Category Archives: Copyright

Are Patent and Copyright Laws Hurting the Economy?

13 Friday Mar 2009

Posted by in Copyright, Patent, What I'm Reading

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Are patent and copyright laws hurting our economy? Two economists at Washington University in St. Louis certainly think so. Michele Boldrin and David K. Levine, in Against Intellectual Monopoly, argue that the current patent/copyright system discourages and prevents inventions from entering the marketplace.  They call for abolishing the current patent and copyright system in order to unleash innovations necessary to reverse the current recession and rescue the economy.

It’s an interesting idea and worth thinking about.  After all, most any system can be tweaked for better results.  AND, sometimes a complete overhaul is needed.  The patent and copyright laws aren’t sacred cows…why should we be afraid to reevaluate their usefulness from time to time?

But are they asking the right questions?  After all, patent and copyright laws are meant “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  U.S. Const. Art. I, Sec. 8.  New innovations are often responsible for salvaging our economy, but the Constitution doesn’t say “to boost the economy by securing for limited times to authors and inventors…”  Patent and copyright laws may need to be revisited, but the emphasis should be on the progress of science and useful arts, not on saving the economy.  Sometimes these go hand in hand, but it’s important not to be too quick to blame the current patent and copyright laws for all the woes of the economy.

Thanks to Slashdot for the book recommendation.  Go here for a full review of the book.

Kenny Crews to speak on Copyright Law and International Fair Use

04 Wednesday Mar 2009

Posted by in Copyright, Intellectual Property

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Copyright maven Kenny Crews will speak tomorrow at Yale University about his landmark 2008 study for the World Intellectual Property Organization (WIPO), in which he compares fair use and other copyright limitations/exceptions across some 150 countries.kennycrews

Kenny Crews has a distinguished career in copyright and fair use issues. He is currently the Director of the Copyright Advisory Office at Columbia University.  Until his appointment at Columbia in January 2009, he was a professor at Indiana University School of Law – Indianapolis and the IU School of Library and Information Science. His work has won wide acclaim, and he has been active in projects and initiatives on copyright law in the United States and around the world. You can read more about his work here.

Th speech is co-hosted by the Yale University Library and the Yale Law School’s Information Society Project.

When: Thursday, March 5, 3:00 p.m.
Where: Sterling Memorial Library Lecture Hall, 128 Wall Street
Cost: Free and open to public

Disclosure – Kenny Crews taught my Intellectual Property & Copyright courses back in law school. Therefore, I’d have to hold him at least partially responsible for my career in intellectual property law.  He’s an enthusiastic and engaging speaker.  I look forward to seeing the results of his study.

Dear KLF Legal,

10 Tuesday Feb 2009

Posted by in Copyright, Dear KLF Legal, Patent

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From time to time, people write in with short questions about intellectual property law. We’re always happy to help educate the public about their IP rights, so KLF Legal tries to respond to each inquiry as best we can. The answers tend to be brief since the questions don’t typically include alot of information. However, I thought it might be helpful to share these questions from time to time in a new post category entitled “Dear KLF Legal”…enjoy!

Dear KLF Legal

Q: Recently, while visiting family in Hawaii, I was watching TV and stumbled upon an On Demand station entitled PhotoShow TV. Being a photographer, I was intrigued thinking perhaps it was a show covering the latest in photography products and trends. I quickly discovered this was not the case, instead it was a listing of user created photo slideshows that were set to music. These slideshows can be created on the web then published so that anyone can watch them through their Time Warner Oceanic Cable service.

So, my question is two fold, if someone uploads photos and music that they do not have the rights to then who assumes the responsibility for the infringement, Time Warner Oceanic (TWO) or the individual who uploaded the media? I don’t know much about the service but I do know that TWO must approve the content to make sure it is not graphic or offensive. Since they have reviewed and approved all materials, does the infringement responsibility then become theirs?

Here is a link to a bit more information.

A: Thanks for your question.  This is very much an issue du jour in copyright/internet law.  The Digital Millennium Copyright Act (DMCA), Section 512, is the applicable law, but it’s appropriate application is not particularly clear right now.

Some info about the DMCA:

In the online world, the potentially infringing activities of individuals are stored and transmitted through the networks of third parties. Web site hosting services, Internet service providers, and search engines that link to materials on the Web are just some of the service providers that transmit materials created by others. Section 512 of the DMCA protects online service providers (OSPs) from liability for information posted or transmitted by subscribers if they quickly remove or disable access to material identified in a copyright holder’s complaint (generally referred to as a DMCA takedown notice).

In order to qualify for safe harbor protection, a service provider who hosts content must:

* have no knowledge of, or financial benefit from, infringing activity on its network
* have a copyright policy and provide proper notification of that policy to its subscribers
* list an agent to deal with copyright complaints

Of course, copyright owners want to hold the service providers liable, while the service providers want to claim immunity.

So, to answer your question, arguably TWO has knowledge of the infringing activity if they review each submission as you suggest.  This would put them outside the safe harbor and expose them to liability.  BUT, I suspect that they’re careful (or should be) about the manner in which they review submissions so that they can still claim the safe harbor protection.  The bottom line is it’s a gray area in the law that will probably be sorted out soon at the higher levels by the big players in the industry, Warner Music, YouTube, etc.

Hope this helps.

KLF Legal

Dear KLF Legal,

Q:  I want to produce a game and get a patent to protect it, but it is based off of another license. Do I have to get permission to use the license before I try to get the patent or should I get the patent first?

A:  Obtaining a patent can be expensive (think $5,000-$20,000) and the procedure is lengthy (2+ years) so you almost certainly will not want to get a patent first before you are sure that you are cleared to do so.  Go back to the license…does it speak to this issue? If you have trouble understanding the language of the license, you may need to have an attorney help you review it.  Also, keep in mind that to receive a patent your game must be new, non-obvious and useful. In other words, don’t dump a lot of time and expense into getting a patent before you’ve checked to make sure that a patent could even be received. You can do so by having an patentability search performed on your behalf.

Here’s a helpful article that discusses the benefit of patents in the game industry.

Good luck with your game.

KLF Legal

Churches can air Super Bowl without violating copyright laws

27 Tuesday Jan 2009

Posted by in Copyright, Trademark

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The NFL has called a reverse play…this year they will be allowing churches to show the Super Bowl on big screen TVs without fear of violating copyright laws. NFL spokesman Brian McCarthy says churches may now show the game on any size screen, as long as it’s in their normal meeting place and they don’t charge admission.

Two years ago, when Peyton Manning was leading the Indianapolis Colts on their championship run, the NFL clamped down on the ability to watch the big game in churches.  The NFL sent letters to churches informing them that airing the game would be a violation of the NFL’s copyright and trademark rights.  However, faced with the prospect of Congress enacting a change to copyright law, the NFL decided to instead toss this Hail Mary to church groups and let the game go on.

So while the Colts aren’t in the big game this year, church groups can now get together and root for local favorite Edgerrin James to win that long-awaited ring.  Cardinals 24 – Steelers 21.

Edgerrin James

Obama and Intellectual Property

26 Monday Jan 2009

Posted by in Copyright, Federal Initiatives, Patent, Trademark

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“Let us be the generation that reshapes our economy to compete in the digital age. Let’s set high standards for our schools and give them the resources they need to succeed. Let’s recruit a new army of teachers, and give them better pay and more support in exchange for more accountability. Let’s make college more affordable, and let’s invest in scientific research, and let’s lay down broadband lines through the heart of inner cities and rural towns all across America.” 

— Barack Obama

Whitehouse.gov lists some of the President’s new initiatives related to intellectual property and technology.  We’ll be tracking his administration’s performance on these initiatives over the next four (4) years:

  • Protect American Intellectual Property Abroad: Work to ensure intellectual property is protected in foreign markets, and promote greater cooperation on international standards that allow our technologies to compete everywhere.
  • Protect American Intellectual Property at Home: Update and reform our copyright and patent systems to promote civic discourse, innovation, and investment while ensuring that intellectual property owners are fairly treated.
  • Reform the Patent System: Ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration. Give the Patent and Trademark Office (PTO) the resources to improve patent quality and open up the patent process to citizen review to help foster an environment that encourages innovation. Reduce uncertainty and wasteful litigation that is currently a significant drag on innovation.
  • Promote American Businesses Abroad: Support a trade policy that ensures our goods and services are treated fairly in foreign markets. Fight for fair treatment of our companies abroad.
  • Invest in the Sciences: Double federal funding for basic research over ten years, changing the posture of our federal government to one that embraces science and technology.
  • Invest in University-Based Research: Expand research initiatives at American colleges and universities. Provide new research grants to the most outstanding early-career researchers in the country.
  • Make the R&D Tax Credit Permanent: Invest in a skilled research and development workforce and technology infrastructure. Make the Research and Development tax credit permanent so that firms can rely on it when making decisions to invest in domestic R&D over multi-year timeframes.
  • Ensure Competitive Markets: Foster a business and regulatory landscape in which entrepreneurs and small businesses can thrive, start-ups can launch, and all enterprises can compete effectively while investors and consumers are protected against bad actors that cross the line. Reinvigorate antitrust enforcement to ensure that capitalism works for consumers.