February 17, 2010
IOC Uses DMCA to Suppress Luge Accident Video
The opening day of the 2010 Winter Olympics was marked with tragedy when 21-year-old Georgian luger, Nodar Kumaritashvili, was involved in a fatal crash during a training run. The horrific event dampened the spirit of the international competition and colored the mood at the opening ceremonies later that night. As anyone would expect, the International Olympic Committee (IOC) sprung into action, responding to the accident with a multi-point plan:
January 21, 2010
The “Departure” of Conan O’Brien Brings Up Intellectual Property Issues
So unless you go to bed at 8PM (which I wish I did) or you don’t have a television, you have probably heard that Conan O’Brien’s attempt at hosting the coveted 11:30 time slot for NBC’s late night talk show will be short lived. NBC is bumping Conan and going back to Jay Leno. Personally, I used to watch Leno as I was falling asleep and found his skits to be somewhat humorous – Jaywalking, Battle of the Jaywalk Allstars, Headlines, etc. I never really stayed up late enough to watch Conan’s skits, but I am somewhat familiar with them – the talking picture thing, Triumph the Insult Dog (one of my personal favorites), etc.
As you probably know, the NBC late night debacle has been pretty contentious. My personal favorite was during Conan’s monologue a few nights ago when he was noting that hosting the Tonight Show, even for a short period of time, was the fulfillment of a lifelong dream. He went on to give some advice to the kids out there – “you can do whatever you want to do… so long as Jay Leno doesn’t want to do it too.”
January 20, 2010
Space Coast Business Magazine prints one of our articles
We put together a quick overview (800-words-or-less) about patents and copyrights for Space Coast Business Magazine, and they ran with it in their January issue. You can read the full text here
January 5, 2010
Paris Hilton continues her IP education… from the defendant’s chair
After getting the go-ahead from the Ninth Circuit earlier this year on her “That’s Hot!” trademark infringement case against Hallmark, hotel heiress Paris Hilton has apparently signed up (although unwillingly) for another intellectual property lesson. This time, she’s going to be studying design patents. Her professor, a footwear designer called Gwyneth Shoes, claims that its design patent has been infringed by Ms. Hilton’s kicks. (Source.)
If you look closely, you can see the heart.
Design patent protection is similar to copyright protection, in that the alleged infringer is in trouble if they’ve produced something that is substantially similar to the protected design. However, while the government simply gives out copyright registrations, upon request, design patents are only awarded after an examination is done and it has been determined that the proposed design is novel (i.e., no one else has previously designed a product like this).
Gwyneth’s design
The prize for successfully prosecuting a design patent application? Complete national monopoly for 14 years. Since copyright protection lasts for a minimum of 70 years, some people would argue that a design patent is hardly worth the effort and cost. The problem with that logic is that copyrights come with a whole boatload of limitations, leaving room for potential defendants to get away free. As a key example, fair use and independent creation are no defense to a charge of design patent infringement. Just ask Paris Hilton, who undoubtedly has just learned about this little wrinkle from her attorney.
December 15, 2009
Does Disney Own the Concept of a Castle?
It is a well known axiom of U.S. intellectual property law that there is no protection afforded to mere ideas. In order to employ the force and power of our legal system to enforce your intellectual property rights, you must have something more concrete than an idea. In patent law, for example, you must have reduced your invention to practice (although constructive reduction to practice can be used to satisfy the requirement). In trademark law, you must have actually used your mark in association with goods or services. In the realm of copyrights, an author must fix her expression in a tangible form before the government will recognize any exclusive rights.
The bottom line is that you can’t sue anyone for “stealing your idea” or “taking that movie plot you thought of.” This concept is hard for some to grasp, and every so often, a big player in the IP world may take advantage of this common misunderstanding. While perusing sites that sell graphic tees (one of my favorite forms of communication – e.g., here, here, or here), I came across an example of this that I think is worth sharing.
November 3, 2009
IP Overview: Copyrights Explained
United States copyright law protects original works of authorship that have been fixed in any tangible medium of expression. Pretty much anything that you can write down or record is automatically protected from direct copying without your permission. Everything from that flier for your company’s last promotion to the business plan that you spent weeks drafting in preparation for that product launch is covered. As long as it’s original, and as long as you took the time to get it down on paper, you’ve got copyright protection.
The “originality” requirement of our copyright statute is a very low hurdle. As long as you created it, and as long as it has the smallest amount of creativity, then a work of authorship qualifies for automatic protection. Only the most basic and unoriginal material is considered ineligible for protection. For example, the United States Supreme Court has ruled that alphabetized lists of names and contact information (e.g., phonebooks) are not original enough to be protected by copyright. Also, anything that can only be expressed in a limited number of ways, e.g., contest rules or contract terms, will not be afforded protection. Anything else is fair game.
Where many people run into trouble is the “fixation” requirement. There is no protection for unexpressed ideas. The statutory language is careful to point out that there is no limitation on what medium must be employed, but unless the expression is fixed in such a way that it can be duplicated, then you cannot stop someone else from getting it down and claiming their own expression.
October 23, 2009
DMCA Takedown Notices Must Consider Fair Use
The Digital Millennium Copyright Act (DMCA) was signed into law by President Clinton in 1998 and is an implementation of two World Intellectual Property Organization (WIPO) treaties. To make it much simpler than it really is, the DMCA is directed to provide protection to copyright owners that find their copyrighted materials improperly posted on the Internet. Again, that is a big oversimplification of the provisions of the DMCA, but it is enough of a background for this story. The full text of the DMCA can be found here.
On its face, the statute provides an important enforcement mechanism for copyright owners who can’t necessarily afford to hire a legal team. As it works now, copyright protection is created without any real effort on the part of the author, and as a result, it is incredibly easy for someone to have enforceable copyrights. With the current state of technology, it is becoming equally easy to infringe on them, so lawmakers wanted to make them just as easy to enforce. However, as with nearly every other well-intentioned legislative initiative, the DMCA’s power to do good has been twisted by the hands of the wicked into a weapon for evil.
October 19, 2009
Latest “IP Bully” Award Nominations
October 15, 2009
Trade Secrets in Copyright Registrations for Computer Programs
by Philip Zies
Copyright Registrations of computer programs without trade secret information require a completed application form, a filing fee, and a deposit of identifying portions of the program (the first 25 pages and last 25 pages of the source code). When the computer program contains trade secret information, however, a different procedure is followed.
First, include a cover letter stating that the submission contains trade secrets. The cover letter can attach the page of the source code containing the copyright notice, if any.
Second, for a completely new computer program or for a revised computer program where the revisions are in the first 25 pages and last 25 pages of the source code, the deposit of identifying portions of the program is either: the first 25 pages and last 25 pages of the source code with portions containing trade secrets redacted; or the first 10 pages and last 10 pages of the source code with no portions redacted; or the first 25 pages and last 25 pages of object code plus any 10 or more consecutive pages of source code with no portions redacted; or, for programs of 50 pages of source code or less, the entire source code with portions containing trade secrets redacted. For revised versions of computer programs where the revisions are not in the first 25 pages and last 25 pages of source code, the deposit of identifying portions of the program is either: 20 pages of source code containing revisions with no portions redacted; or any 50 pages of source code containing revisions with portions containing trade secrets redacted. If depositing redacted portions of the source code, the redacted portions must be proportionately less than the visible portions of the original code and the visible portions must represent an appreciable amount of the original code.
While trade secret protection is a matter of state law, following these procedures should enable an author to seek federal registration of a computer program containing trade secrets, without waiving the trade secrets contained therein. You can view the US Copyright Office Circular on Copyright Registration for Computer Programs by clicking here.
This article has also been posted on JD Supra.
October 7, 2009
And our “IP Bully of the Week” Award goes to…
Ralph Lauren — for sending DMCA take-down letters in an attempt to suppress some negative blog commentary about the photo below, e.g., comments like “Dude, her head’s bigger than her pelvis” (source).
You can read about what happened here and here.
UPDATE (2009/10/12): Ralph Lauren has issued a statement, apologizing for the poor photoshop job. We’re still waiting for an apology about their DMCA abuses.
