SCOTUS Sundae: Large Scoops of Weekend IP Reading!

Prompt to OpenArt: “Pop art of the Supreme Court of USA

This Sunday, I bring to you a few judgments from the Supreme Court of the United States (SCOTUS) which at first glance, may not have a direct relevance for the Indian IP landscape yet are quite significant developments that our readers are likely to be interested in. I’m yet to read these orders in depth myself and have added links to some commentaries for your weekend reading. Please feel free to comment with your own thoughts or links! 

Prompt to OpenArt: “Andy Warhol using DALL-E
  1. Andy Warhol Foundation for Visual Arts, Inc vs Goldsmith: Perhaps the most watched, awaited judgement in the copyright and art community, news of the order has even landed on the front page of a major world newspaper! SCOTUS with a ruling of 7:2 held that use of the photographs of Prince, clicked by Lynn Goldsmith, by Andy Warhol for his screen prints does not amount to fair use and violates the photographer’s copyrights. Billboard seems to have a nice summary of the ruling. Creative Commons seems to have a critical, yet balanced take on the approach of SCOTUS highlighting its narrow perspective of “use”, inability to “release the tension from understanding derivative work vs transformative fair use” and the limited understanding of minority judges of the purpose of “fair use” which could have future ramifications. I am yet to find a conflicting perspective, so request the readers to drop a comment or link below in case you find one. What’s also interesting is the pre-judgment article by Wired, covering the case history but also painting a picture of what Andy Warhol would be doing now, had he been alive, with the generative AI and the strength in the case to defend AI generated artworks under fair use. 
  1. Amgen vs Sanofi: In a unanimous judgement, SCOTUS affirmed the ruling of the Federal Circuit invalidating the patent claim of Amgen for its cholesterol drug, Repatha, for lack of enablement. A pre-judgment article at IP-Watchdog breaks down the enablement requirement and relevance of the case for patent laws. While I haven’t yet found a detailed post-judgement analysis, a quick commentary has already been penned down by Dennis Crouch at Patently-O noting that the judgement is aligned with the current trend of striking a balance between public interest and monopolistic rights by narrowing patent rights to more “focused and narrowly tailored claims”. 
  1. Twitter vs Taamneh and Gonzalez vs Google: Both cases deal with Section 230 and First Amendment which are concerned with freedom to express and protecting intermediaries from user liability for online speech and content. The plaintiffs in both the cases- Taamneh and Gonzalez, wanted to hold the respective intermediaries- Twitter and YouTube via Google, responsible for supporting ISIS’s terrorist activities by hosting and recommending its content. Although much focus was directed towards Section 230- intermediary liability, the claims to both the cases stemmed from Justice Against Sponsors of Terrorism Act (JASTA)- which allows victims to sue entities/persons who knowingly abet or aid terrorist activity (see here and here). This pre-judgement article by EFF clarifies that since the claims emerge from JASTA’s provision of directly supporting terrorist activity, the intermediaries would not be held responsible in the absence of such evidence. Further describing the panel discussion that took place in Washington DC for the legislators, it talks about the ramifications of holding intermediaries responsible for user content- pushing the “bad guys into the dark web” making it less possible to track and hold them accountable and over-censorship of content in the fear of liability. I am yet to find a commentary on the rulings of the cases, though an interesting take on Section 230 has been taken up by Ben Lennett at Tech Policy.Press, comparing the Gonzalez case with challenges to Florida and Texas laws which challenge the ability of intermediaries to moderate online social media content. 

Happy reading! 

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