Apple is sued over the search technology of the IPhone

EMG Technology LLC, a one-man's company, filed a patent infringement lawsuit on Monday against Apple in the US District Court in Tyler, Texas.

The suit alleges that the navigation and display technology used for mobile websites by the IPhone infringes a patent that was obtained last month by EMG's founder and two co-inventors and assigned to EMG.

Mobile websites are modified versions of regular websites, designed for display on small screens.

The complaint is available here.

HLS Professor Challenges the Constitutionality of RIAA File-sharing Lawsuits

Joel Tenenbaum, a graduate student from Harvard, is just one of the random assortment of individuals being sued for sharing music via peer-to-peer application.

For Harvard professor Charles Nesson this lawsuit was the last straw. He is defending Tenenbaum, and has filed a counterclaim against the specific plaintiff and against the RIAA, challenging the constitutionality of the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, upon which the suit was filed.

This act is one of several legslative initiatives designed to provide a stronger protection to copyright owners in the digital age. Nesson claims the act has basically made the courts “a low-grade collection agency” for the RIAA. Suits are being brought randomly, singling out few out of the many Americans who use peer-to-peer networks, and seeking to punish them beyond any relation to the damage that they have allegedly caused. Many of these suits lead in fact to significant results for the RIAA in outside the court settlements, only because their targets do not have the resources to defend themselves in court.

Prof. Nesson’s ultimate goal is to drive the music industry to find new ways of distributing music in the digital age and encourage the legalization of the phenomenon of sharing of music on-line.

This is not the first attempt to render copyright legislation excessive and unconstitutional, so expectations should be reduced for Prof. Nesson. However, questioning the RIAA strategy may have the power to drive a change in the arena of on-line music consumption.

Read more:
Eon (Charles Nesson’s blog): The Copyright Theft Deterrance Act of 1999
Computerworld: Harvard professor offers new challenge to RIAA antipiracy campaign

Is the Poor Economy Affecting Patent Filings?

It is commonly accepted wisdom that patent lawyers will be in demand no matter how badly the market is faring. However, a recent Patently-O post, courtesy of Paul Janicke at the University of Houston Law Center, now casts doubt on that belief.

Since the economy tanked in September, Prof. Janicke has found that patent filings are down by 20%. In September and October of 2007, 513 patent suits were filed; during that same period in 2008, there were only 409 filings.

Could the decrease be due to the fact that there are fewer deep pockets to sue? As one Patently-O commentator put it, "When the host dies, the parasites die with it. With fewer profitable companies to leach off it is inevitable that there are fewer leaches."

The Digital Millennium Copyright Act Turns 10

October 28th marked an important anniversary for the digital IP community, as the Digital Millennium Copyright Act celebrated its tenth birthday. For a birthday present, the Electronic Frontier Foundation issued a scathing report, arguing that the law has been unjustly applied against "consumers, scientists and legitimate competitors."

The DMCA, designed to protect copyrights in the digital age, bans circumvention of digital rights management and other technological protection measures in return for limited safe harbors for ISPs who comply with the law's notice-and-takedown provisions.

The Act remains highly controversial, challenged from the perspectives of practical aspects as well as policy considerations. The EFF report claims that the act has failed to prevent digital piracy, and has instead succeeded in creating severe side-effects--such as harming fair use, free speech, scientific research, technology progression and legitimate competition.

You can access the EFF's full report here: http://www.eff.org/deeplinks/2008/10/dmca-ten-years-unintended-consequences

Is Google Books Fair Use? We May Never Know.

Instead of battling it out in court, Google has agreed to pay $125 million to settle two copyright lawsuits by publishers and authors over Google Books. The deal will make millions of books searchable and printable online, although downloads of copyrighted material are going to cost you.

The settlements requires Google to obtain content owners' permission before publishing snippets for in-print books, although pages of text from out-of-print will still be available. Unfortunately for copyright scholars, this part of the settlement precludes a court decision about whether such snippets constitute "fair use"--a subject that has inspired a great deal of debate since Google Books launched in 2004 (see here for comments from the pro-fair use crowd (check out the video!), here for an argument that more legislation is needed in this area, and here and here for a more detailed analysis).

Here's the full story, including more details about the settlement. Google's press release about the deal can be found here.

Sony accuses Rev. Phelps of copyright violation for online video parody

This week, Sony/ATC Music Publishing in New York City wrote to Rev. Fred Phelps and his church group, known for picketing soldiers’ funerals across the nation, telling them to stop what it claimed was “unauthorized use” of the song “Holding Out for a Hero,” featured in the 1984 film “Footloose.” Sony accused Phelps and the Westboro Baptist Church of violating copyright laws with their online video parody, “There Are No Heroes.”

The video highlights the church’s controversial stance against homosexuality in connection with the belief that soldiers’ deaths in the Iraq and Afghanistan wars serve as God’s punishment for the U.S. tolerating homosexuality.

Fred Phelps’ daughter and the church’s attorney said the group will continue hosting its video of the song on its Web site. She maintains that Sony “said in their letter that it is a parody, but they lost their perspective. They hate these words. We said plainly there are no heroes and that is what the song is about. Under the fair use doctrine, this is proper for us to do.”

Phelps responded to the letter from Peter Brodsky, Sony’s executive vice president for business and legal affairs, this past Friday, claiming that Westboro’s use of the song is exempt from copyright laws because the video is a parody.

This is the second time in recent years that a music company has accused Phelps and his church of copyright infringement. Last year, Warner/Chappel Music Inc. in Los Angeles viewed the group’s parody of “God Hates the World,” to the tune of “We are the World” as a violation of its copyright.

Find this article in Business Week. Further details on this story and a link to the “There Are No Heroes” video can be found here.

Analysis: The Politics of IP Law

Apparently, politics and intellectual property are more related than I thought! Two articles this week discuss the role of YouTube in the presidential campaign.

A Wired article describes the problem of DMCA notices in the political context. The McCain campaign, which has seen several videos yanked from YouTube based on alleged DMCA violations, has asked the site to commit a full legal review of all take-down notices for content posted by political candidates and campaigns.

In the New York Times, Prof. Lawrence Lessig explains that the use of excerpts from debates and interviews should be considered fair use when employed to create political advertisements. Instead of relying on the existing nebulous fair use analysis, however, Lessig suggests that copyright law be revised to clearly exclude political content. Otherwise, Lessig says, free speech will be unjustly stifled. The editorial can be found here.

Background:

The Supreme Court has hinted that the fair use doctrine is necessary to reconcile the inherent tension between the Copyright Clause and the First Amendment. See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (describing copyright law as "the engine of free expression"). This doctrine is particularly well-developed within the Second Circuit, which has explained that the role of the fair use doctrine is to balance "the public interest in the free flow of ideas with the copyright holder’s interest in the exclusive use of his work.” Warner Bros., Inc., v. Amer. B’casting Co., Inc., 720 F.2d 231, 242 (2d Cir. 1983). Thus, where matters of public interest are concerned, courts have held that the importance of the public’s right to full information may outweigh the content owner’s profit interest. See, e.g., Time, Inc. v. Bernard Geis Asscs., 293 F. Supp. 130 (S.D.N.Y. 1968) (holding the reprint of video stills from President Kennedy’s assassination to be fair use).

The notion of fair use has often come into conflict with the Digital Millennium Copyright Act (DMCA), passed in 1998 to prevent copyright infringement on the Internet. The DMCA set up a notice-and-takedown system, requiring those who believed their rights were infringed to notify a website. So long as the site removes the offending content, it avoids liability. In order to have their content allowed back on the site, posters must affirmatively challenge the DMCA claim. Because this encourages sites to remove content first and ask questions later, this system has been subject to criticism on First Amendment grounds (see the EFF's site for more).

Political advertisements fall in an interesting area of First Amendment doctrine. In general, political speech receives the highest degree of First Amendment protection, because it is at the core of a democratic society. Commercial speech, however, may be subject to greater restrictions. In its most recent decision dealing with campaign advertisements paid for by third parties, the Supreme Court declared, "Where the First Amendment is implicated, the tie goes to the speaker, not the censor." See FEC v. Wisconsin Right to Life, 551 U.S. __ (2007).

Analysis:

Although the removal of political advertisements mid-campaign is troubling, there is an easy solution to the McCain campaign's soundtrack problem--buy a license to use the songs! We have a mandatory licensing scheme for music in the U.S., and those who wish to use the creative works of others should pay them for it. Moreover, a use will not be "fair" when it affects the licensing market for a work, which unfettered access to the works of others may well do. It is one thing when a creator makes a mashup for fun and posts it on YouTube, but here we are dealing with presidential campaigns that have millions of dollars to spend. Licensing fees tend to be quite reasonable, so is it really too much to ask campaigns to pay them? Feel free to disagree with me the comments.

The use of debate clips and interviews is more problematic. Although most courts would find it to be fair use, the DMCA system allows websites--not courts--to make the initial call. Websites have every incentive to err on the side of caution, and remove the content from their sites. For this narrow use, I believe Lessig's suggestion is an important one to consider.

No You Can't: Obama Campaign Sued for Trademark Infringement (but not really)

Generally, politics and IP law don't come into contact much, but this story was too fun to ignore. According to a humor column in New Jersey's Politicker, the phrase "yes we can" is trademarked by the National Center for Home Food Preservation and Canning, a D.C. lobbying group. (Get it?) A protest rally against the campaign's alleged trademark infringement drew a whopping 35 people. Asked about the lawsuit, a canning executive stated, "That slogan is known all over the country for just one thing: canning.”

Although not a real claim, we thought it would be interesting to give it a brief analysis. Since no consumer would reasonably believe Obama has entered the canning industry, presumably the claim here would be one of dilution. Under the Trademark Dilution Revision Act of 2006, the NCHFPC need only show that the campaign's use of the phrase is likely to cause dilution. However, they must also demonstrate that their use of the phrase is "famous" and "distinctive." Canning executives' claims aside, the "plaintiffs" here would be unlikely to meet this burden.

The full story can be accessed here.

Penn Law Review Seeks IP-Related Submissions

The University of Pennsylvania Law Review is seeking essay submissions advancing a legal argument related to the 2008-2009 symposium topic, "Foundations of Intellectual Property Reform." The symposium will explore possible reforms, innovations, and impending issues in patent, copyright, and trademark law.

The winning paper will be published in the University of Pennsylvania Law Review’s Symposium Issue in Spring 2009, and the author will be invited to attend the conference in Philadelphia on January 16-17, 2009.

For more information, following this link.

Prof. Lessig Praises Amateur Remixing

In an essay for the Wall Street Journal Online, Prof. Lawrence Lessig of Stanford Law condemns copyright owners for pursuing legal action against amateur creators. He urges several changes in the law, including the deregulation of the "amateur remix" and the de-criminalization of peer-to-peer file sharing. The full article can be read here.

The essay is excerpted from Lessig's book "Remix," which will was released yesterday.

Welcome Back!

The Penn Intellectual Property Group (PIPG) develops and promotes intellectual property programs within the Penn Law and greater Philadelphia community. Among its activities, PIPG has hosted panels on topics including IP Careers, Biotechnology, and Arts and Entertainment. Last year, we organized a symposium on copyright and technology that brought prominent legal scholars and representatives of Google, Viacom, Comcast, and Sony, among others (see posts below).

This year, we hope to be even stronger by creating additional on-campus programs and developing this blog as a resource for current developments in IP law. If you are interested in serving as a contributor to this blog, or in helping with our activities in any way, please contact Karen Chesley at karenac@law.upenn.edu.

More information about the club will be provided at our introductory meeting on Wednesday, October 15, 2008, in room G-213 at noon. Pizza will be served.

Video: William Patry on Internet Metaphors

William Patry, copyright blogger and Senior Copyright Counsel at Google, spoke about "Internet Metaphors and Why we Need to Lose Them." Mr. Patry explained that because judges have absorbed language in which the Internet is described as a "place" you can visit, courts have often come to the wrong conclusion.

Mr. Patry also countered Prof. Werbach's suggestion that Google had "no idea" how to make YouTube profitable. "I don't think we'd pay $1.65 billion dollars ... being clueless about how to [make a profit]." Mr. Patry said the plan for the site was to engage in more licensing deals.

Click below for the full video:

Video: Kevin Kuzas of Comcast Interactive Media

Kevin Kuzas, VP and General Counsel of Comcast Interactive Media, delivered a keynote address entitled "Copyright Challenges in Internet Video." Mr. Kuzas spoke about the issues faced by those trying to license video for the Internet. CIM runs Fancast, an Internet video site which hosts content licensed from Viacom and other content providers.

For the full video, click below:

Video: Panel on User-Generated Content

Our first panel of the day was titled "User-Generated Content: Cooperation or Litigation?" Topics included the Viacom-YouTube lawsuit, the validity of litigation in creating beneficial legal precedents, and the impediments to full cooperation between content owners and content providers. For the full video, scroll down to the bottom of this post.

Kevin Werbach asserts that "YouTube doesn't even know how it's going to make money" as Google's Bill Patry looks on.

Viacom's Stanley Pierre-Louis (right) discusses his company's recent initiatives to add online content. Professor Michael Carroll of Villanova (left) listens.

Kevin Werbach of Wharton (center) registers his objection to the term "user-generated content" when describing copyright infringement problems caused by sites like YouTube.

Video, Part 1:



Video, Part 2:


The panelists, seated from left to right, were:
• Michael Carroll, Professor of Law, Villanova School of Law
• Stanley Pierre-Louis, VP and Associate General Counsel, Viacom
• Kevin Werbach, Assistant Professor of Legal Studies, Wharton
• Lance Koonce, Partner, Davis Wright Tremaine
• Gideon Parchomovsky, Professor of Law, UPenn Law (moderator)

Blogging the Symposium: Government Role in IP

The third panel featured a lively debate on the proper role for the government in enforcing intellectual property rights. In particular, discussion focused on the PRO-IP act, a controversial bill which had proposed increased damages for infringement and a new government bureaucracy to ensure the protection of copyright.

Sherwin Siy, above left, discussed the recent markup of the bill, which moved out of subcommittee only after the provision to disaggregate damages was struck.

Many of the questions focused on whether it was proper for the government to spend a significant amount of money to protect a private right. Prof. Post pointed out that the nature and protection of property rights changes with technology, noting that at one point flying an airplane over one's land was considered a trespass. The government, he said, should not be in the business of protecting outdated business models. From the audience, Prof. Parchomovsky, the moderator from the first panel, questioned whether the benefits would outweigh the costs of such a proposal.

Charles Sanders (far left) said that less protection for artists would lead to the decline of professional artists in favor of amateurs, countering a comment by Prof. David Post (far right) that people create even in the absence of an ability to make money. There may be more works of art than ever, Sanders said, but they are not of the same quality as professional products. Also pictured are Sherwin Siy and Sigal Mandelker from the DOJ. Ms. Mandelker opposed the creation of a new government office for copyright, noting that the DOJ has already been prosecuting large-scale infringers.

Prof. Christopher Yoo (far left) moderated debate between Mr. Sanders and Prof. Post. Mr. Sanders told Prof. Post that if they sat down and talked, they would probably agree 98% of the time. Prof. Post said if that was true, he would buy him a beer--by the end of the panel, it became clear that no beer would be forthcoming. They did agree, however, that the music industry needed to adopt a new business model in the face of changing technology.

Blogging the Symposium: Filtering and Fair Use

The second panel focused its discussion on whether current methods to control copyright infringement, especially filtering and DMCA takedown notices, unduly impinge on fair use. David Sohn voiced concerns that the filtering technology would be unable to recognize content that would be considered fair use. The panel also considered whether the current fair use is working, and agreed that although it is an imperfect system, it's the best we've got. Kathleen Carignan said that it would be easier if things could categorically be determined to be fair use, but the factors test is necessary to ensure that the use is indeed "fair."

ABOVE, LEFT: Gregory Marchwinski of Red Lambda, a manufacturer of filtering software, and the rest of the panel listen to a question from the moderator. ABOVE: Jennifer Pariser of Sony explains why copyright infringement harms the music industry. Also pictured are Gregory Marchwinski (left) and David Sohn of the Center for Democracy & Technology (right).

Robert Terrell (right) explains how the University of Pennsylvania responds to DMCA takedown notices while David Sohn (left) and Kathleen Carignan of Philadelphia Volunteer Lawyers for the Arts look on.

Moderator R. Polk Wagner, far left, and the full panel.

For more on this panel, see Sherwin Siy's commentary here.

Copyright & the Internet Symposium

March 20, 2008--Yesterday, PIPG hosted notable scholars, practitioners, and policy advocates at its inaugural symposium, entitled “Copyright & the Internet: Solutions for a Digital World.” The discussion focused on the entertainment industry's ability to respond to challenges posed by mass copyright infringement on the Internet, the use of filters, and what role, if any, the government should play in protecting copyrighted works.

In the upcoming days, we will post commentary and pictures from the event. The full schedule was as follows:

Panel 1: “Industry Response to User-Generated Content: Cooperation or Litigation?”
Moderator: Prof. Gideon Parchomovsky
Panelists:
• Michael Carroll, Professor of Law, Villanova School of Law
• Lance Koonce, Partner, Davis Wright Tremaine
• Stanley Pierre-Louis, Vice President and Associate General Counsel, IP and Content Protection, Viacom
• Kevin Werbach, Assistant Professor of Legal Studies, Wharton

Featured presentations
• Kevin Kuzas, VP and General Counsel, Comcast Interactive Media
"Challenges in Internet Video"
• William Patry, Senior Copyright Counsel, Google Inc.
"Internet Metaphors and Why We Need to Lose Them"

Panel 2: “Can Copyright and the First Amendment be Reconciled in the Internet Age? Filtering, Takedown Notices, & the Role of Fair Use”
Moderator: Prof. R. Polk Wagner
Panelists:
• Kathleen Carignan, Director, Philadelphia Volunteer Lawyers for the Arts
• Gregory Marchwinski, CEO, Red Lambda
• Jennifer Pariser, Executive Vice President, Sony/BMG
• David Sohn, Senior Policy Counsel and Director, Project on IP and Technology, Center for Democracy & Technology
• Robert Terrell, LAW ’86, Associate General Counsel, UPenn

Panel 3: “Government Involvement in Copyright Regulation: Discussing the U.S. Role in Monitoring IP Infringement Online”
Moderator: Prof. Christopher Yoo
Panelists:
• Sigal Mandelker, LAW '00, Deputy Asst. Attorney General, DOJ
• David Post, Stern Professor of Law, Temple's Beasley School of Law
• Charles J. Sanders, Counsel, Songwriter's Guild of America
• Sherwin Siy, Staff Attorney and Director, Global Knowledge Initiative, Public Knowledge

PIPG would like to thank Hogan & Hartson for its generous support.

Welcome to the PIPG Blog!

This blog is run by the members of the Penn Intellectual Property Group (PIPG), who are students at the University of Pennsylvania Law School. We hope to create a resource for web users interested in intellectual property law, and to keep the legal community updated about our events.