Ask Dr. Copyright . . .

April 30th, 2012

copyright question Dear Doc:

I hear a lot about storing files on “the cloud” these days. From your perspective, do I lose any rights when I use such a service?  They sure are convenient!

Signed,

Will Robinson

DANGER, WILL ROBINSON!!! DANGER!!!

The “Doc” has reviewed the terms and conditions of the license agreements of a few “cloud” storage services, and here is what he found…

DROPBOX: “By using our Services you provide us with information, files, and folders that you submit to Dropbox (together, “your stuff”). You retain full ownership to your stuff. We don’t claim any ownership to any of it. These Terms do not grant us any rights to your stuff or intellectual property except for the limited rights that are needed to run the Services, as explained below.”

MICROSOFT SKYDRIVE: “Except for material that we license to you, we don’t claim ownership of the content you provide on the service. Your content remains your content. We also don’t control, verify, or endorse the content that you and others make available on the service.”

APPLE iCLOUD: “Apple does not claim ownership of the materials and/or Content you submit or make available on the Service. However, by submitting or posting such Content on areas of the Service that are accessible by the public or other users with whom you consent to share such Content, you grant Apple a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available, without any compensation or obligation to you.”

GOOGLE DRIVE: “When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content.”

For comparison, here are the terms for Google’s incredibly popular GMail service:

GMAIL: “Google claims no ownership or control over any Content submitted, posted or displayed by you on or through Google services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Google services and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through Google services which are intended to be available to the members of the public, you grant Google a worldwide, non-exclusive, royalty-free license to reproduce, adapt, modify, publish and distribute such Content on Google services for the purpose of displaying, distributing and promoting Google services. Google reserves the right to syndicate Content submitted, posted or displayed by you on or through Google services and use that Content in connection with any service offered by Google.”

So, Will, of all of these services, the new Google Drive service is the one to avoid (for now) because anything you put on that service may be used by Google in any way (public performance?) whether you intend to make it public or not.  The “Doc” uses some of these services, but NEVER puts anything confidential on them without first encrypting the information using a very strong public key encryption program (GPG) using a 2048 bit key.  By the way, if you’re a lawyer, accountant or medical doctor, you have other professional rules that may limit your use of cloud services.  Be careful of those, too. The “Doc” may be paranoid, but remember the old saying, “Just because you’re paranoid, it doesn’t mean that they’re NOT out to get you!”  You’ve been warned.  Now remember to turn on the force field before you go to bed.

The “Doc”

– Lawrence A Husick, Esq.

Posted in Copyright, Internet Law | No Comments »

Copyright Still Isn’t Fashionable!

April 30th, 2012

fashionA recent question posed to us by a law student in Rotterdam, Netherlands (yes, you read correctly) about the status of copyright protection for fashion designs in the United States motivated us to revisit a previous article we wrote in 2009 about proposed copyright legislation referred to then as the Design Piracy Prohibition Act (H.R. 2196).  That bill was introduced in April 2009 by William (Bill) Delahunt, U.S. Representative, Massachusetts 10th District.

You may recall that clothing falls into the category of a functional item, which is not protectable under United States copyright law.  This is distinguishable from fabric designs, which may receive copyright protection.  We noted in our article that limited protection for fashion designs may be afforded by trademark (trade dress) and patent (design patents) law; however, these have not been practical alternatives for the fashion industry.

H.R. 2196  died in committee and, just like other attempts at creating copyright protection for fashion designs, never became law.  In July 2011, Congress  made yet another attempt to protect fashion designs, this time in the name of the “Innovative Design Protection and Piracy Act” (H.R. 2511), introduced by Rep. Robert Goodlatte of Virginia. That bill has been referred to committee and is given only a nine percent chance of being passed.  Goodlatte’s bill, similar to H.R. 2196, provides copyright protection for “apparel” defined as men’s, women’s, or children’s clothing, including undergarments, outerwear, gloves, footwear, and headgear, handbags, purses, wallets, tote bags, belts, and eyeglass frames.  The definition of “fashion design” also remains the same:

‘A fashion design’ (A) is the appearance as a whole of an article of apparel, including its ornamentation; and (B) includes original elements of the article of apparel or the original arrangement or placement of original or non-original elements as incorporated in the overall appearance of the article of apparel.

In a nod to existing copyright law, which only protects the non-utilitarian, non-functional aspects of a work, the drafters of the new bill added that a protected article of apparel must be the “result of a designer’s own creative endeavor and provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles.”  Here, the legislation opens the door for fashion design while keeping it closed for protecting functional aspects of a design.  One wonders how difficult in practice it will be to make the separation.

H.R. 2511 makes another interesting change to the definition of “fashion design” by also defining “substantially identical” as an “article of apparel which is so similar in appearance as to be likely to be mistaken for the protected design.”   No doubt big fashion — desiring to eliminate knock-offs — was an influence here.  On the other hand, the bill tries to mollify critics of the previous legislation by adding a so-called “Home Sewing Exception” that permits individuals to produce a single copy of a protected design for personal, non-commercial use.

Finally, the new legislation limits copyright protection for fashion designs for only three years after making it public and if you want to seek protection for a design under the act, you must sue infringers within the same time period.  In the earlier bill, the law demanded owners to register their copyrights within six months of making the designs public while not imposing special limits on the copyright term.  Perhaps the drafters of the new legislation hope that a more limited protection would enhance the chance of the bill’s passage.  We will keep you informed.

– Adam G. Garson, Esq.

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…But We’re Important!

April 30th, 2012

thumbnailThe Economics and Statistics Administration, an arm of the U.S. government, and the U.S. Patent and Trademark Office have issued a report on the importance of intellectual property (patents, trademarks and copyrights) to the U.S. economy.   According to the report, as of 2010 over 27 million people are employed directly in industries identified by the PTO as ‘IP-intensive,’ which accounts for almost 19% of all U.S. employment.  Supply chain employment to feed those IP-intensive industries amounts to another 12.9 million jobs, for a total of 40 million jobs, or 27.7 % of all U.S. employment either directly or indirectly reliant on IP-intensive industries.

The reports notes that persons employed in the IP-intensive industries are better educated and paid better than their non IP-intensive counterparts.  The IP-intensive industries are recovering from the recession faster than other industries and the IP-intensive industries account for over 60% of all U.S. exports of merchandise.

In short, intellectual property is important and companies in industrial sectors that utilize intellectual property are more prosperous than companies in industrial sectors that do not.  We should note that the PTO is not an entirely neutral observer here.  The more important the role of patent and trademarks to the U.S. economy, the more important the role of the PTO.

– Robert Yarbrough, Esq.

Posted in Intellectual Property | No Comments »

Ask Dr. Copyright

March 29th, 2012

copyright question Dear Doc:

What ever happened to “RightHaven” that company you called a “copyright troll” and that was suing bloggers for quoting from the Las Vegas newspaper?

Signed,

Just Curious, With Nothing Better to Do

Dear JC:

It turns out that RightHaven was beaten back by some of the defendants that it sued, with the help of the Electronic Frontier Foundation. In the end, the judge in the case penalized RightHaven because it did not even fully own some of the copyrights under which it brought suit.  RightHaven was ordered to pay certain defendants costs and fees amounting to $183,000.  To help pay that debt, some of the copyrights that it did own have been seized and even its domain name, RightHaven.com, was sold at auction – for $3,300.  RightHaven itself has filed for bankruptcy. Along the way, a federal judge ruled that even posting a complete newspaper story on a blog may, in some cases, be considered fair use by the blogger.

If there is a moral to this story, the “Doc” guesses that it may just be, “Those who live in glass houses should not throw stones.”

The “Doc”

 

– Lawrence A Husick, Esq.

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A Book By Any Other Name

March 29th, 2012

bookReaders of this newsletter will recall that trademark rights in the United States are established by use, not by registration. There are benefits to registration, of course, but rights arise by the actual use of a mark in commerce in conjunction with a product or service. Often, the assertion of a trademark use is indicated by the placement of the letters TM adjacent the mark. These letters let the public know that the user is claiming trademark rights.

Another generally established principal of trademark law is that one can not, by asserting a trademark right in a word, remove that word from its common language use. In other words, one can not extract from the language the common use of a word by claiming trademark rights in it. However, it is possible to assert a trademark right to a word in the limited context of a particular association or use.

Facebook has been very proactive in trying to establish trademark rights to words it uses in association with its social networking site. For instance as of March 26, 2012, the United State Patent and Trademark Office has granted trademark registrations for FACEBOOK and WALL. Pending applications include: LIKE and FB among others. The use of FACE as a trademark has also been approved by the USPTO.  Registration is awaiting proof from Facebook that it actually has used the mark in commerce.

To establish trademark rights to a word, it is useful to demonstrate that the public associates the use of the word with a product or service. Which brings us to the present interesting attempt by Facebook to begin to establish rights to the word “BOOK.” The recently proposed Facebook user agreement open for public comment states: “You will not use our copyrights or trademarks (including Facebook, the Faceboo, and F Logos, FB, Face, Poke, Book and Wall) or any confusingly similar marks, except as expressly permitted by our Brand Usage Guidelines or with our prior written permission.” So, following these guidelines, use of your Facebook account mandates that you recognize BOOK as a trademark belonging to Facebook. This may be an end run by Facebook to bolster future argument against other users of the word BOOK that Facebook has already established in the public’s mind an association between the word BOOK with Facebook. What do you think of this strategy?

– Laurence Weinberger, Esq.

Posted in Internet Law, Privacy Law | No Comments »

Business Resources for Entrepreneurs

March 29th, 2012

sbdc logoDo you have an idea for a great new patentable product and trademark?  Of course you do – you’re reading this newsletter, after all.  But do you know how to commercialize your product and trademark; that is, how to turn your ideas into money?

Before you can make money with your ideas, you must learn how.  A great place to start is one of the eighteen Small Business Development Centers (‘SBDC’) located in Pennsylvania. These are publicly-supported resources for entrepreneurs where you can receive free one-on-one counseling on starting and running your business.  The SBDCs also offer a variety of classes covering topics such as preparing a business plan, doing business overseas, doing business with the federal government, marketing on the Internet, managing your time and providing other practical information for persons starting and running a business.

If you are located in Southeastern Pennsylvania, our local SBDC’s are the Widener University Small Business Development Center, the  Fox School of Business at Temple University, and the Wharton Small Business Development Center located at the University of Pennsylvania.  Costs, services and general atmosphere differ among the SBDCs, but with three SBDCs to choose from, you can find local resources with whom you are comfortable and that are a good fit with you and your business.

Other local resources also are available.   Delaware County SCORE, funded by the Small Business Administration and private donations, provides free online or in-person counseling with volunteer retired business persons.  Other chapters of SCORE as scattered across the country.  The Delaware County Commerce Center, an arm of Delaware County government, can help with property acquisition and business location issues in Delaware County, Pennsylvania.   The Benjamin Franklin Technology Partners is a sources of venture capital seed funding for new companies and new products.   Of course, we at Lipton, Weinberger & Husick are here for all your intellectual property and business law needs.

– Robert Yarbrough, Esq.

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Healthcare Reform Affects Intellectual Property

March 29th, 2012

Obama SignatureThis week the United States Supreme Court heard arguments over the constitutionality of the Patient Protection and Affordable Care Act (PPACA).  The ten titles of PPACA, along with amendments to the “Health Care and Education Reconciliation Act of 2010″ regulate multiple industries making up approximately one-sixth of the national economy, all of which affect science, technology, and innovation.  In 2010, David Applegate and Arthur Gollwitzer III published a short synopsis of how the PPACA affects the intellectual law community.  While it is probably not the last word on the subject, in view of the historic Supreme Court arguments of this week, its worth a quick review.

Several parts of the PPACA affect intellectual property issues, either directly or indirectly:  Titles II,III, VI, VII, and X.  The part of the Act, which directly affects intellectual property rights is Title VII, known as the “Biologics Price Competition and Innovation Act of 2009,” which provides an abbreviated approval process for biologic drugs.  Although according to Applegate and Gollwitzer, the new law provides an accelerated application process, the authors not that there are those critics that argue that it  creates “a regulatory scheme with artificial dates, undefined terms, and paperwork hurdles that will cause inefficiency and litigation, thus imposing additional costs upon, and therefore reducing the productive output of, the companies being regulated.”  Of course, if this is correct, the law will affect the rate of innovation in this area.

Title VII also expands the number of entities that may purchase drugs at a discount from a federal list (known as the “340B Program”), which will either expand the number of drugs available at discount or decrease the discount price for available drugs, thereby reducing payments to pharmaceutical companies.  Those who favor the bill cite to the economic benefits of expanded drug discounts as well as the support of the pharmaceutical industry; distractors argues that that the reduction of revenues will reduce research and development.  Yet, according to Applegate and Gollwitzer, “some analysts see the reform bill as a boon for the pharmaceutical industry, asserting that although costs per unit can be expected to go down, overall sales will rise considerably as government-funded programs that underwrite prescription drugs expand. Under this scenario, drug companies would be expected to have more funds available for research and development.”

In a similar vein, Title II of the PPACA expands Medicaid rebates for prescription drugs.  The arguments are similar, increased discounts mean decreased revenue, which means less research and innovation.  Others argue that the pharmaceutical industry has everything to gain from increased sales stimulated by the new law.

Title IX imposes taxes on certain pharmaceutical and medical device manufacturers and importers.  Critics contend that the Act will affect the overall profitability and incentives by diverting otherwise productive resources to the “tax avoidance industry”.

Title II of the Act establishes a national strategy to “improve the delivery of heath care services patient health care outcomes, and population health.”  To the extent that the government will become the single largest consumer of health care services, it will have a huge influence over the available supply of treatments and innovations, a power that the critics are suspicious of.  According to Applegate and Gollwitzer, “supporters, however, contend that the government-as-consumer scenario will permit economies of scale previously unknown in the industry” thereby driving research and innovation.

One thing is clear that given the clamor on both sides of the aisle on these and other issues, no one has a clear picture of what the affect of the PPACA will have either upon innovation and research or upon the larger economy.  The future of the law hangs in the balance and will be dependent upon the the decision of the Supreme Court.

– Adam G. Garson, Esq.

Posted in Intellectual Property | No Comments »

Ask Dr. Copyright

February 29th, 2012

copyright questionDear Doc,

A few years ago, I remember reading that Google was digitizing every book in a bunch of libraries, and that soon, we would be able to search them all online.  What’s up with that?

Signed,

Still Waiting After All These Years

Dear SWAATY:

You’re right – Google did start the Google Books Project in 2002, and with the cooperation of several major libraries, including Harvard, the University of Michigan, the New York Public Library, Oxford and Stanford (collections estimated to contain 15 million unique titles), they managed to scan a whole lot of books (more than a million, and most long out of copyright.)  Then the publishers got wind of what they were doing, and before you could say Gutenberg, the Author’s Guild and McGraw-Hill sued Google for copyright infringement.  That was in 2005.  In 2009, the parties reached a settlement agreement which they submitted to the court.  The agreement provided rules under which publishers and authors could “opt-out” of Google’s project, and which distributed revenues from advertising.

You see, a problem for everyone is that there are “orphan works” which may or may not still be protected by copyright, but for which no owner is known or even locatable.  These books represent a small fraction of the books in libraries, but like the proverbial few bad apples, they spoil the whole batch.  Google, for its part, agreed that it would show only a catalog-card view of books that were still protected by copyright, instead of allowing the entire book to be read online or downloaded.  All was well, until the judge rejected the settlement, and there it sits.  There are a lot of books atBooks.Google.com, but nobody seems to know what to do, and the chances of getting the copyright laws changed to something a bit more rational are, well, zero, given that movie studios, music labels, and others seem to want to go back to that brief period about 400 years ago when copyright lasted forever!

Along came the Internet Archive and the Long Now Foundation, and a few other forward thinkers.  How, they thought, could a digital archive of every book in the world, be made to fit a copyright law that is digitally ignorant?  The result is OpenLibrary.org.  The aim is to have one web page for every book ever published, and to operate just as a physical library does – lending each copy of the book to one user at a time.  Voila!  Publishers have no legal basis to complain (at least, not yet) and within just a few years, millions of books have become available.  In addition, using the copyright law exception for the visually and perceptually impaired, just about every book has been scanned and digitally recorded, so as works fall into the public domain, they will be readily accessible.  OpenLibrary is not the best solution, but it’s certainly a creative way to mesh our 19th Century copyright laws with the technology of the 21st Century.  Check it out – there are lots of great books on the digital shelves.

– Lawrence A. Husick, Esq.

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‘Justice Delayed is Justice Denied’*

February 29th, 2012

GladstoneUnless the courts quickly resolve disputes, there is no justice.  As former Chief Justice Warren E. Burger said:

“A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets.”

The Board of Patent Appeals and Interferences (‘BPAI’) is denying justice to patent applicants.  The BPAI is charged with deciding appeals by patent applicants from the rejection of patent claims by the PTO.  The BPAI backlog has gone from 1000 cases in 2006, to 4000 in 2008, to 18,000 in 2010.  In early 2012 there are now 26,000 pending appealsof patent claim rejections.  Appeals currently being decided by the BPAI have been pending for about three years.  The BPAI gets further behind every day.

The effect of the increasing delay at the BPAI is to discourage patent applicants from filing appeals and to shift power to patent examiners.  If an applicant cannot obtain speedy redress, then the applicant will not appeal and patent examiners are free to make arbitrary, wrong decisions.   Of interest, when the BPAI rules, it reverses the examiner in about one case in three.

Hopefully, help is in sight. The PTO is attempting to address the BPAI backlog by doubling the number of patent judges at the BPAI.  The Department of Commerce is undertaking an audit of BPAI operations to identify ways to speed appeals.  Even with the efforts of the PTO and Department of Commerce, we can expect the BPAI backlog to linger for years.

Other changes at the BPAI include its disappearance, since it will soon be replaced by the Patent Trial and Appeal Board under section 6 of the America Invents Act.  The BPAI also has newprocedural rules.

*attributed to William E. Gladstone, 19th century British politician, whose photo appears here.

– Robert Yarbrough, Esq.

Posted in Patent, Patent Prosecution, Patent Reform | No Comments »

Is Facebook Your Friend?

February 29th, 2012

facebookDo you have a Facebook Account?  Do you realize that every time you click the “Like” button for a product, service or website,  Facebook may distribute a paid advertisement (“a sponsored story”) using your name to all of your “Friends” suggesting that you are recommending the product or service?  While Facebook is described in the popular media as a social networking site, it is, in reality, an advertising business generating its revenue  through the sale of advertising. Zuckerberg (CEO of Facebook) has said: “…nothing influences people more than a recommendation from a trusted friend. A trusted referral influences people more than the best broadcaster message. A trusted referral is the Holy Grail of advertising.” Facebook’s COO has said: “…making your customers your marketers”…”is the illusive goal we’ve been searching for.” Consequently, Facebook is able to charge a higher rate for the “sponsored stories.”

Now Facebook has been sued in Federal Court in California over its “sponsored story” advertising practice under statutory provisions governing the right of publicity, unfair competition and fraudulent and deceptive practices. California has a law on the books that says everyone has the right to control how their name, photo, likeness, and identity is used for commercial purposes, and such use may not be done without their consent and a minimum ($750) payment. The complaint makes several interesting points, not the least of which is that Facebook employs a unique lexicon of doublespeak by intentionally distorting the everyday meaning of words and misleading members.  Terms such as “friends,” “like,” “stories,” and “sponsor” may not mean the same to us as they do to Facebook. On Facebook, “friends” are not really limited to close or intimate associates; “like” does not necessarily imply an affinity for the site/item; “sponsors” are really advertisers paying for the ads; and “stories” are not written tales but are either items of friends doings, or in the case of  “sponsored stories” the advertisements generated from members clicking the “Like” button. In addition, plaintiffs allege that Facebook provides no avenue for opting out of the sponsored stories.

An interesting side light to the case is that minors are allowed to become members and have their names and images used in the advertisements without requiring the consent of their parents or guardians. Needless to say, Facebook has mounted a vigorous legal challenge on both procedural and legal grounds to the accusations, asserting a laundry list of defenses including: consent upon registering under Facebook’s terms;  protection under the Federal Communications Decency Act; First Amendment legitimate interest protection under the Constitution; and protection under the “newsworthy exception” for reporting on the activities of famous people.  (Would you believe that Facebook asserts that that members are famous to their friends?)

On December 16, 2011, ruling on Facebook’s motion to dismiss the lawsuit, the Court refused to accept most of Facebook’s arguments, finding that plaintiffs had asserted valid causes of action under the law. The Court reserved the question of whether members consented to Facebook’s practices   The case is now in its discovery phase.

In an interesting twist, just last week, two of the plaintiffs asked to drop out of the case after Facebook’s lawyers demanded discovery depositions that threatened the plaintiffs with even more loss of privacy. As of this writing, the Court has not ruled on their request.

– Laurence Weinberger, Esq.

Posted in Internet Law, Privacy Law, Technology | No Comments »

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