You May Not “Like” This Title: Everything Stored on Facebook Is Discoverable

Facebook has revolutionized the way that people communicate and do business by providing an open and connected environment for individuals and businesses alike. This openness has largely contributed to both its popularity and success. However, enjoying the openness of this revolutionary platform may come at an unexpected cost, especially for those who do not understand how the website’s content may be used as evidence in a lawsuit. Darren Heitner demonstrates how content published on a person’s Facebook account may be discoverable for the purposes of litigation, even when the information sought is unavailable through Facebook’s privacy settings.

Patent Eligibility of Molecules: “Product of Nature” Doctrine After Myriad

In March 2010, the U.S. District Court in the Southern District of New York held in the Myriad case that patent claims directed to isolated DNA molecules were invalid under 35 U.S.C. § 101 for failing to claim patent-eligible subject matter, relying heavily on the so-called “product of nature” doctrine. Instead of a chronological order, this Note reviews the legal history of the “product of nature” doctrine in a brand new analytical framework, analyzing the application of the “product of nature” doctrine to relevant cases based on whether the claimed subject matter is an element, a molecule, or a microorganism. This Note then proposes an appropriate test for applying the doctrine to patent claims directed to molecules. Retroactive application of the proposed test to moleculeclaim case law would have yielded results consistent with the vast majority of relevant cases. Application of the proposed test to the DNA-molecule claims-insuit in Myriad leads to a legal conclusion that the claimed DNA molecules are patent-eligible, contrary to the conclusion of the Myriad court. This Note also makes an effort to address certain issues in the court’s opinion, and to provide some practical tips to patent practitioners in drafting DNA molecule claims.

What Are the Constitutional Limits on Awards of Statutory Damages?

Music piracy is a major problem in this country, robbing the economy of billions each year. Andrew Berger argues that, if piracy is to end, large verdicts of the kind awarded in Sony BMG Music Entertainment et al. v. Tenenbaum may be necessary. In Tenenbaum, the first file sharing case ever to reach an appellate court following trial, the court held that the jury’s statutory damages award violated the Due Process Clause, even though the award was within the statutory range set by Congress. Berger discusses the ways in which this decision could negatively impact copyright enforcement for years to come.

Substantial Disparity: Copyright Chaos in the Second Circuit

The test for substantial similarity is a doctrinal mess.  In response, recent commentators have called for the inclusion of expert testimony at this stage of an infringement analysis.  Graham Ballou, however, argues that judicial latitude in the framing of the inquiry is more responsible for jury confusion than a lack of expert witnesses.  After surveying three years of summary judgment opinions on substantial similarity from district courts in the Second Circuit, Ballou concludes that copyright law should discourage summary judgment on and de novo review of substantial similarity, therefore re-empowering the jury on the inherently subjective question of improper appropriation.

Fasten Your Seatbelts, It’s Going to Be a Bumpy Night: The Implications of Recent Delaware Case Law on the Film Industry

Recently, the Court of Chancery in eBay v. Newmark doubted the ability of firms to cite a threat to corporate culture as legitimate grounds for implementing a takeover defense. Just over a year ago, the Court in Amylinexpressed doubt about a firm’s ability to impede changes of control by embedding financial penalties, for lack of a better word, in otherwise ordinary business transactions. Jason Tyler argues that Hollywood presents an exceptional context, or, to put it another way, that the economic reality of movie studios pushes at the logical assumptions that underlie the eBay and Amylinholdings. Accordingly, if applied broadly, eBay and Amylin may threaten movie studios in particular.

How to Protect Against a Licensing Partner’s Bankruptcy: Patent Licenses and the Bankruptcy Code

Since the financial crisis of 2008, many contractual partners who formerly looked rock solid have experienced major cash-flow problems. In addition, it has always been the case that in some fields of technology, such as biotech, a significant number of businesses are expected to fail. Thus, it is important to think through at the outset how a license might be treated by a bankruptcy court, and where possible, to structure the agreement accordingly. How to best do this will depend primarily on whether a party is the patentee or the licensee, and on the extent to which rights are transferred (i.e. whether the transaction results in a sale or merely a license agreement). As Jordan Markham argues, in the context of a bankruptcy proceeding, the patentee is generally better served by a greater, and a licensee by a lesser, transfer of rights.

Regulating the Film Industry in China: A New Approach

For U.S. filmmakers, the People’s Republic of China represents a prodigious market opportunity. Yet, true exploitation of the market is simply chimerical due to an obstinate web of import quotas, censorship, and government intervention, all founded upon a guise of cultural protectionism.Brian R. Byrne argues that: (i) China’s authoritarian approach to film distribution, coupled with its deficient intellectual property regime, actually promotes the dissemination of Western culture within its borders – a direct perversion of its intentions; and (ii) in order to achieve its cultural objectives, China must undertake a number of key reforms.

Contributory Liability for Trademark Counterfeiting in an Ecommerce World

Scott Gelin and G Roxanne Elings analyze the current standard of contributory liability in the wake of Tiffany (NJ) Inc. v. eBay, in which the Second Circuit affirmed the Southern District’s finding that eBay is not liable to trademark owners for counterfeit sales of their products by third parties on its site. After highlighting certain ambiguities in the current state of the law, the authors propose practical tips to help brand owners protect against counterfeit sales, and to help service providers and selling platforms avoid secondary liability.