In a decision Friday, Judge Koeltl ruled that the Internet Archive (“IA”), the nonprofit entity behind the popular “Wayback Machine,” committed copyright infringement through its program of scanning and lending digital copies of copyrighted books to the public. IA advanced a type of “fair use” defense that it called “controlled digital lending,” arguing that an
In Dismissing DNC Case, Judge Koeltl Emphasizes First Amendment Right to Publish Material Stolen By Others
In an opinion Tuesday, Judge Koeltl dismissed the case brought by the Democratic National Committee and accusing the Wikileaks, the Trump Campaign and others of conspiring with Russia to steal DNC emails in 2016 so as to help President Trump’s election chances (see prior coverage here).
Judge Koeltl dismissed a large portion of the case on First Amendment grounds, finding that the Wikileaks and the Trump Campaign could not be liable for merely disseminating material stolen by the Russians:
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Cardozo Law Review Publishes Special Issue On Litigation Costs, Inspired by Judge Marrero Essay
The Cardozo Law Review has published a special issue, inspired by a 2016 essay from Judge Marrero entitled The Costs of Rules, the Rule of Costs, focusing on the way modern practice and procedure have needlessly made litigation so expensive and slow. The special issue includes (among other things) a follow up article from Judge Marrero entitled Motion to Dismiss: A Dismissal of Rule 12(b)(6) and the Retirement of Twonbly/Iqbal, proposing various reforms, including severely limiting motions to dismiss that are aimed at the factual sufficiency of the allegations (as opposed to dispositive legal theories). Judge Marrero argues that the wastefulness that inspired the adoption of the Federal Rules in 1938 (which ushered in the simple, notice pleading standard) has reappeared in a different form in today’s practice:
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Judge Koeltl Allows DNC to Serve Wikileaks by Twitter
Last week, via a memo endorsement, Judge Koeltl granted the Democratic National Committee’s motion to serve Wikileaks by Twitter in the DNC’s case over the 2016 election hacks (see our coverage here).
The DNC argued that “[w]hile WikiLeaks’ physical presence is difficult to discern, it has a robust online presence, including an active
Judge Koeltl to Litigants: Service Not a “Game” So Work Something Out
In the DNC’s lawsuit over having been hacked during the 2016 election (see here), Judge Koeltl today denied without prejudice the DNC’s motion to serve Trump advisor and son-in-law Jared Kushner by alternate means (first-class mail), instead encouraging the parties to just work something out:
The Court . . . notes that service of
Judge Koeltl Holds That Video Game Players Lack Standing to Challenge Use of Their Facial Images
Yesterday, Judge Koeltl dismissed a putative class action complaint against video game company Take-Two claiming that the company had improperly used facial recognition software. The complaint alleged that the MyPlayer feature in Take-Two’s “NBA 2K15” and “NBA 2K16” games, which created an image of the game player’s face for a custom character in the game, violated Illinois’ Biometric Information Privacy Act (BIPA).
Applying the U.S. Supreme Court’s recent holding in Spokeo, Inc. v. Robins, Judge Koetl found that that the plaintiffs – players whose facial scans were stored by Take-Two – could not show a sufficiently individualized and concrete injury required for Article III standing, in part because the feature worked exactly as advertised:
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Judge Koeltl: Swedish Foreign Ministry Immune from Chauffeur’s Discrimination Claims
In an opinion yesterday, Judge Koeltl dismissed discrimination and retaliation claims from a chauffeur for the Swedish foreign ministry, finding that the case did not fall within the “commercial” exception to sovereign immunity:
In his capacity as a chauffeur, the plaintiff was responsible for transporting the Swedish Ambassador and the Ambassador’s family, Swedish diplomats and
Judge Koeltl Rejects Trademark Protection for Small Plastic Squares that Close Bread Bags
In a trademark opinion yesterday, Judge Koeltl granted judgment following a bench trial in favor of a Dutch company, Schutte, that makes “bag closures” — the “small plastic closures that are used to close bags of pastries, bread, and fruit.” Schutte sought to cancel the trademark protection of the dominant U.S. maker of bag closures, Kwik Lok. Here are the two products side by side (Schutte on the left, Kwik Lok on the right):
Judge Koeltl: Movie Studio Had No Duty to Disclose “Wells” Notices Regarding Control Fight With Carl Icahn
In an opinion Friday, Judge Koeltl dismissed a shareholder class action against the movie studio Lions Gate. The case concerned how the company disclosed an SEC enforcement action over how Lions Gate handled various transactions designed to ward off efforts by investor Carl Icahn for control. The SEC action was ultimately settled for $7.5 million, and the plaintiffs alleged that the company should have disclosed the SEC investigation when it received “Wells” notices. Judge Koeltl disagreed:
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Judge Koeltl Dismisses Securities Class Action Because Alleged Fraud Would Harm Creditors, Not Shareholders
In an opinion yesterday, Judge Koeltl dismissed a securities class action accusing various Dynegy officials of making false statements, and omitting material facts, concerning Dynegy’s attempt at a restructuring in 2011. One of the plaintiff’s theories was that Dynegy failed to tell shareholders that, while it was trying to restructure, the company was actually insolvent. Judge Koeltl found that the defendants were not obligated to characterize the situation in that particular way:
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