I recently spoke at a CLE at my firm about how to successfully draft key provisions in an intellectual property license and negotiate them. Here is an edited transcript that I post in two pieces. In this first one I offer suggestions about drafting warranties, indemnities and limitations of liability and I also provider some drafting tips.
by Andrew BergerPublished Monday, January 28th, 2013
by Andrew BergerPublished Monday, January 21st, 2013
Andrew, joined by his colleagues Mark Grossman and Don Prutzman, will speak at the firm on Thursday morning January 24, 2013, on the art of the deal: how to negotiate intellectual property and technology transactions. The seminar will examine the difficult legal and business issues that often arise in software, copyright and trademark licenses, cloud computing and technology agreements.Read more
by Andrew BergerPublished Thursday, December 27th, 2012
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.
by Andrew BergerPublished Wednesday, August 8th, 2012
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.
Guest Blog Post by Michael Einhorn: Establishing Indirect Lost Profits Resulting from Copyright Infringementby Michael EinhornPublished Friday, July 27th, 2012
Introduction by Andrew Berger
I am pleased to introduce Michael A. Einhorn to IP In BRIEF. Michael 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 (2004) and over seventy related professional articles in intellectual property and economic analysis.
by Andrew BergerPublished Thursday, July 19th, 2012
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 v. Comedy Partners 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.
by Andrew BergerPublished Wednesday, July 18th, 2012
Those caught in costly trademark opposition and cancellation proceedings before the Trademark Trial and Appeal Board may be wondering how they might streamline their TTAB practice and achieve faster resolution on the merits. A webinar sponsored by the ABA Section of Litigation on July 26th may help.
The focus will be on more efficiently achieving a merits determinations in inter partes proceedings before the TTAB. Mary Margaret O’Donnell of the Blue Filament law firm (and co-chair of the Trademark Subcommittee of the IP Litigation Committee) has organized and will moderate what looks to be a fine program.
by Andrew BergerPublished Thursday, July 12th, 2012
Sometime in 2013 we may experience the largest expansion of the Internet namespace in history. On June 13, 2012, ICANN (the Internet Corporation for Assigned Numbers and Names) announced the receipt of 1,930 applications from 60 countries for 1,409 new generic top-level domains or gTLDs. (A gTLD is part of the domain name or string to the right of the dot, such as .com., .biz or .org.) A list of applicants is here.
by Andrew BergerPublished Monday, July 9th, 2012
I will speak at a GOAL (Global Outsourcing Association of Lawyers) webinar on July 10, 2012 re one of the most significant changes to the Internet, ICANN’s expansion of the namespace to include an unlimited new number of generic top-level domains (gTLDS) in any language.
I will cover the following:
a. Who applied for a gTLD and why
by Andrew BergerPublished Monday, April 16th, 2012
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.