Author: mskllp

Since 1908, Mitchell Silberberg & Knupp LLP (MSK) has proven its ability to understand the complex, demystify the mysterious, and define the unknown. With more than 130 lawyers and offices in Los Angeles, New York, and Washington D.C., MSK is often distinguished as a “go-to” firm by industry and legal insiders, and has extensive experience in a variety of practice areas, including Entertainment & IP Litigation, Labor & Employment, Entertainment Transactions, Immigration, Corporate Securities, Regulatory, Tax, Trusts & Estates, Real Estate and International Trade. Relentlessly innovative, our lawyers have developed groundbreaking legislation, established influential precedents, and shaped the legal landscape. For more information, visit www.msk.com.
Intellectual Property

High Court Copyright Ruling Expands Government Edicts Doctrine

Written by Eleanor M. Lackman and Craig C. Bradley

On April 27, the U.S. Supreme Court for the first time in 130 years addressed the government edicts doctrine, a court-made rule holding that state government edicts having the force of law are not eligible for copyright protection.  

The doctrine provides that state and local government officials acting in their governmental capacity are not considered “authors” as that term is understood in copyright law.  Without authorship, no copyright protection is available for the work.  This principle has made judicial opinions and statutes freely available to publish and review free from claims of copyright infringement.

The decision in Georgia v. Public.Resource.Org, Inc., raised a new issue: not whether the law itself was copyrightable, but whether annotations and other analytical materials accompanying the law were also barred from copyright protection under the government edicts doctrine. Continue reading “High Court Copyright Ruling Expands Government Edicts Doctrine”

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COVID-19, Labor & Employment

Keeping Food Sector Workers Posted

California Issues Model Notice of Food Sector Worker Paid Sick Leave That Eligible Employers Must Post

Written by Jeremy Mittman and Stephen Franz

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20 (the ”Order”), which requires “hiring entities” with at least 500 employees in the United States to provide “food sector workers” who are unable to work for COVID-19-related reasons with up to 80 hours of supplemental paid sick leave.  We previously reported on the Order, which is one of several recent California laws providing paid sick leave to workers who are not covered by the federal Families First Coronavirus Response Act (“FFCRA”). Continue reading “Keeping Food Sector Workers Posted”

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International Disputes

The FSIA Provides Exclusive Venue Options to Sue an International Organization – Or Does It?

Written by Tiana A. Bey and Sofia Castillo

Since the United States Supreme Court decided Jam v. Int’l Fin. Corp., 139 S. Ct. 759 (2019), international organizations (as designated under the International Organizations Immunities Act of 1945 (“IOIA”))[1] have increasingly faced litigation that can no longer be dismissed on absolute immunity grounds.[2]  These organizations now have to navigate preliminary jurisdictional defenses that they would not have normally considered or asserted before Jam.  One such defense is “improper venue” pursuant to the venue provision of the Foreign Sovereign Immunities Act of 1976 (“FSIA”), which can result in case dismissal or transfer to a forum that an international organization defendant finds more familiar or strategically advantageous. Continue reading “The FSIA Provides Exclusive Venue Options to Sue an International Organization – Or Does It?”

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COVID-19

CDC Updates List of COVID-19 Symptoms

Written by Susan Kohn Ross

The CDC has expanded the list of symptoms which may appear 2-14 days after exposure to the COVID-19 virus and may cause mild symptoms to severe illness. As companies plan their eventual return to work, or plan to terminate or decrease telecommuting (pending when their local jurisdictions’ shelter-in-place orders change or cease), they will want to consider this most recent information from the CDC to determine and account for the safety and well-being of their employees. The original and newly added symptoms are listed below. Continue reading “CDC Updates List of COVID-19 Symptoms”

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International Trade, Regulatory

PPE Exports: Ready to Go?

Written by Susan Kohn Ross

In CSMS 42506108 issued on April 27, 2020, CBP updated its Frequently Asked Questions about Personal Protective Equipment exports. In it, CBP makes clear the Document Imaging System (DIS) sends a confirmation of receipt, as does AES. If the shipment is held for any reason and/or further action is needed, notice of that is most likely going to come through the carrier. In short, absent negative information, the export is ready to go.

When it comes to any Letter of Attestation (“Letter”), CBP has made clear these should be submitted through the DIS. The size limit for CBP is up to 10 MB. The email address is docs@cbp.dhs.gov. There are additional criteria to consider: Continue reading “PPE Exports: Ready to Go?”

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COVID-19, Labor & Employment

Employees Put to the Test

Employers May Test Employees for COVID-19 Before Allowing Their Return to Workplace, EEOC Says Written by Jeremy Mittman and Thea Rogers The U.S. Equal Employment Opportunity Commission (“EEOC”) said in guidance released Thursday that employers may administer COVID-19 testing to employees in order to determine if they have the virus, prior to permitting them to return to the workplace.  The agency stated that this latest … Continue reading Employees Put to the Test

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Intellectual Property

Principles of Equity: SCOTUS Eliminates “Willfulness” Prerequisite for Award of Trademark Profits

Written by Eleanor M. Lackman

On April 23, 2020, the Supreme Court weighed in on a question that had split the circuits:  to receive an award of profits for trademark infringement under the Lanham Act, does a plaintiff first have to show that the defendant infringed with willful intent?  All the Justices agreed that the answer is “no.”  Romag Fasteners, Inc. v. Fossil, Inc., No. 18-1233.  Instead, a court must consider “principles of equity” in deciding whether to award the equitable remedy of the defendant’s profits.  Recognizing that eliminating a threshold requirement of willfulness may create uncertainty in the law, the Court found that the statute’s language clearly mandated that lack of willfulness is not, in itself, a barrier to a profits award.  Nonetheless, willfulness remains a factor for strong consideration in deciding whether an award is equitable.

The case arose from a dispute between a supplier of fasteners for handbags and other accessories that respondent Fossil made.  Over time, Fossil’s factories in China had started to source counterfeit fasteners. Romag claimed that Fossil was doing little to guard against the practice, and Romag sued.  After trial, the jury found that Fossil had acted “in callous disregard” of Romag’s rights, but the jury rejected the claim that Fossil acted willfully.  The district court refused Romag’s request that Fossil hand over all the profits from the sales of its bags and other products containing the counterfeit fasteners, pointing out that controlling Second Circuit precedent required a plaintiff seeking profits to prove that the defendant’s violation was willful.  Other circuits took a different position from the Second Circuit, so the Court granted certiorari.

Continue reading “Principles of Equity: SCOTUS Eliminates “Willfulness” Prerequisite for Award of Trademark Profits”

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Intellectual Property

Court Holds Vicarious Copyright Liability Claim Can Move Forward Against Major ISP

Written by Marc E. Mayer, Leo M. Lichtman, and Orly Ravid

Last week, the music industry enjoyed a high profile victory in its efforts to combat music piracy allegedly facilitated by Internet service providers (ISPs), including cable and telecommunications companies that provide Internet access to members of the public.  In Warner Records Inc. et al. v. Charter Comm’ns, Inc., No. 1:19-cv-00874, Judge R. Brook Jackson in the U.S. District Court of Colorado adopted a Magistrate’s Judge’s ruling from October 2019 allowing claims of vicarious copyright infringement against Charter Communications, one of this country’s largest ISPs, to proceed beyond the pleading stage.

The Charter Communications lawsuit was initiated last year by Warner Records and a group of several dozen record companies and music publishers, who collectively have produced or control the rights to millions of sound recordings and musical compositions.  In their Complaint, the plaintiffs allege that Charter is contributorily and vicariously liable for the infringement of thousands of copyrighted works that were unlawfully reproduced and distributed by its subscribers via peer-to-peer (P2P) file sharing programs such as BitTorrent.  According to the Complaint, Charter has known for years that subscribers were using its network to pirate music—including particular customers that were repeatedly infringing the plaintiffs’ copyrights—by virtue of the thousands of infringement notices that were sent to Charter detailing specific instances of infringement on its network.  The plaintiffs claim that despite those notices, Charter nonetheless failed to take appropriate action to curb the infringement in order to avoid the loss of subscriber revenue. Continue reading “Court Holds Vicarious Copyright Liability Claim Can Move Forward Against Major ISP”

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