tag:blogger.com,1999:blog-12505562.post113876077076076661..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: The Embedded Photographer in IraqWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-12505562.post-1139074932685426722006-02-04T12:42:00.000-05:002006-02-04T12:42:00.000-05:00Jim - the subsequent paragraphs below are largely ...Jim - the subsequent paragraphs below are largely academic exercises b/c the Army and Mr. Yon have resolved this copyright dispute: http://www.michaelyon-online.com/wp/copyright-dispute-resolved.htm<BR/><BR/>Without doing any research, the servers utilized by the Army were likely on military grounds possessed by the US in whatever foreign country(ies), or hosted by servers possessed by the US. IIRC, most military bases amd possessions (such as moving naval ships in foreign waters) are considered as part of the US (or controlled by the US). So, technically, I think the photographer would have a CoA based on that understanding, even though it would seem that the activity was purely extraterritorial.<BR/><BR/>In addition, or an an alternative, there is an argument (little known to many) that could be borrowed from a Court of Claims case from 1976: Decca Ltd. v. the United States. <BR/><BR/>So as not to take up too much bandwidth, the bullet points from Decca (and patent infringement jurisprudence in particular) are:<BR/><BR/>* 200 years of patent infringement precedent indicates that direct infringement under 271(a) (and by extension 1498(a))cannot be extraterritorial <BR/><BR/>* in Decca, Court of Claims created a "beneficial use and control" standard to capture the extraterritorial activity of the navy within the snare of direct patent infringement as set out in 1498(a) (which many accept as an analog of 271(a))<BR/><BR/>* this standard was revived / resurrected by the Fed. Cir. in NTP v. RIM, aka "The Blackberry Case"<BR/><BR/>In the case of Yon v. US (hypothetically, of course), the servers that the photographer were hosted on and or distributed through (worldwide) were controlled by the US army and was for the beneficial use of the army. Thus, an argument could be made, by analogy, that the same logic would shift from 1498(a) to 1498(b). <BR/><BR/>Personally, I think the Blackberry decision is bad, and unfortunately, could be used by analogy in copyright cases (which may butt heads with extraterritoriality jurisprudence in copyright cases).<BR/><BR/>I wrote my master's thesis for our LLM in IP program on the NTP case, and remain convinced that the courts blew this decision, but were trying to nail RIM for what appears to be an attempt to circumvent US patent laws. JMHO.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1139005333846003582006-02-03T17:22:00.000-05:002006-02-03T17:22:00.000-05:00Hmm,I wonder if there is a remedy. Para (c) of 148...Hmm,I wonder if there is a remedy. Para (c) of 1489 provides: "The provisions of this section shall not apply to any claim arising in a foreign country."Anonymousnoreply@blogger.com