Articles Posted in Intellectual Property

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This week’s article explores the European Union’s brewing copyright law and its possible effects on the internet.  Proponents intend for the law to modernize and suit copyright law for the digital age.  Critics say the law will make the internet substantially less free.  Today we discuss the Directive on Copyright in the Digital Single Market, and more specifically, three of its most recently approved provisions that could pose problems to internet freedom: its right for press publishers, its filtering obligations, and its text-and-data-mining stipulations.

The law’s right for press publishers would allow news companies to collect compensation when their stories are shared on social media platforms.  Known as the “link tax,” it would require platforms to purchase a license to post current-events information coming from news institutions.  Current copyright law already protects journalistic articles as literary works; republishers must ask permission to use such content.  The proposed right, however, effectively expands this protection to data and facts that have already been published. Whereas only creative descriptions or puns in headlines are now protected, mere non-creative fact could be too; this would effectively hold information for ransom.  The purpose of copyright law is to grant a limited monopoly over specific creative works and original ideas.  To extend the law to envelop full ideas or factual content is nonsensical, and stymies the very processes copyright is meant to assist.  Rather than foster innovation by protecting its fruit, the law would chill it by stealing its raw material.  It would obstruct citizens from running businesses and from creating original products using factual information.  In a region without the First Amendment, there is cause for concern.

The law’s filtering provision would require all website hosting providers to use filtering software that checks content against a database of copyright material.  As the law stands, platforms such as YouTube, Facebook, and Twitter are not liable for the copyright infringement of their users, as long as when they are notified of it, they take it down.  The users who post it, however, are still liable to authors or authorship-rights holders.  The current law attempts a balance between honoring the investment of creative authors and promoting innovation through the spread of information.  The “notice and takedown” process allows rights holders to notify the platform, requires that the platform take action but only once it’s told, and reminds users that they may ultimately be held accountable for infringement; this spreads liability out somewhat evenly. The proposed version would subject this process to automation.  This would nominally place the majority of liability on platforms by forcing them to monitor content proactively.  However, the users and their speech will feel the brunt due to the platforms’ much stricter resultant guidelines.  The arbiter of this would be a machine, checking content against a copyright database, which would include factual material.  The necessary software also doesn’t exist—allowed uses of copyrighted content like parody or criticism would be at risk because artificial intelligence cannot distinguish them from infringement.  This imperils important content such as university lectures, for example.

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Now, by closing out this month and a deep dive into the future of copyright law comes a slightly more obscure reference to a recent change we’ve covered previously. Namely, what is, and what is not, protected under copyright when it comes to clothing? We now know that cheerleading uniforms are protected. However, what about bananas? An odd question, but one that the courts will be looking at as a recent case has been filed regarding the design and sale of banana costumes and has prompted questions in a Post-Star Athletica world. Is this the limit to Star Athletica? Has Justice Sotomayor’s comment about killing knockoffs come true already? Is it possible that the follow-up question to Star Athletica may be a banana battle?

The Now-Settled Case

The now-settled case was between Rasta Imposta, and Kmart, which is a subsidiary of Sears. Rasta Imposta had sold a banana costume and had good business relations with Kmart until Kmart notified Rasta Imposta that it would not be purchasing its costumes any longer.

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In general, parody is a well-tested defense to copyright infringement claims. For example, legal cases involving Barbie Girls and Pretty Women have hammered in the points quite definitively, though the question of what exactly is parody has persisted throughout the years.  Generally, it would be seen as something that ridicules the original work.  So, using the comical characters from the Game of Thrones to ridicule the current state of politics is probably fair use.

Recently, the question has popped up with a new and stranger answer that makes the situation complex. What is this potential new parody standard? How has it changed with time? Does this new standard go where it has never gone before?

The lawsuit

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Following in the theme of “advances in copyright law,” there is an additional snag that seems to occur every now and then. Who owns a picture of you? Naturally, a person may say: “Well, that is a picture of me, and if someone is selling it, or making money from it, then I own it and should be profiting as well.” We can extend this abstraction even further. A tattoo artist creates a design for a famous person, and with that person’s appearance on a film, or a video game, the tattoo artist demands payment. The famous person may say: “But it was a tattoo on my body. Why should I be forced to pay?” Ultimately, it comes to a two-fold situation: First, who is the author? Second, was there a license granted to make it acceptable?

What is authorship?

The first item to determine is authorship. In copyright, one does not necessarily have to be the one who “creates” the work to own the copyright. There are contracts known as “works-for-hire” agreements that can infuse ownership and authorship towards a legal entity. This would mean the legal entity (e.g., corporation, LLC) would be the author and able to file suit under the Copyright Act.

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In general, copyright lawsuits can be expensive. They require a lawyer who is well-versed with the copyright laws and federal court system. Yet, any creator or owner of copyright knows that the real scourge tends to happen with piracy. In some instances, no alterations, no messy facts, and no major damages can make it easier to recoup litigation costs. However, Hakeem Jeffries, who is the Representative for New York’s 8th Congressional District, has acknowledged the issue, prompting another round to get legislation passed starting this year. So, what is in the law? What is the possible effect? Why would this be more beneficial to a copyright holder?

What is a Small Copyright Claim?

The idea is simple and has been thrown around since 2013.  It is an expedited and limited system for copyright claims, akin to small claims courts that exist in state courts. This system would allow copyright holders to affordably pursue claims of up to $30,000, seek declarations of non-infringement, or DMCA claims under 17 U.S.C. 512(f). Also, the officers in this system would be different from federal judges and would be required to have experience in copyright laws and alternative dispute resolution.

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A question for you to consider: Imagine a world where music is created by a random set of numbers. Who owns the music? Is it the programmer? Is it the user who gave specifications for the music? It’s certainly an odd question to ask, and unsurprisingly, one without a clear answer. The question has been mostly unlitigated, although programs such as the Artificial Intelligence (“AI”) made by DeepMind can produce music by listening to it.  For example, some programs can restore or create mimics of Rembrandt. One might wonder: With the increasing role of technology, what are the limits to copyright laws? Who is a creator, and hasn’t this issue already been settled in courts?

The previous litigation

To determine the possibility of authorship to AI, it’s important to simplify things. Technology is a little complex. What about monkeys, animals, or something that occurs naturally?

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The Supreme Court recently reviewed Matal, Interim Director, United States Patent and Trademark Office v. Tam (Matal v. Tam), which deals with trademark laws and what can be trademarked.  In fact, before the case reached the Supreme Court, we have previously discussed how much is unsettled in this area of trademark law. With this new decision, much of the law should be clearer with regards to what can be officially trademarked.

What are the case facts?

A rock group chose the band name “The Slants” because they wanted to “dilute the term’s denigrating force as a derogatory term for Asians.” When the band tried to trademark this name with the United States Patent and Trademark Office the application for registration was denied. The government agency denied the application because it was against 15 U.S.C. § 1052(a), also known as the Lanham Act, which prohibits the registration of any trademark that may disparage or bring into contempt any persons living or dead. The lead singer of the rock group, Simon Tam, challenged this denial initially through the administrative appeal process, which did not bring him any result. Then, Simon Tang brought his case to federal court. The federal court decided that the disparagement clause in the Lanham Act was unconstitutional because it violated the First Amendment’s Free Speech Clause. This decision was then appealed to the United States Supreme Court.

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The United States Supreme Court came out with a new patent law decision in Impression Products, Inc. v. Lexmark International, Inc. For those who are not familiar with patents, a patent grants the holder an exclusive right to exclude others from making, using, importing, and selling the patented innovation for a limited time.

Lexmark International is a company that manufactures, designs, and sells toner cartridges. These cartridges are sold both in the United States and outside of the United States. Lexmark International owns patents that cover the components of these cartridges as well as the way that they are used by consumers.  Lexmark gives the purchasers of the toner cartridges two options: One option is to buy a toner cartridge at full price with no restrictions. The other option is to buy the cartridges at a discount through Lexmark’s “Return Program.” In order to get this lower price, the customers are required to sign a contract that they will only use the cartridge once and refrain from transferring it to anyone else except Lexmark.

Other companies that are known as remanufacturers would get the empty Lexmark cartridges, refill the cartridges with toner, and then resell those cartridges. Impression Products is one of those remanufacturers. They go through the same refilling process with cartridges that they acquire overseas and then import into the United States. Lexmark is suing Impression Products for patent infringement for both the “Return Program” cartridges sold in the United States and for the cartridges Lexmark sold abroad that were imported into the country by Impression Products.

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For example, you have a lawsuit against another party for infringing on your personal rights of privacy. The other party takes a photograph they had taken of you, and then licenses it to other individuals without your consent.  Those individuals use it as a basis for a character in another work, making a large amount of profit.  Naturally, this wouldn’t sound fair to the subject of the lawsuit. Yet, making matters worse is, given a current case, it’s suggested that the action would effectively have no remedy. This is due to the doctrine of preemption. So, what is the preemption doctrine? How does it apply to an individual in a case? How might preemption be avoided by the careful litigant?

Copyright Preemption

Before going into the relevant case, copyright preemption is a doctrine in copyright law, with Section 301 dictating that in cases where a personal right and copyrights may clash, the Copyright Act will take precedence, and other rights will be preempted by the copyright.  Included in a “copyright” are rights against reproduction, as well as a right to control distribution, derivative works, and publication of works, in addition to others. This would also mean that preemption would cover far more than what is protected by copyright. This has the effect of removing the basis for a lawsuit as the plaintiff may not have a right in the copyrighted work.

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In theory, a moderator is a sound idea for any individual running a website that allows user interaction. Presumably, moderators can filter out comments and content that is disreputable, disrespectful, and patently offensive. The moderator can keep discourse civil and help foster insightful positions. Perhaps the website can even rely on volunteer moderators who are bound by the website’s rules and regulations. However, the moderator’s very existence risks making a website’s owner subject to liability for copyright infringement. These questions were recently addressed in a case involving LiveJournal. What is this case about? Why could a volunteer moderator trigger legal liability? Are there any guidelines to determine risks?

Mavrix Photographers, LLC v. LiveJournal, Inc.

This case is one arising out of the United States Court of Appeals, For The Ninth Circuit, regarding the potential liability of LiveJournal over an alleged infringement of twenty different photographs. LiveJournal is a social media website, which sets up various forums for different communities. The communities can post and comment on a theme and are allowed to create their own rules in addition to LiveJournal’s rules and regulations. The photographs were then published to a sub-forum on the website, focusing on celebrity news. The photographs were watermarked, and subject to copyright by the photographer. However, one issue was how LiveJournal used its moderators.