News of the Week; September 9, 2020

INTELLECTUAL PROPERTY

1.  Access Copyright and York U File Responses in SCC (Howard Knopf)
2. The Canadian Copyright Licensing Agency(“Access Copyright”) And -York University: Response Of York University To Application For Leave To Appeal Of The Canadian Copyright Licensing Agency
3. The Copyright Board’s New $757,548.50 (+?) Website – Finally an Apparently Functional Search Engine – but Otherwise Disappointing at Best and Problematic at Worst – And Still NO CANLII Presence (Howard Knopf)
4. Can’t “Shake It Off” Yet: Court Denies Taylor Swift’s Motion to Dismiss Copyright Infringement Lawsuit 
5. Music Choice v. Copyright Royalty Board: D.C. Circuit determines that Board erred in determination that services offered were categorically excluded from lower royalty rate for pre-existing service providers set forth in DMCA.
6. Not Your Grandfather’s Internet Royalties? DMCA Favorable Rates Might Apply to Internet Offerings 
7. Ninth Circuit: Under the “Asserted Truth Doctrine” (f/k/a “Copyright Estoppel”) Authors of Nonfiction Cannot Later Claim a Work is Fictional to Pursue a Copyright Case
8. Astor-White v. Strong: 9^th Cir. affirms that, after three amended complaints, plaintiff was still unable to plausibly allege defendants copied or appropriated protectable expression from TV series Empire.
9. Jackson v. Roberts: 2nd Cir. affirms that right of publicity claim brought by 50 Cent against Rick Ross, based on Ross’s sampling of 50 Cent’s hit song “In Da Club” in a promotional mixtape, is preempted by Copyright Act.
10. No Remix: Copyright Act Preempts Right of Publicity Claim
11. A Copyright Suit against Netflix’s Stranger Things 
12. Bain v. Film Independent, Inc.: Court dismisses claims against actress, finding her use of portions of film not yet widely released in her acting reel to be transformative fair use.
13. Michael Skidmore v. Led Zeppelin et al., Case No. 20-142 (S.Ct. 2020)
14. What 11th Circ. Guitar Ruling Means for Copyright Litigants 
15. Do Those Plans Infringe on My Plans? Depends Where You Are
16. The Next Register Of Copyrights Must Realize That Copyright Serves The Public 
17. Out of the Ordinary: Requirements for Describing Goods and Services in Canadian Trademark Applications 
18. “Terrible Towel” Lawsuit a Good Reminder to Consult a Trademark Lawyer
19. Honda and Microsoft caught in a trademark race 
20. Apples and Prepears: The perception of protective brands 
21. The Queen is not amused, The Royal Butler is refused (via Passle) 
22. Goodwill Hunting
23. Nike are successful in registering FOOTWARE (via Passle)
24. Tiffany v. Costco: Descriptive words over trademark exclusivity 
25. Competitive Keyword Advertising Still Isn’t Trademark Infringement, Unless…. –Adler v. Reyes & Adler v. McNeil (Eric Goldman) 
26. Influencer marketing and TM infringement
27. USPTO prioritises certain COVID-19-related trademark and service mark applications 
28. No trade secret protections for information discussed via open zoom call 
29. Playing Fair: Protect Trade Secrets from Business Partners
30. Don’t Play Chicken With Court Orders: COVID-19 Is No Excuse for a Terminated Franchisee to Continue Using the Franchisor’s Intellectual Property and Trade Secrets
31. Use of Infringing Product, Misappropriated Trade Secrets May Continue – for a Licensing Fee
32. A UDRP case involving a .CEO domain
33. Purposive test applies to construction of patent claims: Federal Court
34. A significant Federal Court decision supporting patent eligibility of software inventions in Canada
35. Second Kick at the Can: Post-Grant Proceedings Involving Canadian Patents
36. Judge Rakoff Refuses to “Ice” Diamond Patent Inequitable Conduct Allegations
37. Unwired Planet v Huawei and Huawei/ZTE v Conversant [2020] UKSC 37
38. Exclusion Orders: How an International Trade Commission Investigation Can Protect Patented Products from Infringing Imports
39. Spotlight: standard-essential patents in United Kingdom
40. The Federal Circuit Expressly Declares that Juries Determine the Standard-Essentiality of Patent Claims 
41. Trapped: insufficiency deals the final blow to Regeneron’s ground-breaking transgenic mouse patents 
42. Patent Office Issues Binding Memorandum Concerning Use Of Applicant Admitted Prior Art 
43. Using patents to establish alternative business models, built around licensing
44.  Canadian Heritage Minister Guilbeault Says Social Media Sites Linking to News Content Without Payment is “Immoral” (Michael Geist)
45. As Heritage Minister Steven Guilbeault Plans Link Taxes and Internet Content Regulation, Where Is Navdeep Bains? (Michael Geist) 
46. There Are Many Serious Concerns About Facebook. Why the Australia News Fight Isn’t One of Them (Michael Geist)
47. Intermediary Liability And Responsibilities Post-Brexit
48. UK government’s Digital Services Tax misses its target: Apple and others share the weight of 2% tax aimed at major tech firms with developers, sellers, and advertisers
49. Legal Concerns With Influencers’ Tattoos On Social Media: The Ball Is Still In The Air, And The Ink Is Not Dry
50. Academic Study Says Open Source Has Peaked: But Why?
51. How to gather Data Legally for training AI Data Model?
52. Artificial Intelligence and Trends in Patenting
53. California musicians rejoice as governor ratifies new legislation on employment classification
54. New California Law Makes it Easier for Certain Musicians, Writers, Photographers and Content Providers to Be Deemed Independent Contractors
55. Apple is now seeking damages from Epic Games over breach of contract
56. Apple goes on offensive in Epic Games lawsuit: Apple’s official login system will work with Fortnite “indefinitely” but users are encouraged to update Epic accounts
57. Apple pauses plans to end ‘Sign In with Apple’ support for Epic Games accounts
58. Apple says Epic’s Fortnite payment scheme “is theft, period.”
59. Epic is attempting to have Fortnite reinstated on the App Store
60. Epic asks court to force Fortnite back onto the iOS App Store
61. Epic Games wants court order to reinstate Fortnite on iOS: Unreal firm files another preliminary injunction to “stop Apple from retaliating” during antitrust case
62. Plaintiff Epic Games, Inc.’s Notice Of Motion And Motion For A Preliminary Injunction And Memorandum Of Points And Authorities In Support Thereof
63. Google distances itself from Epic versus Apple legal dispute
64. Google requests court not connect it to Apple vs Epic: Firm says it has yet to be officially served a complaint, but will challenge “based on circumstances unique to Android”
65. Data Transmission Patent Asserted Against Amazon and Blizzard is Partially Invalidated
66. Abdin v CBS: Second Circuit affirms dismissal of copyright action alleging that Star Trek: Discovery series infringed Tardigrades video game, holding that parties’ works are not substantially similar as matter of law.
67. Indian dev unveils FAU:G in the wake of government’s PUBG Mobile ban: Ncore Games’ new title will feature current Chinese-Indian border dispute as a setting
68. PUBG responds to India’s ban on PUBG Mobile: PUBG Corp withdraws license to run PUBG Mobile in India from Tencent, will self-publish franchise instead
69. Game Creator Has His YouTube Video Of Game Demonetized Over Soundtrack He Also Created
70. Duke Nukem throws a spanner in the Gearbox | 10 Years Ago This Month: Borderlands studio revives Duke Nukem Forever, dooming itself to a decade (and counting) of legal battles
71. GameStop will close another 400 to 450 stores this fiscal year: It’s already closed 388 stores year-to-date
72. U.S. Patent no. 9,582,147: Inserting game objects through contactless communication
73. In Major Blow To Sony’s Upcoming PlayStation 5, Microsoft Announces PlayStation 6

Jon