PETITIONS OF THE WEEK

Circuit splits on copyright information and health care in jails

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the Copyright Act, and how it defines the term “copyright management information”; attorney-client privilege, and when a law firm is required to disclose client information to the government; and the proper standard for constitutionally deficient medical treatment of pretrial detainees.

On Tuesday, the Supreme Court granted cert in Unicolors, Inc v. H&M Hennes & Mauritz, LP. Unicolors presents a technical question of copyright law and procedure under 17 U.S.C. § 411(b), asking the justices to clarify when the statute requires lower courts to refer copyright-registration disputes to the U.S. Copyright Office. Fischer v. Forrest asks the justices to take up another copyright question, this time in the context of digital licensing. Fischer concerns the scope of the term “copyright management information,” as it is defined in 17 U.S.C. § 1202. Copyright management information is information about the owner of a work or its terms of use that is conveyed to potential licensees of the work.

In Fischer, an author included his last name in the text of his copyrighted work; however, the U.S. Court of Appeals for the 2nd Circuit held that the name of the author or copyright owner is not sufficient to be copyright management information unless it is apparent from context that the name is copyright-related. The author argues against this narrow construction, reasoning that copyright management information can even exist in codes or symbols that are indecipherable to humans yet still worthy of legal protection. According to the petition, both the 3rd and 5th Circuits have applied a plain-text approach, applying the broad definition of copyright management information as it is written in 17 U.S.C. § 1202. The author asks the justices to resolve the circuit split.

Strain v. Regalado seeks Supreme Court review to identify the legal standard for constitutionally deficient medical treatment of pretrial detainees. The petition identifies a 4-3 circuit split on the issue, with four circuits requiring pretrial detainees to plead and prove that the jail defendants subjectively knew their deficient treatment would pose a substantial risk of serious harm, and three circuits not requiring pretrial-detainee plaintiffs to establish the defendants’ state of mind. Here, a pretrial detainee’s legal guardian alleged that three jail officials failed to provide adequate care for the detainee’s psychiatric symptoms and physical injuries. Lower courts dismissed the claims because of a failure to show the officials’ state of mind. The detainee’s guardian seeks review to resolve the split and establish a consistent standard for what constitutes constitutionally deficient medical treatment.

Lastly, in Taylor Lohmeyer Law Firm PLLC v. United States, the IRS audited a taxpayer and determined that legal advice received from a law firm had caused the taxpayer to underpay taxes. Upon making this determination, the IRS issued a “John Doe” summons to the law firm, requesting documents that contained the identities of all clients who sought the same services as the audited client. The law firm refused, citing attorney-client privilege, but the district court overruled the law firm’s privilege objection and the U.S. Court of Appeals for the 5th Circuit affirmed, reasoning that the IRS agent “did not state the Government knows the substance of the legal advice the firm provided the Does.” The law firm seeks the justices’ review, arguing that attorney-client privilege should apply so long as the government is aware of the unknown clients’ confidential communication with legal counsel or the clients’ motive for retaining the firm, irrespective of any declaration of knowledge by the government.

These and other petitions of the week are below:

Strain v. Regalado
20-1562
Issue: Whether a pretrial detainee can prevail against a jail official who disregarded an obvious risk of serious harm or whether the pretrial detainee must prove that the official subjectively knew of and disregarded a serious risk of harm.

Cassirer v. Thyssen-Bornemisza Collection Foundation
20-1566
Issue: Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

Taylor Lohmeyer Law Firm PLLC v. United States
20-1596
Issue: Whether documents that reflect the client’s identity are protected by the attorney-client privilege when the Government is aware of a citizen’s confidential communication with legal counsel or the motive for seeking advice but is unaware of the citizen’s identity.

Marietta Memorial Hospital Employee Health Benefit Plan v. Davita, Inc.
20-1641
Issues: (1) Whether a group health plan that provides uniform reimbursement of all dialysis treatments observe the prohibition provided by the Medicare Secondary Payer Act that group health plans may not “take into account” the fact that a plan participant with end stage renal disease is eligible for Medicare benefits; (2) whether a plan that provides the same dialysis benefits to all plan participants, and reimburses dialysis providers uniformly regardless of whether the patient has end stage renal disease, observe the prohibition under the Medicare Secondary Payer Act that a group health plan also may not “differentiate” between individuals with end stage renal disease and others “in the benefits it provides”; and (3) whether the Medicare Secondary Payer Act is a coordination-of-benefits measure designed to protect Medicare, not an antidiscrimination law designed to protect certain providers from alleged disparate impact of uniform treatment.

Fischer v. Forrest
20-1648
Issues: (1) Whether the name of the author of a copyrighted work is copyright management information or whether it must also be apparent from context that the name is copyright-related; and (2) whether the name of the copyright owner of a copyrighted work is copyright management information or whether it must also be apparent from context that the name is copyright-related.