted); see 17 U.S.C. §§ 101, 204(a).

 

Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1235 (11th Cir. 2010). In Latimer, we described one way to create an implied license. Id. We held that “an implied license is created when one party (1) creates a work at another person’s request; (2) delivers the work to that person; and (3) intends that the person copy and distribute the work.” Id.

 

Newstex argues, and we agree, that Latimer did not create an exclusive test. Latimer described the creation of an implied license in a work-for-hire relationship without addressing whether or how an implied license might be created in other contexts. We have never held that the Latimer test provides the only avenue for proving that a copyright holder granted an implied license to an alleged infringer. And leading copyright authorities condemn “transmuting the three Latimer factors into the only applicable test.” 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 10.03[A][7] & n.69.6a (rev. ed. 2018); accord 2 William F. Patry, Patry on Copyright § 5:131 (2007).

 

(…) Creating material at another’s request is not the essence of a license; an owner’s grant of permission to use the material is.

 

A license is “a permission . . . to commit some act that would otherwise be unlawful.” License, Black’s Law Dictionary (11th ed. 2019); see Robert W. Gomulkiewicz et al., Licensing Intellectual Property: Law and Application 4 (2d ed. 2011) (“A ‘license’ is a grant of permission.”).

 

When an owner’s conduct “clearly” manifests “a consent to . . . use” of copyrighted material, the owner impliedly grants a nonexclusive license. De Forest Radio Tel. Co. v. United States, 273 U.S. 236, 241 (1927); see also License, 2 Bouvier’s Law Dictionary (14th ed. 1874) (“An implied license is one which is presumed to have been given from the acts of the party authorized to give it.”). A nonexclusive license is a “mere waiver of the right to sue” for infringement. De Forest, 273 U.S. at 242 (internal quotation marks omitted); see also Jacob Maxwell, 110 F.3d at 753.

 

Courts have recognized permission to use copyrighted material in web-based contexts vastly different from the facts in Latimer. Field v. Google Inc., 412 F. Supp. 2d 1106, 1116 (D. Nev. 2006); accord Parker v. Yahoo!, Inc., No. 07-2757, 2008 WL 4410095, at *3–4 (E.D. Pa. Sept. 25, 2008). In Field, a website owner sued Google for posting archived copies of the site’s pages, which included copyrighted content. Field, 412 F. Supp. 2d at 1109–10. Google presented evidence that it is well known within the Internet industry that websites can be coded to tell search-engine web crawlers—automated programs that “crawl” the web to locate, copy, and archive webpages for a search-engine index—not to copy their webpages or display archived copies of the webpages on the search-engine index. Id. at 1110, 1112–13. Absent this affirmative instruction, a search engine like Google infers permission to copy and archive the webpages. Id. at 1116. Yet the plaintiff had coded his website to allow web crawlers to copy and archive all its pages, and even admitted that he knew about Google’s practices. Id. at 1113–14. Because Google could reasonably interpret the plaintiff’s conduct as the grant of a license for this use, Google succeeded on its implied-license defense. Id. at 1116.

 

Field recognized an industry practice where search engines using web crawlers construe permission to use material in a limited way and for a particular purpose.

 

(…) Monika Isia Jasiewicz, Comment, Copyright Protection in an Opt-Out World: Implied License Doctrine and News Aggregators, 122 Yale L.J. 837, 846 (2012) (explaining that because “an opt-out scheme for gaining copyright holders’ permission online represents a significant departure from the traditional framework of American copyright law, . . . . some courts have been hesitant to extend Field’s reach beyond the narrow search engine context”).

 

(…) Implied permission to enter through a front door (web crawler) does not also imply permission to enter through a back window (RSS feed).

 

(…) Newstex failed to present evidence that would have allowed the jury to infer that MidlevelU granted an implied license to copy and publish the content of its blog.

 

(…) MidlevelU elected to pursue statutory damages. 17 U.S.C. § 504.

 

The district court gave the jury our pattern instruction, which lists several factors for a jury to consider in determining the appropriate amount of statutory damages to award: “the profits the defendant earned because of the infringement; the revenues that the plaintiff lost because of the infringement; the difficulty of proving the plaintiff’s actual damages; the circumstances of the infringement; whether the defendant intentionally infringed the plaintiff’s copyright; and deterrence of future infringement.” Eleventh Circuit Pattern Jury Instructions (Civil Cases) § 9.32 (2013).

 

The completed verdict form also confirms that the jury understood it could award damages for only the registered works. The jury awarded damages for 27 infringed articles. It awarded $7,500 per article—well within the available range of $750 to $150,000 per willfully infringed work. See 17 U.S.C. § 504(c)(1)–(2).

 

Newstex makes no argument that multiplying the bottom of the range by a factor of 10 is unreasonable for the added factor of willfulness.

 

(…) A “certificate of a registration made before or within five years after first publication of the work” constitutes “prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” Id. § 410(c) (emphasis added). The date of publication is a “fact stated in the certificate.” Id.; see Gaste v. Kaiserman, 863 F.2d 1061, 1064 (2d Cir. 1988). And the dates listed in the certificates are presumed to be true. United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1258 (9th Cir. 2011).

 

 

Secondary authorities: Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 10.03[A][7] & n.69.6a (rev. ed. 2018); William F. Patry, Patry on Copyright § 5:131 (2007); Robert W. Gomulkiewicz et al., Licensing Intellectual Property: Law and Application 4 (2d ed. 2011).

 

 

 

(U.S. Court of Appeals for the Eleventh Circuit, March 3, 2021, MidlevelU, Inc. v. ACI Information Group, Docket No. 20-10856)