Feed aggregator
Innovation, Not Litigation
Tomorrow the House of Representatives will consider H.R. 3309, the Innovation Act. This bipartisan bill, introduced by Chairman Bob Goodlatte, approved by the House Judiciary Committee with a 33-5 vote, and supported by the White House, would go a long way to solve the patent troll problem.
The Innovation Act would address the explosion of abusive patent litigation, helping the patent system work as intended — promoting innovation.
Patent protection is meant to provide an incentive to innovate, spurring real progress that benefits consumers. Unfortunately, patent trolls are abusing a flood of questionable patents — like those on basic e-commerce tools such as online shopping carts and shipment notification emails — to attack supermarkets, hotels, restaurants, retailers, and many other businesses, large and small. Trolls use the threat of time-consuming and expensive litigation to extort settlements, even where their claims wouldn’t hold up in court.
This kind of patent troll litigation has grown like a particularly noxious weed, increasing four-fold since 2005. By some estimates it cost the U.S. economy nearly $500 billion over the past two decades. And the problem is growing.
It’s time to step up and take action. A broad coalition of companies and organizations support the Innovation Act, which would level the playing field by controlling discovery costs, raising pleading standards, and making fee-shifting a more meaningful deterrent to frivolous allegations. We agree with Chairman Goodlatte on the need to stop the exponential increase in the use of dubious patents to attack American businesses. And we believe that legislation can go further to address the significant burden that invalid business method patents impose on innovative companies.
We strongly support Chairman Goodlatte's bill and encourage all Members of Congress to vote for this important piece of legislation. The Innovation Act would stop patent trolls from abusing the system, letting America’s productive companies focus on creating new products and jobs, not fighting frivolous patent suits.
Lawful Interception 01
In this week's installment of my podcast, I break my long hiatus with the first part of a reading of my novella Lawful Interception, a sequel, of sorts, to Little Brother and Homeland. In addition to the free online read, you can buy this as an ebook single (DRM-free, of course!).
If you grow up in San Francisco, you grow up with a bone-deep sense of what it means when the ground starts to move: quake. The first quake I remember was just a little tremor, a 2.8, but whether it’s the big one or a little dish-rattler, there’s no experience in the world like the experience of having the ground start to move. It’s wrong like seeing a broken bone sticking out of your skin, wrong like being carried upside down, wrong like trying to sign your name with your non-dominant hand, but times a bazillion. I was six when that little dish-rattler knocked the knickknacks off the shelves, and as I recall, I went from sitting on the living room sofa to crouching under the kitchen table by teleportation, or at least I moved so fast and so automatically that I have no recollection of consciously deciding to move.
When the Seneca quake hit, I was halfway from Oakland airport to Coliseum BART, on the shuttle bus, and again, wham, one minute we were tootling down the road and the next, the road buckled and the bus was tilted 45’ up and to the right, and we were all rolling toward the back, flailing or curling up into protective balls, and there was a sound like a burrito finding its way through the digestive system of a cow the size of the galaxy, a rrrrrrrumble that went right up through your skin to your bones and joints, more felt than heard. When it stopped, the sound got louder: car alarms, crashing buildings, screams.
That wasn’t a good day.
(Image: Yuko Shimizu)
Mastering by John Taylor Williams: wryneckstudio@gmail.com
John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."
Lawful Interception 01
In this week's installment of my podcast, I break my long hiatus with the first part of a reading of my novella Lawful Interception, a sequel, of sorts, to Little Brother and Homeland. In addition to the free online read, you can buy this as an ebook single (DRM-free, of course!).
If you grow up in San Francisco, you grow up with a bone-deep sense of what it means when the ground starts to move: quake. The first quake I remember was just a little tremor, a 2.8, but whether it’s the big one or a little dish-rattler, there’s no experience in the world like the experience of having the ground start to move. It’s wrong like seeing a broken bone sticking out of your skin, wrong like being carried upside down, wrong like trying to sign your name with your non-dominant hand, but times a bazillion. I was six when that little dish-rattler knocked the knickknacks off the shelves, and as I recall, I went from sitting on the living room sofa to crouching under the kitchen table by teleportation, or at least I moved so fast and so automatically that I have no recollection of consciously deciding to move.
When the Seneca quake hit, I was halfway from Oakland airport to Coliseum BART, on the shuttle bus, and again, wham, one minute we were tootling down the road and the next, the road buckled and the bus was tilted 45’ up and to the right, and we were all rolling toward the back, flailing or curling up into protective balls, and there was a sound like a burrito finding its way through the digestive system of a cow the size of the galaxy, a rrrrrrrumble that went right up through your skin to your bones and joints, more felt than heard. When it stopped, the sound got louder: car alarms, crashing buildings, screams.
That wasn’t a good day.
(Image: Yuko Shimizu)
Mastering by John Taylor Williams: wryneckstudio@gmail.com
John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."
GoldiBlox "Girls" Video: Fair dealing?
If this were taking place in the Canadian court system, the courts would walk through a six-step test to determine whether the video was fair dealing. The YouTube video gone viral makes use of a parodied version of the Beastie Boys's song 'Girls' while portraying girls rejecting pink feminized toys in favour of GoldiBlox's "toys for future engineers". It is necessary to walk through all six factors; the 2012 revision of Canada's Copyright Act added parody to Canadian fair dealing provisions, but the purpose of the work (parody), while an important factor, is not the final factor in fair dealing determinations.
The Supreme Court of Canada has laid out six factors which must be considered when deciding what qualifies as fair dealing in this landmark decision (starting at paragraph 53). We can also look to this decision for further elaboration on the six factors, which are:
- the purpose of the dealing;
- the character of the dealing;
- the amount of the dealing;
- alternatives to the dealing;
- the nature of the work; and
- the effect of the dealing on the work.
- the purpose of the dealing must be for one of the purposes defined under the Copyright Act. Here, GoldiBlox claims that the video is a parody, which is one of the given purposes. If we agree that the video is a parody, then we've passed step one. On the other hand, the dealing might have multiple purposes. Here, there is also a second purpose - to advertize GoldiBlox, which is not an allowable purpose for fair dealing in Canada. The court notes that one can't use an allowable purpose to hide a non-allowable purpose. Does GoldiBlox try to "hide behind" parody to make what is really an advertisement? Or is parody one of the legitimate purposes of commercial expression? My hope and expectation is that the courts would view the parody as a true purpose of the video, and not a false purpose behind which to hide.
- the character of the dealing: Here, the court asks whether multiple copies were made of the original work, or whether only a single copy made for personal use. The GoldiBlox video has certainly been disseminated widely. It also has a commercial character. These factors might tend to make the dealing less fair.
- the amount of the dealing: Was the whole work copied, or only a small part? Here, the entire song is parodied, taking many of the core identifiable elements of the song, but leaving out many of the original words and including a new recorded performance of the music. The Court has acknowledged that it is sometimes necessary to copy the entire work. Certainly it is often necessary to reproduce elements of an entire work to create a parody of that work, as GoldiBlox has done here. It is my hope and expectation that the Court would see the amount of copying, in this case, as fair given the purpose of parody.
- alternatives to the dealing: Here, the Court might ask whether GoldiBlox could have parodied the song without including the core elements of the song in their video. Hmmmm. Probably not. This would tend to make the dealing more fair.
- the nature of the work: Here, the Court directs us to ask about the nature of the original work. Was the original work confidential? Certainly not. The original work was a popular song. This would tend to make the parody more fair than if it were a confidential work, for example.
- the effect of the dealing on the work. Here, the Court asks us to consider whether the parody might compete in the market with the original work. I think the answer, here, is clear: probably not. This would tend to make the dealing more fair.
There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. So, to answer the question, my bet is on GoldiBlox.
There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf
There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf
There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf
There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf
There is virtually no case law in Canada interpreting moral rights in the context of fair dealing and it is therefore unclear to what extent any fair dealing user rights (other than perhaps parody and satire) could be relevant or present an exception to the infringement of moral rights. Clearly, one can reasonably speculate that the expansive view taken by the Supreme Court of Canada in CCH will likely result in a rebalancing between an author’s moral rights and the rights of users so as to achieve the public interest goals of the copyright system. Accordingly, new jurisprudence in this particular area will be very welcomed by copyright practitioners. - See more at: http://stewartmckelveyblogs.com/TheMedium/parody-satire-into-canadas-copyright-act-a-birth-or-merely-a-confirmation/#sthash.Jcdghjtf.dpuf
What Happens When a Franchise Agreement Ends, Part 1: Restrictive Covenants
Another Update: Combating Counterfeit Products Act
Alberta Privacy Law Update: PIPA Declared Invalid
App Developer Wins in SCRABBLE Battle
Vulnerabilities of Descriptive Marks
Who is Liable: App Stores or App Developers?
Keeping Secrets: Trade Secrets and Confidentiality Agreements
Official Marks and Kermode Bears
Canadian Privacy Law Update
How to Lose Trade-mark Rights
USPTO During Shutdown
All Tied Up: Restrictive Covenants After Sale of a Business
The TPP IP Chapter Leaks: U.S. Wants New Regulations for Country-Code Domain Names
The second provision has generated a clear split within the TPP countries as it seems to require countries to create legal remedies to address domain name activity. The proposed provision, which is supported by the U.S., Japan, Mexico, and Vietnam, states:
Each party shall provide adequate and effective remedies against the registration trafficking, or use in any ccTLD, with bad faith intent to profit, of a domain name that is identical or confusingly similar to a trademark.
Canada, Australia, New Zealand, Peru, Singapore, Chile, Malaysia, and Brunei are all opposed to the provision. Not only is the provision confusingly worded, but it suggests that governments would be required to adopt legislative solutions to address domain name disputes (if it is merely about transferring domains that are the subject of a bad faith registration, the first provision would address that concern). The Canadian government has resisted legislative intervention into the domain name system, yet this provision might require it to wade into the issue with legal reforms.
Leaked TPP Text Confirms Countries Had Plenty to Hide
Last week, Wikileaks released a leaked version of the intellectual property chapter, which confirmed that the U.S. hopes to use the agreement to export extreme intellectual property provisions that are out-of-step with international norms. Indeed, the 95-page document validates fears that the real reason for the TPP secrecy is that the negotiating countries have plenty to hide.
My weekly technology law column (Toronto Star version, homepage version) notes that while many of the leaked proposals are cause for concern, the good news is that Canada often finds itself opposing some of the most draconian demands with negotiators promoting Canadian law as a suitable alternative.
The U.S. finds itself relatively isolated on many issues, with only Australia offering consistent support for its positions. For example, Canada and most other TPP countries support a general objectives provision that references the need for balance, promotion of the public domain, protection of public health, and measures to ensure that intellectual property rights themselves do not become barriers to trade. The U.S. and Japan oppose these objectives.
If the U.S. is successful in pressuring other countries to meet its demands, Canada would be required to radically overhaul its current law, reversing course on many of the rules the government recently enacted as part of its long-awaited copyright reform package or negotiated in the trade agreement with the European Union.
Internet provider liability is likely to emerge as one of the most contentious issues. The U.S. is demanding a provision that could lead to terminating subscriber access, content blocking, and even monitoring of online activities. Moreover, it requires a privacy override to mandate disclosure of subscriber identities based merely on unproven claims of infringement. Canada is opposed to the U.S. proposal.
The U.S. also wants Canada to extend the term of copyright. Canada (along with several other TPP countries) currently features a term that meets the international standard of life of the author plus an additional 50 years. The U.S. would like Canada to extend the term by an extra 20 years, thereby keeping works out of the public domain for decades (Mexico is seeking an additional 50 years).
The U.S. supports the inclusion of extensive criminal penalties in the TPP, even in non-commercial cases. In one provision, it is seeking mandatory criminal liability for significant infringements without any direct or indirect motivation of financial gain. Similarly, it wants mandatory criminal rules for breaking digital locks, an approach not found under Canadian law.
The U.S. also envisions massive changes to Canadian patent law with the expansion of patent protections to plants and animals with few safeguards, altering the standard of utility under Canadian law, and extending the term of patents in a manner that would keep generics off the market and increase health care costs.
Even the proposed Canadian anti-counterfeiting bill currently before the House of Commons comes in for criticism, with the U.S. demanding statutory damages for trademark infringements and seizures of in-transit shipments of suspect goods that are not destined for the Canadian market.
In short, a TPP based on the U.S. proposals would signal a near-complete surrender of a made-in-Canada approach to intellectual property, leading to risks of lost Internet access, expansive border seizures, increased health care costs, and criminal liability for non-commercial infringement. The leaked text provides much need sunlight on the secret talks, confirming that Canada has thus far resisted many U.S. demands and that it has the potential to play a lead role in restoring some balance to the trade deal.
The Trans Pacific Partnership IP Chapter Leaks: Canada Would Face Copyright Term Extension
Article QQ.G.6 contains a provision requiring a term of at least life plus 70 years. There is support for the provision from the U.S., Australia, Peru, Singapore, and Chile. Mexico would like to extend to life of the author plus 100 years. Canada is opposed to the provision, joined by Japan, New Zealand, Malaysia, Vietnam, and Brunei.
The extension in the term of copyright would mean no new works would enter the public domain in Canada until at least 2034 (assuming an agreement takes effect in 2014). â¨Many important authors would be immediately affected since their works are scheduled to enter the public domain in the 2014 - 2034 period. These include Canadians such as Marshall McLuhan, Gabrielle Roy, Donald Creighton, and Glenn Gould as well as non-Canadians such as Robert Frost, CS Lewis, TS Eliot, John Steinbeck, JRR Tolkein, and Ayn Rand. Given the potential to make those works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to Canadian literature and history.
Google Books – another fair use illustration
No doubt, readers have already taken in the good news: on 14 November 2013, the Google Books Project was deemed fair use by Judge Denny Chin of the Southern District of New York. Hailed as a stunning victory for libraries and their patrons, the visually disabled, and continued high-tech innovation, the details almost seem mundane – of course displaying snippets of a work is not a violation of copyright. That the law should uphold common sense seems only appropriate.
Yet this was a story that began with an uncertain ending. At its outset in 2004, the actions of Google struck many as audacious. The Google Books project necessarily involved scanning entire books. While there was always an argument for legitimate fair use – library books were scanned with permission from libraries, the majority of books were out of print, only snippets would be displayed, Google did not engage in any direct profiteering from its action, etc. – the dialogue of copyright did not yet embrace nuanced examinations of copying with open consideration of public benefit. To some, once a copy is made without permission, the copyright owner’s rights have been infringed and heads should roll.
If the Author’s Guild had successfully shutdown Google Books at the start, the public benefits of the project would never have seen the light of day. And it was those benefits that Judge Chin emphasized in his decision, even before providing the analysis of fair use. Paraphrasing some of the key elements from his list (starting on page 9):
- “Google Books provides a new and efficient way for readers and researchers to find books. … It provides a searchable index linking each word in any book to all books in which that word appears.” Chin emphasizes that Google Books has become an essential research tool and part of our information society landscape.
- “Google Books greatly promotes a type of research referred to as ‘data mining’ or ‘text mining.’” Chin pays particular attention to the brief prepared by Matthew L. Jockers, Matthew Sag and Jason Schultz on behalf of Digital Humanities and Law Scholars, and extolls the merits of the newer form of scholarship.
- “Google Books expands access to books.” Chin draws attention to the “traditionally underserved populations,” and points out that not only are the books themselves more easily found but that “digitization facilitates the conversion of books to audio and tactile formats, increasing access for individuals with disabilities.” He also champions the “remote and underfunded libraries that need to make efficient decisions as to which resources to procure for their own collections or through interlibrary loans.”
- “Google Books helps to preserve books and give them new life.” Chin is clearly aware that older, and potentially out-of-print, books are falling apart. Scans will at least preserve the content.
- And, quite apart from merit of the project with respect to reading, research, under-served populations and preservation, “Google Books benefits authors and publishers.” With any selection of a snippet, users are easily connected to sellers of the books thereby increasing the potential for sales.
Of course, Chin does not omit the examination of fair use; he performs the analysis with ease and clarity. Before, and after, he reminds us that the listed four factors need not be the only consideration in questions of fair use. He emphasizes that they are only a general guidance and that there might be other considerations. Although, for the purposes of this case, he only needed the traditional four factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
While fair use analysis allows for consideration of any purpose and character, American case law has long emphasized that transformative uses are fair. Chin has no difficulty assessing Google’s Book Project as transformative. “Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books (p.19).” Pointing to past successful arguments of fair use in the use of thumbnail images, Chin writes: “The display of snippets of text for search is similar to the display of thumbnail images … [to] help users locate books and determine whether they may be of interest (p.20).” And, with recourse to a fair use standard-bearer, the work of Judge Pierre Laval, Chin concludes the first factor by saying, “[Google Books] adds value to the original … [through] the creation of new information, new aesthetics, new insights and understandings (p.21).”
[Chin refuses to let the mere word “commercial” misdirect the claim of fair use. He points out that Google does not engage in direct commercial behaviour in connection to the snippets of text or the scans. “Even assuming Google's principal motivation is profit, the fact is that Google Books serves several important educational purposes (p.22).”]
(2) the nature of the copyrighted work
With the majority of the scanned holdings being published books, the availability of the snippets for the public is only an asset to the claim of the fair use. Drawing from past case law, Chin writes: “Whether or not a work is published is critical to its nature under factor two because the scope of fair use is narrower with respect to unpublished works (p.23).”
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole
Chin begins with the reminder that the copying of entire works can be considered fair use. He then easily explains why Google’s entire copies are necessary and, happily enough, would never be available to serve as a substitute for the original: “… as one of the keys to Google Books is its offering of full-text search of books, full-work reproduction is critical to the functioning of Google Books. Significantly, Google limits the amount of text it displays in response to a search (p.23).”
(4) the effect of the use upon the potential market for or value of the copyrighted work
To the complaints voiced by the Author’s Guild that Google Books would negatively impact the market and that the snippets could be collected into a substitutable book, Chin details the lack of logic within their arguments:
Neither suggestion makes sense. Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already — they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.
And, the final rebuttal to the oddity of arguing that exposure would decrease sales:
An important factor in the success of an individual title is whether it is discovered — whether potential readers learn of its existence. Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays. Indeed, both librarians and their patrons use Google Books to identify books to purchase. Many authors have noted that online browsing in general and Google Books in particular helps readers find their work, thus increasing their audiences. Further, Google provides convenient links to booksellers to make it easy for a reader to order a book. In this day and age of on-line shopping, there can be no doubt but that Google Books improves books sales.
In his concluding remarks, Chin again returns to the merits of Google Books with respect to public benefit. The decision as a whole is only 30 pages and well worth reading.
With the Author’s Guild already positioning itself for appeal, this story is not yet over. But with such a decisive endorsement of fair use, and keeping in mind that this examination was expressly ordered by the Second Circuit Court of Appeals, the likelihood of this decision being overturned is slim.
Navigation
Bloggers
Other key sites
User login
Search
Other search...
- Mailing lists and their archives are not included in this search. The main 'discuss' list has a simple search interface.