Letter from AmeriKat

Oh pro se can you see....

Last week, while the AmeriKat was restlessly lying in her bed, trying to will herself back to a vision of shiny fur and perky whiskers, she was listening to an episode of This American Life entitled 'Pro Se' – which, as those schooled in Latin know, means ‘for oneself’ or (in our time of modern legal language) a litigant in person. The AmeriKat was struck by this episode and by the impressive stories of everyday Americans representing themselves in our courts of law. Although unaware of many instances of pro se claimants or defendants in intellectual property suits, she then came across a man named Kent Johnson. Mr Johnson, the owner of a small computer repair shop in Torrington, Connecticut, was sued by Microsoft for copyright infringement after he unknowingly sold one counterfeit version of Microsoft Office 2003. As reported by the Connecticut Law Tribune Johnson could not afford an attorney’s $20,000 retainer fees for representation on the case. Instead, he acted pro se against the computing giant. Johnson posted something akin to a legal diary on his website which followed the litigation. The case was subsequently settled for an undisclosed amount but Johnson states that he now wants to help other people in actions against Goliaths like Microsoft.

A royal mess for Tenenbaum

A Goliath that has yet to be slain is the RIAA, which last week won its action against Joel Tenenbaum, a graduate student at Boston University, for wilfully infringing 30 songs by downloading and distributing them over KaZaA. Before Harvard law professor Charles Neeson began acting for him, Tenenbaum was also a pro se defendant. Having been held liable, Tenenbaum was ordered to pay $675,000 or $22,500 per song. Unfortunately for Tenenbaum, his defence went from bad to worse when, after his defence of fair use failed, from the witness stand he admitted liability for downloading more than 800 songs. Judge Gertner subsequently directed the jury that the only verdict they could return after this admission was a guilty verdict. The AmeriKat thinks that after the Thomas-Rasset award of damages last month, Tenenbaum faired pretty well not to have had a million dollar award of damages against him. In fact the AmeriKat views this more ‘restrained’ award of damages as a recognition of a more realistic quantum of damages for this type of wilful infringement. Like Thomas-Rasset, Tenenbaum’s lawyer will also be appealing the decision.

The AmeriKat does not think there is likely to be an easy or positive outcome for either Thomas-Rasset or Tenenbaum. These cases and their appeals will not act as an impetus towards change in the current copyright law in the US, specifically the provision of statutory damages for wilful infringement. It is unlikely, given the strength of the RIAA in DC, that Congress will propose any legislation that will address these high awards of damages as long as RIAA is backed by powerful politicians. However, defendants like Tenenbaum and Thomas-Rasset can take comfort in the fact there are judges like Judge Nancy Gertner who are publically critical of RIAA and their tactics of bankrupting individuals for comparatively minor infringements. In a statement in open court last June, Judge Gertner stated:

“There is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources. The law is also overwhelmingly on their side. They bring cases against individuals, individuals who don't have lawyers and don't have access to lawyers and who don't understand their legal rights.”

In fact it was Judge Gertner that put Tenenbaum in touch with Charles Neeson. The AmeriKat applauds such champions, like Judge Gertner, of these pro se defendants.

Cuba libre

As with any relationship that has endured over half a century of blockades, a missile crisis and some dubious political manoeuvres, the US and Cuba have a complicated history. But this relationship also extends to intellectual property law, specifically trade mark law. Generally, a trade mark is attached to a product that can be sold on a market. With sales of the product it generally follows that the value of the trade mark will increase. However, for a trade mark that is attached to a Cuban product, a different fate may be in store. Due to the trade embargo, Cuban products cannot be sold in the US and therefore the current value of such a mark in the US would be its pre-embargo value. Additionally, a 1998 law prohibits Cuban trade mark owners from renewing their trade mark registration in the US if the trade marks were confiscated along with companies nationalized by the Cuban government.

These matters complicate a case brought last week in Miami by the relatives of the late Bobby Fuller who petitioned a Miami-Dade circuit judge to order the sale of Havana Club (rum), Choiba (cigars) and 12 other Cuban government trade marks in order to satisfy a $100 million wrongful-death judgment against the Cuban government. Barcardi, the owner of Havana Club rum, stated that Havana Club was not an asset of the Cuban government and therefore should not be party to the claim. IPKat readers may remember the hotly contested WTO decision regarding Barcardi’s claim over the mark. As reported by The Miami Herald, with which the AmeriKat whole-heartedly agrees, “their novel legal move in going after trade marks raises more questions than it answers.” However, despite the some-what bizarre legal basis of this claim this case publically highlights the issue of US -Cuban politics informing the world of intellectual property law.

With Obama being the first president in over half a century to say that he will ease the trade embargo and talk with Cuban leaders, the status of Cuban trade marks and trade mark proprietors in the US is destined to cause a wave of litigation. Predicting the sea-change of the US’s relationship with Cuba, several US companies have begun registering their trade marks with the Cuban Office of Intellectual Property, including marks for Google and Coca-Cola. The AmeriKat is interested to discover if any IPKat readers have an insight into the likely effects which the opening of Cuba to the US market will have on Cuban and American intellectual property.