Intellectual Property

The transformative and occasionally disruptive effect of the Internet on traditional news publishing has been widely discussed, and as DisCo has previously covered, some European states are reacting to these changes with a form of tax-and-subsidy system that would benefit domestic news publishers at the expense of mostly foreign Internet services.

France and Germany have both made efforts in this direction, and in February the Spanish government began considering a similar proposal.  A provision appearing late in the development of Spain’s ongoing reform of its IP laws would subject normal Internet snippets — i.e., quotations — to a special “ancillary” copyright. MORE »


This morning, I attended the ABC v. Aereo oral argument at the Supreme Court that Matt previewed this morning.  (To be more specific, I got there last night at 7pm and camped out for more than 12 hours.)  Below are 8 of my takeaways from the argument, featuring quotes from the preliminary transcript:

  1. Unintended Consequences

The Court is obviously concerned about unintended consequences, including (and especially) for the cloud.  Justice Breyer in particular pressed this argument to the broadcasters’ lawyer, Paul Clement, who didn’t appear to effectively dissuade him.

JUSTICE BREYER: [A]re we somehow catching other things that really will change life and shouldn’t, such as the cloud?  And you said, well, as the government says, don’t worry, because that isn’t a public performance.  And then I read the definition and I don’t see how to get out of it.

  1. Deference to Cablevision

The Court was very willing to discuss Cablevision, a crucial Second Circuit case, but one that is not binding in the Supreme Court.  Justice Kennedy brought up a hypo about Cablevision being law to the broadcasters and the government.

JUSTICE KENNEDY: Just assume that CableVision is our precedent.  I know that it isn’t, but let’s just assume that it is.  How would you distinguish the CableVision from your case and how is it applicable here?  Assume that it’s binding precedent.  Just that’s a hypothetical.

  1. Interest in Sony, Fair Use

Despite not being an issue that people frequently talk about regarding Aereo (perhaps because it did not come up in Cablevision because it was waived), fair use, and particularly the precedent from Sony, came up a few times from Aereo’s lawyer, David Frederick.

MR. FREDERICK:  In Sony, this Court held that consumers have a fair use right to take local over-­the-­air broadcasts and make a copy of it.  All Aereo is doing is providing antennas and DVRs that enable consumers to do exactly what this Court in Sony recognized they can do. . . . MORE »


Today, the U.S. Supreme Court will hear arguments in the case of ABC v. Aereo – a dispute which has been billed as likely to shape the future of television.  As earlier coverage here at DisCo has explained, the case also has the potential to alter the future of the Internet, and specifically, cloud-based services.

This copyright case revolves around the New York-based start-up Aereo, who provides arrays of Internet-attached antennae to subscribers, who each use an individually-assigned antenna to access their free local broadcasts, online.  Major U.S. broadcasters don’t like this, since cable services now pay them handsomely in order to carry those broadcast signals to cable subscribers.  Broadcasters have argued that Aereo infringes copyright by enabling its users to access their local broadcasts online in this manner. MORE »


The strangely named Rockstar Consortium has been in the news again, in part because some of its members just formed a new lobbying group, the Partnership for American Innovation, aimed at preventing the current political furor over patent trolls from bleeding into a general overhaul of the U.S. patent system. Yet Rockstar is perhaps the most aggressive patent troll out there today. Hence the mounting pressure in Washington, DC for the Justice Department’s Antitrust Division — which signed off on the initial formation of Rockstar two years ago — to open up a formal probe into the consortium’s patent assertion activities directed against rival tech firms, principally Google, Samsung and other Android device manufacturers.

Usually the fatal defect in antitrust claims of horizontal collusion is proving that competing firms acted in parallel fashion from mutual agreement rather than independent business judgment. In the case of Rockstar — a joint venture among nearly all smartphone platform providers except Google — that problem is not present because the entity itself exists only by agreement among its owner firms. The question for U.S. antitrust enforcers is thus the traditional substantive inquiry, under Section 1 of the Sherman Act, whether Rockstar’s conduct is unreasonably restrictive of competition.

Rockstar Consortium logo

Despite its cocky moniker, Rockstar is simply a corporate patent troll hatched by Google’s rivals, who collectively spent $4.5 billion ($2.5 billion from Apple alone) in 2012 to buy a trove of wireless-related patents out of bankruptcy from Nortel, the long-defunct Canadian telecom company. It is engaged in a zero-sum game of gotcha against the Android ecosystem. As Brian Kahin explained presciently on DisCo then, Rockstar is not about making money, it’s about raising costs for rivals — making strategic use of the patent system’s problems for competitive advantage. Creating or collaborating with trolls is a new game known as privateering, which allows big producing companies to do indirectly what they cannot do directly for fear of exposure to expensive counterclaims. Essentially, it’s patent trolling gone corporate. As another pro-patent lobbying group said at the time, Rockstar represents “a perfect example of a ‘patent troll’ − they bought the patents they did not invent and do not practice; and they bought it for litigation.” Predictiv’s Jonathan Low put it quite well in his The Lowdown blog:

The Rockstar consortium, perhaps more appropriately titled “crawled out from under a rock,” is using classic patent troll tactics since their own technologies and marketing strategies have fallen short in the face of the Android emergence as a global power. Those tactics are to buy patents in hopes of finding cause, however flimsy, to charge others for alleged violations of patents bought for this purpose. Rockstar calls this “privateering” in order to distance itself from the stench of patent trolling, but there are no discernible differences.


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10_Jenny_Lawton_011(bw)_revMakerBot is a five-year-old company located in Brooklyn, New York that has been at the forefront of riding the massive wave of consumer-level interest in three-dimensional printing.

Three-dimensional (3D) printing is a process by which an individual can create tangible objects using computer-aided design (CAD) software and a computer hooked up to a 3D printer. After someone creates a design for a project with CAD software, they send the specifications to a desktop 3D printer, which then melts filaments of plastic to create layers to form the object. In the past few years, people around the world have been experimenting with desktop 3D printing to create everything from replacement toy parts to prosthetic hands for children.

MakerBot is the leader in the field of desktop 3D printing. Bre Pettis, a former middle-school teacher, and two of his friends Adam Mayer, a software developer, and Zach Smith, a hardware hacker, founded the company in 2009. Jennifer “Jenny” Lawton, MakerBot’s president, joined on in 2011 as a strategist for the company. Over the years, MakerBot has built an ecosystem that enables hobbyists, engineers, architects, DIYers, designers, inventors, schoolchildren and small businesses to create almost anything that comes to their fertile imaginations. The ecosystem consists of the Replicator line of 3D printers, the Digitizer Desktop 3D Scanner, which helps people to scan objects and share them online with others, CAD software and a Web site called, which enables members to share their designs with the world with Creative Commons licenses. More than 200,000 digital files that can be downloaded and manipulated or altered live on Collectively, all of these designs have been downloaded millions of times.

The company also operates three retail stores in lower Manhattan, Greenwich, Connecticut, and Boston, where demonstrations, classes and sales take place.



(Cross-posted from Patent Progress)

Apple has been an odd player in the patent debate. On the one hand, it’s the company that gets sued by patent trolls more than any other. As a result, it supports most of the patent reform bill, and Apple uses the Covered Business Method (CBM) program far more than any other company. (As of today, Apple has filed 17 CBM petitions, while the next biggest user of CBM, Liberty Insurance, has filed only 10 CBM petitions.)

On the other hand, Apple is using its own software patents to go after Samsung. And Apple strongly opposed any expansion of the CBM program, apparently for fear that Samsung might use it to challenge Apple’s patents.

This schizophrenic approach to patents might explain why Apple didn’t file an amicus brief in the Alice v. CLS Bank case: Apple is victimized by software patents more than anyone, but it needs its software patents to try to crush Android.

Apple’s whole approach seems strange. In its case against Samsung, Apple is demanding around $40 per phone, even though all the accused features are part of Android. Android is free. And the software patents Apple is using are questionable at best.



DJ and mashup artist Girl Talk, who has “repeatedly stated that if he’s sued he believes he has a strong fair use defense,” released a new EP yesterday, along with a video for one of the songs, for which he cleared the samples, explaining “I think about each work separately and consider whether it qualifies for fair use or not. In this case, we needed the clearance.”  This exemplifies that copyright questions over works which use parts of existing works, such as music sampling, generally have to be analyzed on a case-by-case basis.

Exactly a year ago (total coincidence) I wrote a post entitled Can You Infringe Copyright In Six Seconds?, about then-new service Vine and potential copyright considerations for six second clips of content.  I discussed some key music sampling cases (Bridgeport and Newton v. Diamond), to see what we could draw from those precedents, but that law is far from settled, as there continues to be litigation over music sampling.  On the issue of how much of an existing work can be lawfully used in a new work, it’s clear that it’s still very much an open question.  I’ll explain some recent cases below.



If you want to understand why excessive contenting “windowing” forces consumers to choose between convenience and copyright compliance, Farhad Manjoo’s New York Times piece last week, “Why Movie Streaming Sites So Fail to Satisfy,” is a great start.  Manjoo explains why, as a result of windowing practices — in addition to licensing complexities — “we aren’t anywhere close to getting a service that allows customers to pay a single monthly fee for access to a wide range of top-notch movies and TV shows.”

If you don’t have the time, try this Venn diagram.Everything-You-Need-to-Know-About-Content-Windowing



The HathiTrust Digital Library is a consortium of 90 academic institutions around the world that are redefining what it means to preserve books and provide access to knowledge in an age of cheap data storage and globalization.

The project provides digital access to more than 11 million volumes of books and other printed materials that have been scanned online by Google as part of its Google Books project, as well as other local library book scanning projects. While the sheer act of scanning millions of books sounds epic, what has really required a lot of thought and work is the complex process of providing access to the information in a useful and legal way.

About a third of the works are in the public domain, and therefore can be read for free in a digital format. For the rest of the works that are still in copyright, a search of HathiTrust’s database yields the bibliographic information on books containing the relevant search terms. Researchers can also search within the text of books to discover the frequencies of specific terms. If a researcher wants full access to a work, the HathiTrust provides links to libraries that hold physical copies.



This post is part of the Disruptive Competition Policy Forum recap series.

Details below. MORE »