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A California jury recently ordered Apple, Inc. (“Apple”) and Broadcom, Ltd. (“Broadcom”) to pay the California Institute of Technology (“Caltech”) over $1.1 billion in damages for infringing several patents owned by Caltech.  The patents relate to a type of error correction code used in wireless technology (known as “irregular repeat…

Imagine producing a classic Western without cowboys, saloons, or standoffs. This seems almost inconceivable because these elements are deeply integral to the genre – so much so, in fact, that they are essentially necessary for the creation of such works. Copyright law recognizes and accounts for this, by denying copyright protection to such elements under the “scènes à faire” doctrine. “Scènes à faire” literally means “scenes that must be done.” This doctrine traditionally has been applied in the context of literature and film, to keep classic tropes free for use by artists looking to create works in such genres. The Federal Circuit will soon decide, in Cisco Systems v. Arista, whether the scènes à faire doctrine can also be applied in the context of computer programming, to deny copyright protection for software commands that have become commonplace within the field.

The Ninth Circuit recently became the third federal appellate court to tackle what constitutes “personally identifiable information” protected by the Video Privacy Protection Act of 1988 (“VPPA”). Last year, the First Circuit and the Third Circuit propounded different standards for applying this statute, as they each grappled with the necessary leap from the age of VCRs to modern video services. In Eichenberg v. ESPN, the Ninth Circuit weighed in, adopting the Third Circuit’s approach and holding that a Roku device serial number coupled with the names of videos watched on an ESPN application were not “personally identifiable” within the meaning of the VPPA. The information, the Ninth Circuit reasoned, would not “readily permit an ordinary person to identify a specific individual’s video-watching behavior.” Therefore it was not protected by the VPPA.

On October 16, 2017, the Supreme Court agreed to review the Second Circuit’s decision in United States v. Microsoft Corp., a case that highlights the current tension between law enforcement needs and privacy concerns in a rapidly changing digital landscape.

When a contract awards attorneys’ fees to one party in a contract action, California Civil Code § 1717 intervenes by a) directing the attorney’s fees to the prevailing party, regardless of the party awarded fees in the contract, and b) requiring the court to fix the attorney’s fees as an element of the costs of suit. But does § 1717 supplant the right to a jury trial in situations where attorney’s fees are sought as damages, instead of as costs? As the California Court of Appeal recently held in Monster, LLC v. Superior Court of Los Angeles County: No.

The Supreme Court has put an end to a jurisdictional contrivance used by the plaintiffs’ bar to shop for a friendly state forum, even if neither the plaintiff, nor the defendant, nor the actionable conduct took place in those states. In last month’s Bristol-Myers Squibb Company v. Superior Court decision, the Court ruled that out-of-state plaintiffs could not piggyback on the claims of in-state plaintiffs to assert jurisdiction over an out-of-state defendant. In doing so, the Court rejected the notion that plaintiffs’ counsel can exploit the claims of a handful of in-state plaintiffs as a hook to bring a nationwide lawsuit against an out-of-state corporation in the plaintiffs’ preferred forum.

If one party in a lawsuit merely identifies documents on a privilege log without detail, does the other party bear the burden of showing that the withheld materials were not privileged, in order get access to those documents? The Fifth Circuit unanimously says no. In EEOC v. BDO USA, LLP, the Fifth Circuit held that records and communications with legal counsel are not automatically protected from disclosure just by virtue of their being identified in a privilege log.