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On being hailed into far-away courts based upon allegations of IP infringement?

By Lawrence B. Ebert, Esq.

Cases in copyright law, unlike those in patent law, are reviewed in the regional circuit courts. In a copyright case in California, CA9 found personal jurisdiction in ND Cal in a situation wherein a San Diego law firm (Recordon & Recordon, the defendant ) allegedly copied from a Novato, Calif.-based law firm?s copyrighted website ( Brayton Purcell LLP ). The southern California law firm, the alleged copyist of a website, was hauled into court in the Northern District of California.

Brayton Purcell LLP maintains an extensive website, copyrighted in 2002, providing information on its elder abuse practice. It is asserted Recordon & Recordon copied text verbatim, without attribution, from Brayton's website, leading to charges of copyright infringement, unfair competition, false advertising and common law misappropriation.

IPBiz notes the frequent adage "if it's on the internet, you can copy it" doesn't work. Separately, Alan Dershowitz may be right in saying lawyers work in a culture of copying. Here, we have one law firm suing another law firm for copying a website.

CA9 Judge Dorothy Nelson injected a bit of trademark law thinking into the case and suggested that Recordon & Recordon?s conduct caused injury that it knew was likely to be suffered in the ND Cal forum because prospective clients viewing the two websites were likely to be confused as to which firm had plagiarized from the other and could erroneously conclude Brayton Purcell was the infringing party, which would harm its business reputation and goodwill and thereby decrease its business and profits.

IPBiz notes an irony with the plagiarism of LBE's "Edison" article, which copying included LBE's bio at the end. Does that mean
that a plagiarist that leaves behind some vestige of the original author skates on the "likelihood of confusion of the reader" part of Nelson's argument? Nelson's argument is directed to the personal jurisdiction question, not the substantive law question. In copyright infringement, attribution is not at issue. The question is copying without permission. Recall, separately, of material in the public domain, the Dastar case of the US Supreme Court notes that one can attribute the text to anyone that one feels like. You can claim to be the author of Hamlet, and not violate federal copyright law.

The last text of the metnews article invokes an ironic comparison to patent law practice as to ED Texas:

Writing that ?express aiming? in these circumstances leaves every website operator vulnerable to the possibility ?he will be hailed into far-away courts based upon allegations of intellectual property infringement, if he happens to know where the alleged owner of the property rights resides,? Reinhardt said that ?[d]ue process and basic principles of fairness prohibit such an expansive exercise of personal jurisdiction.?

A patent lawyer would not bat an eye at this decision.

The case discussed by metnews is Brayton Purcell LLP v. Recordon & Recordon, 07-15383.

Full post as published by IPBiz on August 07, 2009 (boomark / email).