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The most dramatic patent and copyright cases of 2016

reader comments 6 Share this story Many of the biggest legal disputes in technology relate to "intellectual property," a broad term used for laws relating to everything from copyrights to patents, trademarks to trade secrets.

This year saw significant changes in the copyright and patent landscapes. "Patent trolls" who sue technologists for fun and profit got smacked down by courts more often—and harder—than ever before.

At the same time, universities were filing patent lawsuits at an increased rate, and often winning.In the copyright realm, the Oracle v.

Google
trial dominated the spring.

A jury was left to decide the murky rules about when using an API could be "fair use." That legal uncertainty led to the two tech giants clashing over the ethics of each others' business practices and the history of the smartphone industry. In two very different cases in 2016, copyright issues led to criminal charges being filed. US authorities are seeking to extradite and put on trial a man named Artem Vaulin, who they say made $16 million annually by running a massive online storehouse of pirated films and songs.

And more than three years after they were condemned by a federal judge, lawyers behind a vast array of copyright lawsuits, a firm known as Prenda Law, were arrested and accused of fraud. Here's a look back at 2016's most dramatic IP cases. Graphiq CEO Kevin O'Connor and former director of operations Danny Seigle.

Graphiq (formerly FindTheBest) became the first company to win attorneys' fees in a patent case under the Supreme Court's new Octane Fitness standard.

An appeals court approved the fee award in January 2016. Patent trolls continued to face stiff fines throughout 2016. eDekka, the most litigious patent company just a year ago, collapsed and dropped its appeal after being hit with fees in East Texas. Carnegie Mellon University ended a prolonged patent battle with Marvell Technology in February, with Marvell agreeing to pay a $750 million settlement—the largest payout ever for a patent related to computer science. Pictured here is CMU Professor José Moura, inventor on the two patents in the case. An image explaining one of two patents owned by Carnegie Mellon University, which describe a method of reducing noise when reading data from hard disks.

The patents were used by CMU to sue Marvell Technology. Universities have increasingly been willing to become plaintiffs in high-stakes patent lawsuits, and are sometimes partnering with professional patent enforcement companies to do so.

The Electronic Frontier Foundation launched a "reclaim invention" campaign in June 2016, seeking to pressure universities not to partner with such "patent trolls." Since the US Supreme Court's 2014 Alice v.

CLS Bank
decision, it's been easier to get software patents thrown out of court. Until this year, the US Court of Appeals for the Federal Circuit had only upheld software patents in one post-Alice case.

But in 2016, the Federal Circuit gave approval to software patents in three more cases.

The image above is pulled from the McRo v.

Bandai Namco Games
opinion.

A Federal Circuit panel said McRo's digital animation patents could survive, rejecting arguments from public interest groups like EFF that McRo was being allowed to essentially patent mathematics. In May, a second jury trial between Oracle and Google over whether the Android operating system violated Java copyrights ended with a second resounding win for Google.

The testimony of Jonathan Schwartz, former president of Sun MicroSystems, loomed large in the case.
Schwartz testified that he had no problem with Android, since Google had followed the rules around Java intellectual property that Sun had established. Noah Berger/Bloomberg via Getty Images Oracle attorneys tried to sway the jury by painting former Sun Microsystems president Jonathan Schwartz as a hypocrite, who praised Google in public but privately decried its licensing practices.
It didn't work.

Above is a slide from Oracle's closing argument. In June, a Los Angeles federal jury considered whether or not Led Zeppelin's "Stairway to Heaven" was ripped off from a song by psychedelic rock band Spirit.

The jury found in Led Zeppelin's favor, quelling some fears that the music industry may continue to be plagued with copyright lawsuits over similar-sounding songs.

The case followed a high-profile 2015 trial in which a jury found that the hit song "Blurred Lines" infringed the copyright of Marvin Gaye's "Got to Give it Up." In July, US prosecutors charged Artem Vaulin, a 30-year-old Ukrainian man, with criminal copyright infringement for running the popular website KickAssTorrents.
Vaulin was arrested and is being held in Poland awaiting extradition.
It's the highest profile criminal copyright case since the US charged Kim Dotcom—who's still living in New Zealand, where he's desperately hoping to avoid extradition.

Above is a screenshot of the now-shuttered torrent website. On July 21, the Electronic Frontier Foundation filed a lawsuit that's been a long time coming.

EFF claims that the DMCA's ban on circumventing digital locks violates the First Amendment.

Digital locks may need to be sidestepped "in order to create a running critical commentary on... a political debate, sporting event, or movie," all legitimate activities that should be protected by fair use, EFF argues.

The government has asked for the case to be dismissed, and the matter is awaiting a judge's decision. Pictured above is EFF client Andrew "bunnie" Huang, who wants to market a product for editing HD television signals, but is hampered by copyright limitations he believes are unconstitutional. Record label EMI sued MP3tunes, an early music locker service, in 2007, along with its founder Michael Robertson, pictured above in a 2006 photo.

The litigation caused MP3tunes to go bankrupt in 2012, but Robertson kept fighting his battle in court.
In October 2016, the 2nd Circuit appeals court upheld and even expanded EMI's court win—a disastrous result for Robertson and MP3tunes.

Today, cloud music services are thriving.

But the MP3tunes precedent shows that innovators who cross the music industry still must risk paying a heavy price. In an opinion published December 6, the US Supreme Court stopped Apple from collecting $399 million in patent infringement damages from Samsung over iPhone-related design patents.

The high court held that the lower court erred when it allowed Apple to automatically collect "lost profits" damages based on the entire value of a phone.
It was the first time in more than a century that the Supreme Court took a case involving design patents. Pictured above is one of the infringed patents, D618,677, describing a black rectangle with rounded corners. The lawyers behind Prenda Law were denounced in 2013 by a federal judge who called them a "porno-trolling collective" that had abused federal courts.
In December 2016, two of those lawyers, John Steele and Paul Hansmeier, were arrested and charged with fraud and perjury. Pictured above is John Steele's banner advertisement from his old firm, which practiced family law. Two band members of 60's rock band The Turtles, pictured above, have turned the once-obscure issue of pre-1972 songs into a hot copyright issue.

The Turtles sued Sirius XM and Pandora, demanding royalties for their old sound recordings, which are not protected by federal law.
Sirius and Pandora lost key legal battles in 2015, and Sirius paid out a $210 million settlement to record labels.

But the Turtles case went on, and on Dec. 21, 2016 the New York Court of Appeals handed a big victory to Sirius, saying that the state's common law offered no copyright protection for pre-1972 recordings.

The decision may be influential in other states. Nokia and Apple fought each other over smartphone patents between 2009 and 2011, but settled their case. Nokia has backed out out of the smartphone business, but is still licensing its patents, so the two companies are back at war. Nokia has sued Apple over patents in 11 different countries. Meanwhile, Apple has filed an antitrust lawsuit against Nokia, accusing the Finnish firm of working together with "patent-assertion entities"—a.k.a. patent trolls—to "maximize the royalties that can be extracted from product companies."

Did Led Zeppelin ripoff “Stairway to Heaven?” Ooh, it makes me...

The cover of "Led Zeppelin IV" from 1971. "Stairway to Heaven" is song No. 4. The album was remastered in 2014.vinylmeister There's a lady who's sure All that glitters is gold And she's buying a stairway to heaven "Stairway to Heaven" intro. Starting Tuesday, one of rock and roll's most iconic songs, "Stairway to Heaven," will be scrutinized by a federal jury tasked with deciding whether the 1971 Led Zeppelin song—which has generated some $500 million in revenue—infringes the 1968 instrumental song "Taurus" produced by the psychedelic band Spirit. This isn't the first time Zep has been accused of infringement. In 2012, the band struck an out-of-court deal with singer-songwriter Jake Holmes regarding his 1967 song "Dazed and Confused." Zep's 1969 debut album has a track with the same name and similar lyrics. Despite being filed in 2014, the "Stairway to Heaven" case is only now making it to trial because of a slew of pre-trial motions, including those by Led Zeppelin seeking to have it dismissed. The case is being brought by the trust of Randy Wolfe, aka Randy California, and it essentially declares that Zep's mind-numbing opening to "Stairway to Heaven"—an acoustic guitar arpeggiating chords in a descending pattern—is a complete ripoff of California's "Taurus" which he wrote for the band Spirit. Zeppelin toured with Spirit in 1968, and California's complaint alleges that Zep guitarist Jimmy Page had heard "Taurus" before the debut of "Stairway to Heaven, which appears on "Led Zeppelin IV." Billboard describes the album as "a cultural touchstone and one of the most popular releases in US history." "IV" has gone platinum 23 times. According to the lawsuit in Los Angeles federal court: A year after touring with Spirit, Page allegedly wrote the most famous rock song of all time—"Stairway to Heaven"—by fireside in a remote cottage in Wales called Bron Yr-Aur; it was released in 1971. It is no coincidence that the iconic notes to "Stairway to Heaven," that have enthralled generations of fans, sound almost exactly the same as California's ethereal yet classical guitar composition in "Taurus." The Los Angeles federal judge presiding over the case, R. Gary Klausner, described (PDF) the suit as this: The similarity consists of repeated A-minor descending chromatic bass lines lasting 13 seconds and separated by a bridge of either seven or eight measures. Moreover, the similarity appears in the first two minutes of each song, arguably the most recognizable and important segments of the respective works. Randy California, who died in 1977, never seemed litigation-happy at the time, but clearly felt exploited, According to an interview published in 1997 by Listener Magazine, which was included in the lawsuit: Well, if you listen to the two songs, you can make your own judgment. It's an exact... I'd say it was a rip-off. And the guys made millions of bucks on it and never said, "Thank you," never said, "Can we pay you some money for it?" It's kind of a sore point with me. Maybe some day their conscience will make them do something about it. I don’t know. There are funny business dealings between record companies, managers, publishers, and artists. But when artists do it to other artists, there’s no excuse for that. I'm mad! 'Cause you know sometimes words have two meanings Judge Klausner agreed to a point with California's contention: that if you listen really hard, there are indeed similarities. Klausner, in his opinion allowing the case to proceed to trial, said it was up to a jury to decide Led Zeppelin's contention "that the descending chromatic bass line is a centuries-old, common musical element not entitled to protection." "While it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure," the judge ruled, adding: "Additionally, the descending bass line is played at the same pitch, repeated twice, and separated by a short bridge in both songs." Page, who is expected to testify, said in a court declaration that although Zep had played in the same venues with Spirit, he never heard Spirit play the song "Taurus"—meaning it was impossible for him to have ripped of the song. "Prior to hearing a recording of Taurus in 2014 in connection with this matter, I had never heard Taurus or even heard of it. I am very good at remembering music and am absolutely certain that I never heard Taurus until 2014," Page wrote. He said the opening to "Stairway to Heaven" wasn't infringement but basic guitar playing. "The beginning of 'Stairway to Heaven' includes a descending chromatic line chord progression and arpeggios, over which I played an ascending line. I consider descending chromatic lines and arpeggiated chords basic skills learned by any student of the guitar. Certainly, as a guitarist, I was aware of descending chromatic lines and arpeggios long before 1968," Page wrote. vinylmeister Robert Plant, who wrote the song's words, said in a court declaration that "I have no recollection of hearing the song 'Taurus,' either live or on a recording, prior to hearing a recording of Taurus in 2015 in connection with this matter. It has no lyrics and has nothing to do with my lyrics for 'Stairway to Heaven'," he wrote. (PDF) The suit seeks some $40 million in damages and names Page, Plant, Rhino Entertainment, and others. The litigation begs two key questions. How will a jury decide the issue and how can a copyright infringement case be brought now, more than four decades after "Stairway to Heaven" debuted? Usually, there's a three-year statute of limitations. But the US Supreme Court, in a case concerning a copyright infringement action over the movie Raging Bull, ruled in 2014 that a nuanced legal concept called "laches" does not automatically apply to copyright litigation. ("Laches" means an unusual delay that prejudices the opposing side. Or, you "slept on your rights.") What's more, Judge Klausner wrote, California's trust "brought suit within the three-year retrospective statute of limitations, as Defendants released a new, remastered version of 'Stairway to Heaven' in 2014." The trial comes a year after the "Blurred Lines" trial. A jury decided that Robin Thicke and Pharrell Williams should pay $7.4 million for infringing "Got to Give It Up" by Marvin Gaye. Like the "Blurred Lines" lawsuit, which a judge reduced to $5.3 million in damages, the "Stairway to Heaven" case is about similar notes. Like in the "Blurred Lines" case, the jury in the Zep litigation is expected to be treated to recorded performances of the actual sheet music on deposit with the US Copyright Office. Yes, there are two paths you can go by James Sammataro, a Miami entertainment lawyer with Stroock & Stroock & Lavan, said in a recent telephone interview with Ars that the "nuanced question" before jurors boils down to whether Zep copied too much of "Taurus." "As a practical matter, this is a dangerous case to bring to jurors," he said. "Ears don't lie." Several experts will testify on both sides about whether there is any infringement. Lawrence Farrara, a music professor at New York University, said in a court filing (PDF) that the chords at issue are generic and have been in music for centuries. "...these chord progressions in "Taurus" and "Stairway" are not only centuries old, but are commonplace musical devices even now, sometimes termed "minor line cliché" in jazz theory books, and are found in numerous well-known popular musical works that predate "Taurus." My Report demonstrates that ending the progression one chord short of the "Lament" is found in popular musical works that predate "Taurus" such as "Cry Me a River" (1963 Davey Graham), "The Meaning of the Blues" (1957 Julie London), "Michelle" (1965 The Beatles), and "How Insensitive" (1965 Astrud Gilberto). Erik Johnson, a musician and professor the University of the Arts, said in a court filing on behalf of the California trust: If "Stairway to Heaven" is stripped down to the bare elements that received songwriting credit, the listener is left with two parts: [1] an arpeggiated guitar part, the signature element, which is substantially the same as the signature guitar element in "Taurus;" [2] a vocal melody that bears significant resemblance to the harpsichord in "Taurus," followed by a series of riffs, chord progressions, and solos. All of which begs a simple question: What's a jury to believe? "How close does a song have to be in order to be infringement? I agree that they sound similar," William Hochberg, an intellectual property attorney with Greenberg Glusker, told Ars in a recent telephone interview. "I don’t think it's a shoo-in by any means for the plaintiff. It's a crapshoot." There's been some discussion about a settlement, but so far it seems a trial is inevitable unless there's an 11th-hour deal. You be the jury. [embedded content] [embedded content]