Author Archives: rtushnet

Is flexibility the same as unpredictability?

Posted on April 8, 2014 by rtushnet

Thought on the anti-fair use meme being used, mostly, to oppose the introduction of fair use in other countries: the criticism is that fair use’s flexibility means that it’s inherently and undesirably unpredictable. (See, e.g., the Kernochan Center’s submission to … Continue reading →

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dispute over reliability of state of the art goes to trial

Posted on April 8, 2014 by rtushnet

Nellcor Puritan Bennett LLC v. CAS Medical Systems, Inc., No. 2:11–cv–15697, 2014 WL 1304428 (E.D. Mich. Mar. 28, 2014) The parties compete to sell cerebral oximeters, used by surgeons and anesthesiologists to monitor the oxygen saturation level of blood in … Continue reading →

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Juxtaposed claims can produce literal falsity

Posted on April 8, 2014 by rtushnet

Groupe SEB USA, Inc. v. Euro–Pro Operating LLC, No. 14–137, 2014 WL 1316039 (W.D. Pa. Apr. 1, 2014) (magistrate judge) The parties compete to sell household steam irons.  Plaintiff’s are sold under the name Rowenta, allegedly the top sellers by … Continue reading →

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failure to conform to dog breed standard isn’t literally false

Posted on April 7, 2014 by rtushnet

It’s really more of a guideline. Wagner v. Circle W Mastiffs, No. 2:08–CV–00431, 2014 WL 1308713 (S.D. Ohio Mar. 31, 2014) I’m skipping the many and complex defamation claims.  The Lanham Act bit: the Lanham Act plaintiffs alleged that the … Continue reading →

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What does Lexmark mean for the "commercial advertising or promotion" test?

Posted on April 7, 2014 by rtushnet

Goodman v. Does 1–10, No. 4:13–CV–139, 2014 WL 1310310 (E.D.N.C. Mar. 28, 2014) The first post-Lexmarkopinion I’ve seen, and a thoughtful one at that. The complaint alleged various defamation and unfair competition claims based on postings on a website, localdirtbags.com, … Continue reading →

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Transformative work of the day?

Posted on April 7, 2014 by rtushnet

Browser plug-in that swaps Daily Mail headlines with reader comments.  Nearly complete identity but for the arrangement, but also commentary, and this reaction shows how the two are intertwined: “This plugin is definitely funny, but there’s something illuminating about it … Continue reading →

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Reading list: judging similarity in copyright

Posted on April 7, 2014 by rtushnet

Shyamkrishna Balganesh, Irina D. Manta, & Tess Wilkinson-Ryan, Judging Similarity, 100 Iowa L. Rev. (forthcoming 2014) Our first study reveals that basic knowledge about the act of copying, meaning that one work was copied from the other, greatly influences individuals’ … Continue reading →

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Reading list: false advertising and prior restraint

Posted on April 7, 2014 by rtushnet

Corinne Stuart, The Applicability of the Prior Restraint Doctrine to False Advertising Law(Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 2008), 21 Geo. Mason L. Rev. 531-555 (2014).  Argues that prior restraint doctrine should be applied to … Continue reading →

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Next Great Copyright Act Conference, reform

Posted on April 4, 2014 by rtushnet

Modes and Venues for Reform Moderator: Nancy E. Weiss, U.S. Institute of Museum and Library Services (IMLS) Troy Dow, The Walt Disney Company Need to ensure meaningful and not merely symbolic protection to authors as well as users; otherwise it’s … Continue reading →

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Next Great Copyright Act Conference, remedies

Posted on April 4, 2014 by rtushnet

Remedies and Enforcement Moderator: Mitchell Zimmerman, Fenwick & West LLP To copyright maximalists, the entire population of the world seems to be Holmes’ bad man. Corynne McSherry, Electronic Frontier Foundation Broad agreement on need to fix, even if we don’t … Continue reading →

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