Published Articles
  1. Guest Blog Post by Michael Einhorn: Establishing Indirect Lost Profits Resulting from Copyright Infringement

    Guest Blog Post by Michael Einhorn: Establishing Indirect Lost Profits Resulting from Copyright Infringement

         
      Introduction by Andrew Berger I am pleased to introduce Michael Einhorn to IP In BRIEF. Michael A. Einhorn, Ph.D. is an economic consultant and expert witness in the areas of intellectual property, media, entertainment, and product design. He is the author of  Media, Technology, and Copyright: Integrating Law and Economics  (Edward Elgar Publishers, 2004) and over seventy professional articles related to intellectual property and economic analysis.
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  2. Proving Damages at Trial in Copyright Litigation

    Proving Damages at Trial in Copyright Litigation

    David Leichtman from Robins Kaplan in NY gave us an excellent presentation on proving damages at trial in copyright litigation at the Intellectual Property Institue's Ocean Reef winter conference. Here is my summary of his talk along with links to some of the cases he mentioned and his PowerPoint. Read more

  3. Oral Argument in the Second Circuit in Aereo Suggests that a Reversal Is in the Offing

    Oral Argument in the Second Circuit in Aereo Suggests that a Reversal Is in the Offing

    The oral argument in WNET et al. v. Aereo before the 2d Circuit panel of Judges Denny Chin and Christopher Droney and Eastern District Judge John Gleeson was long (more than 45 minutes) and spirited. The transcript is here. But the panel’s questions suggest the court may reverse and find that Aereo’s online transmission of live TV performances is an unlicensed public performance violating the Copyright Act. Read more

  4. Will Aereo’s Internet Streaming Service Survive Second Circuit Review?

    Will Aereo’s Internet Streaming Service Survive Second Circuit Review?

    Innovation breeds copyright litigation. The scenario is often the same. The copyright holder whose market share is eroded by the innovative product claims it infringes its statutory-protected rights. The technologist responds that its innovation is simply another authorized improvement in an evolutionary chain that benefits the public. These arguments are at play in ABC et al. v. Aereo and WNET v. Read more

  5. Brownmark v. Comedy Partners: Court Finds Fair Use Without Allowing Plaintiff Any Discovery

    Brownmark v. Comedy Partners: Court Finds Fair Use Without Allowing Plaintiff Any Discovery

      Faced with a copyright infringement suit where your defense is fair use? Chances are you wouldn’t consider making a motion to dismiss at the outset. Instead, you will most likely contemplate  extensive discovery and an expensive summary judgment motion. Well, think again. The 7th Circuit in Brownmark_Films_LLC_v_Comedy latest recently affirmed the district court’s grant of a motion to dismiss a copyright infringement suit based solely on a side-by-side comparison of the videos in question before the parties had engaged in any discovery. Read more

  6. As a result of Viacom v. YouTube the Future of the Red Flag Standard in DMCA Litigation Is Black

    As a result of Viacom v. YouTube the Future of the Red Flag Standard in DMCA Litigation Is Black

    Thankfully the Second Circuit in Viacom v. YouTube  has reversed Judge Stanton’s see no evil, speak no evil opinion which had granted summary judgment to YouTube. But in response to the “most important” issue the appellate court stated it faced, that court dropped the ball. The issue was whether the actual and red flag standards in § 512(c)(1)(A)(i) and (ii) of the DMCA each required actual knowledge of specific and identifiable infringements. Read more

  7. What Copyright Management Information Does the DMCA Protect?

    What Copyright Management Information Does the DMCA Protect?

      The genesis of this post is a recent copyright infringement case we handled that dealt with a relatively unexplored corner of the Digital Millennium Copyright Act (“DMCA), defendant’s removal of copyright management information (CMI) and the statutory damages that arise from that DMCA violation. Three DMCA Issues that Divide the Courts In researching the DMCA claims, we noted that three issues have divided the courts: (a) is CMI as defined in §1202 of the DMCA restricted to digitally encoded information contained in an automated copyright protection or rights management system or does CMI extend to any identifying information about a copyrighted work, digital or not; (b) does the DMCA only protect CMI if it’s on the face of a copyrighted work or does protection include CMI that is elsewhere on the page where the work appears; and (c) what constitutes a violation of the DMCA for purposes of computing statutory damages. Read more

  8. Andrew to Moderate Internet Hot Topics Discussion at the ABA Litigation Section Annual Conference in D.C.

    Andrew to Moderate Internet Hot Topics Discussion at the ABA Litigation Section Annual Conference in D.C.

    Andrew will moderate a panel discussion at the ABA Litigation Section’s Annual Conference in D.C.  The topic will be “Internet and Social Media in the Forefront: Current Hot Issues and Developments.” The program will take place on Thursday April 19, 2012 between 3-4 pm. Speakers with be Peter Jaszi, Professor of Law at American University Law School; David Perrot, Research Director at Decisionquest; Stanley Pierre-Louis, Vice President and Associate General Counsel for Intellectual Property and Content Protection at Viacom Inc.; and Mozelle Thompson, former Commissioner of the Federal Trade Commission and CEO of Thompson Strategic Consulting. Read more

  9. Presentation at MENG Chapter on Protecting Your Brand and Intellectual Property from Online Infringement

    Presentation at MENG Chapter on Protecting Your Brand and Intellectual Property from Online Infringement

    Andrew will speak at a MENG (Marketing Executives Networking Group) NY chapter meeting on Tuesday evening February 7, 2012, on protecting your intellectual property from new forms of online infringements and brand attacks. The transcript of the talk is here. This is an outline of some of what he will cover. Andrew will discuss why global infringement is a increasing and what brand owners can do to combat it. Read more

  10. Protecting Your Intellectual Property in the U.S. and Abroad from New Forms of Online Infringement and Brand Attacks

    Protecting Your Intellectual Property in the U.S. and Abroad from New Forms of Online Infringement and Brand Attacks

    Below is the transcript of my January 26, 2012, webinar presentation sponsored by the International Executive Resources Group focusing on protecting intellectual property here and abroad from new forms of online infringement and brand attacks. But first a word of warning. My talk runs for about 45 minutes and therefore this is a long post. Here is a quick overview of what I cover. Read more

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