U.S. Patent No. 10,000,000 just issued June 19, 2018, and within a matter of days a patent in the 10 million series was already being enforced. On July 3, 2018, the day the patent issued, Whirlpool Corporation filed a patent infringement lawsuit in the United States Federal District Court for the Eastern District of Texas.
Despite those who claim that only patent trolls file lawsuits in the Eastern District of Texas, it is Whirlpool Corporation that has brought a patent infringement lawsuit seeking to enforce U.S. Patent No. 10,010,820, which relates to a water filtration system, against defendant, Space Flex International, LLC. There are some who have always believed that operating companies simply never sue in the Eastern District of Texas, but those widely held beliefs are simply incorrect. Indeed, those familiar with Whirlpool’s enforcement strategy know well that the company regularly utilizes the Eastern District of Texas.
In this case, Whirlpool also alleges that the defendant, Space Flex International, a Rancho Cucamonga, CA corporation that has consented to jurisdiction and venue in the Eastern Distirct of Texas, is infringing U.S. Patent Nos. 7,00,894, 8,591,736, and 9,937,451. The complaint filed explains that both the ‘894 and ‘763 patents have withstood numerous validity and enforceability challenges. The ‘451 patent, as well as the ‘820 patent, as you would expect from their relatively young age, have not been challenged yet and will see their first action on behalf of Whirlpool in this case.
Whirlpool is seeking a preliminary and permanent injunction preventing Space Flex from engaging in infringing activities, a judgment that infringement has been willful, and a finding that the case is exceptional. Whirlpool is also seeking attorneys’ fees, as well as pre- and post-judgment interest in the event they prevail. A jury trial has been demanded.
On Friday, July 27th, the Court of Appeals for the Federal Circuit issued a precedential opinion in GoPro, Inc. v. Contour IP Holdings, vacating a final written decision coming from the Patent Trial and Appeal Board (PTAB) that had upheld patent claims in the face of a validity challenge petitioned by action camera company GoPro. The Federal Circuit panel of Circuit Judges Jimmie Reyna (author of the opinion), Evan Wallach and Todd Hughes found that the PTAB had erred in finding that a 2009 GoPro catalog did not qualify as a prior art printed publication for rendering the challenged claims invalid for obviousness.
U.S. Patent No. 8890954, titled Portable Digital Video Camera Configured for Remote Image Acquisition Control and Viewing. Issued to Contour in November 2014, it covers an integrated, hands-free, portable, wearable, viewfinderless point of view (POV) digital video camera equipped with a wireless Internet protocol and a global navigation and location positioning system.
U.S. Patent No. 8896694, same title as the ‘954 patent. Also issued to Contour in November 2014, it claims a POV digital video camera system with GPS and Bluetooth capabilities for capturing action video, tracking data such as speed and elevation, as well as posting video online.
Contour IP, the patent owner, first asserted both of these patents against GoPro in a patent infringement suit filed in November 2015 in the District of Delaware; that case was transferred to the Northern District of California in August 2017. However, in April 2015, about six months before the patents were asserted against GoPro in Delaware, GoPro petitioned the PTAB for inter partes review (IPR) proceedings challenging the validity of both patents.
In both IPR petitions, GoPro submitted a 2009 sales catalog as prior art; the catalog disclosed a digital camera linked to a wireless viewfinder/controller that enables a user to preview the image before recording. Although the PTAB instituted both IPRs after making a determination that GoPro made a threshold showing that the catalog is prior art, both IPRs terminated in final written decisions which concluded that the catalog wasn’t disseminated or otherwise made available to the extent that persons ordinarily skilled in the art could have located it by exercising reasonable diligence.
On appeal, the Federal Circuit found that the PTAB erred in determining that a declaration from a GoPro employee, along with corroborating evidence, wasn’t sufficient to establish public accessibility of the catalog. The GoPro employee had testified that GoPro made the catalog accessible during an action sports vehicle trade show that occurred in July 2009, prior to the critical date of September 13th, 2009 (one year prior to the date of priority for both the ‘954 and ‘694 patents). The PTAB held that the dissemination at this trade show did not make the catalog publicly accessible because the trade show was only open to dealers and not the general public.
“The case law regarding accessibility is not as narrow as the Board interprets it,” the Federal Circuit found, noting that the PTAB only focused on one of several factors for determining public accessibility. Although the trade show was focused on action sports vehicles, the attendees were likely more sophisticated in that space than average consumers, making it more than likely that attendees were also skilled and interested in POV action cameras. “A dealer show focused on extreme sports vehicles is an obvious forum for POV action sports cameras,” the Federal Circuit’s opinion reads. The general public may not have been aware of the trade show but the appellate court found that dealers of POV action sports cameras would be part of the relevant audience. Thus, the Federal Circuit vacated the PTAB’s determination that the GoPro catalog was not prior art and remanded the case for further proceedings.
Senator Orrin Hatch (R-UT), co-author of the Hatch-Waxman Act, filed an amendment in the Senate Judiciary Committee to address what many characterize as abusive inter partes review (IPR) filings relating to brand name pharmaceuticals. According to Senator Hatch, his amendment is intended to fix IPRs and restore the careful balance the Hatch-Waxman Act struck to incentivize generic drug development. The Hatch-Waxman Act encourages generic drug manufacturers to challenge patents of brand name drugs by filing Abbreviated New Drug Applications with the Food and Drug Administration, which can and typically does result in patent infringement litigation in federal district court.
In recent years inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO) has created an alternative path to challenge the patents of brand name drugs; a path alternative to the path envisioned in Hatch-Waxman. Those who support the Hatch-Waxman regime view IPRs as upending the careful Hatch-Waxman balance.
Senator Hatch’s amendment, the Hatch-Waxman Integrity Act of 2018, would require a generic manufacturer wishing to challenge a brand-name drug patent to choose between Hatch-Waxman litigation, which affords certain advantages such as being able to rely on the drug innovator’s safety and efficacy studies for FDA approval, and IPR, which is cheaper and faster than Hatch-Waxman litigation but does not provide the advantages of a streamlined generic approval process. Parties would not be able to use both. In this way, the amendment aims to fix the misuse of IPRs by generics as parallel and duplicate proceedings to disputes already in place under Hatch-Waxman.
Politically, this Hatch “pick a path“ amendment is going to be paired with S. 974, The CREATES Act of 2017 (H.R. 2212). This legislation aims to enable the sharing of samples so that generics can compete more effectively. You can learn more about the substance of the CREATES Act by reading Senator Leahy’s summary here. The Creating and Restoring Equal Access to Equivalent Samples (CREATES) Act enjoys broad, bipartisan support from Senators Leahy, Grassley, Feinstein, Graham, Durbin, Lee, Whitehouse, Cruz, Klobuchar, Kennedy, and Blumenthal. Generics want the CREATES Act, and there are 28 co-sponsors. The bill was voted out of the Judiciary Committee favorably, but Hatch voted against it.
Raising and connecting the Hatch-Waxman IPR fix to the CREATES Act balances two major interests of both the brand and generic industries. Brand needs this Hatch-Waxman IPR fix and generics want CREATES. Like Hatch’s original objective with Hatch-Waxman, each side gains something…resolving a major problem for them…and neither loses anything that they had any reasonable expectation that they would, or should, be able to maintain.
The dispute between WesternGeco, a company that develops technology for surveying the ocean floor, and ION Geophysical Corporation, a competitor, dates back to late 2007. In late 2007, ION began manufacturing components for its competing surveying system and shipping them to companies abroad. Those companies combined the components to create the surveying system that was indistinguishable from WesternGeco’s patented systems.
WesternGeco sued for patent infringement under §§271(f)(1) and (f)(2). At trial, WesternGeco proved that it had lost 10 specific survey contracts due to ION’s infringement. The jury found ION liable and awarded WesternGeco damages of $12.5 million in royalties and $93.4 million in lost profits. ION filed a post-trial motion to set aside the verdict, arguing that WesternGeco could not recover damages for lost profits because §271(f) does not apply extraterritorially. The District Court denied the motion. 953 F. Supp. 2d 731, 755–756 (SD Tex. 2013).
On appeal, the Federal Circuit found ION liable for infringement under §271(f)(1) but reversed the award of lost-profits damages under §271(f)(2). WesternGeco LLC v. ION Geophysical Corp., 791 F. 3d 1340 (2015). The Federal Circuit had previously held that §271(a), the general infringement provision, does not allow patent owners to recover for lost foreign sales. See Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 711 F. 3d 1348 (Fed. Cir. 2013). The Federal Circuit reasoned that Section 271(f) should be interpreted the same way.
While the Supreme Court acknowledged that courts ordinarily presume that statutes apply only within the territorial jurisdiction of the United States, quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949), Justice Thomas explained there is an established two-step framework to decide questions of extraterritoriality. RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090 (2016). While ordinarily courts address the first step first, in this case the Supreme Court exercised its discretion to forgo the first step and address the second prong of the test. They did this, no doubt, because they concluded that the conduct relevant to the statutory focus was domestic.
On May 23, 2018, the Federal Circuit issued a decision in UCB, Inc. v. Accord Healthcare, Inc. (Before Prost, C.J., Bryson, and Stoll, J.)(Opinion for the court, Stoll, J.), a case arising under the Hatch-Waxman Act. The Appellees UCB, Inc. et al own and/or license U.S. Patent No. RE38,551., titled Anticonvulsant enantiomeric amino acid derivatives. The ‘551 patent covers lacosamide, an anti-epileptic drug for the treatment of epilepsy and other central nervous system disorders. UCB holds New Drug Applications (“NDAs”) that cover its lacosamide anti-epileptic drug approved by the Food and Drug Administration (“FDA”) and marketed under the tradename Vimpat®. The ‘551 patent is listed in the FDA’s Approved Drug Products With Therapeutic Equivalence Evaluations (“Orange Book”) as covering Vimpat®.
Appellants were generic drug manufacturers who filed Abbreviated New Drug Applications (“ANDAs”), seeking approval for generic versions of Vimpat®. Pursuant to applicable Hatch-Waxman provisions, Appellants certified in their ANDAs that the ‘551 patent was invalid, unenforceable, or that their proposed generic lacosamide products would not infringe the ‘551 patent.
Consequently, as is their right under Hatch-Waxman, UCB sued Appellants for patent infringement in the United States District Court for the District of Delaware. Appellants stipulated to infringement of claims 9, 10, and 13 of the ‘551 patent but maintained that these claims are invalid for obviousness-type double patenting, obviousness, and anticipation.
Following a bench trial, the district court made exhaustive fact findings based on the trial evidence and concluded that the asserted claims of the ‘551 patent were not invalid. Appellants appealled that decision, arguing that the district court misapplied the legal standards for obviousness-type double patenting, obviousness, and anticipation, and that the prior art anticipates and/or renders the ‘551 patent obvious.
The Federal Circuit held that the district court applied the correct legal standards in its obviousness-type double patenting, obviousness, and anticipation analyses, and found no clear error in its underlying factual findings. As a result, the Federal Circuit affirmed the district court’s ultimate conclusion that the asserted claims were not invalid.
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Purchasing Competitors’ Trademarks as Keywords to Generate Sponsored Links: Trademark “Use in Commerce”?
Note: Significant portions of this essay were published online as a guest column in IP LAW 360 on January 27, 2009. This is an expansion and update of that piece.
Lawyers are trained in subtlety and complication. Consequently, they have a tendency to over- think, which is why some of the better ones try to remember, and occasionally apply, the acronym KISS.1 The recent quagmire addressing the question posed above (and related questions) could have been avoided by deft application of KISS, or even RTSF (meaning to be disclosed later).
It began with the 1-800 Contacts case in the Second Circuit.2 At issue there was software offered free to Internet users which, among other (presumably more desirable) applications, monitored the use of the computer in which it was embedded and, in response to certain stimuli, generated “pop-up advertising windows” presumably relevant to the computer user’s immediate interest. One such stimulus was the address of plaintiff’s website, so certain users who typed in (or linked to) “1800contacts.com” received pop-up advertising intended to be “of interest” to typical visitors to plaintiff’s website. In fact, what popped up was advertising for competitive websites. 1-800 Contacts sued for trademark infringement and obtained a preliminary injunction, which was appealed and reversed.
Last year, another Circuit Court of Appeals recognized that part of what is wrong with the Second Circuit’s 1-800 Contacts analysis is its focus on the statutory definition of trademark “use in commerce.” In addressing one competitor’s use of another’s trademarks in its own website metatags, which caused the metatagger’s website to show up in search results for the owner’s trademark, the Court concluded that defendant “made an infringing use” of plaintiff’s marks, and emphasized the “plain language” of Section 1114(1)(a) of the Trademark Act, which requires a “use in commerce…of a registered mark in connection with the sale…or advertising of any goods.” Since defendant used plaintiff’s marks as metatags “as part of its effort to promote and advertise its products on the Internet,” defendant used plaintiff’s marks “in commerce” for purposes of trademark infringement.8 In August, a Minnesota District Court took the next step when it concluded that “use in commerce” for trademark infringement purposes is not limited to “use in commerce” for trademark registration purposes. Defendant’s use of plaintiff’s trademark to generate advertising was a “use in commerce” because the “plain meaning” of “use in commerce” is not limited to affixing another’s mark to one’s own goods, but also encompasses any use of another’s mark to advertise or sell one’s own goods and services.9 That observation is correct as far as it goes – and is a convincing rejoinder to the Second Circuit’s view that “infringing use” is limited to “trademark use” – because “advertising” can infringe under Section 1114(1)(a), but is not use of a trademark under Section 1127.
Putting together the pieces, what is wrong with 1-800 Contacts is this: what Section 32(1) of the Trademark Act condemns is “use in commerce [of] any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive…” 15 U.S.C. § 1114(1)(a) [emphasis added]. What is prohibited is not use of a trademark, but use of a “reproduction, counterfeit, copy, or colorable imitation” of a registered mark. Actual trademark “use” as defined in the statute is irrelevant. Trademark owners use trademarks; infringers use reproductions, counterfeits, copies, and/or colorable imitations of trademarks. The statutory definitions of trade- and service mark use in commerce are addressed to registration, not infringement.
Confirmation of this conclusion (if any is needed) is found in Section 43(a), which forbids “[a]ny person…, on or in connection with any goods or services, or any container for goods, [from using] in commerce any word, term, name, symbol or device, or any combination thereof…which…is likely to cause confusion, or to cause mistake, or to deceive as to affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person…” 15 U.S.C. § 1125(a)(1)(a) [emphasis added]. Section 43(a) is a federal statute that reflects the common law of unfair competition related to trademarks. On its face, it captures more infringing conduct than is embraced by the statutory definition of trademark use. If the Second Circuit were correct in 1-800 Contacts, that would mean that common law rights of protection are broader than those granted to marks registered under the Trademark Act, which expressly seeks “to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce;…to protect persons engaged in such commerce against unfair competition; [and] to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks….”10 That broad language is consistent with the idea that infringement of registered trademarks is not confined to what is defined as trademark use, but encompasses “use in commerce [of] any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.” If that is so, common law trademark protection is not broader than federal, which is what one would expect.
The right questions in search-word and metatag cases should be (1) is the accused doing something “in commerce” (which Section 45 of the Trademark Act, 15 U.S.C. § 1127, defines as “all commerce which may lawfully be regulated by Congress,” and which Internet search-word advertising plainly appears to be); (2) is that likely to cause confusion in any of its statutory formulations; and (3) is that use fair, nominative, generic, or descriptive use?
In particular, the civil remedies provision penalizes the “use in commerce” of “any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services. 15 U.S.C. § 1114 [emphasis added]. The purchase of a competitor’s trademark to trigger search-engine advertising is precisely such a use in commerce, even if the trademark is never affixed to the goods themselves. In effect, one company has relied on its competitor’s trademark to place advertisements for its own product in front of consumers searching for that exact mark….
Another page or two of cogitation leads to the conclusion that what “use in commerce” for purpose of infringing use means is subject to two possible interpretations, neither of which is “altogether satisfactory.”17 The opinion then notes that the judges of the 1-800 Contacts panel have read the Appendix and agree with it.
1. The fundamental flaw of 1-800 Contacts is now buried in the Second Circuit (no other Circuit followed it, anyway). The issues should move from “use in commerce” to likelihood of confusion, and, perhaps, the viability of “initial interest” confusion as a basis for relief.
2 1-800 Contacts, Inc. v. Whenu.com, Inc., 414 F.3d 400, 75 U.S.P.Q.2d 1161 (2d Cir. 2005).
3 Id. at 406-407, internal footnotes and citations omitted without indication.
5 Gov’t Employees Ins. Co. (“GEICO”) v. Google, Inc., 330 F.Supp.2d 700, 703 (E.D. Va. 2004).
6 800-JR Cigar, Inc. v. GoTo.Com, Inc., 437 F.Supp.2d 273, 284-85 (D. N.J. 2006).
7 Boston Duck Tours, LP v. Super Duck Tours, LLC, 527 F.Supp.2d 205 (D. Mass. 2007).
8 N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1218-19 (11th Cir. 2008).
9 Hysitron, Inc. v. MTS Sys. Corp., No. 07-01533, 2008 WL 3161969 (D. Minn. Aug. 1, 2008).
10 15 U.S.C. § 1127.
11 Hearts on Fire Co., LLC v. Blue Nile, Inc., No. 08-11053, 2009 WL 794482, at *5 (Mar. 27, 2009 D. Mass.).
12 Rescuecom Corp. v. Google Inc., 2009 WL 875447 (C.A.2 (N.Y.)).
13 U-Haul Int’l., Inc. v. WhenU.com, Inc., 279 F.Supp.2d 723 (E.D. Va. 2003) and Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp.2d 734 (E.D. Mich. 2003).
14 Rescuecom Corp., 2009 WL 875447, at *8.


↪ Chapter 10. Drug Free Zones.
This section is referenced in § 48-1001 and § 48-1004.
D.C. Law 16-306, in subsec. (a), substituted “240 consecutive hours” for “120 consecutive hours”.
D.C. Law 18-88, in subsec. (a), substituted “480 consecutive hours” for “240 consecutive hours”; and rewrote subsecs. (b)(1), (2).
For temporary addition of subchapter, see note to § 48-1001.
For temporary (90 day) amendment of section, see § 226 of Omnibus Public Safety Emergency Amendment Act of 2006 (D.C. Act 16-445, July 19, 2006, 53 DCR 6443).
For temporary (90 day) amendment of section, see § 226 of Omnibus Public Safety Congressional Review Emergency Amendment Act of 2006 (D.C. Act 16-490, October 18, 2006, 53 DCR 8686).
For temporary (90 day) amendment of section, see § 226 of Omnibus Public Safety Congressional Review Emergency Amendment Act of 2007 (D.C. Act 17-10, January 16, 2007, 54 DCR 1479).
For temporary (90 day) amendment of section, see § 226 of Omnibus Public Safety Second Congressional Review Emergency Amendment Act of 2007 (D.C. Act 17-25, April 19, 2007, 54 DCR 4036).
For temporary (90 day) amendment of section, see § 226 of Omnibus Public Safety and Justice Emergency Amendment Act of 2009 (D.C. Act 18-181, August 6, 2009, 56 DCR 6903).
For temporary (90 day) amendment of section, see § 226 of Omnibus Public Safety and Justice Congressional Review Emergency Amendment Act of 2009 (D.C. Act 18-227, October 21, 2009, 56 DCR 8668).


text:
I am pleased to be attending the In Re Books conference at New York Law School. The conference is dedicated to the future of the book. My presentation is available here: The Future of Orphan Works (October 27 2012).
The U.S. Copyright Office is taking another look at the problem of orphan works under U.S. copyright law.
As the Copyright Office notice explains that the Copyright Office is “interested in what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation.” Comments are due by 5:00 p.m. EST on January 4, 2013. Reply comments are due by 5:00 p.m. EST on February 4, 2013.
Assuming it is not reversed by the Second Circuit, does the HathiTrust win on October 10, 2012 take some of the urgency out of the orphan works issue? After all, digitization for non-expressive use such as text mining and building a search engine has now been confirmed as fair use. In addition, digitization in the service of expanding access for the print-disabled is also now clearly fair use.
Or, does the HathiTrust win simply set the stage for addressing general purpose expressive access to orphan works? The district court in HathiTrust did not reach the merits of the copyright claims with respect to the universities’ Orphan Works Project and gave very little signal how it would decide such an issue.
Yesterday, District Judge Harold Baer, Jr., handed down his decision in Authors Guild v. HathiTrust, a case that spins out of the long-running Google Books dispute. The decision is a landmark win for the HathiTrust, the University defendants, people with print-disabilities, Google, the Digital Humanities and, I would argue, for humanity in general.
The HathiTrust is a digital repository of millions scanned university library books that became available to various universities by virtue of the Google Books project. About 3/4 of the books are still in copyright. In 2011 HathiTrust announced plans to embark on an innovative orphan works program (OWP), but dropped (or at least shelved) the plan soon after in light of criticism as to its implementation. Spurred into action by the OWP, in September 2011 the Authors Guild filed a copyright lawsuit against HathiTrust, five universities, and multiple university officials.
The Authors Guild suit alleged that library digitization for any purpose amounts to copyright infringement. The purposes specifically under attack in this case were (i) preservation; (ii) to enable non-expressive use such as conducting word searches; and (iii) to facilitating access by persons who are blind or visually impaired.
There is a key fact in this case that media reports will probably get wrong. This is not about scanning books to make extra copies for the public at large. As the Court explained, “No actual text from the book is revealed except to print-disabled library patrons at [University of Michigan].” Authors Guild v. HathiTrust, p 16. This case was about library digitization for three specific purposes, preservation, disabled access and non-expressive uses such as text searching and computational analysis.
Digitization to provide access for the print-disabled held to be transformative use and, on balance, fair use.
Digitization to provide for print-disabled students held to be (i) an obligation of universities under the ADA, (ii) fair use under section 107 of the Copyright Act and (iii) enabled by section 121 of the Copyright Act.
Section 108 the Copyright Act was held to expand the rights of libraries, not limit the scope of their fair use rights in any way, shape or form. Given the text says “Nothing in this section . . . in any way affects the right of fair use as provided by section 107” any ruling to the contrary would have been pretty shocking.
Digitization to create a search index held to be a transformative use, and, on balance, fair use.
Alleged security risks created by library digitization — dismissed as speculative and unproven. The judge noted the strong evidence to the contrary. It is still an open question whether the risk of subsequent illegal act by a third party could ever render an initial lawful copy not fair use. The whole notion strikes me as rather odd.
The market effect of library digitization — the court found there was none to speak of in this case. The court rejected the CCC’s magic toll-booth arguments — i.e., there were some wild assertions about future licensing revenue that the court rejected as “conjecture”.
The court also notes that a copyright holder cannot preempt a transformative market merely by offering to license it.
The market effect of enabling print-disabled access to library books — the court found there was no market for this under-served group, nor was one likely to develop.
Did the authors Guild win anything?
Not really, but two issues could have been even worse.
The court held that the issue of the Orphan Works Program was not ripe for adjudication. This was inevitable in my opinion, but the judge could have added unfavorable dicta indicating that the AG had no case here either. Wisely, the judge said only what needed to be said.
The court appeared to accept the arguments in the Digital Humanities amicus brief, written by Matthew Jockers, Jason Schultz and myself with the assistance of many others. The brief extended arguments I made in Orphan Works as Grist for the Data Mill, 27 Berkeley Technology Law Journal (forthcoming) and Copyright and Copy-Reliant Technology 103 Northwestern University Law Review 1607–1682 (2009).
The court even cites an illustration from our brief!
You can reconstruct the figure on Google Ngram yourself!
Courts have already applied this logic in internet search engine cases and in a case involving plagiarism detection software. As we hoped, Judge Baer’s ruling demonstrates that digitization for text mining and other forms of computational analysis is, unequivocally, fair use.
My focus in this case has always been on the technological side, that is my academic interest. However,the most important issue in this case is not about search engines, the digital humanities or non-expressive use, it is about reading, humanity and expressive use. I am of course referring to those aspects of the decision relating to fair use and persons with disabilities.
Commentary by Mike Madison, James Grimmelman, Kenny Crews, Nancy Sims, and many more soon to come I am sure.
Google has settled with the publishers, but not the Authors Guild. This is good news for the Digital Humanities because it means that we may still get a substantive ruling on the big fair use question underlying the entire litigation.
Human life is short, none of us can hope to read more than a smattering of the literary record, but fortunately massive digitization efforts like those undertaken by Google allow scholars to apply large-N computerized methods to millions of works. Computational and statistical analysis of literature will be a big part of humanities research for years to come. However, legal actions like those of the Authors Guild could bar scholars from studying as much as two-thirds of the literary record.
In a comment published in Nature today [paywall] [Nature Vol. 490, pages 29–30 (04 October 2012) doi:10.1038/490029a], Matthew Jockers (an English professor), Jason Schultz (a law professor) and myself (also a law professor) explain why the the Association for Computers and the Humanities and a large group of scholars chose to file an amicus curiae brief on behalf of the digital humanities in the Authors Guild v. Google and Authors Guild v. HathiTrust cases.
In the brief we explain why U.S. courts should recognize that copying books for non-expressive purposes is not infringement.
My view is that the settlement between Google and the publishers makes such a ruling more likely because it provides further evidence that the ability to make non-expressive uses of copyrighted books works hand in hand with the commercialization of expressive uses which is what copyright law is all about.
Google Book, Settled and Unsettled.
According to Reuters, Google and the Association of American Publishers (AAP) have reached a settlement in the long-running Google Book Search Litigation. Details remain sketchy. The settlement does not affect Google’s current litigation with the Authors Guild.
Nature has just published a comment piece by Matthew Jockers, Jason Schultz myself explaining why humanities scholars filed amicus briefs in the Authors Guild v. Google and Authors Guild v. HathiTrust lawsuits. These suits are still very much alive and it is not clear that the Authors Guild has the same incentives to settle as the AAP did.

matches: v. v. v. v. v. v.


text:
In a competition period were studied the indexes of general and special physical preparedness of young footballers aged 14 - 16 years old. On the basis of research of electrocardiograms dependence of indexes of physical preparedness of young footballers is presented on functional possibilities of the cardiovascular system. It is set that the dynamics of development of physical qualities of young footballers has heterochronic character. The level of physical preparedness of sportsmen is recommended to check on such by tests: at run on distance 15, 30, 60 meters from a place and 15 meters with to motion (for the estimation of speed motive qualities), at run on 400 meters (estimation anaerobic - to glicolic endurance); broad jump from a place, triple and upwards (estimation of dynamic force), at run on 3000 meters or during 12 minutes (estimation of aerobic endurance). The integral criterion of the special preparedness of footballers are competition performance indicators during a season (16 matches).
Abrosimova L. I., Karasik V. E. Vliianie sistematicheskikh zaniatij sportom na perifericheskij otdel krovoobrashcheniia iunykh sportsmenov[Influence of systematic employments sport on the peripheral department of circulation of blood of young sportsmen], Moscow, Medicine, 1991, pp. 152 – 157.
Avramenko V.G., Bobariko O.E., Goncharenko V.I., Dzhus O.M., Dunikhin P.M., Fales J.G. Futbol [Football], Kiev, 2003, 105 p.
Babij V.G. Pedagogika, psihologia ta mediko-biologicni problemi fizicnogo vihovanna i sportu [Pedagogics, psychology, medical-biological problems of physical training and sports], 2010, vol.3, pp. 3-6.
Butchenko L. A. Porazheniia serdca pri ostrom i khronicheskom fizicheskom perenapriazhenii [Defeats of heart at a sharp and chronic physical overstrain], Moscow, Medicine, 1991, pp. 415 – 431.
Vertel' A.V., Gradusov V.A. Pedagogika, psihologia ta mediko-biologicni problemi fizicnogo vihovanna i sportu [Pedagogics, psychology, medical-biological problems of physical training and sports], 2011, № 3, С. 26 -29.
Godik M. A. Fizicheskaia podgotovka futbolistov [Physical preparation of footballers], Moscow, Man, 2009, 272 p.
Grin'kiv Miroslava, Vovkanich Liubomir, Maievs'ka Sofiia. Moloda sportivna nauka Ukrayini [Young sport science of Ukraine], 2012, T.3, vol. 16, pp. 52 – 58.
Dulibs'kij A. V. Naukovij visnik Volins'kogo derzhavnogo universitetu [Scientific announcer of the Volin State University], 1999, vol.2, pp. 963 – 965.
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This page provides an overview of the timing and operations steps for the retirement of grid middleware that either already reached end of security updates and support or that is about to reach this status.
End of Support for dCache v. 2.6.X: May 2015.
21-09-2015: dCache 2.6.X decommissioning deadline - after this date all the dCache 2.6.X services must be decommissioned, upgraded to a supported version or in downtime.
From 31-08-2015: Nagios probes will detected unsupported service end-points according to the version information available from BDII. Probes detecting unsupported service end-points, will generate alarms that can be tracked by administrators on the site operations dashboard site operations dashboard.
The dCache 2.2.X decommissioning deadline is 31-10-2014.
31-10-2013: dCache 2.2.X decommissioning deadline after this date all the dCache 2.2.X services must be decommissioned, upgraded to a supported version or in downtime.
From 22-09-2014 Nagios probes (run by a dedicated EGI instance of SAM) will detected unsupported service end-points according to the version information available from BDII. Probes detecting unsupported service end-points, will generate alarms that can be tracked by administrators on the site operations dashboard.
Text below applies to all EMI 2 products.
The EMI 2 decommissioning deadline is 31-05-2014.
31-05-2013: EMI 2 decommissioning deadline after this date all the EMI-2 services must be decommissioned, upgraded to a supported version or in downtime.
Monitoring probe documentation will be upgraded soon.
From 03-03-2014 Nagios probes (run by a dedicated EGI instance of SAM) will detected unsupported service end-points according to the version information available from BDII - where possible. Probes detecting unsupported service end-points, will generate alarms that can be tracked by administrators on the site operations dashboard.
After 03-03-2014 administrators of the affected Resource Centres will receive notification tickets, and will be requested to provide information about their upgrade plans within 10 working days from the day the ticket is received.
StoRM 1.11.1 was released in UMD-3. StoRM 1.8.3 security support ends on July 15 2013.
End of security updates of StoRM was scheduled after three weeks of the complete and successful process of staged rollout for a version of StoRM for UMD-3.
StoRM 1.8.3 or older versions must be upgraded to a supported release within one month after the end of security support of the EMI-1 version 1.8.3.
The current version of StoRM available in UMD-3 (v.1.11.1) has performance issues, and currently the installation of this version is discouraged. Without a replacement for the EMI-1 version, the deadline for the decommission of EMI-1 StoRM is currently not fixed. It will be updated once the patch is available in UMD.
Monitoring tests which identify StoRM production instances which reach end of support are now raising warnings in the midmon nagios instance.
End of Security Updates and Support of dCache v. 1.9.12 is scheduled on 31-09-2013. dCache v. 1.9.12 is part of the EMI-1 release, and the end of Security Updates and Support was previously scheduled on 30-04-2013. Security Updates and Support only provides updates targeting security vulnerabilities. dCache v. 1.9.12 will not get SHA2 support back-ported. EGI and dCache.org will make a separate announcement on the roadmap for SHA2 support in dCache.
dCache v. 1.9.12 must be upgraded/retired by 30-09-2013 and no later than 30-10-2013 in compliance to the EGI Service Operations Security Policy (https://documents.egi.eu/document/669).
From 01-07-2013 site managers of Resource Centres found to be hosting dCache v. 1.9.12, will be contacted through GGUS by ROD to request the retirement of the affected products.
Text below applies to all EMI 1 products with the exception of dCache 1.9.12.
The EMI 1 decommissioning deadline is 01-05-2013.
From 01-03-2013 Nagios probes (run by a dedicated EGI instance of SAM) will detected unsupported service end-points according to the version information available from BDII - where possible. Probes detecting unsupported service end-points, will generate alarms that can be tracked by administrators on the site operations dashboard.
After 01-03-2013 administrators of the affected Resource Centres will receive notification tickets, and will be requested to provide information about their upgrade plans within 10 working days from the day the ticket is received.
The gLite 3.1 distribution is now no longer supported (http://glite.cern.ch/R3.1/) and SL4 reached end of security support on 02/02/2012.
The follorwing gLite 3.2 components are out of security support: APEL, ARGUS, BDII, Cluster, CREAM, dCache, LB, LSF utils, MPI utils, SCAS, SGE utils, Torque client/server/utils, VOMS (http://glite.cern.ch/R3.2/) .
From 01-10-2012 site managers of Resource Centres found to be hosting unsupported gLite 3.1/3.2 services, will be contacted through GGUS by the Central Grid Oversight team to request the retirement of the affected products.
From 01-11-2012 Resource Centres that will fail to retire unsupported gLite software, do not put the affected service end points in scheduled downtime, and do not provide information about their upgrade plans will be eligible for suspension and the problem will be escalated to EGI CSIRT.
glite-WN, glite-SE_dpm and glite-LFC (end of security updates and support: 30/11/2012).
Service end-points which can not be upgraded by this deadline, must be set in downtime as of 01-02-2013, unless upgrading is not possible for technical reasons.
Administrators of the affected Resource Centres will receive notification tickets, and are requested to provide information about their upgrade plans within 10 working days from the day the ticket is received.
gLite 3.1 and 3.2 are both retired with the only exception of glite-VOBOX for which only Security Updates are granted until 30/04/2013.
This page was last modified on 7 May 2015, at 17:57.