Penn Intellectual Property Group Copyright Symposium

Next Tuesday (March 22nd, 2011), the Penn Intellectual Property Group will be holding its annual symposium at Penn Law School. All are welcome to attend, so if you find yourself in the Philadelphia area, please stop by. This year the symposium will be on copyright law, and there will be panels on content licensing on the Internet, open source law, and copyright and author issues. The schedule for the symposium is as follows:

Keynote Speaker (4:30pm - 5:00pm)

Ken Richieri (New York Times)

Content Licensing and Distribution on the Web (5:00pm - 5:50pm)

Roger Cramer (Selverne & Company)

Bruce Rich (Weil Gotshal)

Jeff Farmer (Limewire)

Open Source and Derivative Work (5:50pm - 6:40pm)

Aaron Williamson (Software Freedom Law Center)

Van Lindberg (Hayes and Boone)

Jay Westermeier (Finnegan)

Copyright and Authors - Three Unique Perspectives (6:40pm - 7:30pm)

Nina Paley (author and cartoonist)

Michael Boni (Boni and Zack)

Marcia Paul (Davis Wright Tremaine)

The symposium has been approved for 3 hours of substantive C.L.E credit.

MPAA Brings Copyright Case Against Hotfile

The Motion Picture Association of American filed a suit against Hotfile.com last Tuesday, February 8 for copyright infringement. Hotfile is a cyberlocker website in which users gain access through paid subscriptions. The MPAA alleges that not only does Hotfile aid users in uploading copyrighted information but that they encourage users to disseminate the uploads they have gotten through the site. The claim targets Hotfile instead of other file sharing websites because the MPAA believes Hotfile discourages personal filesharing by incentivizing popular files. Because Hotfile has membership fees, MPAA alleges that the website is also profiting from the infringement of its users.

Curiously, the MPAA did not also file claims against other online locker services like Rapidshare and Megaupload. This is because the MPAA does not contend that all file lockers are unlawful. The distinction is defined by the Digital Millennium Copyright Act's safe harbor clause. The act protects Internet service providers that obey certain rules of sharing, but MPAA believes Hotfile is not following the rules, and instead is encouraging breaking the law. The case will bring online locker services and their legality under fire as they have become a more popular way for people to gain access to files, some copyrighted, on the Internet.

MPAA's complaint against Hotfile

Microsoft Continuing Its Fight with i4i

Microsoft is heading for the Supreme Court later this year in its ongoing battle with i4i, Inc., a Canadian technology company. The case started in 2009 when i4i sued Microsoft for infringing on its Patent No. 5,787,449 for Microsoft's use of a method to make Microsoft Word products capable of processing or editing custom XML. Since the original filing, i4i has been successful against Microsoft in both the District Court and the Court of Appeals. The USPTO has refused to invalidate i4i's patent and the courts have awarded i4i $290 million in damages and a permanent injunction against Microsoft. As Microsoft attempts to overturn the lower courts' devastating decisions, the usually pro-patent company is finding some unlikely allies in the open source world.

Electronic Frontier Foundation and the Apache Software Foundation, usually critics of Microsoft for its vast portfolio of patents, have filed an amicus brief in support of Microsoft. Strange bedfellows: EFF, Apache back Microsoft in patent dispute. In the brief, the groups support Microsoft's suggestions for alterations to the present patent system when it comes to software patents. For instance, Microsoft advocates for stricter standards that would lower the bar to invalidate patents. The current test to throw out a patent is that the infringer must show "clear and convincing" evidence that the patent is invalid. Microsoft instead believes the standard should be lowered to a "preponderance" of evidence.

In addition to the above mentioned amicus brief, several other big players filed an amicus brief for Microsoft this week. This newest group of unexpected Microsoft supporters includes RedHat, Verizon, and Google. The massive support from Microsoft's former foes may convince the Supreme Court that the software patent system is broken, or at least in need of some careful tweaking. In addition to suggesting a lower standard to invalidate patents, Microsoft is also behind various other patent reform steps such as switching from a first to invent to a first to file standard. Admittedly, this will not affect their present case but reflects their attitude to the present patent system. Look for more on this case as potentially more parties get involved and to see how the Supreme Court handles the issue of software patents.

"Hope" Poster Dispute Settled

The dispute over the creation and use of the Obama "Hope" poster was recently settled.

In Fairey v. AP, as previously mentioned on this blog, the Associated Press had accused the artist Shepard Fairey of infringing its copyright on a photograph of Barack Obama by creating the popular "Hope" posters that were frequently seen during the 2008 presidential election campaigns. Fairey claimed that the poster he designed was fair use.

The case was particularly interesting because it nicely demonstrated the complexities of giving copyright protection to photographs. The issue is that a copyrighted work must be original, in the sense that the work must originate with the author of the work. This means that you cannot copyright facts, because facts are not independently created by the author; they are part of the state of the world. For example, the AP cannot copyright the fact that Obama was at the National Press Club or the fact that he was sitting in a certain seat, looking in a certain direction. Because a photograph necessarily encompasses facts such as these, courts are careful when it comes to photographs. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (giving copyright protection to photographs of Oscar Wilde).

One way to distinguish uncopyrightable facts from copyrightable original works is to identify the original contributions of a photographer. See Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2006). When creating a photograph, a photographer has many opportunities to be original; she can select the content, choose a camera angle, pose the subject, time the picture, frame the subject, and add lighting. Each of these elements of a photograph can be given copyright protection.

Why is any of this important to the Fairey v. AP case? Because if a court had decided that Fairey had only copied the fact that Obama was sitting in a certain spot, looking a certain way, then he was unlikely to be liable for copyright infringement. Similarly, if a court had decided that Fairey had taken only a few of the copyrighted elements of the AP photograph, it would have supported a finding of fair use and could also have made him not liable for infringement. Because the AP has settled the dispute with Shepard Fairey, these issues might go unanswered for a while.

Then again, the AP has not yet settled a related case against Obey Clothing, where a company was manufacturing T-shirts and other apparel that bore the "Hope" design. The details of giving copyright protection to photographs could become an issue for AP and Obey Clothing as that case progresses.

Source: Shepard Fairey and The A.P. Settle Legal Dispute [NYT]

Dispute over the name "iPad"

Fujitsu began selling a device named, "iPad," in 2002 and is currently disputing the name of Apple's newest gadget. The Japanese Company applied for a trademark for the name in 2003. Apple has until February 28th to announce whether it will oppose Fujitsu's claims to the name "iPad." To read more about the dispute, please visit: http://www.nytimes.com/2010/01/29/technology/companies/29name.html?scp=3&sq=patent&st=cse

Battle over Copyright Royalties of the Gershwin Brothers

Nearly a decade ago, George and Ira Gershwin, known as the Gershwin brothers, fought to have copyright extended to their songs. Now, after their deaths, the heirs of these songwriting brothers are disputing over how to divide the royalties, which have come from the copyrighting of this music. Since the American royalties were previously divided equally between the brothers, there is no dispute regarding them. However, in the EU copyright law differs from US copyright law. Since, Ira Gershwin outlived his brother by about 40 years, there arises a problem with European copyright law. In the EU, the copyright of a lyricist and a composer are distinct. Furthermore, these rights expire 70 years after the death of the lyricist or composer, and the music then enters the public domain. Thus, since technically George’s copyright earnings on his compositions expired in 2007 in the EU, there is a dispute. Since Ira’s copyright of his lyrics is still effective, his estate still gains royalties from the use of his songs. Thus, Ira’s heirs believe they deserve foreign royalties on his lyrics.

For more on this story, please go to: http://www.latimes.com/entertainment/news/arts/la-ca-gershwin1-2009nov01,0,6051370.story.

So What Exactly is Fair Use?

Eight months ago on this blog we discussed the case Fairey v. AP, in which Shepard Fairey claimed that his depiction of Barak Obama constituted a fair use of an Associated Press picture. But what exactly is "fair use"? Tim Wu, law professor at Columbia University, writing for Slate, breaks the concept down. Professor Wu writes about the way in which the fair use defense has been used in the past, and what policy considerations courts have weighed in deciding on whether a fair use defense is legitimate. As the case is still being litigated, we do not know if the fair use defense will save Fairy or not.

The fair use defense was used unsuccessfully in the Joel Tenebaum case. Tenebaum was sued by the RIAA for copyright infringement when he downloaded mp3 songs from KaZaA. The court ruled for the RIAA, saying that the fair use defense would not apply in this case. On his blog, Professor Charlie Nesson, who represented Joel Tenebaum, ponders who the word "fair" in fair use is supposed to refer to.

If fair use is to be judged from the industry’s perspective only, then the permission or lack of it from the copyright holder is all that counts ... But if fair use is to be judged from the user’s perspective, then making use of a new, superior form of music product – downloadable, fully transferrable music files – while there was nothing comparable available on the market, can easily be seen as a fair use.

Please read Nesson's blog for further discussion.

ACLU and PUBPAT say “Do Not Patent My Genes”

In May 2009 the American Civil Liberties Union (ACLU) and the Public Patent Foundation of Cardozo Law School (PUBPAT) filed suit against the U.S. Patent and Trademark Office, Myriad Genetics and the University of Utah Research Foundation, who hold patents for the BRCA1 and BRCA2 human genes. These genes are associated with breast and ovarian cancer, and, according to research, women with mutations of such genes have a higher risk of developing these cancers. Although screening for these genes can allow women to catch such cancers early and thus advance their treatment more quickly, the ACLU and PUBPAT believe that patents on the BRCA1 and BRCA2 genes can prevent such screening. The ACLU and the Public Patent Foundation argue that these patents thus are unconstitutional and invalid. The first hearing on this case was held on October 1, 2009, based on the defendant’s motion to dismiss. Due to the wide-reaching effect of these patents on women’s health and cancer research, it seems this debate will not quiet down in the near future. With organizations, such as the American Medical Association and the March of Dimes, supporting the ACLU in this suit and the amount of awareness the ACLU has raised regarding this topic, even if this suit is dismissed, the fight against such genetic patents will continue.

For more on this topic and events held by the ACLU and PUBPAT please go to http://www.aclu.org/freespeech/gen/brca.html.

Joker Obama: Copyright Infringement or Political Parody?

It’s certainly no joke. Yet another image of Obama has stirred up “copyright infringement concerns,” according to the photo-sharing website Flickr. This time, the image features U.S. President Barack Obama painted with the Joker’s clown makeup from the movie, “The Dark Knight.” Firas Alkhateeb, a 20-year-old college student from Chicago, created the image by using Adobe Photoshop to “Jockerize” the Obama photo. During the time that the Obama-Joker photo was hosted on Flickr.com, it generated over 20,000 pageviews until Alkhateeb received an email from the website informing him that the photo had been removed due to “copyright infringement concerns.” Now, many are lashing out at the website, insisting that image constitutes fair use as a political parody, a protected form of free speech. For this reason, there has been much controversy over whether Flickr’s removal amounted to political censorship.

More about this story can be found at LA Times.

Prof. Christopher Yoo on "The Transformation of the Internet"

The emergence of the Internet as the dominant means of communication over the past decade represents one of the most remarkable developments of our nation's technological history. A medium that began as a way for academics to send e-mail and exchange files has become a nearly ubiquitous phenomenon that has transformed almost every aspect of daily life.

The vision of the Internet as it existed in the late 1990s continues to serve as the starting point for current debates over communications policy. In framing the issues in this manner, policymakers overlook important changes in the economic and technological environment surrounding the Internet, including:

* The number and nature of Internet users
* The nature and variety of Internet applications
* The variety of networking and end user technologies
* The diversity of business relationships
* The maturation of the industry

In this lecture, delivered on April 21, 2009, Professor Christopher Yoo of the University of Pennsylvania Law School analyzed the nature of these changes and explored their potential for reframing current debates over Internet policy.