Archive for the 'Intellectual Property' Category

Patents and Incentives to Commercialize

Posted in Intellectual Property on May 4th, 2008

One of the ways in which the patent system provides incentives to commercialize is the protection it gives to smaller inventors or even smaller companies.  With a patent in hand, an inventor does not have to wait until he finds the funds to produce the item himself, therefore potentially bringing the item to market earlier.  Of course, it is possible that the patenting process itself may delay the process in some cases, but when such revenue does not need to be raised, one can produce the item in question during the application process, or even before, subject to the statutory bar/ novelty restrictions.

It also decreases transaction costs.  Under the alternative, trade secret, an inventor must be careful who he discloses the information to, especially if he is not familiar enough with trade secret law to know he has legal protections there, or if he would not have the resources to sue.  With the legal monopoly in hand, he can more easily seek investors or manufacturers with less worry that secrecy will be violated.  While suit for infringement does present costs, the confidence a patent instills and the deterrence it serves makes this less of a problem.

Similarly, an inventor or company that does not ordinarily manufacture such items has increased ability to license the product.  Disclosure to potential licensees carries much less risk in a parallel fashion.  Indeed, when an item is capable of reverse engineering or when licensing a product is similarly impossible under trade secret (is it ever possible?) the ability to trade permission to manufacture for revenue increases the chances that such rights will fall into the hands of those with the ability to produce the good, bringing it to the public sooner than it would have under a different regime (if it ever would have reached the market at all).

Of course, commercialization is not the only means of extracting public benefit from a patent.  The disclosure provision allows the public to build on the knowledge contained therein.  With the narrow experimental use exception, one can even practice the patented invention in a limited manner to derive further inventions based on the disclosure.  It may also be possible to build on the innovation without actually practicing it, in a theoretical manner.  In either case, it enables one to produce another informational good for the public benefit.

This good is likewise granted to the public in the form of disclosure, if a patent is applied for on the result.  It is also possible that the derivative good is donated to the public domain, if it is disclosed by an academic or student who publishes her findings.  However, in the latter case the ability of the public to use the knowledge is subject to the original patent entitlements.  But they can still be used, in a great hall of mirrors, for invention of still more derivative innovations, increasing exponentially the public knowledge on the matter.  With the ability to cross-license for use of the derivative invention, the ability to pay for use of the original, or the expiration of the foundational patent, this good can even reach the public in the form of a commercialized product.

Patent Law News Roundup

Posted in cyberlaw, Intellectual Property, The Law on March 15th, 2008

Apple Sued Over ITunes Technology
These articles seem aimed at the general public, not law geeks. So I did a little research. It appears that this is regarding United States Patent 7.343,414

In other news, Activision’s “Guitar Hero” violates patent: Gibson which appears to concern Patent 5,990,405 After reading this, non-lawyer hubby Vinny and I had a long debate. He came up with the idea that by licensing use of Gibson guitars in the game, they had de facto ratified the software – perhaps waiving claims? I played devil’s advocate. I thought perhaps that if it was being examined equitably, or holistically, a judge might recognize the separation of the elements of licensing the guitar and policing patent rights – the former being done by the marketing folks, and the latter by an outside firm.

While there is no legal decision on the subject, Activision seems to agree with Vinny. The news came out after he had set forth the theory, confirming that the guy who sat in on fewer than a dozen law classes has a killer instinct for the subject. Ask me some-time about his mutual mistake theory for common-law implied obligations in marital contracts.

Atheists Charge Christian Group with DMCA Abuse

Posted in cyberlaw, Intellectual Property, The Law on September 26th, 2007

Creationist vs. Atheist YouTube War Marks New Breed of Copyright Claim.
According to Wired, the DMCA is now being used as a tool in religious wars. The Rational Response Squad had posted several critical videos that used Creation Science Evangelism ministry owned content. The latter reported to YouTube that they violated copyright law; YouTube took down the videos and even suspended the RRS’s account. According to an EEF attorney, the material was “clearly fair use” and CSE’s claim was “clearly bogus.”

It is also likely that the group disclaimed copyright in the materials; although they have now edited their site to state that copyright was placed on all materials in 2005. Those who have taken copyright can help me out here, but I believe you cannot rescind something from the public domain; assuming the screen shot is genuine, they are attempting a slight of hand by back-dating it.

This brings up interesting issues that we discussed in the first week about the wisdom of DMCA procedures that might lead to a “chilling effect.” Here, the concern is deepened – could the quick take down response that the safe harbor provisions incentivise be subject to more than just the haste and zealousness of the entertainment industry, but to targeted misuse?

Wired’s take:

“As more people catch on to how useful YouTube can be for delivering political, religious and cultural messages, DMCA claims are likely to increase. With news cycles moving at light-speed, an illegal copyright claim might well suppress unwanted news long enough to distort coverage. And if previous incidents are any indication, the issues involved could get much weightier, especially in an election year.”

Here, one could place more responsibilityon YouTube for failure to investigate before the takedown. Instead of a list of hundreds from a major content owner, you have at most a few dozen videos in the report. Of course, those videos are still aggregated with the mass of requests from other sources. You also run the risk of running too far the other way – giving a wide berth to major companies, and unequal protection to smaller copyright owners.

Once again, we are dealing with a legally-savvy recipient of a takedown notice; there may be many such takedowns that we are not hearing about.

The videos, and the atheists’ accounts, have been reinstated. The RRS is planning legal action. Such suits are not unprecedented: in 2004 Diebold falsely claimed copyright over leaked internal emails, and attempted to get them removed from the internet. Like our author friend Mr. Field, they ended up paying damages and penalties for their bogus copyright claims.

With cases such as these, perhaps there is a counter to the chilling effect of widespread DMCA claims. If copyright abuse can be charged independently in response to a takedown notice, instead of solely as sanctions on a plaintiff, it will give attorneys another reason to pause before sending cease and desist letters.

Copyright Bullies?

Posted in cyberlaw, Intellectual Property, Practical Lawyering in Cyberspace, The Internet, The Law on September 12th, 2007

The first week in our Lawyering in Cyberspace Course dealt with Cease and Desist letters, including those sent by copyright holders to individuals.

In one instance, the NFL had YouTube remove a video that a law professor had posted, mostly consisting of their overreaching copyright notice. She purposefully included some footage of the game itself, and entitled the video “SuperBowl Highlights.” This layered the irony of the act; her point about the wild claims of copyrights within the SuperBowl would be made not just by its repetition, but by the act of removing that repetition under a copyright assertion.

My first reaction to the conflict was visceral, and sprung not by the removal but by the claims I saw in that video made by the NFL:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.

What? Accounts? granted I have far to go in my understanding of copyright, but I believe you can only copyright expression, not facts. The NFL’s purported prohibition from talking about what happened in the game is therefore claiming more rights than they have. This reminds me of those little liability waivers in contracts of adhesion which parties have no hope of upholding in court, but nonetheless serve to discourage people from suing.

Furthermore, although fair use is a fuzzy doctrine, it looked pretty clear to me that this was well within the bounds of it. The purpose and character is non-commercial, and indeed political, the very essence of what is being protected. The NFL would seem to have no real property interest in the copyright notification itself (who is going to buy that?). The clip of the game itself is small and uninteresting, with no market in and of itself.

The initial takedown, prompted by NFL’s assertion of rights under the DCMA and complied with to keep YouTube within the Safe Harbor, appears to have been the result of mere carelessness. An assertion the NFL sloppily made of similarly-titled videos and/or those whose screen shot showed the game.

I’ll pause here, since this itself is problematic. Not all YouTube users are savvy law professors, who know they are in the right. Many would have no clue how to respond appropriately to get the video reinstated, a complicated procedure that requires specific claims and statements, and consent to jurisdiction they may fear making. The result will therefore be that many fair use videos will be removed, and free speech wrongfully silenced. Of course, the administrative hurdles to finding, watching, and evaluating every video present no clear alternative.

After the reinstatement, the NFL re-asserts its copyright, causing a second takedown. This is more focused, and individual. It is therefore more offensive, since they had a clearer indication that there were legitimate fair use claims here, perhaps even to the point of it being obvious there was no copyright violation. Since there was no harm to Viacom in showing the clip, as in taking away from their ownership in the game, why did they do it? At that point it becomes suspicious – they may be attacking her for the message itself.