Scott Turow, President of the Authors Guild, at the Library of Congress December 11, 2012.
This afternoon Register of Copyrights Maria A. Pallante welcomed friends, family and members of the Authors Guildto the Library of Congress for a celebration. The Authors Guild is 100 years old! Long live the Authors Guild! But is that a likely reality? If you listened to the parade of horribles discussed at this “celebration” one has to wonder whether being an author by profession is nearing the end of the road. If that happens it would be truly tragic, but the handwriting is on the wall it seems in both important and unfortunate ways.
The event at the Jefferson Building of the Library of Congress was part of the “Copyright Matters” lecture series started by Pallante in 2011 as a community forum to discuss the practical implications of copyright law in the 21st century. On December 11, 2012, the lecture series turned to a celebration of sorts. The event began with a beautiful rendition of Happy Birthday to You, staff of the Library of Congress taking stage to lead the audience in this time-honored birthday tradition, singing to the Authors Guild. But as the excitement of 100 years turned into a poignant discussion of the state of the industry one has to wonder where the industry is headed and whether it will be possible for authors to actually put in the time and energy to create their works on a professional basis given the direction of the marketplace.
The first speaker at the event was world-renowned author Scott Turow, who also happens to be the President of the Author’s Guild. Turow began by speaking about a recent trip to Russia, where he explained that the authors in Russia are quite depressed because they face such long odds, not being privy to the Constitutional protections and rights that are given to U.S. authors, for example.
An online advertising company agreed to settle Federal Trade Commission charges that it used “history sniffing” to secretly and illegally gather data from millions of consumers about their interest in sensitive medical and financial issues ranging from fertility and incontinence to debt relief and personal bankruptcy.
“Consumers searching the Internet shouldn’t have to worry about whether someone is going to go sniffing through the sensitive, personal details of their browsing history without their knowledge,” said FTC Chairman Jon Leibowitz. “This type of unscrupulous behavior undermines consumers’ confidence, and we won’t tolerate it.”
In 2009, I wrote for IPWatchdog about the case of In re Lister where the patent applicant barely avoided a potentially fatal “printed publication” bar based on his own copyrighted manuscript that was searchable in two commercial databases, but only after the critical “bar date.” See CAFC Rules Patent Applicant’s Own Copyrighted Manuscript Not Publicly Accessible. That was followed by a much more comprehensive article that I wrote which was published in 2011 on applying the “printed publication” bar to electronically posted documents. See Guttag, Applying the Printed Publication Bar in the Internet Age: Is It as Simple as Googling for Prior Art. That 2011 article included a discussion of the Lister case, but focused primarily on the 2008 case of SRI International, Inc. v. Internet Security Systems, Inc. where a majority of the Federal Circuit panel ruled that there were “genuine issues of material fact” sufficient to preclude a grant of summary judgment that an electronic document temporarily posted (but freely accessible) on the FTP server of the patentee (SRI International) was a “printed publication” bar.
One of the “revelations” I discovered in researching and writing that 2011 article is that the “printed publication” bar is really two distinct and parallel doctrines that the Federal Circuit has all too often unfortunately commingled together. The first, more active form is the “dissemination” doctrine. The second, more passive form is the “publicly accessible” doctrine (sometimes referred to as “constructive publication”).
The recent case of Voter Verified, Inc. v. Premier Election Solutions, Inc. (Nov. 5, 2012) is the latest example of the Federal Circuit being oblivious to the parallel existence of these two doctrines (and especially the requirements for each of these distinct doctrines) for applying the “printed publication” bar.
The Federal Trade Commission will host a workshop on December 6, 2012, to explore the practices and privacy implications of comprehensive collection of data about consumers’ online activities. Entities such as Internet Service Providers (ISPs), operating systems, browsers, social media, and mobile carriers have the capability to collect data about computer users across the Internet, beyond direct interactions between consumers and these entities. The workshop will bring together consumer protection organizations, academics, business and industry representatives, privacy professionals, and others to examine the collection and use of such data, its potential benefits, privacy concerns, and related issues. The workshop is free and open to the public.
The comprehensive data collection workshop follows up on the FTC’s March 2012 report, Protecting Consumer Privacy in an Era of Rapid Change, which called on companies handling consumer data to implement recommendations for protecting consumers’ privacy, including privacy by design, providing simplified privacy choices to consumers, and greater transparency to consumers about data collection and use. The report also set forth five action items that FTC staff would pursue in the following year, including this workshop to discuss the privacy issues raised by the collection and use of comprehensive data about consumers’ online activities by a range of entities, such as ISPs, operating systems, browsers, search engines, and social media.
Back from its extended August recess, Congress has some unfinished business to settle before the end of the calendar year, such as funding the Federal Government for FY 2013 and addressing expiring Bush tax cuts.
Though they are unlikely to take center stage during the truncated session before elections or the post-election lame duck session, lawmakers will have to contend with several key copyright issues during the 113th Congress. Thus, no matter who wins on November 6, IP leaders in the House and Senate are likely to use the remainder of this calendar year to set the stage for next year’s copyright agenda.
The priority copyright issues for the remainder of 2012 and 2013 are: (1) Anti Piracy Initiatives; (2) Internet Issues; (3) International Agreements; (4) Music Licensing; (5) Book Licensing; and (6) TV Broadcast Issues. Each is discussed more fully below.
What do Allstate Fire and Casualty Insurance Company, Wal-Mart Stores, Inc., Lance Armstrong Foundation, Top Level Domain Holdings Limited, and The City of New York have in common? Each are seeking to register generic top-level domains (gTLDs) (.allstate, .walmart, .livestrong, .beer, and .nyc respectively). Now the race is on to see which applicants will actually make it to the finish line and secure the right to operate new gTLDs! These “zoning” changes to the Internet will change the way we search, advertise, and shop online.
The Internet Corporation for Assigned Names and Numbers (ICANN) released the publicly available information from the 1930 new gTLD applications, which may be viewed at ICANN’s gTLD web site by clicking here. As a Brand Owner, what do you do now?
Over recent years, online advertising has been a driving force in the growth of the Internet. As business owners, you never stop hearing about the benefits of having your own website and advertising your services on-line. I am guilty of preaching this sermon myself! However, because of the ever-increasing existence of badware, it has become increasingly difficult to know what ads or websites we can trust. Thankfully, tech giants such as Google, Twitter, Facebook, PayPal and others have joined forces with StopBadware.org and formed the Ads Integrity Alliance (AIA) in order to combat Badware, protect users from bad ads and maintain the integrity of the “online advertising ecosystem.”
StopBadware.org is a non-profit organization that is focused solely on protecting the public from badware websites. The organization started out as a project of the Berkman Center for Internet & Society at Harvard University but has grown significantly to include partners such as Google, Mozilla, Verizon, PayPal, Qualys, and VeriSign. The StopBadware Board of Directors consists of many of the biggest names within the Online industry such as Chief Information Security Officer at PayPal, Michael Barrett, (Currently the Chair of the Board), the Vice-President and Chief Internet evangelist for Google, Vinton, G. Cerf, Engineering Director for Google, Mike Shaver, Chairman and CEO of Qualys, Inc., Philippe Courtot to name a few.
Mention counterfeiting and what many ordinary citizens immediately think about is counterfeit currency. Indeed, counterfeiting of money is one of the oldest crimes in history. Counterfeiting currency in the United States was a serious problem during the 19th century when banks issued their own U.S. currency, with approximately 1,600 state banks designing and printing their own notes. The adoption of a national currency in 1863 was believed to be the solution for the problem, but counterfeiting was so widespread that on July 5, 1865, the United States Secret Service was established to suppress counterfeiting. Although substantially curtailed, counterfeiting of money still remains a threat to the U.S. economy.
Mention counterfeiting and what a person who specializes in intellectual property thinks about is the growing amount of counterfeit goods that flood the market costing hundreds of billions of dollars of damage to the economy.
Criminals on all levels — from opportunistic, small-time thieves to major drug cartels — are finding that the penalties for intellectual property crimes pale in comparison to the penalties they would receive for trafficking drugs and engaging in other illicit activities. At the same time, the profit margin for counterfeit software, as well as for other counterfeit goods, is extremely high. So the combination of great riches, relatively low penalties and a low likelihood of being caught and you can see why criminal enterprises, including terrorist networks, are becoming major players in the counterfeit software black-market.
Creativity and invention are highly valued within the United States as reflected by patent laws dating back to 1790, with mention of intellectual property even included in the U.S. Constitution. Protecting these ideals was seen as key to promoting an innovative spirit within American society and encouraging the creation of new products. Ultimately, a steady influx of new products and services translates into a healthy economic market as consumers reap the benefits of innovation.
With the advent and rise of the Internet, digital property rights have become an increasingly hot-topic in the Board rooms and Executive Offices of major companies, particularly those in the hi-tech industry. Much like the information protected under intellectual property rights, digital products provide their creators with certain protections under the law. The problems and legal challenges facing major companies like Yahoo and Facebook will help better define the laws surrounding digital property rights, and likely present opportunities as well as a whole host of new legal questions.
The Associated Press recently sued Meltwater alleging in its complaint that “[Meltwater] has built its business on the willful exploitation and copying of the AP’s and other publishers’ news articles for profit.” AP asserts copyright infringement claims as well as a common law hot news misappropriation claim under N.Y. law. AP notes that it has to expend significant resources to create its news content. It complains that Meltwater free-rides on its efforts by misappropriating AP’s news and information which Meltwater can then sell for minimal cost via the Internet. It characterizes Meltwater’s actions as a “parasitic” service whose free-riding could make it cost-prohibitive for AP to profitably compete; and, therefore, AP’s economic incentive to continue its business could be significantly threatened.
AP’s common law misappropriation claim has its origins in a remarkably similar suit AP brought against a competing news service almost a century ago. In INS v. AP the Supreme Court, in 1918, enjoined INS, a competing news service, from free-riding on the work product of AP. The misappropriation action was based on INS re-distributing information to its customers which AP had previously released into the public domain. INS was enjoined from using the information for a limited time period while it was hot news (i.e. while it had commercial value as news). The Supreme Court’s decision was based on two rationales: (1) preventing unacceptable conduct in the form of a commercial enterprise free-riding on the investment of time and money by a competitor; and (2) avoiding the resulting ruinous competition that could result from a commercial enterprise free-riding on the efforts of a competitor.
Simply stated, the OPEN Act would be completely and totally ineffectual and, therefore, it must be opposed. There is simply no point in enacting more pointless legislation, we have enough pointless legislation already.
Anyone who is at all familiar with intellectual property knows that thanks to the digitization of content and the advent of the Internet infringement is rampant. With great frequency articles posted to IPWatchdog are cut and pasted and posted to various websites. On a daily basis companies and even government agencies are copying IPWatchdog articles verbatim and circulating them internally, presumably believing that the internal copying and distribution is not copyright infringement. Being a content creator, whether large or small, is exceptionally difficult because most people either don’t care or they don’t stop to think about what they are doing.
A frenzy of protest activity was recently unleashed and directed at two bills that sought to prevent online piracy of copyrighted materials. These two bills being considered by Congress would have assisted intellectual property owners who so frequently have their rights infringed online. The PROTECT-IP Act (PIPA) was the Senate version of the bill; The Stop Online Piracy ACT (SOPA) was its counterpart in the House of Representatives. Protests led to many leaders withdrawing support and the bills were scrapped. Further consideration of the issues is, however, ongoing in alternative forms so it is likely useful to substantively address some of the key criticisms of PIPA and SOPA, which are virtually certain to resurface.
The essence of the bills was to enable U.S. law enforcement or a private party to shut down websites that are “dedicated to infringing activities.” Such websites are defined in the bills as those whose primary purpose is infringement.The accuser must show that the website has “no significant use” other than engaging in, facilitating, or enabling any of the following:
Copyright infringement; or
Infringement or violation of any of the protections contained in the DMCA (Digital Millennium Copyright Act) including its anti-circumvention provisions; or
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more. The treatise is continuously updated to address relevant Federal Circuit and Supreme Court decision impacting patent drafting.
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