intellectual property
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Id. at (a)(1)(E)(2)(A) - (C). ↩
Can the FTC ban digital goods?
Can the FTC ban digital goods?
Brent Kendall, writing at The Wall Street Journal:
The current case is about patents, but the ITC also can take action against goods that infringe copyrights, an issue important to Hollywood and other rights holders. They are eyeing the ITC as a new venue for combating foreign websites that trade in pirated digital material and the ability of U.S. consumers to access them.
If the court hearing this case on August 11th upholds the FTC’s decision to exercise its import ban authority in the digital realm the ramifications will be far-reaching and almost immediate. Music and movies, 3D printing, and perhaps even digitally transmitted and executed software code would be among the items open to FTC authority. The Federal Trade Commission has very little expertise in the digital space, so making the arbiters of what digital imports are okay and which are not may not be an intelligent approach.
Do we need a Digital Transmission Commission? If the FTC is to get digital ban authority it will need strong oversight.
Photo by Uberpenguin at Wikipedia
How the DMCA criminalized DIY farm equipment repair
How the DMCA criminalized DIY farm equipment repair
Kyle Wiens, writing at Wired:
Manufacturers have every legal right to put a password or an encryption over the tECU. Owners, on the other hand, don’t have the legal right to break the digital lock over their own equipment. The Digital Millennium Copyright Act—a 1998 copyright law designed to prevent digital piracy—classifies breaking a technological protection measure over a device’s programming as a breach of copyright. So, it’s entirely possible that changing the engine timing on his own tractor makes a farmer a criminal.
It’s not just “entirely possible,” if he’s circumventing “a technological measure that effectively controls access to a work protected under” copyright law1, he’s committing a crime.
And those folks trading information or even hardware meant to help one another get around the manufacturers’ security measures, they’re criminals, too. The law says:
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that [enables or encourages its use in circumvention].2
The DMCA’s anti-circumvention provisions were poorly drafted, are overbroad, and reflect a lack of understanding by Congress of the specific problems caused by digital copyright infringement and more appropriate solutions. If you’re interested in learning more about the problems caused by the DMCA, the Electronic Frontier Foundation has done some great work toward reforming, if not the DMCA itself (yet), its interpretation and implementation.
Popcorn Time streams movie torrents, but maybe it’s more than that
The image above is the first screen you see when you open Popcorn Time. The app, available on Mac, Windows and Linux, streams movies from the peer-to-peer file sharing protocol BitTorrent. The technology is similar to what old school music swapping service Napster used from about 1999 to 2001, before being shut down.1
It’s getting a lot of attention this week, much of which focuses on its copyright infringement implications. And for good reason, because according to the FAQ, while you’re watching a movie, the app is using your computer and internet connection to seed the same movie to other viewers. That means you’re sharing what you’re watching, and if what you’re watching is copyrighted or otherwise protected by your country’s intellectual property laws, you may be committing a civil violation or a crime.
Yeah, it’s like that.
I messaged the Buenos Aires-based developers of Popcorn Time on Facebook asking whether they would consider adding a Creative Commons / Public Domain channel to the app. It couldn’t hurt to include some non-infringing content, and it may be a cool new way for indie filmmakers to distribute their work.
But while copyright infringement is the easy story (and the one I would usually focus on here), there’s a more interesting angle to Popcorn Time.
It has the potential to introduce “normals” to the concept of peer-to-peer file sharing. This is similar to what BitCoin has done to the idea of digital currency. While it is the first cryptocurrency, using cryptography to secure transactions, it was not the first digital currency. Several video games allow players to trade items for virtual money and have done so for a long time.
But BitCoin brought the concept to the forefront of an international conversation. I’m not sure Popcorn Time is going to be that big or game-changing (it’s still in beta; only the third movie I tried to play, American Hustle, actually began to play. I turned it off right away, because it’s good policy for would-be attorneys not to, you know, break laws).
I do think there is real value to a proof of concept when it gets a technology usually limited to geeks into the hands of a larger audience.
And the infringement potential doesn’t have to be a deal-breaker. A quick Google search for legitimate uses of BitTorrent turns up about 146,000 results.
Some totally legal uses of BitTorrent include game updates and downloads, distributing your own music, and (take note, Popcorn Time developers) public domain movie trading.
So the question is whether the extra attention Popcorn Time is getting can be turned toward the lawful uses of peer-to-peer protocols. If so, it could be the boost the system needs to become a permanent fixture in the national conversation. In other words, the interest in Popcorn Time could be peer-to-peer’s BitCoin moment.
Disgraced Scientist Granted U.S. Patent for Work Found to be Fraudulent
Disgraced Scientist Granted U.S. Patent for Work Found to be Fraudulent
It’s hard to believe this patent should ever have been approved by a patent examiner acting in good faith, especially considering the criminal convictions standing in stark contradiction of the purported “inventor’s” affidavit of lies, but let’s assume the USPTO did, as they claim, handle this one by the book.
Even the appearance of such ridiculous impropriety as granting a patent for fake research is enough to signal the extent to which the system is flawed.
CrossFit sends trademark takedown demand
CrossFit sends trademark takedown demand
The lesson here: the Digital Millennium COPYRIGHT Act contains no enforcement mechanism for TRADEMARK rights.
What is Intellectual Property Law?
What is Intellectual Property Law?
It’s not surprising that more scholarship self-identifying as IP-focused is about patents. After all, they drive much of commerce and innovation (and arguably the problems with the two) in the industrial and technology sectors.
It’s worth noting though that, unlike much of the protection afforded by a patent, many copyright protections are available even without registration, although it’s admittedly difficult to enforce them via litigation and to win statuory damages without timely registration.
Check out this PDF by the U.S. Copyright Office for more information.
Select YouTube partners exempt from fair use policy
Select YouTube partners exempt from fair use policy
YouTube’s well within their rights to refuse to leave a video up, or to re-post it after fair use has been reasonably well-defended. But it’s another reminder that when stuff is free for consumers, the interests of the producers providing the content will always take precedence.
The trolls are now trolling themselves
The trolls are now trolling themselves
This great post by Seattle attorney John Whitaker sums up the state of affairs in the absurd debacle that is Prenda Law’s trainwreck porn-infringement trolling.
2nd Circuit: Aereo streaming of individual over-the-air TV feeds via internet doesn't violate copyright law
The Second Circuit has held in WNET v Aereo (PDF) that sending a unique stream of over-the-air TV signal to customers via the internet isn’t a copyright violation.
Aereo assign each of its subscribers their own personal antenna and stream to comply with a previous Second Circuit decision. In other words, Aereo could provide its service with one antenna, but it needs to use one for every subscriber. The use of one antenna for all subscribers, as the Second Circuit held in its 2008 Cablevision opinion, would likely constitute an unlawful public performance.
Judge Chin says in his dissent that he isn’t pleased by this technique:
Aereo’s “technology platform” is, however, a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.
Aereo’s technology isn’t an attempt to avoid the reach of the Act. It’s an attempt to comply with the Second Circuit’s own characterization of the Act’s meaning and purpose. The absurdity of the situation arises not from Aereo’s attempt at a “sham,” but from the outdated Copyright Act itself.
A quick glance at the rest of Judge Chen’s dissent suggests he may make some reasonable points distinguishing Aereo from the DVR service at issue in Cablevision, so I’ll withhold my own final thoughts on this case until I’ve read the Aereo opinion through.
But copyright law needs fixing. It was written during a time when the cost of copying was non-trivial, and copies were typically finite and controlled centrally by the rightsholder. There is no longer any non-trivial cost to copying. Whether between servers or from a server to your computer, the internet is nothing more or less than a giant copy-making machine. This doesn’t mean we need to weaken copyright law (although shorter terms would be more in line with copyright’s Constitutional imperative), but we do need to adapt it to the modern world.
Professor David Post, whose copyright class I took at Temple Law, signed an amicus curiae brief in this case late last year—here’s my post about it.
OUYA and Emulation
Darrell Etherington, reporting at TechCrunch:
OUYA forum admin and owner Ed Krassenstein said in a post on his site that EMUya, a NES emulator, has been submitted to OUYA for review and should definitely be available at launch, and a couple of SNES emulation options are confirmed, including the SuperGNES and the Mupen64Plus Nintendo 64 emulators. The Mupen64Plus project is also said to be available at launch, with the developer behind it posting that it has already been approved by OUYA for inclusion in the official store.
OUYA would do well to backtrack on this, and fast. If they mean to make themselves a legitimate part of the console landscape, the encouragement of unlicensed emulation, which amounts to copyright infringement, is not the way to go.
Porn troll Prenda Law angers judge with shady behavior
Porn troll Prenda Law angers judge with shady behavior
Earlier this week I mentioned that the EFF was going to represent a couple of anti-trolling websites in a case brought by porno copyright troll Prenda Law.
The Ars Technica article by Megan Geuss is well-written and really conveys the absurdity of the situation in which Prenda has put itself. I urge you to click the link in this post’s title to go give her piece a full read.
Also, if you’re interested in keeping up with the latest in potential troll-stomping, consider keeping an eye on the Ars series "Who’s behind Prenda Law?". They always do great work at Ars and this series is no exception.
EFF will represent targets of copyright troll Prenda Law
EFF will represent targets of copyright troll Prenda Law
Copyright trolls sue lots of people to extract settlements from those who can’t afford to litigate in the face of potentially massive statutory damages. Their claims are often facially lacking in merit and instead leverage intimidation and poorly-constructed federal copyright damages provisions to bankrupt people for profit.
I’m impressed by Wordpress’ parent company, Automattic, who refused to respond to the troll’s fishing expedition. And it’s good to see EFF lend a hand here in the form of representation, but eventually Congress needs to step in and fix the statutory damages provisions that incentivize copyright trolls to this vile abuse of our legal system in the first place.
For some great background and reporting on trolls and those who fight them, read this Ars Technica piece by Timothy B. Lee.
Apple store trade dress
I wonder if there are any retail stores out there that have looked like Apple stores since before Apple stores, and before this trademark was granted earlier this month. I don’t mean knock-off stores, though. I’m thinking make-up shops, art galleries, and other entities that often embrace a minimalist store design aesthetic.
Here’s a direct link to the very-user-hostile USPTO page for the filing.
USPTO director defends software patents
USPTO director defends software patents
Director of the United States Patent and Trademark Office David Kappos, quoted by Timothy B. Lee at Ars Technica:
In a system like ours in which innovation is happening faster than people can keep up, it cannot be said that the patent system is broken.
Of course, he’s wrong, but what else would he argue?
"The work my directorate does is under-funded and based upon a flawed patchwork of case and statutory law that frustrates our Constitutional mandate!"
Unlikely.
Invention as Art
This is a great article on patent drawings and models, as selected for Co.Design by Kelsey Campbell-Dollaghan.
Deli sues feds for refusing to trademark its 'Philadelphia's Cheesesteak'
Deli sues feds for refusing to trademark its ‘Philadelphia’s Cheesesteak’
Michael Hinkelman, writing at the Philadelphia Daily News:
Campo’s claims in its civil complaint that its sandwich is “so superlative” and “gloriously gluttonous” that only it could be called “Philadelphia’s Cheesesteak.”
This fellow doesn’t have a chance in hell, but it’s a fun story. “Philadelphia’s Cheesesteak” is sufficiently similar to previous marks (mentioned in the article) and sufficiently generic cialis online with regard to geography (also mentioned in the article) that rejection of the mark is valid on its face. Federal court isn’t going to decide it differently.
In fact, pursuing the issue may alert the holders of the previously-granted similar marks and lead to infringement suits against Campos. I assume he and his attorney have discussed that possibility, but that would certainly be a frustrating turn of events for the steak-slinger.