Full Cost in Translation: Awarding Expert Witness Fees in Copyright Litigation

When deciding whether to bring or defend against copyright infringement claims, the cost of litigation plays a critical role in the minds of potential litigants. The cost of retaining experts, particularly, is a large factor in this calculus. Although U.S. courts generally require each party to cover the cost of their own legal fees during litigation, the Copyright Act of 1976 permits courts, in their discretion, to allow the prevailing party to recover “full costs.” Yet, the language “full costs” is considered ambiguous, which leads to inconsistent awards of costs among the appellate courts. The circuits disagree whether the Copyright Act merely allows parties to recover modest costs, such as docket fees and witness travel expenses, or to recover more substantial costs, like expert witness fees. Accordingly, the level of discretion afforded to a court can essentially be the difference between an award that includes nontaxable costs in the tens of millions of dollars and an award that does not include nontaxable costs at all. Recently, in Oracle USA, Inc. v. Rimini Street, Inc., the judgment awarded to the prevailing party included an additional $12 million in costs because it was brought in a circuit that allows awards of nontaxable costs under the Copyright Act. This Note concludes that the Copyright Act, as it stands, does not allow a court to award expert witness fees to a prevailing party. However, given the objectively important need for expert testimony in copyright litigation, this Note argues that Congress should amend the Copyright Act to allow for the shifting of expert fees at courts’ discretion

A Tale of Two Interoperabilities; Or, How \u3ci\u3eGoogle v. Oracle\u3c/i\u3e Could Become Social Media Legislation

The Supreme Court\u27s recent decision in Google v. Oracle shares a perhaps unexpected connection with recent legislative proposals to enhance social media competition. At first glance they are seemingly unrelated: the former deals with copyright protection in certain portions of software code, while the latter relates to interconnection between dominant online platforms and their competitors. Yet they are closely intertwined, such that a competitive platform environment cannot be fully achieved without addressing lingering questions in Google. As a result, lawmakers ought to be motivated to address software copyrights and related matters as part of their efforts to improve competition among social media and other online platforms

Risk Taking and Rights Balancing in Intellectual Property Law

Scholars have long worried that risk aversion can have significant negative effects in the marketplace. In the intellectual property law domain, some have worried that risk-averse actors can negatively influence the development of important intellectual property law doctrines, which can ultimately hamper innovation. For instance, risk-averse actors may frequently choose to obtain licenses for rights that the relevant laws do not actually require of them. When they do so, they inadvertently increase the scope of intellectual property rights because their risk-averse activities inform courts’ development of key intellectual property law doctrines. In this Article, prepared as part of the IP Scholars Forum at Akron Law, I look at the other side of the risk coin. In particular, I argue that early-stage companies, and sometimes later-stage companies as well, are often willing to take on significant intellectual property risks in pursuit of commercial opportunities. And by providing courts with opportunities to take head-on key intellectual property questions, these risk-taking activities, in effect, may often help counterbalance whatever negative effects the behavior of risk-averse actors entails. I examine reasons why both types of entities are often willing to take on intellectual property risks. And I review a number of examples where both early and later-stage companies have heavily influenced the development of key intellectual property law doctrines by being willing to take their intellectual property disputes to court. This review, however, highlights several reasons why early-stage companies are more dependable risk-taking entities than later-stage companies. I thus conclude by briefly assessing two intellectual property-related means by which to specifically encourage early-stage companies to continue to take on intellectual property risks

Blue Brief 2020-2021

A USD School of Law faculty review of selected rulings from the most recent Term of the United States Supreme Court.https://digital.sandiego.edu/law_blue_brief/1000/thumbnail.jp

Software and graphical user interfaces

This Handbook provides a scholarly and comprehensive account of the multiple converging challenges that digital technologies present for intellectual property (IP) rights, from the perspectives of international, EU and US law

Fall 2021 Supplement to Brauneis & Schechter, Copyright: A Contemporary Approach

This Fall 2021 Supplement is the product of our effort to capture important developments in copyright law since the publication of the second edition of Copyright: A Contemporary Approach. It includes two new principal cases, both Supreme Court decisions: the 2021 fair use decision in Google LLC v. Oracle America, Inc., and the 2020 decision about copyright protection for state statutes in Georgia v. Public.Resources.Org. The supplement also includes notes on many other cases, and a few new features that we thought would enhance study of U.S. copyright law. In light of the passage of the Music Modernization Act in October 2018, we have completely revised Chapter 12.E., on digital audio transmission rights, and Chapter 12.F., on rights in pre-1972 sound recordings. The new Chapter 12.E. in this supplement, “Digital Streaming of Music After the Musical Works Modernization Act,” now consists of a general introduction to copyright and the streaming of music, covering both rights in sound recordings and rights in musical works, and all of the relevant exclusive rights

Fair Use as a Market Facilitator

The Digital Age has enabled individuals worldwide to store, organize, and share everything from cherished memories embodied in photographs and videos to academic writing and correspondence. Yet, archived collections of academic, public, and private libraries are out of reach to many, and many books are now beyond reach because they are no longer in print. The high cost of digitization exacerbates these challenges. In 2004, Google Inc. responded to these issues by announcing a project to scan and digitize the collections of several leading universities and public libraries (the “Google Books” project). The project offered users the opportunity to search the entire corpus of scanned works. For works still under copyright, users could view only snippets sufficient to give them a taste of the complete work; users interested in accessing the full text could, however, buy the books from the publisher directly through links that the system provides. Several authors and publishers filed suit in the Southern District of New York, arguing that the Google Books project infringed their copyrights in their works. The district court held that allowing users to search unauthorized digital copies of the works and see snippets from those works was noninfringing fair use. The Second Circuit affirmed. The courts reasoned that the purpose of the copying was highly transformative, the public display of text was limited, and the project did not provide a significant market substitute for the protected aspects of the original works. This article explores the effects of these decisions, arguing that the fair use holding played a major role in facilitating the creation of markets for archiving copyrighted works. This market facilitation role is atypical of the fair use defense’s usual role and arguably fails fully to account for the effect that the use could have upon the potential market for—or value of—the copyrighted work. This article will explore the fair use defense’s unexpected market facilitation role and suggest that it should be carefully considered by courts, especially in light of the rationales underlying the fair use defense, which focus mainly on market failure and freedom of speech