Weekly IP Takeaways

Prepared by Cislo & Thomas LLP Attorney Mark D. Nielsen, Ph.D.

1. Judge Thomas S. Zilly of the Western District of Washington recently released an “Order for Remote/Virtual Civil Jury Trial” that has been garnering some positive headlines as a very detailed, thorough set of procedures and protocols for conducting a civil jury trial via Zoom. The trial commenced last week. While jury trials by Zoom are not ideal, and are likely not the wave of the future, it is a good to have a useful set of procedures to conduct civil trials while we are still under substantial COVID restrictions. Hats off to Judge Zilly and his Chambers for putting together a very helpful Order for remote jury trials. The takeaway here is that more district courts may begin moving forward with trials by Zoom once there are solid, detailed procedures in place that have been shown to work.

2. An interesting decision out of the Southern District of Florida determined that it was a fair use under copyright law for a company to download Apple iOS software onto a computer to use it for analyzing security weaknesses in the software. The use was found to be transformative, and not simply one to make the software available to others for the same use as Apple’s. Before IT and security folks get too excited, the Court also found that the company violated the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA) when it overcome digital encryption features to simply make the copy of the iOS software. The Court noted that, “Corellium may make fair use of IOS, but it is not absolved of potential liability for allegedly employing circumvention tools to unlawfully access IOS.” The Court also noted that this result may undercut the fair use provisions of the Copyright Act; but, by passing the DMCA, Congress intended to address both fair use and piracy. The takeaway here is that the preparation of a version of iOS software to study security flaws may be noble, but accessing the software by apparently unlawful means was akin to the company shooting itself in the foot.

3. A billion dollar statutory damages verdict for contributory and vicarious copyright infringement was upheld after post-trial motions by a judge in the Eastern District of Virginia. The case involved pirated music being copied over the defendant’s network, and the defendant, according to the jury, not taking reasonable measure to combat the infringement, which was known to the defendant ISP. There were 10,017 works infringed, a finding of willful infringement by the jury, and an award of $1 billion in statutory damages under the Copyright Act. This is a major damages award that is on its way to being the subject of an appeal.