Articles Posted in Intellectual Property

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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?

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.

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From the idea of product design, who wouldn’t want to protect more of their products? A producer should be able to profit off the sweat of labor, and creativity that they have mustered to bring the product.  Yet, if a design brings utility, then the individual that comes up with it may have a monopoly over the most effective design, which hampers competition. These are the issues that the United States Supreme Court recently considered in Star Athletica v. Varsity, as Justice Sotomayor phrased as “killing knockoffs” with copyright protection.  The case involved two parties, Star Athletica and Varsity, both producers of cheerleading uniforms.  Varsity sued Star Athletica for copyright infringement of protected designs over a dress. Still, there were various issues to be resolved. What is useful? What is protected by copyright laws?  Would it matter if even after the creative elements were removed, there was nothing useful about the article at all?

Star Athletica

In this case, the main issue was effectively based in the idea of useful articles.  In copyright, there is a thinner protection for “useful” things, protecting only what is creative rather than the useful parts of it.  In essence, it had to be “separable” either conceptually or physically. This generally meant to be “truly” separable, it would have to be both. Relating to the cheerleading uniforms, it presented a unique issue. The major question however, was if the designs on the dress (i.e., the chevrons, colors, general look) were protectable. Presumably, either the designs on the dress were protectable, as they could be reproduced and placed on some other object, like a lunchbox, or they were unprotectable, as they were intertwined with the functionality of a cheerleader’s uniform.

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Among the rights people have, many are unknown or unsung until there is a dispute and the courts get involved in the process. Rarely recognized is the right to reverse engineer under the Fair Use Doctrine and Digital Millennium Copyright Act.  However, this is not an absolute right.  Rather, it can be waived under certain circumstances. So, how can the right to reverse engineer be used? How might an individual hope to reverse engineer anything? Can you prevent others from reverse engineering your products?

What does the reverse engineering law apply to?

Reverse engineering is a method of taking a device or program and taking it apart to determine how it works, occasionally in attempts to duplicate or improve it. Generally, this would be applied to devices or physical products that are protected by patents. However, in the realm of copyright, reverse engineering is allowed in some situations. Specifically, this applies to computer programs to allow interoperability of devices or systems.  Since computer programs may be designed to only work with a few devices or systems, to allow a consumer to use them on another operating system, reverse engineering would be a necessity.  This would allow individuals to ensure programs operate without interference or to add integration features.

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For the uninitiated, motion sensors work on either the idea of cameras capturing motions, infrared light waves, or gyroscopes. Yet, even with this simple trio, this subject has led to a large scale of lawsuits based on patent violations.  There are two major lawsuits to look at, one in the past, giving insight into what would fail, and one more current, involving Apple. What do these motion controls do? What would be patentable? What arguments could be made to fight these patents?

Patent lawsuits on motion-sensor technology

First, it’s important to note that motion controls, and indeed much of the technology that roots current motion controls are not new, but rather opens up to new avenues.  There has been an advent in motion control with the Nintendo Wii System. While it is rudimentary, initially consisting of a motion-controller device and a sensor bar, it allows individuals to control games (e.g., classic example being swinging around the remote to swing a bat).  However, with this came patent disputes, primarily between Koninkl Philips Electronics NV v. Nintendo of Europe GmbH, which ultimately succeeded in the UK, as the court deemed that the idea of a camera and sensor was specialized knowledge in the industry. Comparatively, there is a newer litigation involving Apple and Fitbit.  On or about January 2016, the litigation began over the technology used to track health and fitness for individuals, such as motion and steps taken, among other patents.

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In general, December is the month that yields a high volume of consumer activity, and the purchase of new technology devices. One of these is Virtual Reality (“VR”) technology, slowly trickling down from a niche market. However, it is not the only new reality-altering technology coming into the market, as Augmented Reality (“AR”) has had its growing pains in the world after its adoption.  So, what are these new technologies? What are the current risks? Do they have any practical use?

What is Augmented Reality?  What is Virtual Reality?

They are technologies meant to immerse a user into a different world by substituting or enhancing the reality.  AR has the largest number of examples, such as Google Glass and Pokemon GO.  They take data and overlay it into preexisting reality, allowing us to pull up contacts or catch imaginary creatures. While still in its infancy stage, AR has the potential to work as an overlay, where a camera can read and translate signs and books with the new text viewable, or a device can allow a person to follow arrows overlaid onto a road, or see parts of devices highlighted for repairs on the display.

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In continuing our comments regarding copyrights online, we are on to fair use and liability for litigation. A dancing baby has created one of the most obscure and interesting cases for the year. The ramifications of this lawsuit could further impact the way that some copyright disputes could play out, bringing in a potential new factor for any takedown or claims of infringement. Yet, how this ultimately will work out is up to the justices who currently compose the highest court of the land (i.e., United States Supreme Court).  What is the story of the “Dancing Baby” case? How might copyright infringement cases change? How could the court decide? Does this interact with the earlier Kirtsaeng ruling, if at all?

What is happening with the case now?

To recap, Lenz v. Universal focuses on whether there is a good faith requirement for takedowns. Lenz had uploaded a video on YouTube showing her toddler dancing to the song “Let’s Go Crazy” by Prince. It also included a snippet of the song in poor quality. Sometime after, Universal issued a takedown of the video. However, in its analysis, the Ninth Circuit first decided that there was a good faith requirement, and questioned if Lenz would be owed damages. So far, the United States Supreme Court has denied a request for certiorari by the petitioner over what, if any, damages could be requested by Lenz. The case has also garnered the attention of various organizations, such as the Electronic Frontier Foundation and Yes Men to curtail incorrect takedowns.