What Is a Copyright?

by: Robert Wagner, intellectual property attorney at the Pittsburgh law firm of Picadio Sneath Miller & Norton, P.C. ()

PSMN What Is...? SeriesIn the next installment of our continuing “What Is?” series, we are going to discuss copyrights. One of the core intellectual property rights that exists under U.S. law is a copyright. In a nutshell, it is a legal right that provides authors of certain types of original and expressive works that have been fixed in a tangible medium the right to prevent others from using the work without the author’s permission. Obviously, there is a lot more detail behind this, so we will only cover some of the basics in this post.

First, only certain types of works are eligible for copyright protection. They include (1) literary works, (2) musical works, (3) dramatic works, (4) choreographic works, (5) pictorial, graphic, and sculptural works, (6) motion pictures and other audiovisual works, (7) sound recordings, and (8) architectural works. In addition, the work must have been fixed in a tangible medium to be eligible for a copyright—e.g., written down, put on film, or written in a computer. Certain things cannot be copyrighted, such as (1) things that have not been fixed in a tangible form (e.g., thoughts in your head or speeches that are not recorded or written down), (2) titles, names, and short phrases, (3) ideas, methods, inventions, or systems, and (4) standardized and commonly known information, such as standard calendars, tape measures, and lists or tables of publicly known information.

Second, in order to be eligible for a copyright, the work must be original. But, it does not have to be novel. In other words, the author must show that he or she created the work (and did not copy it from someone else), but the author does not have to show that he or she was the first to ever think of the work.

If an author can satisfy these requirements, he or she has a copyright. Under the change in federal law in 1976, a copyright exists under federal law the moment an author fixes an original expressive work in a tangible medium. There is no longer the need to affix a copyright symbol to the work or register the work with the U.S. Copyright Office. But, and this is a big but, there are a number of important advantages to registering a work with the Copyright Office that can be lost if not done timely. So, it is best for an author to consult an intellectual property attorney if there is the possibility that the work may be valuable or need to be protected.

A copyright gives an author a number of substantive legal rights, such as the ability to control who (1) reproduces or distributes copies of the work, (2) creates derivative works based on the original, and (3) performs or displays the work publicly. An author can sue an individual or company that violates these rights and collect damages, statutory penalties, or obtain a court order preventing the infringer from violating these rights in the future. In some cases, copyright infringement can even be a crime.

Because a copyright is a property right, it can be sold, transferred, or licensed like other types of real and intellectual property.

As of January 1, 1978, a copyright lasts for the lifetime of the author plus 70 years. If the work was made for hire or was published anonymously/psuedonymously, the copyright lasts for the shorter of 95 years from publication or 120 years from creation.

For more information about copyright, you can read this nice summary by the United States Copyright Office.

In upcoming posts, we’ll talk about some other issues involving copyrights, such as the fair use defense, what kind of remedies are available to authors whose works have been improperly copied, and the work-for-hire doctrine, among other things.

Federal Circuit Confirms Invalidity of Reissue Patent Claims That Violated Original Patent Requirement

by: Robert Wagner, patent attorney at the Pittsburgh law firm of Picadio Sneath Miller & Norton, P.C. ()

If an inventor discovers that he or she has failed to claim all that he or she could have in an issued patent, the patent statute provides a mechanism for going back and adding additional claims during a reissue proceeding. Certain requirements must be met before the patent office will allow such a correction. As the patent holder found out in a recent decision by the Federal Circuit in Antares Pharma, Inc. v. Medac Pharma Inc. (No. 2014-1648), failure to comply with these provisions can render the new claims invalid and unenforceable.

Background

USRE44846The inventor in Antares developed an automatic injection device to self-administer pharmaceuticals that involved using a needle to puncture the skin of a patient before administering a dose of medication. All of the claims in the original patent involved a “jet injection” limitation. Almost two years after the patent issued, Antares realized that it had failed to include claims directed to safety features on the injector. Because two years had not passed yet, Antares initiated a reissue proceeding with the USPTO under 35 U.S.C. § 251, which allows a patent holder to broaden or narrow claims if initiated within two years of the patent being issued. Antares then added a number of claims to cover safety features on general injection devices, and not just jet injection devices (see No. RE 44,846).

Antares filed suit against Medac, alleging that, among other things, it infringed some of the new claims that emerged from the reissue proceeding. Antares sought a preliminary injunction, but the district court denied the request after concluding that the new claims did not satisfy the original patent requirement of the reissue statute. Antares appealed, and the Federal Circuit affirmed.

Reissue Statute Requirements

Under § 251, a patentee that wants to add new claims that broaden the scope of the claims of an already issued patent must satisfy a number of requirements: (1) the reissue application must be filed within two years of the issuance of the patent; (2) the new claims must not violate the recapture rule (i.e., claiming scope that was surrendered during prosecution); (3) the new claims must not violate the original patent requirement; and (4) no new matter may be added to the specification. At issue in this case was the third requirement—the original patent requirement.

The original patent requirement requires that the specification adequately support and fully describe the new claims. It is not sufficient if the new, broader claims are “merely suggested or indicated in the original specification.” So, hints, suggestions, or mere indications are not enough. As with many things relating to the understanding of the scope of a patent, “the essential inquiry under the ‘original patent’ clause of § 251 . . . is whether one skilled in the art, reading the specification, would identify the subject matter of the new claims as invented and disclosed by the patentees.”

The Patent at Issue

Antares’ patent specification only described the safety features being on jet injection devices and repeatedly stated that the invention related to jet injectors. It did not generically describe how to use the safety devices with other types of injectors. Based on the limited nature of the specification, the Federal Circuit agreed that the new claims were invalid because they were directed to safety features on generic injectors that were not explicitly and unequivocally disclosed in the specification.

The Federal Circuit contrasted this result with that of another case, In re Amos, 953 F.2d 613 (Fed. Cir. 1991). In the Amos case, the patentee broadened his claims that were directed towards an invention for holding down work pieces on a moving table using rollers. In the specification, the patentee described how the rollers could be raised via mechanical or electronic means, but only claimed the mechanical version. During reissue, the patentee added claims directed towards the electronic version, which the Court found acceptable because the specification explicitly discussed that embodiment.

Conclusion

The reissue statute is a powerful tool to add new claim scope to issued patents. Care must be taken, however, to file the reissue application within the two-year period and to make sure that the new claims do not add scope that is not well-supported by the specification. This decision is another reason that patent drafters need to be careful when drafting the specification. The patent statute provides some opportunities for fixing claims, but it is difficult to fix a specification if it is lacking and the consequence can be losing claim scope that could have been otherwise available with better drafting.

Federal Circuit Clarifies Limits of US Patent Law

by: Robert Wagner, patent attorney at the Pittsburgh law firm of Picadio Sneath Miller & Norton, P.C. ()

Hong Kong at nightThe United States patent laws have a territorial scope and prohibit individuals from making, using, offering for sale, and selling any patented invention within the United States without authority from the patent owner. 28 U.S.C. § 271(a). The United States is just one part of a much bigger world, and the question sometimes arises as to whether an accused infringer’s foreign activities are within the scope of the U.S. patent laws. In Halo Electronics, Inc. v Pulse Electronics, Inc., (No. 2013-1472 and -1656), the Federal Circuit had to address this issue and concluded that they were not.

Background

Halo is a supplier of electronic components and owned three patents related to surface mount electronic packages containing transformers for mounting on a printed circuit board inside an electronic device. Halo filed suit against Pulse for selling products containing electronic packages that used this technology.

Pulse designed and manufactured the accused products overseas and only sold minority of them in the United States. For its foreign orders, Pulse received purchase orders in its foreign offices and then shipped and delivered them to foreign locations.

One of Pulse’s major customers was Cisco, who incorporated some of Pulse’s products into its internet routers, which were sold all over the world. Pulse employees would sometimes meet with Cisco in the United States to negotiate prices, attend sales meetings with customers, meeting with design engineers, and provide post-sale support.

Pulse obtained summary judgment that it did not directly infringe with respect to products that were made, shipped, and delivered outside of the United States. At trial, the jury determined, among other things, that Pulse directly infringed with respect to products sold in the United States and induced infringement with respect to products that were incorporated into other products that were sold in the United States.

Halo appealed the grant of summary judgment to the Federal Circuit.

The Federal Circuit Affirms

In deciding the appeal, the Federal Circuit had to consider the geographic scope of infringement under § 271(a). The Court first looked at the statutory language and history behind § 271(a). It noted that the concept of a sale has physical and conceptual dimensions—where the buyer and seller are located and where a legally-operative act occurred regarding the sale.

It concluded that when no substantial activities occur within the United States there could be no potential liability under § 271(a):

Consistent with all of our precedent, we conclude that, when substantial activities of a sales transaction, including the final formation of a contract for sale encompassing all essential terms as well as the delivery and performance under that sales contract, occur entirely outside the United States, pricing and contracting negotiations in the United States alone do not constitute or transform those extraterritorial activities into a sale within the United States for purposes of § 271(a).

Thus, it affirmed the district court’s grant of summary judgment of no direct infringement for sales that did not occur within the United States.

It then turned to whether there could be infringement via an offer for sale. It reached the same result, finding that “[a]n offer to sell, in order to be an infringement, must be an offer contemplating sale in the United States.” Because all of these offers involved sales that occurred overseas, there could not be direct infringement.

The Federal Circuit upheld the district court’s summary judgment of no infringement with respect to the foreign sales.

Judge O’Malley’s Concurrence

Judge O’Malley concurred fully with the majority’s decision but wrote about another issue in the case. The district court found that Pulse’s infringement was not willful because it had an objectively reasonable invalidity defense. Therefore, it found that Halo could not satisfy the first prong of the Seagate test—that “a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.”

It did not matter that the invalidity defense was first developed during litigation. The objection prong of the test requires consideration of the totality of the evidence, including all defenses developed during the litigation and presented at trial, not just those considered by the accused infringer before being sued. The Federal Circuit affirmed this determination.

Judge O’Malley agreed with the decision but felt that it was time for the Federal Circuit to revisit its willful infringement standards in light of the Supreme Court’s decisions in Highmark Inc. v. Allcare Health Management Systems, Inc., 134 S. Ct. 1744 (2014), and Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014). She also questioned whether willful infringement should be an issue for the court or the jury. She recommended that the entire Court take up this issue en banc in order to clarify the law.

Conclusion

United States patents have geographic limitations. Companies, especially those with presences in multiple countries, need to be aware of this scope in order to make sure that they are complying with U.S. patent laws. It will also be interesting to see if the full Court takes up Judge O’Malley’s urging to reconsider the Court’s willfulness jurisprudence.

 

Copyright and the Selfie

by Cara Disheroon, attorney at Picadio Sneath Miller & Norton, P.C. ()

l1aYeIn the ever transitioning world of copyright law, issues surrounding the selfie have recently taken center stage. The latest dispute involves a selfie taken by a monkey who, in 2011 in Indonesia, grabbed wildlife photographer David Slater’s camera to snap a wide-smiling image of itself. Wikipedia subsequently placed the image in Wikimedia Commons, the area of Wikipedia that holds open-source material. Slater then requested that the photo be removed as he was the copyright owner and Wiki refused. You can visit Mr. Slater’s webpage for additional examples of his work here.

Wikimedia stated to the Huffington Post in response to the controversy “We didn’t think the monkey owned the copyright – instead, our assessment was that there’s no one who owns the copyright. That means that the image falls into the public domain.”

It appears that the US Copyright Office agrees with Wiki’s analysis. Two weeks after the controversy broke, the agency issued a 1,222 page draft compendium analyzing federal copyright law in which it stated “The Office will not register works produced by nature, animals, or plants.” Within Chapter 300, which outlines the “Human Authorship Requirement,” the Office noted that copyright law protects “the fruits of intellectual labor” that are “founded in the creative powers of the mind.” A photograph taken by a monkey was specified in the list of examples NOT protected.

A similar ownership issue surrounding the selfie has also arisen in the context of the Ellen DeGeneres group selfie taken at this year’s Oscars and posted on Twitter. The photo, taken in the audience during the ceremony, quickly became the most tweeted photo of all time and DeGeneres later granted the Associated Press permission to share the photo for editorial purposes to subscribers of AP’s photo service. But legal scholars noted that DeGeneres may not be the actual owner of the copyright.   As Bradley Cooper technically pressed the button, he could arguably be the copyright owner given the courts view historically that pressing the shutter created ownership.

Should Cooper attempt to stake a claim, DeGeneres could have an argument based on Brod v. General Publishing Group, 2002 U.S. App. LEXIS 2544 (9th Cir. Feb. 15, 2002). In Brod, a photographer sued a book author for using his photographs without permission. The court found however, that the book author was a co-owner since his contributions to the process were “sufficiently original and expressive.” The copyrightable expressions in Brod included selection and arranging of subject matter, composition, camera angle and lighting.

As Bradley Cooper is unlikely to assert a copyright claim, the incident currently serves only as an interesting hypothetical. However, as technology advances, issues over authorship in the photography/video context will likely arise again as physical snapping of the shutter is no longer required to produce artistic works.

DRI IP Litigation Community Opens

by: Robert Wagner, patent attorney at the Pittsburgh law firm of Picadio Sneath Miller & Norton, P.C. ()

Tdri-logo-newhe contributors here on the Pit IP Tech Blog are proud to announce the formation of a new DRI Community (IP Litigation) that opened last month. I am co-chair of the community, and I will be splitting my time between this site and the community going forward. The IP Litigation Community is a forum for DRI members to share information and insights into issues involving their practice areas, along with useful resources.

One of my posts is featured on the community pages that deals with the Supreme Court’s decision in Alice Corp. v. CLS Bank International  (No. 13-298) and how Courts and the US Patent and Trademark Office are dealing with that decision. The short answer is that things are looking rough for software inventors who are trying to obtain patents.

Third Circuit Rules that Octane Fitness’s Standard for Awarding Patent Attorneys’ Fees Applies in Lanham Act Cases

by: Kelly A. Williams, a shareholder at Picadio Sneath Miller & Norton, P.C.

Attorneys' FeesOn September 4, 2014, the Third Circuit held that the revised, or “slightly altered standard” for awarding attorneys’ fees to a prevailing party in a patent case, as set forth in Octane Fitness, LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 1749 (2014), also applies to cases brought under the Lanham Act. Fair Wind Sailing, Inc. v. Dempster, Nos. 13-3305 & 14-1572, 2014 U.S. App. LEXIS 17118 (Sept. 4, 2014). In Octane Fitness, the Court held that “an ‘exceptional’ case [which merits attorneys’ fees] is simply one that stands out from others with respect to the substantive strength of a party’s litigation position (considering both the governing law and the facts of the case) or the unreasonable manner in which it was litigated.” Consequently, the previous standard in the Third Circuit, which required a finding of culpable behavior before awarding fees, is no longer a prerequisite.

Like § 285 of the Patent Act, Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)) permits the recovery of reasonable attorneys’ fees only “in exceptional cases.” In fact, the Octane Fitness Court noted that the Lanham Act fee provision is “identical” to § 285 of the Patent Act. The Third Circuit interpreted this as a clear message from the U.S. Supreme Court that it “was defining ‘exceptional’ not just for the fee provision in the Patent Act, but for the fee provision in the Lanham Act as well.”

Based on Octane Fitness and Fair Wind Sailing, a prevailing party under the Lanham Act (either plaintiff or a defendant) in the Third Circuit, must show the following to be awarded attorneys’ fees: (a) an unusual discrepancy in the merits of the positions taken by the parties; or (b) the losing party has litigated the case in an “unreasonable manner.” Whether litigation positions or litigation tactics are “exceptional” enough to warrant attorneys’ fees is to be determined on a case-by-case basis by the district courts based on the totality of the circumstances.

By removing a threshold finding of culpable behavior, the Courts are making it easier to award attorneys’ fees if there is a finding that the litigation was brought or conducted in an abusive manner. Time will tell if Octane Fitness and Fair Wind Sailing have this impact.

Ripple Effect from Alice and Mayo Cases Being Felt in Patent World

shutterstock_26396608By: Henry Sneath, Chair of the Intellectual Property practice at Picadio Sneath Miller & Norton, P.C. in Pittsburgh, Pa.  hsneath@psmn.com or 412-288-4013

Sharing a great post from Dennis Crouch and his tremendous blog: Patently-O

New Section 101 Decisions: Patents Invalid

The Supreme Court’s decisions from Alice and Mayo are beginning to really have their impact. A few examples:

  • Walker Digital v. Google (D. Del. September 2014) (data processing patent invalid under 101 as an abstract idea) (Judge Stark).
  • Genetic Tech v. LabCorp and 23AndMe (D. Del. September 2014) (method of predicting human performance based upon genetic testing invalid under 101 as a law of nature) (report and recommendation from Magistrate Judge to Judge Stark)
  • Ex parte Cote (P.T.A.B. August 2014) (computer method and hardware for ‘phase shifting’ design data invalid under 101)
  • Ex parte Jung (P.T.A.B. August 2014) (diagnostic method associated with epigenetic risk factors invalid under 101).” Patently-O.

To view the entire post – please visit Patently-O at this link: http://tinyurl.com/otj6v6n

Supreme Court Relaxes Standards for Awarding Attorneys’ Fees in Patent Cases

by: Robert Wagner, patent attorney at the Pittsburgh law firm of Picadio Sneath Miller & Norton, P.C. ()

Law and MoneyAs we noted earlier, the United States Supreme Court has taken a renewed interest in intellectual property and patent cases as of late. In Octane Fitness, LLC v. Icon Health & Fitness, Inc., No. 12-1184, the Supreme Court reversed the Federal Circuit’s long-standing standard for determining whether to award attorneys’ fees to the prevailing party in a patent infringement action. Now, prevailing parties need only show by a preponderance of the evidence that the case was “simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” And, this decision lies in the sound discretion of the trial court.

In Octane Fitness, ICON sued Octane Fitness for infringement of U.S. Patent No. 6,019,710. The district court granted summary judgment in favor of Octane Fitness, but declined to award attorneys’ fees under 35 U.S.C. § 285, finding that the infringement claims were not frivolous, objectively baseless, or brought in bad faith. Octane Fitness appealed, arguing that the Federal Circuit’s standard for awarding fees under § 285 was too restrictive, but the Federal Circuit disagreed. The Supreme Court granted certiorari to clarify the standard.

In a unanimous decision written by Justice Sotomayor, the Supreme Court looked to the statute, which reads in its entirety:

The court in exceptional cases may award reasonable attorney fees to the prevailing party.

Finding that the Patent Act provides no definition or guidance beyond this statement, the Court looked to the common understanding of the term “exceptional” and to when the provision was enacted and the standards that it was meant to codify.

“Exceptional,” the Court found, was meant to encompass things that are out of the ordinary, unusual, or special. The Court further concluded that Congress intended that courts be given discretion to determine when something was exceptional.

Putting these together, the Court held that courts have the discretion to award attorneys’ fees when a case “stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.”

The Court rejected the Federal Circuit’s more rigid approach of limiting fee awards only when there has been litigation misconduct or if the party’s position was brought in bad faith and was objectively baseless.  Moreover, the Court found no basis to require the prevailing party to prove its entitlement to fees by clear and convincing evidence.

This decision may have substantial consequences going forward in patent cases, for both plaintiffs and defendants. Because the Court has emphasized that this decision is left to the discretion of the trial court, and the standard is much more flexible, one would expect to see more courts awarding fees. In theory, this will act as a deterrent for bringing frivolous patent claims and may reduce some of the more objectionable patent troll cases. But, it may also put more pressure on defendants with weaker defenses to settle, rather than to litigate at all costs. Only time will tell to see what effects come from this decision.

Court Awards Limited Enhanced Damages in CMU v. Marvell Case

by: Robert Wagner, patent attorney at the Pittsburgh law firm of Picadio Sneath Miller & Norton, P.C. ()

marvell_chipYesterday, Judge Nora Barry Fischer issued her opinion in the Carnegie Mellon University v. Marvell Technology Group, Ltd. patent infringement lawsuit in the United States District Court for the Western District of Pennsylvania (Case No. 2:09-cv-00290-NBF) and awarded an additional 23% in enhanced damages above and beyond the jury’s $1.17 billion award. In total, with all enhancements and interest awards, Marvell is facing at least a $1,535,889,387.60 damage award with an ongoing $0.50/chip royalty for the lifetime of the patent.

The jury returned a $1.17 billion award in December 2012, finding that Marvell willfully infringed two of CMU’s patents (U.S. Patent Nos. 6,201,839 and 6,438,180). It awarded a royalty of $0.50 per chip Marvell sold using the patented technology. In September 2013, the Court denied Marvell’s post-trial motions and determined that Marvell’s infringement was willful. The Court yesterday determined that some enhancement of the damage award was appropriate, although not to the extent requested by CMU (who wanted an additional 200% in damages).

In weighing the parties’ arguments as to whether the damage award should be enhanced, Judge Fischer appeared to focus primarily on three factors. First, she was concerned that a double or triple award of damages could cripple Marvell. Second, she was concerned about CMU’s “inexcusable” delay for almost 6 years after learning of Marvell’s infringement before taking action. Finally, she balanced these factors against Marvell’s willful infringement and its actions before CMU filed suit.

Weighing all of these factors (and the others under the Read test), Judge Fischer concluded that a 23% enhancement properly balanced all of the relevant interests.

In this decision, Judge Fischer also awarded damages on the sales of additional infringing products that were not part of the jury’s verdict but occurred before entry of judgment (this was uncontested), established a post-judgment royalty rate of $0.50 per infringing chip sold, and set a 0.14% post-judgment interest rate. She denied CMU’s motion for a permanent injunction and for prejudgment interest, finding that neither were warranted under the circumstances.

Given the amounts at issue, one expects that these decisions will not be the final word in this case, and that at least the Federal Circuit will be looking at this case on appeal.

Is CafePress a Service Provider and Could Its Stripping of Metadata Cost It Safe Harbor Status Under the DMCA?

by Cara Disheroon, attorney at Picadio Sneath Miller & Norton, P.C. ()

The Southern District of California recently grappled with these issues in Steven M. Gardner v. CafePress Inc., Case No. 3:13-cv-1108-GPC-JMA (S.D. Cal. Feb. 26, 2014). The case centered on a copyright infringement claim against the self-publishing site CafePress and provides an interesting analysis of the safe harbor provision of the Digital Millennium Copyright Act (DMCA) at 17 U.S.C. § 512.

The facts regarding the images were undisputed.  Plaintiff, Gardner alleged copyright infringement of various wildlife images which were distributed for sale on the site by CafePress users. Gardner filed suit and CafePress, on the same day they received the complaint, disabled access to the alleged infringing material.  Subsequently, they discovered a second member’s use of the artist’s work and immediately disabled and terminated the second user’s account. Before the material was disabled however, $6,320 worth of products was sold. CafePress then moved for summary judgment based on the safe harbor provision of § 512.

In analyzing whether CafePress could take advantage of the safe harbor provision, the court began with an analysis of the term “service provider” under § 512(c). Noting that the language “a provider of online services or network access, or the operator of facilities therefor” was a broad definition, they then compared CafePress to other vendors such as Amazon and eBay. Unlike these companies however, CafePress’s service differed as they actually determine the prices for retail products, pay users only a royalty or commission, possess the ability to modify designs and determine which products are sold. The court found CafePress’s activities to be beyond a service that “merely facilitates the exchange of information between internet users” and thus the court was unable to find as a matter of law, that CafePress was a “service provider.”

Moreover, § 512(i) requires that the provider must have “adopted and reasonably implemented” a policy to terminate repeat infringers and not interfere with “standard technical measures” used to protect copyrighted works. Plaintiff contended that CafePress interfered with “standard technical measures” by deleting metadata when images are uploaded to the website. The court agreed stating that the deletion created a dispute of material fact thereby precluding judgment as a matter of law and adding “From a logical perspective, metadata appears to be an easy and economical way to attach copyright information to an image.” At this stage, the discussion is only dicta but it is nevertheless important as the court appears to be placing the burden on CafePress and given the fact that many social media sites routinely strip metadata, a ruling on the merits could potentially affect a whole host of sites which conduct the practice.

CafePress did prevail on its Motion for Partial Judgment as to statutory damages and attorney fees given that Gardner had failed to register his images before the alleged infringement. Concluding that the alleged acts constituted the same “series of acts” that commenced prior to registration of the images, the court granted CafePress’s motion. This means that Gardner is limited to his actual damages of $6,320 and may affect whether the case proceeds to trial.

If the case does proceed however, a ruling by the court on the merits could have a huge impact on numerous self-publishing sites with the potential loss of safe harbor status and the risk of significant statutory damages.