July 2022 Update
A growing number of courts outside California have adopted their own early trade secret identification procedures by judicial fiat. Many of these are discussed in The Sedona Conference, Commentary on the Proper Identification of Asserted Trade Secrets in Misappropriation Cases, 22 Sedona Conf J 223 (2021). See §4.14.
In Title Source, Inc. v HouseCanary, Inc. (Tex App 2020) 612 SW3d 517 (Texas UTSA), plaintiff Title Source alleged that it had provided trade secret information to defendant HouseCanary under contractual agreements obligating HouseCanary not to use the trade secrets for itself, but after the parties’ business relationship ended, HouseCanary used the trade secrets for its own benefit. A jury agreed, and awarded Title Source $235.4 million, to which was added $470.8 million in punitive damages. The Texas Court of Appeals reversed, because HouseCanary had received the trade secrets properly, pursuant to the parties’ contracts. See §4.39.
The Trademark Modernization Act of 2020 went into effect. See §§6.42, 6.47, 6.51–6.52.
“The Copyright Act provides a safe harbor” for registrations that contain inaccurate information, unless “the inaccurate information was included … with knowledge that it was inaccurate” and “the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.” Unicolors, Inc. v H&M Hennes & Mauritz, L.P. (2022) 595 US ___, 142 S Ct 941, 945 (citing and quoting 17 USC §411(b)). See §§7.52, 7.67.
Looking to the future, the recent rise of non-fungible tokens (NFTs) in society and commerce has led to the filing of numerous lawsuits, arising in part out of the question of the ownership of copyrights in the NFT and any underlying copyrighted works that may be reflected in the NFT. See §7.56.
The Supreme Court held that “Google’s copying of the Sun Java API was a fair use of that material as a matter of law,” finding that “Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program” in Google LLC v Oracle Am., Inc. (2021) 593 US ___, 141 S Ct 1183, 1209. See §7.61.
Thus far, the Copyright Claims Board is not yet operational, but it is currently expected to begin operations by spring 2022; however, that date may be extended by the Register of Copyrights to June 25, 2022, for good cause. See §7.92A.
The discussion of venue in patent infringement cases has been updated. See §8.142.