Skilled in the Art: Frankenstein's Software Staggers Into Tse's Court + IP Laterals for Morgan Lewis, TroyGould + Caveat Emptor on Model Jury Instructions
Amazon.com and Williams-Sonoma throw down over AI software and copyright liability.
June 26, 2020 at 06:16 PM
7 minute read
Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. Here's what's cracking today:
• Amazon.com and Williams-Sonoma throw down over AI software and copyright liability.
• Morgan Lewis beefs up in London and TroyGould adds a veteran presence in L.A.
• Caveat emptor when relying on model jury instructions.
As always, you can email me your feedback and follow me on Twitter.
|
Orrick Warns Judge of Frankenstein's Software
We had the Rumble in the Copyright Jungle this morning in U.S. Magistrate Judge Alex Tse's Northern District Courtroom. Stanford law professor Mark Lemley and Orrick Herrington & Sutcliffe partner Annette Hurst debated whether Amazon.com's software algorithms are evolved to the point that they exercise the human-like volition necessary for copyright liability when they choose photographs to appear on product pages.
Hurst warned that a ruling for Amazon will put the law on a dystopian path where no one can be held responsible for killings by automated vehicles and AI-piloted drones. Lemley rejected the premise. "This is not a rogue AI case. We are not in that world," he said. "I can imagine we might end up in such a world at some point, but we are not there now."
Williams-Sonoma (WSI) sued Amazon 18 months ago, alleging the tech giant misleads consumers into believing that third-party resellers of WSI merchandise are authorized dealers. WSI also accused Amazon of infringing several design patents. WSI then added copyright claims this spring, alleging that Amazon is displaying copyrighted WSI photos uploaded by resellers to Amazon's product detail pages.
Normally, an internet service provider is shielded from liability by the Digital Millennium Copyright Act when it merely hosts a third-party's infringing content. WSI contends that Amazon has developed sophisticated AI-based software known among employees as "Frankenstein" that makes the selections. "The reason they call them Frankenstein, your honor, is because Amazon is Dr. Frankenstein creating these monsters," Hurst said. Frankenstein is "picking winners, and it's using others' copyrighted content to do so, and directly financially benefiting by taking a cut."
Amazon is asking Tse to dismiss the copyright claims. It says the company is doing nothing out of the ordinary and the DMCA safe harbor should apply. Websites like YouTube, Facebook and Instagram use software that processes, ranks and prioritizes the content that people post to it, said Lemley, who's also a partner at Durie Tangri. "Were Williams-Sonoma's proposal to make new law adopted, the internet as we know it would be impossible," he said, "because no one could host content posted by third parties without fear of crushing liability."
Tse said he's going to be guided by Justice Antonin Scalia's dissent in ABC v. Aereo, where he wrote that to be shielded from liability, where he wrote that a service provider who is "totally indifferent to the material" is shielded from liability.
I'll have more from Friday's hearing, including the back and forth over killer robots, later today in The Recorder.
|
SPONSORED BY ALM
Announcing Two Incredible Keynote Speakers for the Women, Influence & Power in Law Conference
WIPL is known for having some of the most engaging and energizing keynote speakers attend to share their thoughts, experiences, war stories and tips on effective leadership. And this year is no exception. This year, we are grateful to welcome two remarkable women come and inspire us: Tina Tchen, the President and CEO of the "Times Up" Legal Defense Fund and Paula Boggs, Founder of Boggs Media LLC and Former Executive Vice President, General Counsel and Secretary, Law and Corporate Affairs at Starbucks from 2002-2012. READ MORE
IP Lateral – Morgan Lewis
Morgan Lewis & Bockius is bolstering its European IP practice with the addition of trademark and design partner Nick Bolter to its London office, along with a team of four associates, a paralegal and three trademark professional staff. Bolter is UK- and EU-qualified. He joins the firm from Cooley.
"The arrival of Nick and his team will be an important part of the strategic growth of our global intellectual property capabilities in the United States, Russia, China, and Japan," firm chair Jami McKeon said in a written statement. "The exceptional caliber of these lawyers represents an exciting development for our firm and for our clients, particularly retail and luxury brands companies."
|
IP Lateral – TroyGould
Veteran copyright and trademark litigator John Ulin has joined Century City-based TroyGould from Arnold & Porter Kaye Scholer.
Ulin has litigated some 200 IP cases and is the incoming chair of the USC Gould Intellectual Property Institute. He also serves on the Board of the Los Angeles Copyright Society and the legal advisory board of the Copyright Alliance.
"John has an established track record of successful outcomes for high profile and complex lawsuits," TroyGould's managing partner, Istvan Benko, said in a written statement. "He will be a tremendous asset to our firm's strong litigation practice."
|
Quick Hits
➤ The Ninth Circuit has granted furniture designer Herman Miller Inc. a new trial over allegations that rival Office Star infringed the trademark on its iconic Aeron chair. The problem: U.S. District Judge John Kronstadt had instructed jurors that the chair's appearance could be considered functional—and therefore not protectable—if it is "part of the actual benefit that consumers wish to purchase when they buy the product." Although that language comes straight from a Ninth Circuit model jury instruction, the court has previously held that it "flies in the face of existing caselaw." The court also affirmed a $3.4 million award for Herman Miller over its Eames chair while reversing a $3 million award for trade dress dilution. Foley & Lardner partner Jonathan Moskin argued the appeal for Herman Miller. I have a more in The Recorder here.
➤ Also on the trade dress front, U.S. District Judge Mary Rowland has ordered Otter Products to define more clearly the trade dress that it believes Fellowes is diluting with its competing smartphone cases. Otter's complaint says that its LifeProof trade dress comprises "individually and in combination" side bumpers that frame certain buttons; the "color pop band" on the back of the case; a trapezoidal branding tag on the side; and piping adjacent to speaker apertures. Fellowes argues that's at least 15 potential combinations, even leaving aside color variations. "If one needs to plead 15 different trade dress options … it is incapable of distinctiveness and therefore incapable of protection," Fellowes' attorneys at Pillsbury Winthrop Shaw Pittman and Wood Phillips argued. Rowland on Thursday ordered Otter to amend its complaint. "Both Fellowes and this Court require more clarity," she wrote.
➤ Don't call it a disclaimer. But two "diametrically opposed positions about the meaning of the same phrase"—one taken at the European Patent Office, the other in a Delaware lawsuit—have led to an indefiniteness finding in a dispute over nutritional supplements. U.S. District Judge Mitchell Goldberg has affirmed U.S. Magistrate Judge's Richard Lloret's recommendation from last fall that a patented process for producing an amino acid be ruled indefinite. The reason is that the claim term "average particle size" could refer to either an arithmetic mean or a volume-weighted size. Patent owner Kyowa Hakka Bio's expert had urged the former but had used the latter when describing the same phrase in a related patent before the EPO. While that wasn't a disclaimer per se, it helped tilt the balance in Lloret's recommendation and now Goldberg's decision. Oblon, McClelland, Maier & Neustadt partners Tia Fenton, Eric Schweibenz and Stephen Baxter had the winning argument for accused infringer Ajinomoto Inc. along with local counsel from Barnes & Thornburg.
That's all from Skilled in the Art today. I'll see you next week on Thursday.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllSkilled in the Art With Scott Graham: I'm So Glad We Had This Time Together
Design Patent Appeal Splinters Federal Circuit Panel + Susman Scores $163M Jury Verdict + Finnegan Protects Under Armour's House
Law Firms Mentioned
Trending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250