Case Comments
| Publication year | 2019 |
| Author | Lowell Anderson |
Lowell Anderson
Stetina Brunda Garred & Brucker
"The primary question before us concerns the statute's application to employment discrimination and retaliation claims. Here, a journalist alleges that his employer denied him promotions, gave him unfavorable assignments, and ultimately fired him for unlawful discriminatory and retaliatory reasons. Some courts of appeal, including the court in this case, have concluded the anti-SLAPP statute cannot be used to screen claims alleging discriminatory or retaliatory employment actions. We hold otherwise.... The defendant employer in this case has shown plaintiff's claims arise in limited part—though not in whole—from protected activity. The employer is therefore entitled to a determination [of whether the claims arise from protect activity]." The anti-SLAPP motion must "'accept as true the evidence favorable to plaintiff'" not the allegations in the complaint. "To be clear, we do not hold that a defendant's motives are categorically off-limits in determining whether an act qualifies as protected activity under the anti-SLAPP statute. We hold only that the plaintiff's allegations cannot be dispositive of the question." A "defendant in a discrimination suit must show that the complained-of adverse action, in and of itself, is an act in furtherance of its speech or petitioning rights." Here, plagiarism concerns could provide a basis for the free speech act of terminating defendant, a staff writer, but that did not affect claims of discrimination or retaliation. The case here was remanded to the appeals court to reconsider the adequacy of evidence on termination. "The second question concerns the application of the anti-SLAPP statute to the journalist's claim that defendant defamed him by privately discussing the alleged reasons for his termination with potential employers and others. We conclude that this claim need not be screened for merit because these privately communicated remarks were not made in connection with any issue of public significance, as the statute requires. (See § 425.16, subds.(a), (b)(1), (e)(4).)" As the anti-SLAPP statute did not apply to these statements the defamation claims could continue. Wilson v. Cable News Network, Inc., 7 Cal.5th 871, 444 P.3d 706 (2019).
A counterclaim for breach of contract, trade secret misappropriation and unfair competition was based on Plaintiff's SAC. The right to petition was protected activity under the First Amendment and thus required the counterclaimant to prove the counterclaims had at least minimal merit. Damages for breach of contract were either "under investigation" and thus lacking evidentiary support, or based on incurring attorney fees, which were not recognized damages at law. The counterclaims were dismissed under the anti-SLAPP statute, with an award of fees and costs to plaintiff. Manchester v. Sivantos GmbH, 2019 U.S.P.Q2d 294010 (C.D. Cal. 2019) (Judge Wright).
With limited exceptions, Cal. Bus. & Prof. Code § 16600 provides that "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is that extend void." The Ninth Circuit certified two questions to the California Supreme Court, asking first, whether § 16600 applies only to contracts between employers and employees or also applies to contracts between businesses, and second, whether the requirement for an independent wrongful act for interference with a contract applies to contracts outside of the employment context. The issues arose in a lawsuit where Biogen agreed to pay $1.25 billion to Forward for Forward to stop working with Ixchel to develop a drug for multiple sclerosis. Ixchel Pharma, LLC v. Biogen, Inc., 930 F.3d 1031 (9th Cir. 2019).
The Computer Fraud and Abuse Act (CFAA) preempts state law claims, such as a claim for interference with contract by which the District Court preliminarily enjoined LinkedIn from stopping HiQ from continuing to scrape public member information from LinkedIn's database. "The pivotal CFAA question here is whether once HiQ received LinkedIn's cease-and-desist letter, any further scraping and use of LinkedIn's data was 'without authorization' within the meaning of the CFAA and thus a violation of the statute. 18 U.S.C. § 1030(a)(2)." Without authorization "means accessing a protected computer without permission." But a statute forbidding access without authorization suggests access is not generally available so that permission is ordinarily required. That understanding was confirmed by legislative history, so the court looked for conduct analogous to breaking and entering. Serious questions were raised on whether the CFAA is limited to "computer information for which authorization or access permission, such as password authentication, is generally required." As the public portion of Linkedln's member profiles is publicly available without permission, serious questions existed on whether the CFAA failed to preempt the claim for interference with contract on which a preliminary injunction based, so the preliminary injunction was affirmed. HiQ Labs v. LinkedIn, 2019 LEXIS 27107, 2019 WL 4251889, 2019 U.S.P.Q2d 336537 (9th Cir. 2019).
[Page 38]
The CDA protects minors from harmful online viewing and has a catchall provision allowing software to block material that is "otherwise objectionable" under a subjective standard, and immunizes software developers and users from liability for such blocking activities. The complaint alleged Defendant Malwarebytes configured its software to block users from accessing Enigma's software in order to divert Enigma's customers. "We hold that the phrase 'otherwise objectionable' does not include software that the provider finds objectionable for anticompetitive reasons." "We conclude only that if a provider's basis for objecting to and seeking to block materials is because those materials beneit a competitor, the objection would not fall within any category listed in the statute and the immunity would not apply." Judge Rawlinson dissented. Enigma Software v. Malwarebytes, 2019 U.S. App. LEXIS 27492 (9th Cir. 2019).
The CDA has an exception for IP claims. 47 U.S.C. § 230 (e)(2) (§ 230 immunity shall not "limit or expand any law pertaining to intellectual property"). A Lanham Act "false advertising claim does not relate to trademarks or any other type of intellectual property. Te district court therefore correctly held that the intellectual property exception to immunity does not apply to the false advertising claim." Enigma Software v. Malwarebytes, 2019 U.S. App. LEXIS 27492 (9th Cir. 2019).
Te presumption of irreparable injury arising from copyright infringement no longer applies in light of eBay, Inc. v. MercExchange, LLC. "'[A] court considering the propriety of a copyright injunction should no longer place a 'thumb on the scales' in favor of injunctive relief.... Irreparable harm in copyright cases 'must be proven, not presumed.'" A defendant's continued infringement which denied the plaintiff's right not to use its copyrighted work, was not irreparable injury because that would resurrect the presumption of irreparable harm and make it irrefutable. TD Bank N.A. v. Hill, 928 F.3d 259, 2019 U.S.P.Q2d 244035 (3d Cir. 2019).
The owner of copyrights and trademarks in toy ducks with sunglasses as shown in the adjacent image, sued a company making pool floats shaped like a duck with painted-on sunglasses. Yellow ducks with a bill, wings, a tail and a crest on the head are found in nature and are stock or standard features that are not protectable. "'[T]he Court's task is to determine whether the two expressions of the sunglasses-on-a-duck idea are so similar that 'the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them. (citation omitted).'" The accused duck's sunglasses had a single bridge and were painted on the duck. The accused duck's mouth was also open (not closed) and was a flat float, not a ring shape. A judge trial found no infringement, even though there was copying. The court also found no likelihood of confusion and thus no trademark infringement or unfair competition. Great Am. Duck Races Inc. v. Kangaroo Mfg. Inc., 2019 U.S.P.Q2d 266305 (D. Ariz. 2019).
Andy Warhol's series of 16 images derived from a photograph of Prince was a fair use of the photo. Te works "are transformative, and therefore the import of their (limited) commercial nature is diluted"—even though was created for and appeared on the cover of Vanity Fair magazine. Because the works fund programs purportedly advancing visual art the works "add value to the broader public interest." Tat the copied photograph was a creative work was of 'of limited importance because the Prince Series works are transformative works" so the second factor was neutral. While the head, neck and pose in the photograph were used, those cannot be copyrighted and other protectable elements in the photograph were removed in the transformative work. Warhol's work did not usurp or diminish the photographer's market for the photo. A inding of fair use was found on summary judgment. Andy Warhol Found. for Visual Arts. Inc. v. Goldsmith, 382 F. Supp. 3d 312, 2019 U.S.P.Q2d 244359 (S.D.N.Y. 2019).
The sculptural features of a banana costume included the banana's combination of colors, lines, shape, and length. They excluded cutout holes for the wearer's arms, legs, face and the holes' dimensions and locations on the costume, because those features are utilitarian. "Although more difficult to imagine separately from the costume's "non-appearance related utility" (i.e., wearability) than many works [citation omitted], one can still imagine the banana apart from the costume as an original sculpture. Tat sculpted banana, once split from the costume, is not...
To continue reading
Request your trial