Letter from Amerikat: Happy Bunny Day!

The AmeriKat has been enjoying the warmth of the sunbeams that have danced across her numerous files, spreadsheets and bundles this past week. The warmer weather brings out the summer clothes and English smiles, but also insects. Almost this time last year the AmeriKat was in the throws of a biblical scale warfare with swarms, floods, and drought inflicting her house. She had hoped that the spring and summer of 2010 was a blip in the calendar of insect infestations she would have to deal with, but alas, with the warmer weather the ants are back. She has now found the gap in her floorboards were the pesky insects have been arriving from, but like plugging a hole in a leaky boat, the water will always find somewhere else to spill in from. So instead of lounging out in the sun, dying eggs, eating chocolate and drinking lemonade on Easter Sunday, she is instead attacking any small six-legged body racing across her floor. (picture, left- the AmeriKat inspecting an alleged Easter bunny) Happy Easter from the AmeriKat!

Bratz Beats Barbie with $89 million jury-award

From pesky six-legged insects, to perky two-legged dolls. Last week a Californian federal jury issued their verdict in favor of Bratz (picture, right) in the now-famous copyright and trade secret battle between Barbie and Bratz (see previous reports here). Barbie's maker, Mattel, had alleged that the maker of the Bratz doll - MGA Entertainment- stole the idea for the Bratz doll by entering into a deal with the designer of the doll, Carter Bryant, who had previously worked for Mattel. Mattel subsequently filed a lawsuit for copyright infringement and trade secret violations, while MGA alleged unfair competition and also trade secret theft. This case was heard by first by Judge Larson who ruled in favor of Mattel, but that $100 million verdict was overturned on appeal. The Court of Appeals for the Ninth Circuit held that the federal court judge had erred in ruling that Mattel automatically owned the designer's sketch of the doll under the terms of the 'Employee Confidential and Inventions Agreement' between Mattel and the designer and remanded the case back to the federal court.

Bryant's employment agreement had assigned all rights, titles and interests in any such inventions, patents and copyrights to Mattel. The contract defined "inventions" as including, but not limited to, discoveries, improvements, processes, designs and know-how. The district court had held that this agreement assigned Bryant's ideas to Mattel despite 'ideas" not being included on the list or mentioned anywhere else. Mattel argued that the list of examples in the contract were illustrative not exclusive, but the Court held that "ideas" are "markedly different from the list of examples including discoveries, improvements and designs" (People ex rel Lungren v superior Court (1996)). (picture, left - no amount of law school could prepare Lawyer Barbie for the cruelty of a jury verdict) The Court of Appeals stated that the contract was arguable capable of either including or not including ideas, but that the trial court did not recognize this ambiguity and thus did not examine the extrinsic evidence before it on this issue.The Appeals Court concluded that the agreement could be interpreted to cover ideas, but that the text of the agreement did not compel that reading and thus remanded the issue back to the district court. They stated that:

"Designs, processes, computer programs and formulae are concrete, unlike ideas which are ephemeral and often reflect bursts of inspiration that exist only in the mind."

At the end of last year, Mattel and MGA applied for summary judgment on the issue of copyright infringement for the first and second generation Bratz dolls. Judge Carter granted summary judgment in MGA's favor in respect of the second generation Bratz dolls, but the remaining issues, including breach of copyright for the first generation of Bratz dolls and the breach of confidence/trade secret claims, remained for trial. The court was tasked with determining whether the Inventions Agreement entitled Mattel to Bryant's ideas for names like "Bratz" together with sketches that he created outside working hours. Also, ripe for ruling was MGA's trade secret claim against Mattel through a campaign of corporate espionage, whereby MGA alleged that Mattel's employees gained access to regulated private MGA toy showrooms by deceptive means.

On Thursday, a federal court jury in Santa Anna, California, found in favor of MGA and following the Court of Appeals opinion held that Mattel did not own the sketches or ideas for the Bratz dolls. The jury verdict also held in favor of MGA's counterclaim that Mattel had willfully misappropriated trade secrets and slammed Mattel with a $88.5 million damages price tag. A slight saving grace, albeit an insulting one, was that the federal jury also found that MGA had interfered with Bryant's contract with Mattel and issued Mattel a $10,000 award for the interference.

Although the battle may not be over with reports that Mattel will file a motion for a retrial within two weeks and will reserve the right to appeal, the case does remind everyone of the importance of carefully drafted employee contracts, as well as taking the business decision to litigate over seven or so years even if it costs your shareholders $400 million (see MSN money report here). However, if Mattel's intention was to quash the rival dollmaker, the litigation may have just done that. MGA's CEO, Isaac Larian is reported as saying that the Bratz brand "will never be the same level it was before."

tytoc collie will keep you posted on any further developments in the case.

Tony Duquette seeing Spots with J.Crew sweater

Tony Duquette, Inc, the proprietor of the various IP rights associated from the late namesake artist and designer filed a trade mark infringement suit against clothing retailer and AmeriKat favorite, J.Crew in a New York federal court last week. For those not in the know, the late Tony Duquette was a Tony award-winning designer and artist who counted Elizabeth Arden and the Duke and Duchess of Windsor as clients. Tony Duquette allege that J.Crew has infringed the DUQUETTE name and trade mark by producing and selling a sweater with the style name the "J.Crew Duquette Factory Leopard Print". The complaint alleges that J.Crew knowingly and willfully used the DUQUETTE trade mark in connection with their leopard print sweater because of Duquette's alleged unique association with leopard prints, in particular with woven and printed textiles including carpets and tapestries. (picture, left - a fabric design by Duquette) The AmeriKat is seeing more and more product descriptions that use trade marked words become the subject of trade mark disputes. In the UK, one can always invoke the fun game of whether the product description is being used as a function (of many, many functions) of a trade mark. In the U.S., the case is arguably little more straightforward.

Albeit having not read the complaint, the AmeriKat's gut instinct is that there is not enough here to satisfy the test of trade mark infringement. i.e., namely where is the confusion and whether Duquette has enough reputation in his name associated with leopard print textiles to claim dilution? Further live trade mark registration for DUQUETTE the AmeriKat found on USPTO is for tapestries of textiles, carpets and rugs - not apparel (Reg No. 3863326). The AmeriKat perused J.Crew's website today and found one leopard print sweater which is called the "Wild spots cardigan" - a very un-J.Crew product name - so her guess is that J.Crew has already taken steps to change the name of the contentious product. The Amerikat predicts this lawsuit to die a quickish death, just like the animal print trend of last season.

Apple v Samsung v Apple v Samsung v Apple....

Last year the AmeriKat was constantly up-to-date reporting on the latest of the patent mobile phone wars. She has now officially lost track, except for the latest of the battles now between Samsung and Apple. Apple sued Samsung two weeks ago in California federal court for trade dress, design patent, trade mark and patent infringement against Samsung's Galaxy line of smartphones and tablets. Apple allege that Samsung's products are copies of the iPhone and iPad designs including the "icons with the rounded corners."

The incestuous ties of the smartphone and tablet manufacturers and retailers are felt in this case. In 2010 Samsung earned a reported $5.7 billion revenue from Apple by way of their purchase of Samsung semidconductors. Tim Cook, Apple's CEO, told the Wall Street Journal that Apple is

"Samsung's largest customer, and Samsung is a very valued component supplier to us, and I expect the strong relationship will continue. Separately from this, we felt the mobile communication division of Samsung had crossed the line, and after trying for some time to work the issue, we decided we needed to rely on the courts."

The litigator in the AmeriKat sensed a nice little bargaining chip for Apple in this suit, however not to be uncharacteristic in this type of litigation Samsung then "countersued" Apple last week, but not in the U.S. Samsung filed patent infringement lawsuits against Apple in Korea, Japan and Germany alleging violations of patents filed in each of those jurisdictions. The allegedly infringed patents involve "transmission optimization and reduction of power usage during data transmission, 3G technology for reducing data-transmission errors and a method of tethering a mobile phone to a PC to enable the PC to utilize the phone's wireless data connection." The speed in which these lawsuits were filed indicate that Samsung may have been preparing itself for this counter-attack for sometime.

This latest chapter in the mobile patent war saga again demonstrates that when it comes to litigation surrounding smartphone technology, the best defence that is repeatedly being employed by parties is that of pursuing offensive litigation strategies on a global level. Whether or not that will prompt the parties to settle sooner is not a certainty, but the more complicated and more jurisdictions in which a company has to battle, the more attractive it becomes to resolve the dispute before litigation costs rocket and stated commercial relationships are massively affected.

BGH: hyperlinks, freedom of expression and copyright infringing software

Already decided on 14 October 2010, even though only published in its entirety now, has been a decision (case reference: I ZR 191/08; 'AnyDVD') by the German Federal Supreme Court (Bundesgerichtshof) concerning a lawsuit brought by several music companies against Heise Verlag, an online publisher specializing in IT and computer news. The claimaint's took objection to reports published on Heise’s website which included links to a third party website (SlySoft) that offered software that allowed circumventing copy protection for DVDs.

While the lower courts, the Regional and Higher Courts of Munich I, had held that Heise's online reports were itself copyright infringing, the First Civil Senate of the Bundesgerichtshof took the view that adding the links on Heise's website which linked to SlySoft's website (where SlySoft offered copyright right infringing software) was covered by the constitutional right of freedom of press and freedom of opinion under Article 5(1) German Constitution (Grundgesetz). Further, in cases where the actual text of a report was protected by freedom of expression and freedom of press, the included links would also be afforded equal protection. The judges stressed that the purpose of the links on Heise's website was not only to technically facilitate to access the SlySoft's website but the links were to be regarded as part of Heise's reporting because they were complementing and 'backing up' what was reported with additional information. The fact that the Heise was aware that the software offered on SlySoft's website was copyright infringing did not change this and so could not be blamed on Heise since the information interest of the general public was of higher importance.

The judges also argued that reports on illegal conduct (here: that SlySoft offering copyright infringing software) could be of particular public information interest. It was also important that Heise had clearly indicated in its report that SlySoft's software was copyright infringing. In this context the Bundesgerichtshof explained that protection of Article 5(1) Grundgesetz encompassed freedom of expression and freedom of media in all its aspects and was thus not limited to the content of the report, but it also included the (outer) form of this reporting. As such, it was up to Heise itself, as the subject entitled to the fundamental right under Article 5(1) Grundgesetz, to decide which form of presentation it chose for its reporting. This also encompassed the decision whether additional information about a company and its products (here: SlySoft) should be expressly used in the report and it could include the decision to publish links to SlySoft's website.

The court, inter alia, based its decision on Article 95 a German Copyright Act which is based on Article 6 of the Copyright Directive (Directive 2001/29/EC) (“Obligations as to technological measures”). Intriguingly, the Bundesgerichtshof interpreted Article 95 a German Copyright Act not only in the light of Article 5(1) Grundgesetz but also in light of Article 11 (1) of the Charter of Fundamental Rights of the European Union which stipulates as follows “(e)veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Article 11 (2) provides that “(t)he freedom and pluralism of the media shall be respected.” Referring to the ECJ's precedent in Connolly/Commission (C-274/99 P), the Bundesgerichtshof also stressed that content and quality of a report are irrelevant when it comes to the application of Article 11 of the Charter of Fundamental Rights of the European Union.

This interesting decision can be retrieved from the Bundesgerichtshof's website here (in German).

Not acte clair, but easy as A, B ... see!

Acte Clair, Cat Claire or Claire de Lune?

We have another A and B situation today, but this time it's not Anheuser-Busch and Budvar.  Back in November Mr Justice Floyd gave judgment in Football Dataco Ltd, The Scottish Premier League Limited, The Scottish Football League Limited and PA Sport UK Limited v Sportradar GmbH & and Sportradar AG [2010] EWHC 2911 (Ch), Chancery Division, England and Wales. In this action the claimants ("FDC") exploited certain data relating to English and Scottish football matches. This data, which was compiled in a database known as "Football Live", included goals scored, goal-scorers, penalties, yellow and red cards and substitutions; it was both updated and provided to third parties while matches were actually taking place. The defendants, Sportradar (a German company and its Swiss parent) assembled data relating to live English and Scottish football matches from public sources and called it "Sports Live Data". Their data was stored on webservers in Germany and Austria but could be accessed via links from elsewhere, including the United Kingdom.  FDC sued, alleging infringement of their UK copyright and database right. Sportradar denied liability since, whatever they might be doing, they weren't doing it in the UK; nor were they domiciled in the UK. The courts of England and Wales therefore had no jurisdiction. The German Sportsradar then sued FDC in Germany in July, seeking negative declarations that its activities did not infringe any of FDC's IP rights.

FDC then applied to amend their Particulars of Claim in order to clarify the nature of the acts which they alleged to constitute infringements and also to add some new ones.

Floyd J started by warning that it was important to examine with some care what, if any, claims were made in the original Particulars of Claim. This was because Sportradar argued that, by virtue of its application for declarations of non-infringement, the German Court was first seized of any claim which the English Court was not properly seized of before July. That exercise had to be carried out without the benefit of the amendments for which permission had not yet been granted. Jurisdiction with regard to the German company was governed by the EU's Judgments Regulation and, in the case of the [non-EU] Swiss company, by the Lugano convention.

Could FDC show a "good arguable case" of UK copyright and/or database right infringement in order to establish jurisdiction in the UK? On the basis of the evidence, Floyd J said "no": Sportradar had not done any act of reproduction (in respect of copyright) or extraction (in respect of database rights) in the UK. As for re-utilization in respect of database right, Article 7(2)(b) of the Database Directive stipulated that
Any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies by renting, by on-line or other forms of transmission. This raised a question of law of where the act of "making available" occurred. The issue was closely related if not identical to an issue raised on the amendment application of where "making available" occurred for the purpose of section 20 of the Copyright Designs and Patents Act 1988. He had to face this issue since, where a question of whether the Court has jurisdiction turns on a pure question of law, that question has to be decided.

Referring by way of analogy to the debate as to where a "broadcast" occurred (was it at the place of transmission or also at the place of receipt?) he pointed to the Satellite Broadcasting and Cable Re-transmission for broadcasts orginating within the EU. Under that directive, a broadcast occurs where the signals are introduced under the control of the person making the broadcast into an uninterrupted chain of communication (the "emission theory"). Said Sportradar, the emission theory should equally apply to the making available right and to re-utilization, since the act which statute deems to be the infringement is a "making available" and the public do not have to actually access the database to infringe. The judge agreed: that right would prevent transmission or re-transmission in a state to which the Directive applies and other restricted acts would prevent further use of the database within the state of reception. He said:

"... the better view is that the act of making available to the public by online transmission is committed and committed only where the transmission takes place. It is true that the placing of data on a server in one state can make the data available to the public of another state but that does not mean that the party who has made the data available has committed the act of making available by transmission in the State of reception. I consider that the better construction of the provisions is that the act only occurs in the state of transmission".

Though the point was not acte clair, Floyd J felt that he could still rule on it and therefore decided not to refer the point to the Court of Justice of the European Union (ECJ), particularly since the issue was not determinative of whether the court had jurisdiction at all. This was because he interpreted the Particulars of Claim as alleging acts of reproduction and extraction by Sportradar's end users in the UK who downloaded the data from the their servers. Although the customers/end users were not party to the proceedings, the pleadings alleged that Sportradar had authorised and/or was jointly liable for, the acts of the end users/consumers. On this basis, the English court had jurisdiction to rule on whether Sportradar had authorised, or was jointly liable for, the acts of reproduction, extraction and re-utilisation of a substantial part of the Football Live database.

Turning then to FDC's application to amend its application, he felt that he could not allow any amendment which raised a new cause of action if it was already within the scope of the German proceedings. He therefore allowed the amendments which gave further particulars of joint tortfeasorship by Sportradar and which pleaded communication to the public by its customers -- but not an amendment alleging making available by Sportradar itself under the Copyright Designs and Patents Act 1988, section 20.

Today the Court of Appeal (Lords Justices Laws, Jacob and Wilson) [2011] EWCA Civ 330, hearing the appeal and cross-appeal, decided to refer the following questions to the ECJ for a preliminary ruling:

"Where a party uploads data from a database protected by sui generis right under Directive 96/9/EC ("the Database Directive") onto that party's webserver located in member state A and in response to requests from a user in another member state B the webserver sends such data to the user's computer so that the data is stored in the memory of that computer and displayed on its screen
(a) is the act of sending the data an act of "extraction" or "re-utilisation" by that party?
(b) does any act of extraction and/or re-utilisation by that party occur
(i) in A only
(ii) in B only; or
(iii) in both A and B?".

In making this reference, and before reviewing the parties' arguments, the Court summarised the position thus, at paragraphs 42 to 45:

"42. In the case of the UK database right, the claimants say that this means making available to the UK public. That they say the defendants do by copying (re-utilizing) Football Live on their Austrian server and transmitting the copied data to those members of the UK public who click on "live scores". "Transmission," they say, in the case of provision of data over the internet or indeed otherwise by wire involves both the acts of hosting the website (Austria and Holland in this case) but also the act of the user in accessing it. It is not transmitted unless and until it is received. Before there can in reality be a transmission there must be a transmittor and a transmittee. This I will call the "transmission theory" or the "communication theory". 

43. The defendants say not so, that acts of "transmission" occur only in the place from which the data emanates. This was called the "emission theory." The Judge thought that the "better view" was that the defendants were right about that though it was not acte clair. 

44. Before us the parties deployed considerable arguments in support of their respective positions. Mr Mellor contended that the argument was so strong in the claimants' favour to be acte clair. After we had heard him we were not satisfied of this. Mr Carr did not dispute that position or that the point was important and could be decisive. He did not, therefore, oppose a reference to the CJEU. 

45. We decided it was not appropriate for us to form our own view about this very important and difficult question".

In consequence of this reference, the part of FDC's action relating to direct liability for sui generis database right infringement must necessarily be stayed -- but the part relating to joint-tortfeasorship by unlawful communication to the public can proceed merrily on its way.

Addendum: in his haste to get this post up-and-running, the Kat left out the bit about infringement of copyright in an original database (in contrast with infringement of the sui generis database right), so Merpel is adding it now. At paragraphs 14 to 18 Jacob LJ killed any suggestion that there was such an infringement on the facts before the court:

"14. I turn first to the copyright claim. The criteria for subsistence of copyright in a database are that "by reason of the selection or arrangement of their contents, it constitutes the author's own intellectual creation". The defendants contend that the data collected by the claimants' agents is not of that sort – it involves no intellectual creation. Therefore, they submit, there is no copyright right at all. Alternatively, they submit, the data alleged to have been copied (namely goals, goalscorers, own goals, penalties, yellow and red cards and substitutions) are matters of pure fact. Such data is merely the contents of the alleged copyright and is precluded from protection by way of copyright by virtue of Art. 3.2. 

15. I accept the latter submission. The Judge was obviously sympathetic to it (and to the attack on copyright subsistence as a whole) for he said:

[49] Paragraph 22 of the particulars of claim alleges that the compilation of Football Live involves "considerable skill, effort and/or intellectual input by experienced personnel to generate, select and/or arrange its contents". There is also an allegation that a substantial part has been used: see paragraph 37. In the light of the law as stated above, those combined allegations must include the allegation that what is taken is a substantial part of the intellectual input of the authors. Those allegations are supported by a statement of truth from each claimant. Mr Cuddigan's argument that the part alleged to have been reproduced by his clients does not amount to an intellectual creation is not supported by any evidence. Whilst the court might have a view based on its own impressions, I do not think that it would be right to place those ahead of what is properly in evidence. In those circumstances, whilst there may ultimately prove to be force in the argument, I think the claimants have a good arguable case on this issue.

16. Unlike the Judge I think the point can be dealt with now. The statement of truth really adds nothing. It may be that some of the information collected for the claimants includes matter which involves intellectual creation. So there may be copyright in Football Live. But what is alleged to have been copied is mere data on any reasonable view. Its recording may sometimes involve some skill (who scored in a goalmouth scramble) but it is not creative skill. 

17. Nor, speaking more technically, do I think it matters that there is no evidence saying that the matter taken does not amount to intellectual creation. For I cannot imagine any credible evidence to the effect that it does. And actually, although the particulars of claim are supported by a statement of truth (so are a sort of evidence) there is no assertion that what was taken amounted to the taking of work involving intellectual creation.

18. It follows that when the proceedings started the court was not seized of a claim in copyright to the necessary standard. From that it follows that the argument we heard about "authorising" an act restricted by copyright (which by s.16(2) of the Act constitutes an infringement) becomes irrelevant. I say no more about it other than I saw considerable force in it.".

Acte clair here
Eclair here
Claire de Lune here

"Making available" only happens where it happens

On Wednesday Mr Justice Floyd handed down his keenly-awaited ruling in Football Dataco Ltd, The Scottish Premier League Limited, The Scottish Football League Limited and PA Sport UK Limited v Sportradar GmbH & and Sportradar AG [2010] EWHC 2911 (Ch), a sharply-contested battle that took place in the genteel surroundings of the High Court, Chancery Division, for England and Wales. The result: we now know something which many of us already suspected -- that where an alleged infringement consists of the act of making a work available to the public, "making available" by online transmission is committed (and only committed) where that transmission takes place.

So what happened in this case? The claimants ("FDC" for ease of reference) exploited certain data relating to English and Scottish football matches. This data, which was compiled in a database known as "Football Live", included goals scored, goalscorers, penalties, yellow and red cards and substitutions. That data was both updated and provided to third parties while matches were actually taking place. The defendants, Sportradar, were a German company and its Swiss parent. What did they do? They assembled data relating to live English and Scottish football matches from public sources and called it "Sports Live Data". Their data was stored on webservers in Germany and Austria but could be accessed via links from elsewhere, including the United Kingdom.

FDC launched proceedings in April 2010, alleging infringement of their UK copyright and database right. No, said Sportradar -- whatever they might be up to, they weren't doing it in the UK; nor were they domiciled in the UK. The courts of England and Wales therefore had no jurisdiction. The German Sportsradar then cunningly sued FDC in Germany in July, seeking negative declarations that its activities did not infringe any of FDC's IP rights.

Back in England, FDC then applied to amend their Particulars of Claim in order to clarify the nature of the acts which they alleged to constitute infringements and also to add some new ones.

Floyd J started by warning that it was important to examine with some care what, if any, claims were made in the original Particulars of Claim. This was because Sportradar argued that, by virtue of its application for declarations of non-infringement, the German Court was first seized of any claim which the English Court was not properly seized of before July. That exercise had to be carried out without the benefit of the amendments for which permission had not yet been granted. Jurisdiction with regard to the German company was governed by the EU's Judgments Regulation and, in the case of the [non-EU] Swiss company, by the Lugano convention. Could FDC show a "good arguable case" of UK copyright and/or database right infringement in order to establish jurisdiction in the UK? On the basis of the evidence, he said "no": Sportradar had not done any act of reproduction (in respect of copyright) or extraction (in respect of database rights) in the UK. As for re-utilization in respect of database right, Article 7(2)(b) of the Database Directive stipulated that

Any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies by renting, by on-line or other forms of transmission.

This raised a question of law of where the act of "making available" occurred. The issue was closely related if not identical to an issue raised on the amendment application of where "making available" occurred for the purpose of section 20 of the Copyright Designs and Patents Act 1988.  He had to face this issue since, where a question of whether the Court has jurisdiction turns on a pure question of law, that question has to be decided.

Referring by way of analogy to the debate as to where a "broadcast" occurred (was it at the place of transmission or also at the place of receipt?) he pointed to the Satellite Broadcasting and Cable Re-transmission for broadcasts orginating within the EU. Under that directive, a broadcast occurs where the signals are introduced under the control of the person making the broadcast into an uninterrupted chain of communication (the "emission theory"). Said Sportradar, the emission theory should equally apply to the making available right and to re-utilization, since the act which statute deems to be the infringement is a "making available" and the public do not have to actually access the database to infringe. The judge agreed: that right would prevent transmission or re-transmission in a state to which the Directive applies and other restricted acts would prevent further use of the database within the state of reception. He said:

"... the better view is that the act of making available to the public by online transmission is committed and committed only where the transmission takes place. It is true that the placing of data on a server in one state can make the data available to the public of another state but that does not mean that the party who has made the data available has committed the act of making available by transmission in the State of reception. I consider that the better construction of the provisions is that the act only occurs in the state of transmission".

Though the point was not acte clair, Floyd J felt that he could still rule on it and therefore decided not to refer the point to the Court of Justice of the European Union, particularly since the issue was not determinative of whether the court had jurisdiction at all. This was because he interpreted the Particulars of Claim as alleging acts of reproduction and extraction by Sportradar's end users in the UK who downloaded the data from the their servers. Although the customers/end users were not party to the proceedings, the pleadings alleged that Sportradar had authorised and/or was jointly liable for, the acts of the end users/consumers.  On this basis, the English court had jurisdiction to rule on whether Sportradar had authorised, or was jointly liable for, the acts of reproduction, extraction and re-utilisation of a substantial part of the Football Live database.

Turning then to FDC's application to amend its application, he felt that he could not allow any amendment which raised a new cause of action if it was already within the scope of the German proceedings.  He therefore allowed the amendments which gave further particulars of joint tortfeasorship by Sportradar and which pleaded communication to the public by its customers --  but not an amendment alleging making available by Sportradar itself under the Copyright Designs and Patents Act 1988, section 20.

tytoc collie reminds readers that the battle has only just begun.  We can expect some stunning litigation before two of the best squads judicial brains in the European Champions League -- the British and the Germans -- and even the prospect of a replay or two at appellate level.

Sportradar here
Cat radar here
Bat radar here

This note was prepared with the assistance of a press release from Bird & Bird, who acted for Sportsradar in these proceedings.

Breaking news: Willy the Wizard v Harry Potter to go to full trial

A case of throwing
the book at the claimant?

You won't find it on BAILII, but today's decision of Mr Justice Kitchin in in Paul Allen (trustee of Adrian Jacobd, deceased) v Bloomsbury Publishing and JK Rowling [2010] EWHC 2560 (Ch) (Chancery Division, England and Wales) is brought to you here by tytoc collie himself as an act of kindness.

In short, it is alleged that JK Rowling infringed the copyright in Adrian Jacobs' Willy the Wizard in the course of writing Harry Potter and the Goblet of Fire.  JK Rowling and her publisher Bloomsbury deny that there has been any copying of all or a substantial part of Willy, claim that any similarity is superficial and assert that JK Rowling had no access to Willy either.  In this hearing the defendants sought summary judgment on the basis that the infringement claim could not possibly succed or, in the alternative, a conditional order that the case go to trial only if Allen, on behalf of Willy's deceased author, provides security for costs.

The Wizard and his backers may lose at trial -- and indeed Kitchin J expressed the view that it was improbable that the action would succeed -- but this was Willy's day of triumph.  The judge took the view that the infringement claim was not so weak as to be unarguable, inviting submissions as to the form that the conditional order should take.

tytoc collie will of course be watching this action carefully.  If anyone is interested in writing a serious piece for JIPLP on the various allegations of copyright infringement made against Harry Potter around the world and how they've been dealt with, please email Jeremy here.

Sigur Rós sound-a-likes: homage or fromage?

tytoc collie confesses, in at least one of his incarnations, to being a big fan of the Icelandic group Sigur Rós, and keeps up to date from time to time with what they are doing via their website "eighteen seconds before sunrise".  A recent article on the website amused and intrigued him.  If you are also a fan of the group, you might find the music accompanying the advertisements in the videos below strangely familiar. tytoc collie will leave his readers to reach their own conclusions, and would be interested to see what they think.