The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The Intellectual Property supplement is also inside today’s paper, so be sure to give that a read.

The top story in today’s Legal is a look at the new markets opening up for Pennsylvania firms in the wake of Dewey & LeBoeuf’s slide. Reporter Gina Passarella writes that the attorneys leaving Dewey have allowed area firms to open offices in Dubai, Los Angeles and potentially Moscow and Kazakhstan.

Also above the fold on Page 1, Gina Passarella writes that Kansas City, Mo.-based Shook Hardy & Bacon is finalizing plans to open a Philadelphia office with the hire of Dechert partner Sean Wajert to its litigation group.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that the U.S. Court of Appeals for the Third Circuit has ruled that a bankruptcy court must first grant leave before a trustee can be sued in another venue.

Also below the fold on Page 1, reporter Zack Needles writes that the state Supreme Court has agreed to hear a case in which it’s been asked to hear whether an insurer can be ordered to pay a medical provider’s attorney fees even if the employer properly employed the peer review process before denying coverage.

In more Regional News on Page 3, reporter Amaris Elliott-Engel writes about Thomas G. Wilkinson Jr.’s new role at the helm of the Pennsylvania Bar Association. Youth and the law top the new president’s agenda.

Also on Page 3, Zack Needles writes that a class action has been filed over NHL Winter Classic tickets that the Flyers did not give to season ticketholders.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In an Eastern District column on Page 5, Peter F. Vaira writes that two recent U.S. Supreme Court decisions have raised troublesome plea bargain issues.

In a Law Office Technology column on Page 7, Morgan C. Smith writes about using iPads to make compelling presentations at trials.

Today’s lead story in PLW is the state Supreme Court justices asserting their control over the definition of the constitutional phrase “purely public charity,” as reporter Ben Present writes.

Below the fold on Page 1, Ben Present writes that the Supreme Court has dialed back the independent source doctrine.

On Page 3, Ben Present writes a preview of Supreme Court oral arguments set to open in Harrisburg today, in which the justices will hear the H&R Block class action case for the third time.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes that an increase in technological savvy should not overshadow the basic tenets of good lawyering; Matthew T. Mangino’s Criminal Pratice column, in which he writes that disparity again pervades federal sentencing; a ruling that a landlord must know of danger to incur liability for a dog biting a person; and Jonathan Hoffman’s Family Law commentary, in which he writes about securing your client’s future with insurance.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is Saul Ewing opening a Pittsburgh office by bringing on four attorneys from Schnader Harrison Segal & Lewis. As reporter Gina Passarella writes, the office will fit into a market that has become sought after not just because of the Marcellus Shale and work relating to it, but because of all the shale play brings with it.

Also above the fold on Page 1, reporter Saranac Hale Spencer writes that U.S. Court of Appeals for the Third Circuit Chief Judge Theodore McKee said that a limit on lengthy briefs announced in January is working.

Below the fold on Page 1, reporter Zack Needles writes that a worked injured in a wall collapse has settled his lawsuit for $2.6 million with the general contractor, a subcontractor and the site owner.

Also below the fold on Page 1, Saranac Hale Spencer writes that the ACLU is seeking to block the state voter ID law.

In more Regional News on Page 3, reporter Amaris Elliott-Engel writes that as savings are stagnating, the First Judicial District has asked for more funding during a lengthy round of Philadelphia City Council budget hearings.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s GC Mid-Atlantic column on Page 5, Gina Ameci writes about the challenging personalities to be encountered during employee performance reviews.

In an Intellectual Property column on Page 7, Anthony S. Volpe and Carey Kulp write about improving the likelihood that you own the IP rights to a property.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is the defense verdict being challenged in a hotly contested Philadelphia asbestos case. As reporter Amaris Elliott-Engel writes, the plaintiffs’ counsel has filed a post-trial motion claiming that the verdict sheet was developed because of alleged ex parte contact by the defense lawyers with the leadership of Philadelphia’s civil courts.

Below the fold on Page 1, reporter Zack Needles writes that the state Supreme Court heard oral arguments yesterday on the question of whether messages posted on a Myspace page could be considered communication with a specific group of people. In Commonwealth v. Scott, lawyers disputed whether defendant Khalil Scott’s postings on Myspace were enough to constitute a probation violation. In one of the postings he appeared to identify himself as a gang member and referenced two apparent gang members in another.

In more Regional News on Page 3, Amaris Elliott-Engel writes that the Philadelphia District Attorney aims to reduce homicides by raising bail in gun cases. More than 300 people were murdered in Philadelphia in each of the past five years.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In an Intellectual Property column on Page 5, Eric G. Soller and Martha S. Helmreich write about the potential high cost of losing an infringement case.

As it is Wednesday, this week’s GC Mid-Atlantic column is on Page 7, as Martha “Frannie” Reilly writes about the ABCs of general counsel issues for nonprofit organizations.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Is the Constitution the Roadblock to Meaningful Patent Reform?

By Anthony S. Volpe
Special to the Legal

The issue of patent reform and the enforcement of the rights afforded by patents has been making headlines. The make-up of the forces lining up on opposite sides of the issue are not predictable. But, predictably, each side is attacking the other for its self-serving view of how the reform should proceed. With this fight in mind, is it possible that the Constitution has built into its genius the very root of the problem?

The Constitution is clear: Congress has the power under Article 1, Section 8  “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writing and Discoveries.” Since there is no further definition of how this is to be achieved, it is left to the legislative process to provide the statutory framework to accomplish this mandate.

If it stopped at that point, getting the statutory framework in place may not be a problem. However, there is the not-so-small matter of the first 10 amendments to the Constitution, commonly known as the "Bill of Rights," which was required to gain passage of the document. The First Amendment is a prohibition against government power that states, "Congress shall make no law … abridging the freedom of speech or the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." So, as the nation goes forth, the people get to weigh in on how the Congress should do its job.

As expected, individuals, companies, PACs, lobbyists, trade organizations and the like have chosen sides and there is a virtual First Amendment war of words over the alleged reforms. Each side is sure the other side's view will spell the end of American innovation. Each plainly ignores the fact that more U.S. patents now issue to foreign inventors than U.S. inventors, and many patents with U.S. corporate inventors are assigned to foreign parent companies. 

Many will point to the fact that the U.S. Patent and Trademark Office recently issued Patent Number 8,000,000 as proof that the current system is working. While the system is working in the sense that the PTO is doing its job, that is only one element of the whole patent system. The validity and enforceability of the patent is as critical as the issuance. In the present environment, there is huge uncertainty over issues as basic as what is patentable and how patents will be construed in the courts. The need for certainty in the patent world is critical. Everyone is reluctant to invest in innovation when the rewards are uncertain and the rules shift with the political winds.

Since the recent debt ceiling debate confirmed that the members of Congress will line upon the side of the First Amendment money that funds their campaigns, I predict that we will not get patent reform in a reasoned fashion. Instead, we will get the usual First Amendment blend of compromises that does little to add to the needed certainty.

Anthony S. Volpe is a founding partner of Volpe & Koenig. He can be reached at TVolpe@volpe-koenig.com.

Fresh Ink: Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage.  (Some stories may require registration or a paid subscription.)

Topping today's front page, U.S. Courthouse Correspondent Shannon P. Duffy writes that a jury’s award of $10 million to three former Philadelphia police officers was properly slashed to just $900,000, a federal appeals court has ruled, because the plaintiffs had sued only under federal law which imposes a $300,000 cap on damages.

Below the fold, senior reporter Gina Passarella covers a case in which a Philadelphia judge has denied Duane Morris’ preliminary objections in a legal malpractice case brought against the firm by a local developer who alleges the asset protection plan the firm designed for his family led to part of their money being invested in feeder funds to Ponzi-schemer Bernard Madoff.

Our Page 3 Regional News story today is by Amaris Elliott-Engel, who writes that a Philadelphia jury awarded $3 million to the estate of a 19-year-old college student who died in the Hahnemann Hospital emergency room of heart failure.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

The Legal's contributed columns begin on Page 5, with our "Intellectual Property" column by Matthew A. Kelly III of Montgomery McCracken Walker & Rhodes: Christian Louboutin, famed creator of well-heeled shoes for well-heeled women, is seeing scarlet since a Manhattan judge recently denied his motion for a preliminary injunction that sought to prevent fashion house Yves Saint Laurent from using the color red on the soles of the shoes in its 2011 "Cruise Collection." Christian Louboutin S.A. et al. v. Yves Saint Laurent America Inc. et al.

Page 7 features a litigation article from our Houston affiliate, Texas Lawyer: All trial lawyers experience a degree of fear and trepidation when facing the prospect of cross-examining the sophisticated adverse expert — the head of surgery for a hospital, the author of an authoritative textbook or an airline's chief pilot, for example. But trial lawyers can offset an expert's superior knowledge, intellect and experience with meticulous preparation and a carefully formulated game plan.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

Fresh Ink: Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

U.S. Courthouse Correspondent Shannon Duffy shares the top of today's front page: More than 10 years after attorney Nicholas Panarella Jr. pleaded guilty to assisting state Sen. Joseph Loeper in a fraud scheme, a federal judge has vacated Panarella's conviction due to a recent decision from the U.S. Supreme Court that shows the conduct he confessed to was never a crime.

Also topping today’s front page, Charles Toutant from our sister publication, New Jersey Law Journal, writes that the 3rd U.S. Circuit Court of Appeals found Wednesday that doctors challenging President Obama’s health care plan had suffered no injury, and therefore lacked standing to sue.

Inside, on Page 3 in our Regional News section, reporter Amaris Elliott-Engel writes that the state Superior Court has ordered a new trial in a products liability case because a trial judge decided against re-charging jurors when they asked questions about their jury instructions.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

Our contributed articles begin with our Intellectual Property column by Paul F. Prestia of Ratner Prestia, who writes that China’s intellectual property regime has come of age.

On our weekly Young Lawyer page, we feature a column by anonymous columnist “The Rodent,” who writes for our Florida affiliate, the Daily Business Review. According to him, the nation’s law schools are producing too many lawyers!

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

 

Fresh Ink: Inside Today's Legal (and DLW!)

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

Just as Tuesdays always include our Pennsylvania Law Weekly section, Wednesday is the unofficial "Day of Delaware," when we roll out the fresh ink from our First State to the south. That includes the Delaware Law Weekly, available online at www.delawarelawweekly.com, as well as our newest product, the Delaware Business Court Insider, an online newsletter that definitely warrants a look.

But more about Delaware in a bit … let's get to today's Legal.

The Marcellus Shale play receives top billing in today's paper. Zack Needles reports that environmental lawyers across Pennsylvania commended the 137-page report issued Friday by Gov. Tom Corbett's Marcellus Shale Advisory Commission, but said the document is merely a jumping-off point for what is likely to become a very complicated set of statewide issues.

Below the fold, Gina Passarella has a law firm story of note: Cozen O'Connor has brought suit against its landlord in Philadelphia Common Pleas Court in an effort to be released from the five-year lease obligation it began this year with 1900 Market GP because the landlord has failed to properly maintain the Class A building and refused to arbitrate the firm's complaints, according to the court filing.

Our Page 3 Regional News story is by Shannon P. Duffy, who writes that a court battle over alleged industrial espionage and corporate raiding between two major defense contractors has turned especially ugly, with allegations of evidence destruction that was so rampant, according to the plaintiff, that the only proper punishment is to enter a default judgment against the defendants.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

First up in our contributed columns today is the "GC Mid-Atlantic" page, which features an article from our affiliate, Corporate Counsel. James F. Haggerty wonders, was the pie-throwing attack on Rupert Murdoch a setup? Was it all just a publicity stunt designed to draw attention away from his testimony before the British parliamentary committee investigating the News of the World phone-hacking scandal? Of course not. But it certainly had that effect.

Next up is our "Intellectual Property" column by Anthony S. Volpe and Robert D. Leonard of Volpe & Koenig, who write that patent law is changing -- and staying the same. 

As we move south in our weekly coverage to Delaware, we'll stop first at the Delaware Law Weekly, where reporter Jeff Mordock has the top stories. Please note: all of our Delaware coverage is for paid subscribers, but you can register for a free 30-day trial by clicking here.

Jeff first writes that Maryland-based Offit Kurman is expanding its commercial litigation and bankruptcy practice by opening a Wilmington office and has tapped former Gibbons P.C. litigator William R. Firth III to lead it.

In on the law school front, a Widener University Law School panel has cleared law professor Larry Connell of charges that he made racist, sexist and violent comments in his law course, according to his lawyer. However, he was found to have violated the university's code against retaliation.

And finally, attorneys for convicted ax-murderer Robert W. Jackson III will take their two-pronged defense before the Delaware Supreme Court and the U.S. District Court today in an effort to prevent his scheduled execution on July 29.

Finally, we'd like you to meet (if you haven't already) the Delaware Business Court Insider. As the name suggests, this is a national product covering the latest news, analysis and cases from the Delaware Chancery Court, Bankruptcy Court and Supreme Court. The accompanying website is www.delbizcourt.com, where you can go to subscribe to this newsletter weekly. You can also follow us on Twitter at: http://twitter.com/delbizcourt.

Top stories there include:

- The News of the World phone hacking scandal has spawned a second derivative suit against its parent company, News Corp., in the Court of Chancery by a shareholder alleging the paper's misdeeds have negatively impacted the company's value; 

- The Delaware Supreme Court clarified the rules regarding the preservation of electronic discovery and opined that the Court of Chancery did not abuse its discretion when it held a defendant in contempt for spoiling material;

- The Court of Chancery has ruled that clear language in an agreement between a company and one of its directors regarding the interim review of attorney fees when the director is sued as a result of their corporate role can trump the standard procedure for reviewing fees established by the court in its 2008 case, Duthie v. CorSolutions Medical Inc.; and

- Private equity firms often own or control portfolio companies today. As part of efforts to maximize the value of its portfolio, a PE firm may well exercise certain control over a subsidiary portfolio company to reduce unnecessary costs and increase profit margin. Cost-cutting measures could include a reduction in workforce in certain segments of a business.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail JBochet@alm.com.

Will Uncertain Client Demands Continue to Fuel Turbulence in IP Marketplace?

By Anthony S. Volpe
Special to the Legal

We have seen an increase in the amount of movement, both locally and nationally, of IP attorneys in and out of general practice firms and out of IP boutique firms into smaller IP boutiques with a more limited focus on certain practice areas.

The question raised by these movements is whether they reflect client needs or the shifting needs of the attorneys in view of what they perceive to be the new order in IP practice.

There has been a continuous increase in the demand for lower costs, while at the same time there has been an increase in the demand for value-added IP services. Many of the clients searching for new firms or a new arrangement within an existing firm are stressing the need for the selected IP firms to have a firm grasp of their business models and to deliver IP services, especially patent and trademark prosecution, at commodity pricing. 

These client demands are more frequently finding their way into discussions of the firm's licensing support and litigation services, where clients are increasingly demanding defined cost controls.
So, how does the shifting client demand influence or translate into the movement of IP attorneys between and among existing firms with IP practices and newly created IP firms?

Some of this movement may be driven by the often-repeated statement that a particular lawyer moved to gain a larger/smaller platform that is a better fit for the demands of existing clients.  The size of the practice group the lawyer required to meet client needs seems to be determined by the size of the group available at the successor firm; this size is almost always the size that best fits the public relations story accompanying the move. 

My guess is that these moves are being driven more by personal views of the desired practice management than by client demands. If the attorney or group does not have the necessary level of influence within the firm's management group, the move is more often driven by the attorney's need/desire for more control in billing arrangements, or the realization that others with more influence are driving conflict decisions that hamper new client development or cross selling opportunities. I see these movements as being more attributable to the circumstances within a firm than to client demands for change.

Some of the movement may be driven by the more recent trend among some clients to view everything as a commodity that can be competitively priced by market pressures on supply and demand.

If prosecuting firms need a certain volume of work to achieve efficiencies that produce profits, unit pricing can be negotiated against a given volume of active cases. This type of economic model has lead to the creation of low-overhead firms that offer unit pricing without regard to subject matter. In these arrangements, there is often very little attention paid to a particular matter until it has demonstrated value within the IP rights portfolio.

This belated determination of value is a major problem associated with this volume/price model, and it may be a direct result of the model. If the attorney or firm has decided to price services on the basis of volume, there is not likely to be much time for consideration of anything that is not focused on the immediate task. Since the basis of the bargain is price for volume, and volume demands throughput to achieve profits, there is an operational dynamic that works against added value. This may be acceptable to the client, but it seems to be against the client’s best interest.

Because companies are increasingly aware of the importance of securing and protecting IP rights and are increasingly under pressure to control cost, there will be a continuing tension between spending on IP services and the creation of added value in the portfolio as a result of those services.  Companies will continue to search for the right model and IP attorneys and firms will continue to modify their approaches to address their perception of the clients' needs.  Since there is currently no uniform direction of the demand from clients, the currents will continue to shift according to the client's philosophical approach to cost and value. Reaction to those currents will produce continued turbulence.

Anthony S. Volpe is a founding partner of Volpe & Koenig. He can be reached at TVolpe@volpe-koenig.com.

A Sliver of a Silver Lining for Microsoft

By Joshua Wolson
Special to the Legal

The U.S. Supreme Court's decision last week in Microsoft v. i4i appears, at least at first blush, to be a complete loss for Microsoft. Microsoft argued that a defendant in a patent infringement action should have to prove patent invalidity by a preponderance of the evidence. The Supreme Court disagreed and held that federal law requires proof by clear and convincing evidence. Microsoft argued that even if the general rule requires clear and convincing evidence, the rule should be modified if the evidence rendering the patent invalid was not before the Patent and Trademark Office when the patent was granted initially. The Supreme Court disagreed and held that the clear and convincing standard still applies.  And the court affirmed a jury verdict against Microsoft.

So, yes, Microsoft lost, and the court's 8-0 vote wasn't even close. 

At first glance, the decision seems to indicate the court's hostility to invalidity challenges (or at least reaffirms just how difficult it is to succeed on an invalidity challenge). But there is in the court's opinion a small silver lining for Microsoft and other infringement defendants that might just keep the ruling from being a total disaster.

The court, in rejecting Microsoft's argument that a lower standard applies in cases where the evidence of invalidity presented in court was never before the PTO, said, "Simply put, if the PTO did not have all material facts before it, its considered judgment may lose significant force."

Translation (or at least the translation that Microsoft and other defendants should cling to): The standard of proof is the same -- clear and convincing evidence -- but the import of finding evidence that was not before the PTO is arguably more important than it was before. In fact, in some cases, such evidence, on its own, might be the clear and convincing evidence needed to prove a patent invalid. 

It remains to be seen, of course, what effect the court's decision will have on future invalidity arguments. Microsoft itself was able to show at the trial against i4i that some information was not before the patent examiner in the case. That, however, did not sway any of the courts that heard the case, including the Supreme Court. Even faced with such evidence, each court held that Microsoft had not proven that the information in question would or should have changed the examiner's decision.

Nonetheless, future infringement defendants would be wise to be mindful of the court's ruling and scour the universe for evidence outside of the PTO's files for evidence that an examiner was unaware of something relevant. Thus, the court's opinion has given Microsoft and other defendants a roadmap to an invalidity challenge, and with that, a small glimmer of hope.

At least, that's what Microsoft will have to tell itself to make the ruling sting a little less.

Joshua D. Wolson is a partner in the litigation department at Dilworth Paxson. He can be reached at 215-575-7295 or jwolson@dilworthlaw.com.

The Google Book Dilemma: Are Copyright Law and Class Actions Irreconcilable?

By Joshua D. Wolson
Special to the Legal

Copyright owners have the right to exploit, or not exploit, their works largely as they see fit. That right is one of many reasons -- and one of the most interesting -- that Google's proposed settlement with a class of authors and publishers fell through for a second time when Judge Denny Chin rejected a proposed settlement in Authors' Guild v. Google. Chin's decision raises an important question: can a class of copyright holders ever settle a claim under Federal Rule of Civil Procedure 23? Or is Rule 23 fundamentally at odds with a copyright holder's control over its intellectual property? 

Under Rule 23, members of a class presumptively participate in the case.  In a damages case, they can opt out. In other cases -- typically those involving claims for injunctive relief -- their participation in the class is mandatory. In Google's settlement, mandatory participation, or even mandatory participation after an opt-out period, would have meant that any author or publisher who did not opt out of the case licensed its copyright to Google, at least provisionally.  (Under the proposed settlement, class members could exempt their copyrighted works from some types of republication by Google, even after the opt-out period).

Chin, however, held that this arrangement would run afoul of federal copyright law by putting the onus on copyright holders to take some action to prevent their copyrights from being exploited, rather than the normal default under which inaction means that a copyright cannot be exploited. 

Chin's decision raises the question of whether any class of copyright holders can ever settle a class action, at least in federal court, where the Federal Rules of Civil Procedure will govern. Certainly, a class could reach a financial settlement for past infringement, because that settlement would not implicate a copyright holder's right to control how its copyright is used.  But it seems almost impossible to settle a claim for forward-looking relief.

The problem is that, as with Google's case, a claim that sets ground rules for future use of class members' copyrights necessarily infringes on absent class members' rights to control their intellectual property. In his opinion, Chin suggests that the way around this is an opt-in settlement.

In an opt-in settlement, a copyright holder would decide whether to participate, and if she does not, then her copyright could not be exploited. That is, an opt-in settlement would not alter the baseline rule that a copyright holder's inaction does not permit the exploitation of her rights. Federal law, however, does not contemplate an opt-in settlement. Some state laws, including Pennsylvania law, do permit opt-in settlements. In addition, a few federal laws expressly provide for such a device, such as the Fair Labor Standards Act. The Copyright Act, however, does not.

So, unless Congress amends the Copyright Act, Chin's suggestion of an opt-in settlement might not chart a path to resolving the case. 

Joshua D. Wolson is a partner in the litigation department at Dilworth Paxson. He can be reached at 215-575-7295 or jwolson@dilworthlaw.com.