9/11 Photo, Amazon, Georgia-Pacific: Intellectual Property

(Bloomberg) -- In a copyright case involving the iconic 9/11 photo of firefighters raising a flag over a debris pile at the ruins of the World Trade Center, lawyers for Twenty-First Century Fox Inc.’s Fox News Network unit are asking a court to permit an immediate appeal of a ruling that it improperly used the snapshot.

Fox and a co-defendant had argued unsuccessfully that the posting of the photo on a Facebook Inc. page was sufficiently transformative as to constitute fair use under U.S. copyright law. A lower court disagreed in a Feb. 10 ruling, refusing to dismiss the case on a fair-use argument.

In a March 19 filing, Fox said the question of whether the Facebook posting was sufficiently transformative is “anything but clear” and a “square ruling” from an appeals court would bring “much-needed clarity to this murky area of the law.”

Fox said that there’s substantial basis for a difference of opinion on the issue, and that the case would effectively be over if the appeals court reverses the trial court. If social media’s “new and different aspects” aren’t relevant to a fair-use analysis, then those who share copyrighted content are likely to be infringing, Fox argued.

That “would effectively proscribe a wide swath of ongoing online speech,” Fox said.

North Jersey Media Group Inc. has said the photo was shot by one of its photographers for the Bergen Record newspaper, and that it’s the sole owner of the copyright to the image, which was later used on a U.S. postage stamp.

The case is North Jersey Media Group v. Pirro, 13-cv-07153, U.S. District Court, Southern District of New York (Manhattan).

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Amazon Seeks Patent on No-Checkout Retail Stores Operation

Amazon.com Inc., the world’s largest online retailer, has applied for a patent that would eliminate checkout at brick-and-mortar retail stores.

Application 20150012396 covers what Seattle-based Amazon calls the process of “transitioning items from a materials handling facility.”

Amazon said a user will walk through a facility picking up items for purchase. When the user exits, the items are “automatically transitioned” to the user without “affirmative input” or delay.

This would be accomplished by a camera that captures the image of the user’s hand before it crosses a plane into the inventory location. The user could put the items into a cart or carry them out of the store.

The facility would have stored data that would enable identification of the user, including “images of the user, height of the user, weight of the user, a user name and password, user biometrics, purchase history, payment instrument information (e.g., credit card, debit card, check card), purchase limits and the like,” Amazon said in its application.

The technology could be employed in libraries and museums, according to the application.

Intellectual Ventures Wins Patent Case Against Motorola Mobility

Intellectual Ventures, the patent-licensing and invention company founded by Nathan Myhrvold, a former Microsoft Corp. chief technology officer, has prevailed in a patent case against Motorola Mobility.

The suit was filed in federal court in Delaware in October 2011. The Bellevue, Washington-based company claimed Motorola Mobility infringed patents relating to mobile communication and computing. Lenovo Group Ltd.’s Motorola Mobility unit makes phones and accessories

In a redacted verdict filed with the court March 30, the jury said Motorola Mobility infringed patent 7,120,462 and induced infringement by others. The jury was unconvinced by Motorola Mobility’s allegation that the patent was invalid because the invention was obvious.

The case is Intellectual Ventures I LLC v. Motorola Mobility LLC, 11-cv-00908, U.S. District Court, District of Delaware (Wilmington).

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Georgia-Pacific Damages Cut in Appeal, Injunction Narrowed

In a trademark case involving a competitor’s paper towels designed to fit into an eMotion dispenser supplied by Georgia-Pacific LLC, a federal appeals court cut back a damages award and narrowed an order issued by a North Carolina judge.

The case, filed in North Carolina in 2005, was brought by Atlanta-based Georgia-Pacific, objecting to paper towels made by Hickory, North Carolina’s Von Drehle Corp. and placed into the Georgia company’s dispensers.

A jury determined that Von Drehle infringed and ordered it to pay $791,431 in damages. The court also issued an order barring Von Drehle from further infringement and, ruling the infringement was deliberate, tripled the award to $2.4 million. The court said Von Drehle must pay attorney fees of $2.2 million and pre-judgment interest and court costs.

Von Drehle appealed. In a March 30 ruling, the U.S. Court of Appeals in Richmond, Virginia, said the trial court went too far. It noted that Georgia-Pacific hadn’t prevailed in similar cases elsewhere. The appeals court said the lower-court order couldn’t reach past the boundaries of the Fourth Circuit, which encompasses North Carolina, South Carolina, Virginia, Maryland and West Virginia.

The appeals court also vacated the attorney-fee award and triple-damages ruling.

The case is Georgia-Pacific Consumer Products v. Von Drehle Corp., 13-2003, U.S. Court of Appeals for the Fourth Circuit (Richmond). The lower court case is Georgia-Pacific v. Von Drehle Corp, 05-cv-00478, U.S. District Court, Eastern District of North Carolina.

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Trade Secrets/Industrial Espionage

Nimble, NetApp Agree to Settle 2013 Trade-Secrets Dispute

Nimble Storage Inc. of San Jose, California, and Sunnyvale, California’s NetApp Inc. have settled a trade-secrets dispute, according to a court filing.

The case, which began in October 2013, involved allegations that Nimble was recruiting NetApp employees to obtain trade secrets. NetApp is a provider of data storage and management products. It serves 15 percent of Nimble’s workforce. Half of Nimble’s executive staff were former NetApp employees, according to the complaint.

Nimble traded on NetApp’s fame by telling customers that its technology teams include former NetApp employees, NetApp claimed. The former employees were accused of downloading confidential company information before they left and taking it to Nimble.

In addition to trade-secret theft, Nimble and the former NetApp employees were accused of conspiring to violate the Computer Fraud and Abuse Act. The ex-employees were also accused of violating employment contracts.

Terms of the settlement weren’t disclosed. The parties are each to bear their own costs and attorney fees. The stipulated dismissal was filed with prejudice, which means the suit can’t be filed again.

The case is NetApp Inc. v. Nimble Storage Inc., 13-cv-05058, U.S. District Court, Northern District of California (San Jose).

To contact the reporter on this story: Victoria Slind-Flor in San Francisco at vslindflor@bloomberg.net

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net David Glovin, Joe Schneider

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