I previously wrote about the copyright preemption case of ML Genius v. Google that is pending before the Supreme Court. The court took a step toward granting certiorari with its request for the Government to file an amicus brief (CVSG). Genius doesn’t hold copyright to the song lyrics that it has on its website, but it does (arguably) require users of its site to contractually agree not to copy and use those lyrics for commercial purposes. Google scraped the site and (apparently) is using the lyrics for its own commercial gain. The appellate court sided with Google, holding that the Copyright Act preempts a breach-of-contract claim because it is “equivalent to … exclusive rights within the general scope of copyright,” 17 U.S.C. § 301(a). Other circuits have held that similar contracts are not preempted by the Copyright Act.
Question presented: Does the Copyright Act’s preemption clause allow a business to invoke traditional state-law contract remedies to enforce a promise not to copy and use its content?
Petition. The SG’s office already has three other CVSG briefs that it should now be drafting in patent cases:
- Tropp v. Travel Sentry (eligibility)
- Interactive Wearables v. Polar Electro (eligibility)
- Teva v. GSK (FDA/Patent skinny label infringement)
Certiorari tends to be much more likely if the SG supports the case. That said, the SG did not support the one patent case granted certiorari this term. Amgen v. Sanofi (enablement).