Intellectual Property

VulcanSaluteCopyrightWhat does Leonard Nimoy’s “Vulcan salute” have to do with European newspaper headlines? They both might one day be regulated by new international intellectual property rules, if some have their way. One might think that what constitutes “intellectual property” is set in stone, but it isn’t.  Around the world, different interests are lobbying for governments to create new types of intellectual property all the time.

As DisCo has covered before, news publishers in Europe and elsewhere are currently pushing for the creation of new IP rights in newspaper headlines, so that online sites can be forced to pay for the privilege of quoting or linking to news coverage. Spain and Germany have already created these rights, and there is pressure in Brussels for a pan-European rule.

At the same time, for more than a decade there have been efforts within the World Intellectual Property Organization to create rights in “traditional cultural expression” (which, as explained below, may include the hand gesture on which Leonard Nimoy based the Vulcan salute). Some indigenous communities are distressed about the commercial exploitation of their folklore and other forms of cultural expression by “outside” entities. In a desire to (a) prevent uses that they believe are disparaging and (b) regain control over an important part of their identity, these communities have lobbied for a treaty that would require the creation of intellectual property rights in “traditional cultural expression.”

Concerns have been raised about the scope of the draft treaty. If adopted in its current form, critics say, the treaty could interfere with cultural life around the world, pulling out of the public domain material that is incorporated in countless novels, paintings, films, sculptures, operas, and other musical compositions. This is because these works are based on stories, legends, dances, rituals and other forms of expression that the treaty could protect without a limitation on term.

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Last week, the House of Representatives adopted two inconsistent amendments to the Student Success Act, H.R. 5, the legislation reauthorizing the No Child Left Behind Act. The amendments are relevant to the topics we explore here because they illustrate different responses to the manner in which the Internet has changed education. One amendment, sponsored by Congressman Jared Polis (D-CO), would allow state agencies to use federal grants to develop open access textbooks and open educational resources. The other amendment, sponsored by Congressman Hakeem Jeffries (D-NY), would allow state agencies to use federal grants to develop educational materials for teachers, parents, and students “about the harms of copyright piracy.” The Polis amendment is forward looking and would introduce more competition and innovation in the K-12 textbook market. The Jeffries amendment is essentially a redundant subsidy for media companies’ advocacy efforts.

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Last week the American University Intellectual Property Brief hosted a symposium on 3D Printing at American University Washington College of Law (a topic previously examined in a variety of DisCo posts [1], [2], [3]). The speakers discussed many of the dominant policy and legal implications presented by this new technology.

The opening keynote speaker, Michael Weinberg of Public Knowledge, forecast some of the particular issues that the technology was sure to present. He began “3D printing is going to create legal and policy questions, to put it nicely; a lot of lawsuits to put it not so nicely.”  One of his main concerns was that people may begin to assume IP rights exist in objects where none may exist. He stated “the masses are now coming to patent,” and that the patent world should take note after watching their copyright counterparts “squirm” over very similar issues throughout the past decade. He warned against imposing copyright concepts concerning protectability onto patent, and that people should not inherently move to licensing when “maybe they don’t have to license at all.”

When Michael Carroll, the Director of the Program on Information Justice and Intellectual Property at WCL, introduced the first panel he stated from an IP perspective 3D printing was “Napster for patents.” Weinberg had earlier stated that “the lesson from recent history is the way you make money and succeed is to be the first person or first couple of people to come to terms with this new disruption.” He found the the best fiscal approach for companies moving forward might be to embrace the technology rather than file lawsuits. These statements forewarn against subjecting this new technology to the same knee-jerk overprotective reactions that new disruptive technologies have faced in the past. By embracing a more complacent and accepting approach all sides may be able to avoid costly litigation and prosper.

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The past few weeks have led to some interesting, and sometimes hilarious, news at the intersection of entertainment and IP. In case you missed it, Taylor Swift and Katy Perry may have bad blood in real life, but they seem to be aligned in their fierce IP enforcement strategy. Taylor Swift recently applied for several trademarks for lyrics from her recent album on various classes of goods. And even more recently, her fans have been receiving cease and desist letters on Etsy as she begins to claim these marks as her own. Katy Perry’s attorneys have sent a cease and desist to a man who is selling a 3D printed “Left Shark” model of Perry’s now famous background dancer from the Superbowl who had two left feet. There have since been a flurry of responses and claims in which Perry’s attorneys claimed several causes of action including copyright as well as misappropriation. The attorneys even filed a trademark for Left Shark, which they later abandoned (likely because they used a picture of the 3D sculpture, rather than the costume), but then instead of giving up they then filed several more with a new picture in the application.

These controversies have led to some really interesting questions on hot topics like 3D printing and how IP rights will be affected (a subject addressed in the space before). However, they also spark some other questions about the intersection of copyright and trademark protections and where the lines can get fuzzy. Can a musician use trademark law to protect otherwise uncopyrightable subject matter? There have been several articles discussing how costumes are not copyrightable, and it is well known that words and short phrases alone aren’t either. However, it appears these artists are reaching beyond the bounds of copyright to assert trademark rights in things that copyright has traditionally left unprotected. Left Shark, for example, derives much of its value not from its link to Katy Perry but its place as a cultural phenomenon created by the internet. In Swift’s case, she wrote the simple phrases “this sick beat” or “party like it’s 1989” in her lyrics to convey her artistic expression, not to market her brand.

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Jon Stewart’s announcement on February 10 that he will be retiring from The Daily Show later this year has been met with tributes to his comic genius and his impact on political discourse. But these tributes have overlooked the legal doctrine that has enabled Stewart to be so effective: fair use. (This is my second post this week about the importance of fair use to popular culture; on Tuesday I wrote about how the Fifty Shades of Grey trilogy was first written as fair use-dependent fan fiction based on the Twilight vampire series.)

Stewart’s most powerful critiques result from his juxtaposing clips of politicians and commentators on news broadcasts to demonstrate their hypocrisy. He’ll contrast a clip of a Fox News commentator expressing outrage at President Obama taking a particular action with a clip of the same commentator praising President Bush for taking a similar same action. Stewart also uses montages of clips from CNN and other news networks to demonstrate their simultaneously sensationalistic and superficial coverage of disasters and trials. But for fair use, Stewart’s rebroadcast of these clips would be willful copyright infringement, subject to statutory damages of up to $150,000 per clip.

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Fifty Shades of Fair Use

by Jonathan Band on February 10, 2015

Fifty Shades of Grey, which is being released this Friday just in time for Valentine’s Day, is sure to be one of the top grossing films of the year. Depending on your point of view, fair use is to blame—or thank—for the existence of the Fifty Shades franchise.

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Far from Washington or any other place associated with Internet policy-making, a federal district court in Jackson, Mississippi is considering a case that could dramatically alter the regulation of Internet speech.  The case pits Google against the Mississippi Attorney General, Jim Hood, over the question of whether Hood can launch a sweeping investigation of Google after the search provider declined to block websites at Hood’s discretion, absent any court order.

Some background:  Among the leaks that resulted from the 2014 hack of Sony Pictures was the revelation of so-called “Project Goliath,” a secret initiative of major film studios and the MPAA.  The project involved enlisting State Attorneys General (AGs) like Hood in taking up one of Hollywood’s “key issues and asks” since the spectacular 2012 failure of the Stop Online Piracy Act (SOPA): extra-judicial site blocking.  As an article by The Verge makes clear, the funding of high-priced private law firms to ghost-write legal demands from AG Hood to Google was a major element of “Goliath.”  (It’s like Uber, but for State AGs.) MORE »

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A striking Variety cover article shows that there is considerable consensus within the film industry on its greatest challenge right now: innovating to stay relevant in a changing, disrupted marketplace. Unfortunately, that memo apparently hasn’t been circulated inside the Beltway.

On the cover of the January 28, 2015, issue of Variety, the phrase “Broken Hollywood” is superimposed over a cracked “H” from the iconic “Hollywood” sign. The editors explain that they chose this title for their cover story to convey the severity with which 22 industry leaders view the most pressing problems confronting the movie and television business, “which run the gamut from a declining movie audience — particularly among the vital younger demographic — and falling ratings in broadcast and cable TV, to an unacceptable lack of diversity in the creative ranks and executive suites, and inadequate audience measurement across platforms.”

The “luminaries” interviewed in the article discuss in great detail the viewing behavior of millennials, which they describe as tech-savvy, binge-watching cord cutters, cord-nevers, and heavy users of DVRs to skip commercials. However, nineteen of the 22 make no mention whatsoever of copyright infringement, and two (Harvey Weinstein of the Weinstein Co. and John Landgraf of FX Networks) mention infringement only in passing. Just one industry leader, MPAA chief Chris Dodd, focuses his comments on infringement. Dodd cites piracy as the greatest threat to Hollywood jobs, suggests Internet companies unaware of the infringement are “threats to our creative future,” and conflates online infringement with the Sony hack. Yet this isn’t what industry leaders raise in their interviews.

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We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

As of January 20, The Interview grossed $40 million from online rentals and sales, on top of $6 million in box office sales. Sony Pictures decided to distribute the film online just days after it cancelled the film’s national theatrical release in response to terrorist threats from North Korea. The enormous online success of the film, months before it otherwise would have been distributed in that manner, significantly undermines one of the primary justifications for the long copyright term that keeps works out of the public domain, today’s Copyright Week theme.

The most obvious purpose for copyright protection is to provide authors with an economic incentive to create works. However, under the U.S. Copyright Act, the term of protection is life of the author plus 70 years (or 95 years from publication for a work with corporate authorship). An author obviously doesn’t benefit from a revenue stream after her death, and it is unlikely that the author’s knowledge that her great-grandchildren may receive royalties provides her with additional incentive to create.

Moreover, the various extensions to copyright term adopted by Congress have always applied retroactively. Clearly, there is no need to incentivize the creation of a work already in existence, particularly after the author’s death.

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We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

The Supreme Court’s Aereo decision last year raised two significant questions for the tech industry. First, would lower courts apply the Supreme Court’s public performance holding narrowly only to services that looked like Aereo (which in turn looked to the Court like the community antenna services of the 1970s), as the Court directed, or would they apply it more broadly to other types of online services? Second, would lower courts interpret the Court’s reluctance to use the word “volition” as an indication that direct infringement liability did not require volitional conduct?

The summary judgment order in Fox v. Dish Network released earlier this week by the U.S. District Court for the Central District of California emphatically answered both of those questions in a manner favorable to the tech industry. (For detailed summaries of the decision, see here and here.) The district court rejected Fox’s suggestion that Aereo was “a game-changer that governs the outcome of its copyright claims….” The district court observed that “in an effort to cabin the potential over-reach of its decision,” the Aereo Court “specifically cautioned that its ‘limited holding’ should not be construed to ‘discourage or to control the emergence or use of different kinds of technology.” The district court carefully proceeded to distinguish the Dish Anywhere with Sling service from Aereo. (The Dish Anywhere service allows a subscriber to view a program recorded on his set-top box on another device.) In particular, the district court noted that Dish had a license to transmit programs to the subscriber’s set-top box, while Aereo did not have a license to transmit programs to the user’s computer.

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