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On March 19, 2013, in a 6-3 decision, the Supreme Court of the United States decided Kirtsaeng v. John Wiley & Sons, Inc., holding that the “first sale” doctrine gives owners of books or recordings that were “lawfully made” in foreign countries the right to import those works and sell them in the United States without the permission or consent of the copyright holder, even when the publisher sells the work with a restriction on importing the work to the United States. In essence, the Court held that copyright holders get protection only for a first sale, and not any ... Read Kirstaeng v. Kohn Wiley & Sons, Inc.
The 1979 “pen register” case - - - Smith v. Maryland - - - involves the application of the Fourth Amendment’s protection against “unreasonable searches and seizures” to a then new, and now outmoded, technology that could ascertain the number a phone was dialing. As footnote 1 explains, “A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.” It is "usually installed at a central telephone ... Read Smith v. Maryland
Since this decision district courts appear to be following Kennedy's reasoning in denying injunctive relief to "patent trolls" or "non-practicing entities" who merely assert patents against others rather than practicing the patented inventions themselves. So while the majority was concerned with categorical rules re: when injunctive relief might be granted, in practice certain categories of litigants seem to receive differential treatment than others. And this seems consistent with the majority opinion and the two concurrences--their primary concern seemed to be that courts actually conduct the proper analysis by running through the 4 factors, even if doing so generally results in ... Read Ebay Inc. v. Mercexchange, L. L. C.
The reference to "judicial experience and common sense" has caused a lot of confusion here. After all, at the pleading stage, the court is supposed to take the factual allegations as true; so a court should not use its "judicial experience and common sense" to undermine a plaintiff's factual allegations. And given the confusion about what plausible means -- something more than conceivable but something less than probable -- it is hard to know how a judge will use her common sense or judicial experience to assess plausibility. Finally, of course, how is a litigant on either side to know ... Read Ashcroft v. Iqbal