The answer? Not much, in itself. If one patent is good, 132 is probably fine too. That was Judge Easterbrook’s reasoning in a recent decision addressing indirect purchasers’ antitrust challenge to AbbVie’s so-called “patent...more
On March 28th, the Supreme Court granted certiorari in Warhol Foundation v. Goldsmith, a case involving the core issues around copyright fair use. The case involves a series of Warhol drawings and silkscreen prints adapted...more
6/28/2022
/ Andy Warhol Foundation for the Visual Arts Inc v Goldsmith ,
Appeals ,
Appropriation ,
Artistic Works ,
Artists ,
Certiorari ,
Copyright ,
Copyright Infringement ,
Copyright Litigation ,
Fair Use ,
Fine Art ,
Intellectual Property Protection ,
Oracle v Google ,
Plagiarism ,
SCOTUS ,
The Copyright Act ,
Transformative Use
Over the past year, the Department of Justice (“DOJ”) has increasingly been hot on the heels of suspected anti-competitive labor violations. To date, the DOJ has brought a few actions against employers across industries...more
So you bought an NFT. You now own what is effectively an immutable electronic deed meant to record ownership of an asset, often a digital artwork. You probably paid for the NFT upfront—and if the artist is popular, you may...more
It used to be privacy was largely the domain of constitutional law and patient health care law: the Fourth Amendment, and then the Fourteenth Amendment, and the Health Insurance Portability and Accountability Act (HIPAA)....more
In 1984, the Supreme Court ruled unanimously that courts must defer to an administrative agency’s reasonable interpretation of an ambiguous statute. But last year, the Supreme Court stripped the FTC of its ability to seek...more
2/7/2022
/ Acquisition Agreements ,
Administrative Agencies ,
Administrative Law Judge (ALJ) ,
Administrative Review ,
Anti-Competitive ,
Antitrust Provisions ,
Antitrust Violations ,
Certiorari ,
Competition ,
Constitutional Challenges ,
Due Process ,
Federal Trade Commission (FTC) ,
Fifth Amendment ,
FTC Act ,
Merger Controls ,
Removal For-Cause ,
SCOTUS ,
Separation of Powers ,
Statutory Interpretation
2021 will be remembered in antitrust law. Not since the 1970s has there been so much chatter over the fundamental purposes of antitrust policy, or such potential for actual sea change.
Originally published in Law360 -...more
1/5/2022
/ Acquisition Agreements ,
Anti-Competitive ,
Antitrust Provisions ,
Competition ,
Consent Decrees ,
Federal Trade Commission (FTC) ,
Hart-Scott-Rodino Act ,
Merger Agreements ,
Merger Controls ,
Merger Reviews ,
Regulatory Agenda ,
Sherman Act ,
Vertical Mergers ,
Warning Letters
With a rash of changes since Chair Lina Khan took command, the Federal Trade Commission is proving the maxim that the only certainty is uncertainty.
Its new policy of issuing warning letters to deals that have...more
As the saying goes, “the only thing for certain, is nothing is certain.” With a rash of changes since Chairperson Lina Kahn took command, the FTC is certainly proving that maxim true. Seeking to transform the historically...more
Judge Jed Rakoff of the Southern District of New York recently denied a motion to dismiss in a copyright dispute involving the unlicensed “embedding” of a social media video. In doing so, the court explicitly and definitively...more
8/16/2021
/ Copyright ,
Copyright Infringement ,
Copyright Litigation ,
Intellectual Property Protection ,
IP License ,
Motion to Dismiss ,
Online Platforms ,
Online Videos ,
Popular ,
Right of Reproduction ,
Social Media ,
The Copyright Act ,
Web Servers ,
Websites
Online platforms that allow users to post content face a constant choice: to remove or to not remove, to police or not to police.
Shakespearean allusions aside, platforms generally want user engagement — to reach as many...more
8/13/2021
/ Anti-Competitive ,
Antitrust Provisions ,
Civil Liability ,
Communications Decency Act ,
Online Platforms ,
PACT Act ,
Section 230 ,
Social Media ,
User-Generated Content ,
Website Owner Liability ,
Websites
The Second Circuit recently upheld a ruling that streaming giants Apple, Amazon, and Netflix engaged in fair use, in a case concerning the use of plaintiff musicians’ song in a documentary film available for viewing on...more
Judge Dolly M. Gee of the Central District of California recently awarded singer Lizzo a major victory in a copyright dispute concerning the artist’s hit song “Truth Hurts.” In her ruling, Judge Gee dismissed with prejudice a...more
In a narrowly drawn, yet significant decision, the Supreme Court reversed the Federal Circuit and ruled that Google LLC’s (“Google”) copying of some of the Sun Java Application Programming Interface (API) declaring code was a...more
4/9/2021
/ Application Programming Interface (APIs) ,
Copyright ,
Copyright Infringement ,
Fair Use ,
Google ,
Intellectual Property Protection ,
IP License ,
Java ,
Oracle v Google ,
Software Developers ,
Transformative Use
For nearly two decades, the “transformative use test” has been a staple of fair use analysis, and particularly in the Second Circuit. The Copyright Act, however, uses the word “transformative” not in the section on fair use...more
4/7/2021
/ Artists ,
Copyright ,
Copyright Infringement ,
Derivative Works ,
Fair Use ,
Intellectual Property Protection ,
Paintings Sculptures and Engravings ,
Photographs ,
Substantially Similar ,
The Copyright Act ,
Transformative Use
“Mark my words: Change is coming. Laws are coming.” That was the warning David Cicilline (D-RI) – the House Judiciary Antitrust, Commercial, and Administrative Law Subcommittee Chairman – gave on February 25th at the first in...more
The Sherman Act was passed in 1890. The Clayton Act in 1914. And they have hardly changed since. Last month, Senator Amy Klobuchar, the new chair of the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition...more
The Selective Extension of Payment Terms May Expose Sellers to Abnormally High Risk under the Robinson-Patman Act -
As the economic consequences of social distancing ripple through the economy, businesses throughout the...more
In the latest piece to come out of the FTC’s new focus on emerging technologies, the FTC Bureau of Consumer Protection issued new guidance on the use of artificial intelligence (“AI”) and algorithms. The guidance follows up...more
In the latest piece to come out of the FTC’s new focus on emerging technologies, the FTC Bureau of Consumer Protection issued new guidance on the use of artificial intelligence (“AI”) and algorithms. The guidance follows up...more
In the wake of the coronavirus pandemic's ravage on industries, markets, and entire economies, businesses are seeking help from the government, whether in the form of a bailout or some regulatory accommodation. Industries...more
Antitrust class action counsel are in the business of extracting cash from defendants in the form of settlements that are, in effect, a tax on every transaction in the market covered by the case. The bigger the market, the...more
7/10/2019
/ Antitrust Conspiracies ,
Antitrust Litigation ,
Class Action ,
Class Certification ,
Corporate Counsel ,
Discovery ,
Employment Litigation ,
Federal Rule 12(b)(6) ,
FRCP 12(f) ,
FRCP 23 ,
FRCP 23(f) ,
Joint and Several Liability ,
No-Poaching
Non-disclosure and confidentiality provisions can be an important aspect of resolving a case through settlement. But when one of the parties is a purported class, and the allegation is an antitrust violation, settlement and...more
7/1/2016
/ Abuse of Discretion ,
Antitrust Violations ,
Class Action ,
Class Members ,
Confidentiality Agreements ,
FRCP 23 ,
Health Insurance ,
Motion To Intervene ,
Non-Disclosure Agreement ,
Price-Fixing ,
Sealed Records ,
Settlement ,
Vacated
The recently released Carlton Fields 2016 Class Action Survey reports that class actions are up for the first time in four years. While data privacy class actions still make up a relatively small portion of class action...more
"Prophesy is a good line of business, but it is full of risks." Mark Twain could have been speaking about the FTC's recent challenge to a merger between the second- and third-largest sterilization companies in the world,...more