RE: Re: Exclusive jurisdiction -- remand or dismiss?

From: John P. McNeill <johnmcn[_at_]bellsouth.net>
Date: Sat, 15 Oct 2005 09:00:30 -0400

I think the problem is even more fundamental than that. The US needs to eliminate the requirement of registration as a prerequisite to filing a lawsuit. The following points provide just brief statements and/or summaries of the issues:

1. One of the stated purposes of the Berne Convention is to make copyright available to all.
2. When the US [finally] adopted the Berne Convention, the implementing legislation passed by Congress eliminated the notice and registration requirements. Now a person has copyright rights as soon as pen is laid to paper (assuming, of course, the basic requirements of copyright are met).
3. Unfortunately, the implementing legislation appears not to have gone far enough. Congress maintained the requirement that a registration is required in order to bring an infringement lawsuit.
4. Under current US law a person can have copyright rights, but be without a means to enforce those rights.
5. Does this amount to a right without a remedy?? (Not really but)
6. Yet a foreign copyright owner can bring a lawsuit in a US court without having a US registration.
7. I agree with the idea of providing extra or additional protection to copyright holders that provide notice (an infringer's loss of some defenses) and to those that register their works (statutory damages, atty fees), but do not believe that registration should be the ticket into court.

Any other thoughts?

-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Stephen Filler Sent: Wednesday, October 12, 2005 3:45 PM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: Exclusive jurisdiction -- remand or dismiss?

In my opinion, this is the area of copyright law most in need of reform. Right now, a huge percentage of infringments are unremediable because the infringed works are unregistered and the amount of actual damages cannot justify the expense of an expedited registration and federal court litigation. Congress could. and should, help the vast majority of writers and artists by providing a state court remedy for small copyright damage claims. Unfortunately, any such effort would be strenuously (and in all likelihood successfully) opposed by major publishing interests -- probably with the disengenuous argument that creativity would be stifled, and writers/artists would suffer, by such "watering down" of copyright.

I advised several years ago on a small claims case brought under such a breach of contract theory. The defendants were so concerned of a small claims court precedent in this area that they spent in legal fees many times the small claims court cap on a preemption argument and scared the plaintiff into withdrawing the claim (albeit without prejudice).

Stephen Filler
Law Offices of Stephen Filler
303 South Broadway, Suite 222
Tarrytown, NY 10591
Tel: 914-332-4114
Fax: 914-332-4118
sfiller[_at_]nylawline.com
www.nylawline.com

> -----Original Message-----
> From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Mike Bradley
> Sent: Tuesday, October 11, 2005 2:56 PM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] Re: Exclusive jurisdiction -- remand or dismiss?
>
> > A complaint filed in state court claims copyright and trademark
> > infringement, as well as trade secret misappropriation.
> Obviously, you
> can
> > remove the case to federal court. Can you alternatively
> just move to
> > dismiss the trademark and copyright claims for lack of
> subject matter
> > jurisdiction? Is the federal court's jurisdiction exclusive
> as to both
> > trademark and copyright infringement? I realize that the trademark
> > infringement claim might be pled as an unfair business
> practice under
> > state law, but assuming that it is only pled as a violation of the
> > Lanham Act does it have to be dismissed?
>
> I used to handle grievances for writers in the National Writers Union.
> Our members were occasionally able to sue for what amounted to
> infringement damages in small claims courts by suing for breach of
> contract rather than infringement.
> When they were successful, it was because their publishing contracts
> had specific language forbidding the publisher from posting the work
> online or otherwise republishing or reselling it. Lacking such
> language, the courts always dismissed on the grounds that they lacked
> jurisdiction over copyright issues.
>
> = Mike Bradley
> www.techpubs.com
>
> #############################################################
> This message is sent to you because you are subscribed to
> the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
> To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org> To switch to
> the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org> To switch to
> the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org> To postpone
> your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org> To resume
> mail list message delivery from postpone mode, E-mail to
> <CNI-COPYRIGHT-feed[_at_]cni.org> Send administrative queries to
> <CNI-COPYRIGHT-request[_at_]cni.org>
>
> Visit the CNI-COPYRIGHT e-mail list archive at
> <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>.
>
>

#############################################################
This message is sent to you because you are subscribed to
     the mailing list <CNI-COPYRIGHT[_at_]cni.org>.

To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org> To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org> To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org> To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org> To resume mail list message delivery from postpone mode, E-mail to <CNI-COPYRIGHT-feed[_at_]cni.org> Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>

Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Sat Oct 15 2005 - 17:00:30 GMT