Tom Goldstein, publisher of the much respected and authoritative Supreme Court blog, is making his predictions on Monday's Bilski patent ruling:

http://www.scotusblog.com/2010/06/the-final-four-decisions/#more-22266

The longest-outstanding case is Bilski v. Kappos, which involves the patentability of "business methods." Bilski was argued in November. The only Justice who has not issued a majority opinion from that sitting is Justice Stevens, which makes him the very likely author. Justice Stevens tends to take a narrow view of patent rights. He notably joined Justice Breyer's opinion in Laboratory Corp. v. Metabolite in 2006 arguing for a narrow interpretation of process patent rights, which is a similar issue.

At oral argument in Bilski, Justice Stevens was very engaged. He asked counsel for the patentee the following telling question: "But is it correct that there's none - none of our cases has ever approved a rule such as you advocate?" Justice Stevens also was seemingly doubtful that the involvement of a machine could render a process patentable, and furthermore that software could be patentable, which suggests a very narrow interpretation of business method patents and that the ruling could spell significant trouble for software patents.

I ultimately predict that the Bilski majority opinion will be authored by Justice Stevens and that the decision will be very significant in its narrowing of the scope of method patents. I expect that the delay in resolving the case will have arisen not from disagreement over whether this particular invention is patentable - I think the Court will unanimously hold that it isn't - but over the scope of the rule.

Unless the Supreme Court agrees to hold the Bilski patent case over until the next term and have the case re-argued (an almost inconceivable possibility since Justice Stevens is retiring at the end of this term), the Bilski patent case will be handed down on Monday, June 28th.

Even the most ardent defenders of the current patent regime expect the Court to strike down "business method" patents. The big question will be if the Court goes even farther and delivers a broader decision affecting software patents and other controversial forms of patent monopolies.

Stay tuned...

Google Inc.'s YouTube video-sharing website didn't infringe copyrights owned by movie and television producer Viacom Inc., a judge ruled.

U.S. District Judge Louis Stanton in New York today said YouTube wasn't liable for infringement.

Details here:

http://www.businessweek.com/news/2010-06-23/google-s-youtube-didn-t-infringe-viacom-judge-says.html

More here (along with the actual ruling itself):

http://news.cnet.com/8301-31001_3-20008636-261.html

This still preserves the very flawed "safe harbor / take down notice" regime which has proven to be subject to abuse and various end runs around fair use principles, so this hardly a game changing development. But it still would have been far more disastrous had the decision come down in Viacom's favor. In that aspect, its a small step in the right direction.

A disappointing decision today from a Federal Appeals Court which held that Congress has the power to take works out of the public domain in order to satisfy international treaties.

The case is Golan v. Holder.

What is truly outrageous is that this infringes on the rights of creators who have relied on these public domain works in order to create new "derivative" works. They will now be obligated to pay money to those who hold the copyright in the (previously public domain) underlying work in order to distribute their new "derivative" work.

As the court says: "If the parties are unable to agree on reasonable compensation, a federal court will determine the amount of compensation."

Great.

This is a shameful disgrace to the free flow of information, art and expression.

Read it here:

http://www.lawweekonline.com/2010/06/10th-circuit-decides-major-copyright-case/

Updated thoughts: The ruling focuses on a First Amendment Constitutional challenge to what Congress has done. It rejects the First Amendment challenge, but I wonder if it might also be vulnerable to a (long-shot) challenge under either the Contracts or Takings clauses of the Constitution.

It theoretically might. But the problem with this theory is that it might inadvertently invite the courts to accept the flawed analogy between IP and real property. Plus, such an argument might inadvertently end up locking in the current (and outrageously long) copyright terms - effectively holding that Congress would also not be able to shorten them without financially compensating authors who had already created works with the understanding that they would be protected under the longer terms.

These are just my current random thoughts on the matter. I'd be curious to read the thoughts of other Constitutional theorists on this (amateur and otherwise).

ThinkGeek.com posts the letter and calls it "OFFICIALLY OUR BEST-EVER CEASE AND DESIST".

Read it all here:

http://thinkgeek.com/blog/2010/06/officially-our-bestever-cease.html

Because copyrights allow for monopolies over "derivative works", a single producing entity often ties up the rights to copyrighted books at any given time. No direct competition is allowed to see who can produce the best adaptation (unless the underlying work is in the public domain).

With that in mind, I had to chuckle to myself when I read the news that the producer of Ayn Rand's "Atlas Shrugged" has started shooting the project with a mere $5-million budget and a crew that likely ensures a quiet direct-to-video release (if that).

http://www.comingsoon.net/news/movienews.php?id=67024

http://www.slashfilm.com/2010/06/14/atlas-shrugged-is-filming-one-tree-hills-paul-johansson-starring-and-directing/

The producer was forced to rush this thing into production now - otherwise he would lose the rights altogether after tying them up for nearly 20 years.

Warner Pulls The Plug On 'We Con The World'.

Read about it here:

http://pajamasmedia.com/eddriscoll/2010/06/12/warner-pulls-the-plug-on-we-con-the-world/

The Supreme Court issued a number of decisions today - but still no Bilski patent decision.

The patent lawyer community is getting nervous:

http://www.patentlyo.com/patent/2010/06/bilski-watch-timing-of-supreme-court-decisions.html

They are probably right to be. A delay this long in the decision most likely means that the Court is waiting until the end of the term to release it - which they traditionally do for what the Justices consider to be their most important and/or far reaching decisions of the year.

It may also be the case that there are either important dissents or concurring opinions on the case, thus prompting a delay with back and forth rewrites and revisions to the final decisions. (Though one should recall that at oral arguments, the Justices seemed universally critical to the idea of broad-based business method patents.)

The decision has to come down by July 28th at the latest, when the court has its final decision release day of the current term.

Three weeks and counting...

Justice Stevens proves to be the go-to Justice once again when it comes to IP issues on the Supreme Court.

It just released a unanimous decision that he authored, holding that the NFL can be sued for anti-trust violations for trying to give exclusive manufacturing licenses for producing trademarked clothing with NFL logos on them.

(It doesn't rule on whether the lawsuit will be ultimately successful or not, only that the NFL isn't immune from such lawsuits.)

Read the decision here:

http://www.scribd.com/doc/31867867/No-08-661-American-Needle-v-NFL

(A harbinger of the forthcoming Bilksi patent decison? We shall see...)

A federal appeals court on Thursday lifted a lower court's order that a well-known financial news aggregator delay the re-publication of prominent financial analysts' buy and sell recommendations.

Read More here: http://www.wired.com/threatlevel/2010/05/hotnews/#ixzz0oXrOdgIT

The courts need to drive a stake through the heart of the bogus "hot news" doctrine. The fact that it has even got this far through the court system is a disgrace. It represents a clear and present danger to the First Amendment which needs to be beaten back hard.