Intellectual Property Law News - U.S. Tenth Circuit
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Aereo was an online service that rebroadcast over-the-air network programming over the Internet. That didn't work out so well for them, especially once they reached the U.S. Supreme Court.

But buried in that SCOTUS opinion was a nugget of hope: a DVR service. The Court explicitly noted that it was not ruling on whether Aereo's DVR service, which stores user recordings of programs in the cloud, was legal. Of course, a DVR isn't much good if there is no video to be recorded, so the company is also rebranding itself as an online cable company, hoping that the rebranding entitles them to a compulsory license on programming.

It's not a crazy pivot: online television via antennas to online cable provider. Heck, it's not like they switched from video advertising to scrubbing socks. But will it work? If so, the company will have to win in two separate legal battles: one in the Tenth Circuit and one in a federal district court in New York.

Want to spend more time practicing, and less time advertising? Leave the marketing to the experts.

Utah District Court Grants Preliminary Injunction Against Aereo

The first preliminary injunction against Aereo was granted by the Utah District Court, but a motion to stay proceedings was granted until SCOTUS hears the case in April.

This is a big win for broadcasters, who were originally denied the preliminary injunction in the Second and Massachusetts District Court.

So why did the Utah district court grant the preliminary injunction?

Aereo is not making any friends in the broadcast industry, and frankly, it doesn't give a damn. Lawsuits have been filed in the First Circuit, Second Circuit, and the Tenth Circuit. Though the Supreme Court granted cert in the case originating in the Second Circuit earlier this year, the U.S. District Court for the District of Utah agreed to hear arguments, which happened Tuesday.

Why would the district court go ahead with arguments? Read on.

10th Cir. Rejects The Continuing Wrong Doctrine For Copyrights

The Tenth Circuit rejected the use of the continuing wrong doctrine in a New Mexico copyright infringement case.

In Diversey v. Schmidly, Andrew Diversey sued the University of New Mexico for copyright infringement when it used his dissertation without his permission. Diversey's untimely filing issues got his case booted from the district court and he appealed arguing that the continuing wrong doctrine bought him more time to file.

So for whom does the law toll?

Tenth Circuit Rules for Microsoft in Antitrust Lawsuit

The Tenth Circuit has ruled that Novell Inc. has no viable claims left after an eight-week long trial against Microsoft that occurred in Utah in 2011, reports The Associated Press. While the case spans nearly 20 years of contentious legal battles, the court focused on what it could, and was left with one final decision: with respect to Novell, Microsoft did nothing unlawful.

According to the AP,& the Tenth Circuit Court of Appeals held, "Novell complains that Microsoft refused to share its intellectual property with rivals after first promising to do so. But the antitrust laws rarely impose on firms -- even dominant firms -- a duty to deal with their rivals."

Let's Go, Intellectual Labor! No Copyright for Inane Cheer

According to the Tenth Circuit Court of Appeals, one can only copyright material that requires "intellectual labor."

"Let's Go Thunder," in the court's opinion, did not require sufficient thought to be entitled to copyright protection.

Charles Syrus wrote a song for the Oklahoma City Thunder (Thunder), a professional basketball team in the NBA. Syrus gave a copy of his song, for which he has a copyright registration, to the Oklahoma City Mayor's office in 2008. He also gave the song to an unnamed coach and to the team's head cheerleader as part of a fan engagement activity.

Commercial General Liability Policy Covers Patent Infringement?

Ah … the commercial general liability policy: savior of the business sector, the great indemnifier, the … defender of patent infringement lawsuits?

That’s right. The Tenth Circuit Court of Appeals ruled last week in Dish Network Corp. v. Arch Specialty Ins. that insurers may have a responsibility to defend and indemnify Dish Network (Dish) against a patent infringement lawsuit because the lawsuit could be considered an advertising injury under Dish’s commercial general liability (CGL) policy.

Plus Criminal, Employment and Tort Cases

Golan v. Holder, No. 09-1234, involved an action challenging the constitutionality of Section 514 of the Uruguay Round Agreements Act ("URAA"), which granted copyright protection to various foreign works that were previously in the public domain in the U.S.  The court of appeals reversed summary judgment for plaintiffs, on the grounds that 1) the government's interest in securing protections abroad for American copyright holders satisfied this substantial government interest standard; 2) Congress had substantial evidence from which it could reasonably conclude that the ongoing harms to American authors were real and not merely conjectural; and 3) there was substantial evidence from which Congress could conclude that Section 514 would alleviate these harms to American copyright holders.

In US v. Salazar, No. 09-3073, a firearm possession prosecution, the Tenth Circuit reversed the district court's order suppressing defendant's firearm, on the grounds that 1) defendant was not seized until he submitted to the police's show of authority by obeying the command to get out of his truck; and 2) at the time that defendant submitted to the officer's authority, the officer had reasonable suspicion to detain him.

In Sines v. Wilner, No. 09-1347, a firearm possession prosecution, the court of appeals affirmed the denial of petitioner's habeas petition, holding that 1) defendant's remedy under 28 U.S.C. section 2255 was not inadequate or ineffective; 2) defendant could have appealed the district court's dismissal of his motion; and 3) defendant's notice of appeal could not be construed as encompassing the denial of his section 2255 motion, because the notice did not evince an intent to appeal that denial.

Fredericks v. Jonsson, No. 09-1169, involved an action against a licensed psychologist for failing to warn plaintiffs of the danger posed by one of the psychologist's patients.  The court of appeals affirmed summary judgment for defendant, holding that 1) Colorado's mental health-professional liability statute, Colo. Rev. Stat. section 13-21-117, applied in the circumstances of this case and 2) the statute did not require defendant to warn plaintiffs because the patient had not communicated to defendant any serious threat of imminent physical violence against them.

Medlock v. United Parcel Serv., Inc., No. 09-5109, concerned an action alleging federal claims under the Age Discrimination in Employment Act (ADEA) and his correlative Oklahoma "Burk tort" claim.  The court of appeals affirmed summary judgment for defendant, holding that it was not the employer's burden to negate any possible contributory role played by age in the challenged adverse action but, conversely, the employee's burden to show that age was the "but for" cause of the action.

Related Resources

Southwest Stainless, LP v. Sappington, No. 08-5127

In an action for breach of a noncompetition agreement restricting defendants' ability to work with competitors, judgment for plaintiff is affirmed in part where the district court properly distinguished in its findings of fact between plaintiff's general lost profits and profits lost on specific orders.  However, judgment for plaintiff is reversed in part where certain information used by defendants did not qualify as a trade secret because plaintiff disclosed this information to its customers without reservation.

Read Southwest Stainless, LP v. Sappington, No. 08-5127

Appellate Information

Filed September 21, 2009


Opinion by Judge Lucero


For Appellants:

Justin D. Flamm, Conner & Winters, LLP, Tulsa, OK

Timothy P. Reilly, Conner & Winters, LLP, Tulsa, OK

For Appellees:

Dinita L. James, Ford & Harrison, LLP, Phoenix, AZ

William E. Grob, Ford & Harrison, LLP, Phoenix, AZ

SCO Group, Inc. v. Novell, Inc., No. 08-4217

In an action for slander of title regarding statements made by defendant about its alleged ownership of certain software copyrights, summary judgment for defendant is reversed where: 1) the parties' agreement satisfied the Copyright Act's writing requirement; and 2) the admissible evidence concerning the ambiguous contract language regarding copyright ownership was not so one-sided as to warrant summary judgment.

Read SCO Group, Inc. v. Novell, Inc., No. 08-4217

Appellate Information

Filed August 24, 2009


Opinion by Judge McConnell


For Appellant:

Stuart Singer, Boies, Schiller & Flexner LLP, Fort Lauderdale, FL

Devan V. Padmanabhan, Dorsey & Whitney LLP, Minneapolis, MN

For Appellee:

Michael Jacobs, Morrison & Foerster LLP, San Francisco, CA

George C. Harris, Morrison & Foerster LLP, San Francisco, CA