Heise.de, hier.
Friday, March 22, 2013
Thursday, March 21, 2013
CJEU Referral in Huawei v. ZTE Concerning FRAND
Here (German).
Ehoganlovells.com, here.
See also Fosspatents.com, here and Juve.de, here (German).
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My quick reading of the CJEU referral, based on the translation of the Court's order as kindly made available by Fosspatents.
The questions essentially revolve around the concept of “willing licensee” against which the SEP (standard essential patent) owner has been seeking an injunction. The concept at issue can obviously have even dramatically different shades and meanings. In fact, it can range from a mere “(oral) declaration in broad and general terms indicating the [the potential licensee’s] willingness to enter into negotiations” to “a binding offer to the SEP owner on terms that the SEP owner cannot refuse without treating the infringer unfairly or discriminatorily”, furthermore requiring that “the infringer, in anticipation of the license he is seeking, already complies with his contractual obligations with respect to past acts of infringement.”
A middle ground could be the requirement that “the infringer has indeed entered into negotiations, such as by, for example, communicating terms and conditions under which he is prepared to conclude a license agreement.”
Ehoganlovells.com, here.
See also Fosspatents.com, here and Juve.de, here (German).
-------------
My quick reading of the CJEU referral, based on the translation of the Court's order as kindly made available by Fosspatents.
The questions essentially revolve around the concept of “willing licensee” against which the SEP (standard essential patent) owner has been seeking an injunction. The concept at issue can obviously have even dramatically different shades and meanings. In fact, it can range from a mere “(oral) declaration in broad and general terms indicating the [the potential licensee’s] willingness to enter into negotiations” to “a binding offer to the SEP owner on terms that the SEP owner cannot refuse without treating the infringer unfairly or discriminatorily”, furthermore requiring that “the infringer, in anticipation of the license he is seeking, already complies with his contractual obligations with respect to past acts of infringement.”
A middle ground could be the requirement that “the infringer has indeed entered into negotiations, such as by, for example, communicating terms and conditions under which he is prepared to conclude a license agreement.”
In the event that “the [infringer's] submission of a binding
offer to conclude a license agreement is a requirement” it would then be
necessary to clarify whether that offer should “involve specific substantive and/or
chronological requirements”, whether it would “have to set forth all of the
commercial terms that in accordance with relevant industry practice are usually
set forth in such license agreements,” and whether it could “be conditioned
upon actual use and/or validity of the SEP-in-suit”. Moreover, “in the event
that the infringer's [precontractual] fulfillment of obligations arising from
the requested license is a requirement” for the finding of a “willing licensee,”
the Court asks whether the infringer could be “required, in particular, to make
disclosures relating to past acts of infringement and/or to pay
[precontractual] royalties”, and, finally, whether the “obligation to pay
[precontractual] royalties” could also “be fulfilled by giving security.”
Wednesday, March 20, 2013
Standard essential patents: who is really holding up (and when)?
G. Langus, V. Lipatov, D. Neven, here.
Tuesday, March 19, 2013
Parallel Exclusion
S. Hemphill, T. Wu, here.
"In industries marked by rapid technological change, the exclusion of entrants has a far greater impact on the development of the industry. In these industries, exclusion, not price-fixing, is the “supreme evil” that antitrust should address.", p. 1212.
"In industries marked by rapid technological change, the exclusion of entrants has a far greater impact on the development of the industry. In these industries, exclusion, not price-fixing, is the “supreme evil” that antitrust should address.", p. 1212.
Supreme Court on the "first sale" doctrine and copyrighted works lawfully made abroad
Kirtsaeng v. John Wiley & Sons, Inc., No. 11–697, here.
The questions:
"Putting section numbers to the side, we ask whether
the “first sale” doctrine applies to protect a buyer or other
lawful owner of a copy (of a copyrighted work) lawfully
manufactured abroad. Can that buyer bring that copy
into the United States (and sell it or give it away) without
obtaining permission to do so from the copyright owner?
Can, for example, someone who purchases, say at a used
bookstore, a book printed abroad subsequently resell it
without the copyright owner’s permission?", p. 6.
The answer:
"In our view, the answers to these questions are, yes. We
hold that the “first sale” doctrine applies to copies of a
copyrighted work lawfully made abroad."
Some competition scholar's highlights:
"The “first sale” doctrine is a common-law doctrine with
an impeccable historic pedigree", p. 18.
"American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer", p. 19.
"the Constitution’s language
nowhere suggests that its limited exclusive right should
include a right to divide markets or a concomitant right
to charge different purchasers different prices for the same
book, say to increase or to maximize gain...(T)o the contrary, Congress enacted a copyright law that
(through the “first sale” doctrine) limits copyright holders’
ability to divide domestic markets. And that limitation is
consistent with antitrust laws that ordinarily forbid market divisions.", p. 32.
The questions:
"Putting section numbers to the side, we ask whether
the “first sale” doctrine applies to protect a buyer or other
lawful owner of a copy (of a copyrighted work) lawfully
manufactured abroad. Can that buyer bring that copy
into the United States (and sell it or give it away) without
obtaining permission to do so from the copyright owner?
Can, for example, someone who purchases, say at a used
bookstore, a book printed abroad subsequently resell it
without the copyright owner’s permission?", p. 6.
The answer:
"In our view, the answers to these questions are, yes. We
hold that the “first sale” doctrine applies to copies of a
copyrighted work lawfully made abroad."
Some competition scholar's highlights:
"The “first sale” doctrine is a common-law doctrine with
an impeccable historic pedigree", p. 18.
"American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer", p. 19.
"the Constitution’s language
nowhere suggests that its limited exclusive right should
include a right to divide markets or a concomitant right
to charge different purchasers different prices for the same
book, say to increase or to maximize gain...(T)o the contrary, Congress enacted a copyright law that
(through the “first sale” doctrine) limits copyright holders’
ability to divide domestic markets. And that limitation is
consistent with antitrust laws that ordinarily forbid market divisions.", p. 32.
General Court on the "Bananas Cartel"
Case T‑588/08, Dole Food Company, Inc., and Dole Germany OHG, v European Commission, here.
Monday, March 18, 2013
The Register’s Call for Updates to U.S. Copyright Law
M. Pallante, here.
Some general points:
- Because the dissemination of content is so
pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it.
- central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age
- apply fresh eyes to the next great copyright act to ensure that
the copyright law remains relevant and functional
- keeping the public
interest at the forefront, including how to define the public interest and who may speak for it
- possible and necessary to have a copyright law that combinessafeguards for free
expression, guarantees of due process, mechanisms for access, and respect for intellectual
property
- authors are intertwined with the interests of the public. As the first beneficiaries of the copyright
law, they are not a counterweight to the public interest but instead are at the very center of the
equation
To do list:
- clarifying the scope of exclusive rights revising exceptions and
limitations for libraries and archives, addressing orphan works, accommodating persons who
have print disabilities, providing guidance to educational institutions, exempting incidental
copies in appropriate instances, updating enforcement provisions, providing guidance on
statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims,
reforming the music marketplace, updating the framework for cable and satellite transmissions,
encouraging new licensing regimes, and improving the systems of copyright registration and
recordation
"Bold" adjustments to the general framework:
- reverting works to the public
domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office
- requiring copyright owners to object or “opt
out” in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries
Some general points:
- Because the dissemination of content is so
pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it.
- central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age
- apply fresh eyes to the next great copyright act to ensure that
the copyright law remains relevant and functional
- keeping the public
interest at the forefront, including how to define the public interest and who may speak for it
- possible and necessary to have a copyright law that combinessafeguards for free
expression, guarantees of due process, mechanisms for access, and respect for intellectual
property
- authors are intertwined with the interests of the public. As the first beneficiaries of the copyright
law, they are not a counterweight to the public interest but instead are at the very center of the
equation
To do list:
- clarifying the scope of exclusive rights revising exceptions and
limitations for libraries and archives, addressing orphan works, accommodating persons who
have print disabilities, providing guidance to educational institutions, exempting incidental
copies in appropriate instances, updating enforcement provisions, providing guidance on
statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims,
reforming the music marketplace, updating the framework for cable and satellite transmissions,
encouraging new licensing regimes, and improving the systems of copyright registration and
recordation
"Bold" adjustments to the general framework:
- reverting works to the public
domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office
- requiring copyright owners to object or “opt
out” in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries
Friday, March 15, 2013
Au nom du droit à l'oubli, quel patrimoine pour l'Europe de demain ?
Association des archivistes français, ici.
Datenschutz in Europa stärken
Pressemitteilung, Konferenz der Datenschutzbeauftragten des Bundes und der Länder, hier.
Thursday, March 14, 2013
Wednesday, March 13, 2013
Tuesday, March 12, 2013
Privacy, technologie en de wet
J. Bloem, M. van Doorn, S. Duivestein, T. van Manen, E. van Ommeren, hier
Monday, March 11, 2013
Friday, March 08, 2013
Thursday, March 07, 2013
Television broadcasters may prohibit the retransmission of their programmes by another company via the internet
Judgment in Case C-607/11, ITV Broadcasting Ltd and Others v TVCatchup Ltd, Press Release here.
Wednesday, March 06, 2013
Tuesday, March 05, 2013
Standard Setting Organizations Can Help Solve the Standard Essential Patents Licensing Problem
K.-U. Kühn, F. Scott Morton, & H. Shelanski, here.
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Centre for a Digital Society , Video here . These are my very rough talking points on pay or okay in full length (more than I actually had...
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On 24 March 2004 the European Commission fined Microsoft for abuse of dominant position (H/T Lewis Crofts). 18 years (age of maturity) l... -
Report to the California Law Review Commission Antitrust Law: Study B-750, here .
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A. Blankertz, hier .
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Organized Money, here .
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InternetLab, here .
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Frankfurter Allgemeine Zeitung, 01.07.2013, Nr. 149, S. 22 Für ein Stück vom Software-Kuchen Usedsoft AG kämpft immer noch gegen Widerständ...
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CMA, here .