STLR Link Roundup – March 5, 2019

High Court Limit On Costs In Copyright Cases Clarifies Stakes

In a U.S. Supreme Court decision on March 4, 2019, the court ruled that “a federal district court’s discretion to award ‘full costs’ to a party in copyright litigation is limited to the six categories specified in the general costs statute.” In the case Rimini Street Inc. v. Oracle USA Inc., the District Court awarded Oracle fees and costs, including $12.8 million for litigation expenses such as “expert witnesses, e-discovery, and jury consulting.” The Ninth Circuit Court of Appeals affirmed the award because the Copyright Act gives federal district courts discretion to award “full costs,” though it acknowledged that the award “covered expenses not included within the six categories of costs.” SCOTUS reversed in part and remanded: “the term ‘full’ is a term of quantity or amount; it does not expand the categories of expenses that may be awarded as ‘costs’ under the general costs statute.” Thus, it holds that the “full costs” must still be within the limitations of the categories specified in the general costs statute.

“Gamesmanship” Arguments Rejected in Wi-Fi Patent Challenges

On February 27, 2019, the Patent Trial and Appeal Board (PTAB) issued its decisions on two patent challenge cases against Hera Wireless (Intel Corporations v. Hera Wireless S.A. and Ruckus Wireless, Inc., et al. v. Hera Wireless S.A), rejecting “the owner’s arguments about ‘gamesmanship’ and ‘vexatious multiplication of proceedings.’” The patent covers Wi-Fi technology and has been involved in several other infringement lawsuits. The patent owner alleges that the two petitions constitute “redundant arguments and duplicative petitions,” thus “the Board should exercise its discretion to deny institution.” The PTAB, while acknowledging the “general concerns by patent owners regarding abusive multiple proceedings directed to the same patent,” denies that such abuses exist in the present cases. The two proceedings are not found to be “vexatious multiplication of proceedings” because the petitions were filed within one day of each other, eliminating the concern of “using prior arguments.” There is also no “substantial overlap,” as each seeks distinct arguments. The PTAB thus finds no “gamesmanship” involved in this set of cases.

Officials Push Back On Resurfaced ‘Nationalized’ 5G Plan

On March 3 and 4, 2019, all four Federal Communications Commission commissioners rejected the notion of a “nationalized approach to mobile network expansion” and the potential creation of a “wholesale 5G wireless network.” The comments were prompted by the strong support for government-mandated 5G network that was expressed by those closely related to President Donald Trump’s 2020 campaign. Republican Commissioner Brendan Carr stressed his op-ed for National Review that “[their] plan to secure U.S. leadership in 5G is working. It’s built on smart infrastructure policy, freeing up more spectrum, [and] allowing our private sector to invest [and] compete. Turning heel on this successful, free-market approach through China-like nationalization is a non-starter.”

Google Says Cross-Appeal Needed To Keep Face-Scan Win

In its February 25, 2019 memorandum, Google responded to the Seventh Circuit’s question as to why it filed a cross-appeal on Lindabeth Rivera, et al v. Google, LLC, a biometric privacy case for which it had already received a favorable summary judgment ruling. “Google filed a cross-appeal because it intends to raise alternative arguments that — if accepted — would require altering the judgment from a dismissal for lack of subject-matter jurisdiction to a dismissal with prejudice for failure to state a claim,” Google said. “And, as this Court has repeatedly indicated, because Google intends to raise an alternative basis for dismissal that would change the judgment, a cross-appeal is both necessary and proper.” Rivera launched her suit in 2016, seeking to represent a class of individuals whose privacy was allegedly violated by Google Photos’ collection and retention of face templates, created for photo grouping purposes. The district court dismissed the case on the fact that the plaintiffs were not able to show that Google’s retention and creation of face templates caused them concrete harm.

Facebook and Instagram Bring Suit to Stop the Sale of Fake Accounts

On March 1, 2019, Facebook and Instagram announced in a blog post that they will be “cracking down on the sale of fake accounts, suing four Chinese companies in California federal court for trademark infringement and cybersquatting, among other claims.” “Defendants sold the accounts in packages, or ‘bundles,’ which included bulk quantities of accounts belonging to Facebook, Instagram and others,” the suit alleges. “The price of the accounts varied by the age of accounts and other attributes, including the number of followers or geographical location associated with the accounts.” Facebook and Instagram claim that bogus social media accounts violates their terms of service.

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