Noerr-Pennington Doctrine Cannot Defeat Sham Litigation, DMCA Counterclaims

Mercer Publishing Inc., Smart Cookie Ink, LLC and Testingmom.com, LLC all make materials for elementary school children studying for standardized academic placement tests.  Mercer sued Smart Cookie and Testingmom.com in the Western District of Washington for copyright infringement, alleging that both Smart Cookie and Testingmom.com copied, published and distributed copyrighted study materials created by Mercer.

Mercer brought a motion to dismiss Smart Cookie’s and Testingmom.com’s amended counterclaims.  The district court denied Mercer’s motion, ruling that the Noerr-Pennington doctrine (discussed below) did not provide Mercer with immunity and that the defendants’ counterclaims raised factual issues that could not be resolved on a motion to dismiss.  Likewise, the district court denied Smart Cookie’s and Testingmom.com’s motion for summary judgment, ruling that genuine issues of material fact precluded summary judgment in the defendants’ favor.

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Policy Limiting Tweeting at UW Basketball Games Excessive, Unconstitutional

The University of Washington’s enforcement of its Live Coverage Policy at UW basketball games has the media crying foul.  The UW’s Live Coverage Policy states that members of the media who are “Credential Holders” “are not permitted to promote or produce in any form a ‘real time’ description of the event.”  A local reporter was recently reprimanded for sending excessive tweets during a UW basketball game. 

On what legal authority does the UW base the adoption of its Live Coverage Policy?  When considered in light of the live NBA broadcast, hot news and college football First Amendment cases discussed below, the UW’s actions exceed the scope of its live broadcast rights and violate the First Amendment.

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No Fair Use of Secret Wedding Photos Covertly Obtained, then Published by Gossip Magazine

Latin American celebrities Noelia Monge and Jorge Reynoso secretly wed at the Little White Wedding Chapel in Las Vegas, Nevada on January 3, 2007.  Three pictures were taken at the wedding ceremony and three more were taken that evening.  Monge and Reynoso kept their marriage a secret, in part to promote Monge’s image as a young, single singer.  Not even Monge’s and Reynoso’s family members and friends knew of their marriage.  In the summer of 2008, Reynoso used Oscar Viqueira’s car.  Viqueira later found a memory chip in the ashtray.  Viqueira discovered that the memory chip contained 3 videos and over 400 photos, including the photos taken at Monge’s and Reynoso’s wedding ceremony and on the wedding night.  Viqueira sold the images to Maya, which publishes a number of magazines.  Maya published the images in “TVNotas,” a Spanish-language gossip magazine.  The publication of the photos disclosed the marriage of Monge and Reynoso to the world.

Mongo and Reynoso registered copyrights in five of the six photos.  They then sued Maya for copyright infringement.  Maya claimed fair use and the district court agreed.  On appeal, the Ninth Circuit Court of Appeals reversed the district court, ruling that the district court did not properly analyze the fair use factors.

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