[Ecommerce] Where Does Roberts Stand on Intellectual Property Issues?

[Manon Ress]

Thanks to Mark Wittink for pointer.  This is an interesting story.

Where Does Roberts Stand on Intellectual Property Issues?
Mark V.B. Partridge
Special to Law.com
10-10-2005

http://www.law.com/jsp/article.jsp?id=1128675912037

Although IP was not a hot topic during the John Roberts confirmation
hearings, inquiring IP minds want to know: Where does he stand on IP
issues? But even more, does he know anything about IP?

While the answer to the former remains as much of mystery as his
positions on matters attracting more public attention, the
intellectual property community may take some solace in knowing at
least that Justice Roberts has IP experience.

While on the U.S. Court of Appeals for the D.C. Circuit, Roberts
penned on reported intellectual property in Universal City Studios
LLLP v. Peters, 402 F.3d 1238 (D.C. Cir. 2005).

The case involved royalty claims filed by Universal Studios and MGM
Studios, who sought to form a common fund of royalties paid by cable
and satellite companies for retransmission of copyrighted broadcasts.
By regulation, claims were due during the month of July, but
Universal and MGM filed claims that arrived on August 2.

Roberts affirmed summary judgment, holding that the refusal to grant
a waiver was not an abuse of discretion because the essence of the
rule was to prohibit case-by-case inquiries into the time of mailing,
and that rejection of the claims did not violate the owners' due
process rights. Two days late and many dollars short.

Roberts also participated in the decisions rendered in Luck's Music
Library, Inc. v. Gonzales, 407 F.3d 1262 (D.C. Cir. 2005), and
Recording Indus. Ass'n of Am. v. Verizon Internet Servs., 351 F.3d
1229 (D.C. Cir. 2003).

In Luck's Music Library, the plaintiffs challenged a provision which
resurrected copyrights in works falling into the public domain. The
plaintiffs argued that this provision violated the Copyright Clause
of the Constitution because "rewarding prior works will not provide
any significant incentive to create new works. ... "

Dismissing the plaintiffs' claims, the court said the Copyright
Clause did not create any ban on Congress' ability to remove works
from the public domain. A bright line rule against laws removing
works from the public domain was not required by public policy or
other laws.

In the Verizon case, the RIAA sought to enforce its anti-infringement
efforts against individual users of P2P file-sharing programs by
serving subpoenas upon Verizon, via the DMCA subpoena provision.
Verizon challenged the subpoenas, asserting constitutional arguments
protecting free speech. The court ruled in favor of Verizon. A
subpoena could be issued only to an ISP engaged in storing on its
servers material that was infringing or the subject of infringing
activity, and not to a mere conduit ISP.

Justice Roberts' experience as an advocate in IP litigation before
the Supreme Court and Federal Circuit is even more impressive. He was
the successful attorney in Feltner v. Columbia Pictures Television,
Inc., 523 U.S. 340 (1998); TrafFix Devices v. Marketing Displays
Inc., 532 U.S. 23 (2001); Intergraph Corp. v. Intel Corp., 195 F.3d
1346 (Fed. Cir. 2001), distinguishing himself as the most
knowledgeable IP attorney to reach our highest court.

Mark V.B. Partridge is a partner in the Chicago office of Pattishall,
McAuliffe, Newbury, Hilliard & Geraldson and the author of "Guiding
Rights: Trademarks, Copyright and the Internet."

************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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