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Quarterly Journal Volume 38, Number 4

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Table of Contents

Intellectual Property Valuation Under U.S. GAAP and the Impact on Intellectual Property Litigation locked.gif

Michael R. Annis & Brad L. Pursel

 

Intellectual property (IP) has become a critical asset in the creation of new products and services and a key differentiator among existing products and services.  Accounting standards under U.S. Generally Accepted Accounting Principles (GAAP) require the valuation of IP acquired during a business acquisition.  Unfortunately, there is often limited public information relating to a company’s specific IP assets and its associated value or valuation by the owner.  When acquired IP is later the subject of an infringement claim, the subject IP's valuation can be a useful tool in the litigation.  In turn, discovery related to GAAP-based valuations of IP should be a standard tool for IP litigation attorneys to inquire into and determine a litigant's compliance with GAPP and the relative importance of the subject IP to the company, at least at the time of its acquisition.  Counsel should not only be cognizant of relevant accounting standards, but should also be prepared to utilize or defend against a prior valuation of IP that is the subject of infringement litigation.  In addition, corporate counsel, management, valuation specialists, and auditors should be aware of the potential legal consequences, present and future, of these post-acquisition valuations.​


 

Where to File Your Patent Case locked.gif

Mark A. Lemley

 

Forum shopping is a feature of modern patent law.  Both plaintiffs and defendants do it.  But parties have traditionally forum-shopped on the basis of anecdote and personal experience, not on the basis of actual data.  In this Article, I evaluate the records of the thirty-three most active patent district courts, considering plaintiff win rate, the likelihood of getting to trial, and the speed of the forum.  The result is a surprising answer to the question: "Where should I file my patent case?"​

 


What Can Decisions by European Courts Teach Us About the Future of Open-Source Litigation in the United States locked.gif
Jennifer Buchanan O’Neill & Christopher J. Gaspar

 

Open-source licenses are being enforced with regularity in the United States and abroad.  A 2008 ruling from the U.S. Court of Appeals for the Federal Circuit in Jacobsen v. Katzer has been cited as an early example of a United States court recognizing the enforceability of open-source licenses.  But courts in the United States were not the first to enforce open-source licenses against licensees that used the open-source code.  Rather, German and French courts led the way years before Jacobsen.  The history of open-source license enforcement in both Europe and the United States may provide insight into how courts in the U.S. (and elsewhere) rule on open-source issues that, as yet, remain unresolved on either side of the Atlantic.​


 

 

 

STUDENT NOTE: Predictability and Interactivity: An Examination of Arista Records, LLC v. Launch Media, Inc. locked.gif

Ari Z. Moskowitz​

 

This Note analyzes the Second Circuit's 2009 decision in Arista Records, LLC v. Launch Media, Inc.  The case revolved around a question of copyright licensing for an online music streaming service, LAUNCHcast, which allowed listeners to control certain elements of the program that LAUNCHcast streamed to them over the Internet.  The question before the Second Circuit was whether LAUNCHcast was an "interactive service" under the Digital Performance Right in a Sound Recording Act of 1995 (DPRA), as amended by the Digital Millennium Copyright Act (DMCA).  The Second Circuit found that LAUNCHcast was not an interactive service because listeners could not predict what songs would play in a LAUNCHcast stream, and therefore Launch Media was permitted to license Arista Record's music via a compulsory statutory license.  Were LAUNCHcast an interactive service, Launch Media would have needed to negotiate individually with every copyright holder whose music it wished to stream, significantly increasing transaction costs.  This Note argues that LAUNCHcast was an interactive service and the Second Circuit came to its erroneous conclusion through application of the pre-DMCA definition of "interactive service," which focused on how likely a listener was to predict upcoming songs.  However, as a matter of public policy, the Second Circuit came to the correct decision.​

 

 



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