Wayne M. Barsky

After more than 30 years of practicing intellectual property law, Barsky is still fascinated by the challenge presented by each of his cases.

“Every one is new and different,” he said. “So I’m constantly learning new fields of science, whether it’s recombinant DNA technology or semiconductors ... and I really enjoy that.”

In a recent copyright infringement case that’s attracted a lot of media attention, Barsky secured a summary judgment victory in district court under the Digital Millennium Copyright Act’s safe harbor provision for service providers in a suit brought against his client LiveJournal Inc., a social networking platform. Celebrity photography agency Mavrix Photographs LLC filed the suit after several dozen of its photos were posted by users of the LiveJournal community, “Oh No They Didn’t!.”

Mavrix appealed the summary judgment to the 9th Circuit U.S. Court of Appeals, and the court vacated the district court’s order this spring. Mavrix Photographs LLC v. LiveJournal Inc., 14-56596 (9th Cir. April 7, 2017).

LiveJournal’s petition for a rehearing — which is supported by numerous amici from social media giants — is currently pending.

“It raises the question of to what extent are we really going to be protecting the YouTubes and Facebooks and LiveJournals from copyright liability,” Barsky said, noting that attorneys for Mavrix are expected to file a response to LiveJournal’s rehearing petition in early August. “This really is an important case for determining what the scope of safe harbor is under the DMCA.”

Barsky, who doesn’t have a formal science background, certainly doesn’t seem to mind sharing just how long he’s been working in the patent litigation field.

“I started doing this work long before it was cool,” he said, “and long before a very large percentage of law school graduates wanted to.”

And while patent litigation frequently requires explaining very complicated scientific and engineering principals to lay juries or judges who don’t have technical backgrounds, Barsky wouldn’t have it any other way.

“Explaining these concepts with clarity and simplicity is a challenge I very much enjoy,” he said. “I feel very lucky to be doing what I’m doing.”

— Shane Nelson