What would happen if another company wanted to buy KS rights

[Renkinjutsushi]

I read Ebay v. MercExchange on Westlaw; I don't think the 4-factor test they propose is such a huge burden, but yes it's not a "gimme" by any means. Also note that it applies to Permanent and not Preliminary Injunctions. Such issues as insufficiency of damages can't be assessed until a record is developed. The most recent SCOTUS case defining the test for issuance of Preliminary injunctions is Winter v. Natural Resources Defense Council. Ah yes, quibbling as only lawyers can.

And yes, you are right. Trying to get jurisdiction over a Japanese Anime company in US Federal Court is utter madness. Typically they don't have nearly enough assets to make the process worthwhile. Much easier to file in a Japanese court.

It is. Take, for example, Japanese manga. You could say it's expected that a commercially successful manga will transition into a TV anime series. If someone did that without authorization, it would be difficult for the copyright owner to claim he is suffering irreparable harm for which there is no adequate monetary relief. If the industry has already established royalty structures for manga-> anime transformations then it is clear what the monetary relief is, and it is hard to prove irreparable harm, if not impossible. (You could say they won't respect the artistic spirit of the original work, thus degrading the original work's artistic value; harming the author's reputation, etc., but that's clearly speculative, and a judge is hardly qualified to make that determination in the first place.)

Compare now to a product you release for free and refuse to turn for profit.

pre-eBay it used to be that all a plaintiff had to do was make out a case of infringement in order to be granted a preliminary injunction. Now courts take a closer look. eBay only applies to permanent injunctions? You might want to tell that to the Circuit Courts of Appeals. For example, see Salinger v. Colting, 607 F.3d 68 (2nd Circuit joins the 1st, 4th, 9th, and 11th circuits in applying eBay to preliminary injunctions in copyright law).

Also, Winter v. NDRC doesn't apply to IP cases and you probably shouldn't use that to talk about injunctions in IP cases, it's kind of bizarre. Monetary relief and environmental protection lawsuits aren't to be mentioned in the same paragraph. The tests used are totally dissimilar.


^ My face when you mentioned it

My my my! Alright, nice case cite. This is where I am punished for not taking IP yet, and specializing in Environmental law instead.

Actually, the case raises a good point. But it's not exactly the same point that you raised, instead it's about the availability of the Fair Use defense in copyright cases. This is a clear distinction and I agree it does provide additional tools to defendants seeking to fight Preliminary Injunctions against copyright violations. Whether or not Fair Use defense would prevail here, I have no idea. Feel free to research and enlighten me if you wish.

It doesn't matter that Winter v. NDRC is factually distinguishable, because what the Supreme Court restated were the baseline considerations to be used by all Courts when determining whether a Preliminary Injunction should be granted. Note that the Court in Salinger said: "In this preliminary injunction case, the District Court erred by not applying the equitable standard outlined by the Supreme Court in eBay, Inc. v. MercExchange, L.L. C. and Winter v. Natural Resources Defense Council." Salinger v. Colting, 607 F.3d 68, 84 (2d Cir. 2010). Both cases are given equal weight as binding precedents. Interestingly, the 2nd Circuit doesn't view them as being inconsistent at all. I'm not sure I can agree, but that's what the Court says.

Overall, what can I say? You make some good points. The case would be a fun one to litigate, even though IP isn't really my cup of tea. We could argue about the merits until hell freezes over, but until it goes before a judge it's very hard to say. Salinger v. Colting may well be the best current case on point, but it certainly does look like Mr. Colting is going to lose on remand. We shall see...

[zanger]

Actually, the case raises a good point. But it's not exactly the same point that you raised, instead it's about the availability of the Fair Use defense in copyright cases. This is a clear distinction and I agree it does provide additional tools to defendants seeking to fight Preliminary Injunctions against copyright violations. Whether or not Fair Use defense would prevail here, I have no idea. Feel free to research and enlighten me if you wish.

You missed the entire point of Salinger. Salinger states that the eBay standard is used for determining whether to grant preliminary injunctions, period. Salinger is not about the availability of the Fair Use defense in copyright (it's always available).

"We agree that eBay abrogated parts of this Court's preliminary injunction standard in copyright cases, and accordingly, this case must be remanded to the District Court to reevaluate Salinger's preliminary injunction motion." at 76
"We hold today that eBay applies with equal force (a) to preliminary injunctions (b) that are issued for alleged copyright infringement." at 77.
"Because the District Court considered only the first of the four factors that, under eBay and our holding today, must be considered before issuing a preliminary injunction, we vacate and remand the case." at 83.

I'm really confused as to why you think this case is about the availability of fair use defense to copyright infringement.

[Renkinjutsushi]

Actually, the case raises a good point. But it's not exactly the same point that you raised, instead it's about the availability of the Fair Use defense in copyright cases. This is a clear distinction and I agree it does provide additional tools to defendants seeking to fight Preliminary Injunctions against copyright violations. Whether or not Fair Use defense would prevail here, I have no idea. Feel free to research and enlighten me if you wish.

You missed the entire point of Salinger. Salinger states that the eBay standard is used for determining whether to grant preliminary injunctions, period. Salinger is not about the availability of the Fair Use defense in copyright (it's always available).

"We agree that eBay abrogated parts of this Court's preliminary injunction standard in copyright cases, and accordingly, this case must be remanded to the District Court to reevaluate Salinger's preliminary injunction motion." at 76
"We hold today that eBay applies with equal force (a) to preliminary injunctions (b) that are issued for alleged copyright infringement." at 77.
"Because the District Court considered only the first of the four factors that, under eBay and our holding today, must be considered before issuing a preliminary injunction, we vacate and remand the case." at 83.

I'm really confused as to why you think this case is about the availability of fair use defense to copyright infringement.

Um. Ok. Well the availability of Fair Use Defense, and the special difficulties it engenders in the application of Ebay/Winter 4 factor test to copyright cases is specifically noted by the Court:

"... the arguments about why one work isn't substantially similar in its expression to another, or about why it's a fair use of another, are often sophisticated and fact-intensive, and must be crafted with a good deal of thought and effort.”). This difficulty is compounded significantly when a defendant raises a colorable fair use defense. “Whether [a] taking[ ] will pass the fair use test is difficult to predict. It depends on widely varying perceptions held by different judges.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1132 (1990); see also Campbell, 510 U.S. at 578 n. 10, 114 S.Ct. 1164 (noting that “the fair use enquiry often requires close questions of judgment”)." Salinger v. Colting, 607 F.3d 68, 81 (2d Cir. 2010).

That's not just dicta, that's an important concern of the Court as it attempts to determine whether Salinger's estate is "Likely to succeed on the merits of the case." I see that as a crucial distinction between the application of the 4 factor test in cases of Copyright Infringement, which makes such cases substantially different (and arguably more difficult to sustain) than actions for Preliminary Injunctions in other areas, such as toxic chemical spills, trespass to lands, etc.

And no, I didn't "miss the whole point." Ebay and Winter are applied by the 2nd Circuit. Mind you, Ebay has been widely criticized (from a survey of law review articles) for being vague, brief, and possibly inconsistent with other Supreme Court precedents. I don't think it's absurd to postulate that a potential challenge is brewing - there areseveral large companies (Apple comes to mind) who love their vast IP patent libraries enough to argue that monetary damages are against the spirit of protecting IP as a form of personal property and that Ebay creates an unacceptably high burden for plaintiffs seeking to assert their rights. In the meantime, Ebay stands as good law, but it's certainly not beyond reproach. Some nice analysis of the immense confusion resulting in the wake of Ebay, from an IP Journal article:

"Courts deciding cases under the Lanham Act remain more skeptical of the applicability of eBay. In 2008, the Fifth Circuit applied the pre-eBay standard in a false advertising case seeking a permanent injunction. Several district courts and one Circuit Court have followed suit in both false advertising and trademark infringement cases with no mention or discussion of eBay. However, at least one district court found that eBay is applicable to a request for a permanent injunction in a trademark case. Other Circuits have acknowledged the debate regarding the presumption of irreparable harm, but ultimately punted on the issue; refusing to address whether the presumption is still valid because the facts under consideration demonstrate irreparable harm without reliance on the presumption. Even the Second Circuit, as little as two months before the Salinger opinion was issued, reiterated the pre-eBay preliminary injunction standard for trademark cases, in dicta, in support of a holding that proof of irreparable harm is not required for statutory injunctions under the New York Tax Code." http://www.kenyon.com/newspublications/ ... /9-1b.aspx

tl;dr - There are many wonderfully clear Supreme Court cases. I have a lot of trouble believing that Ebay is among them. Nevertheless from a practicing attorney's standpoint, I can accept the idea that specifically pleading "Irreparable Harm" is necessary, because the presumption that "Irreparable Harm" is satisfied in copyright cases appears to be eroding.

[Paddy]

Somebody suggested there was an "easy workaround to the licensing." As a future member of the Bar and a strong advocate for KS, and the rights of the Dev's, I wasn't pleased. It's a wonderful free game and people are already wondering how to rip it off? Seriously, just abide by the license.

I didn't mean it in a bad way... But I think it'd be pretty cool to see an anime based on KS.

[Renkinjutsushi]

Somebody suggested there was an "easy workaround to the licensing." As a future member of the Bar and a strong advocate for KS, and the rights of the Dev's, I wasn't pleased. It's a wonderful free game and people are already wondering how to rip it off? Seriously, just abide by the license.

I didn't mean it in a bad way... But I think it'd be pretty cool to see an anime based on KS.

Well, I think everyone would like to see that, me included. But I trust the Dev's to make the right decisions about that. If somebody were to take control of their work away from them, that would be tragic. The worst result, to my mind, is somebody stealing the ideas/content of KS and making a half-hearted attempt at a sequel or anime which will only disappoint everyone and shame the legacy of KS.

That being said, I don't think the Dev's are made of stone. They know people love their work and want more. I'm sure they understand literally tens of thousands of people are waiting to get a sequel/manga/anime. I trust that they will make the right decision when it makes sense to do so. It's tough to be patient, but all good things take time. Look at Blizzard's games - they take years and years to come out, but when they do, it's rarely poorly executed. Like fine wine or aged scotch, you just can't rush something of high quality and good taste...

[zanger]

Um. Ok. Well the availability of Fair Use Defense, and the special difficulties it engenders in the application of Ebay/Winter 4 factor test to copyright cases is specifically noted by the Court:

"... the arguments about why one work isn't substantially similar in its expression to another, or about why it's a fair use of another, are often sophisticated and fact-intensive, and must be crafted with a good deal of thought and effort.”). This difficulty is compounded significantly when a defendant raises a colorable fair use defense. “Whether [a] taking[ ] will pass the fair use test is difficult to predict. It depends on widely varying perceptions held by different judges.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1132 (1990); see also Campbell, 510 U.S. at 578 n. 10, 114 S.Ct. 1164 (noting that “the fair use enquiry often requires close questions of judgment”)." Salinger v. Colting, 607 F.3d 68, 81 (2d Cir. 2010).

That's not just dicta, that's an important concern of the Court as it attempts to determine whether Salinger's estate is "Likely to succeed on the merits of the case." I see that as a crucial distinction between the application of the 4 factor test in cases of Copyright Infringement, which makes such cases substantially different (and arguably more difficult to sustain) than actions for Preliminary Injunctions in other areas, such as toxic chemical spills, trespass to lands, etc.

I don't think a court that spends two paragraphs out of its entire opinion to address fair use defense in the likely to succeed on the merits factor makes it an "important concern" as you put it. The district court already analyzed the issue and the 2nd Circuit readily defers to the District Court's judgment. That's how I interpreted it. They even go so far as to say there's nothing wrong with the lower court's decision on that specific issue.

"Courts deciding cases under the Lanham Act remain more skeptical of the applicability of eBay. In 2008, the Fifth Circuit applied the pre-eBay standard in a false advertising case seeking a permanent injunction. Several district courts and one Circuit Court have followed suit in both false advertising and trademark infringement cases with no mention or discussion of eBay. However, at least one district court found that eBay is applicable to a request for a permanent injunction in a trademark case. Other Circuits have acknowledged the debate regarding the presumption of irreparable harm, but ultimately punted on the issue; refusing to address whether the presumption is still valid because the facts under consideration demonstrate irreparable harm without reliance on the presumption. Even the Second Circuit, as little as two months before the Salinger opinion was issued, reiterated the pre-eBay preliminary injunction standard for trademark cases, in dicta, in support of a holding that proof of irreparable harm is not required for statutory injunctions under the New York Tax Code." http://www.kenyon.com/newspublications/ ... /9-1b.aspx

tl;dr - There are many wonderfully clear Supreme Court cases. I have a lot of trouble believing that Ebay is among them. Nevertheless from a practicing attorney's standpoint, I can accept the idea that specifically pleading "Irreparable Harm" is necessary, because the presumption that "Irreparable Harm" is satisfied in copyright cases appears to be eroding.

Trademark Law and Unfair Competition is hardly comparable IP. Most IP lawyers don't even recognize trademarks as an analogous form of property. They don't even consider trademarks properly classified as a form of IP. In the field of trademarks and unfair competition any unlawful act damages the goodwill of the trademark owner, and I'm pretty sure the presumption arising out of that goes back hundreds of years in the common law all the way back across the Atlantic to England. If you took a look at what trademark law protects v. what patents or copyright law protects you would see their goals are completely different (protecting a sphere of the marketplace from fraudulent interlopers v. making scarce a nonexclusive good so the owner can commercially exploit it), you can agree that in the first place, where trademark is synonymous with reputation, monetary relief is always inadequate; whereas in the second, where the primary purpose for the existence of patent or copyright is to allow for commercial exploitation, inadequacy of monetary relief is difficult to argue.

Also I'd like to add that Apple or any other large tech company will never seek to overturn eBay, because eBay makes it harder for patent trolls to seriously disrupt their market activities by raising the bar for getting a preliminary injunction.