April 2014

HiRes

Just a few short months after the house passed the Innovation Act, HR 3309 (now before the Senate Judiciary Committee), a bill pointedly aimed at curbing the practices of non-practicing entities, or patent trolls, as reported earlier on this blog, the Supreme Court has now issued two decisions not as deliberately aimed but nonetheless injurious to the patent troll business model.

Yesterday, Justice Sotomayor delivered two nearly unanimous decisions of the Court (available here and here) that collectively lower the hurdle for prevailing defendants to obtain attorneys’ fees against the plaintiff.  The previous standard, oft implemented by the Federal Circuit, the federal Court of Appeals for patent cases, required “material inappropriate conduct” or both “subjective bad faith” and “objective[] baseless[ness]” on the part of the plaintiff in bringing the case before fees could be awarded against it.  Such conduct is commonly complained of by those targeted by patent trolls, entities named for their practice of acquiring patents in the hopes of collecting damages through infringement lawsuits, but is rarely punished.  Small businesses and individuals who are sued by patent trolls often pay a fee to settle the case rather than incur the expense and exposure of litigation.  Yesterday’s dual Supreme Court decisions may change that. (more…)

Popular author L.J. Smith of the Vampire Diaries series was terminated by her publisher and replaced with a ghostwriter. Some fans are content to continue reading the now ghostwritten series. Other fans are buycotting. What did L.J. Smith do? She is writing new Vampire Diaries stories as “fan fiction”. Fan fiction is understood as meaning stories written by amatuer writers based on their favorite book, television or movie characters.
While some media companies routinely prosecute copyright infringement lawsuits against fan works, others have embraced fan fiction, such as the publisher of Fifty Shades of Grey series. Originally fan fiction (or slash fiction)based on the Twilight series, Random House successfully published the books after the author removed the Twilight characters.
The Wall Street Journal reports that Amazon has been making deals with publishers and fan fiction writers for the rights to use characters and fan writing to identify new blockbusters like Fifty Shades.