Posts Tagged: "copyright"

Starting a business is steeped with uncertainty, especially during a global pandemic. Small business owners are constantly running through the scenarios: Can I make payroll? Will I recoup my investment? Can I change my community for the better? There are plenty of systems at play that tell them, “No.” It’s too difficult to get a loan; the commercial real estate market is too competitive; advertising and marketing is too expensive. Even so, there’s one system that sings a resounding, “Yes!” That’s America’s intellectual property system.

Discussion around intellectual property strategies for small and medium enterprises (SMEs) often focus chiefly on patent and trademarks. But the benefits of copyright to a small business should not be underestimated. Copyrights protect the expression of ideas in works that are tangible. Copyrightable subject matter is very broad—all “original works of authorship, fixed in a tangible medium” are protected immediately from creation. The U.S. Copyright Office lists these categories as subject to copyright protection: literary works, musical works, performing arts, visual arts, other digital content (including computer software code), motion pictures, photographs, sound recordings, and architectural works. 17 U.S.C. Section 102.

From the advent of the internet, digital commodities and technologies have ceaselessly presented new hurdles for intellectual property (IP) owners and protectors. The cycle of copyright law trying, and generally failing, to adapt and keep pace with emerging technology has meant copyright stakeholders have been always at a disadvantage because legal enforcement lagged so far behind innovative infringement. But during a year in which vast swaths of life moved online, the internet has forged and driven to prominence a powerful new tool for protecting copyright owners’ unique assets: the non-fungible token (NFT).

The arts and entertainment industry has boosted South Korea’s economy and produced some of the country’s key products and exports. The country’s population of 51 million people was the sixth largest music market in the world in 2020, according to IFPI’s Global Music Report 2021. Also in 2020, South Korea had a $160 million surplus in cultural and arts intellectual property (IP)-related assets trade, according to South Korea’s Maeil Business Newspaper. It was the first time a surplus in such a category was registered. However, entertainment-related IP assets have been big Korean exports for years: in 2019, the country exported $8.62 billion in copyright-protected content, according to Yonhap News Agency. South Korea also has proven itself to be a prolific environment for creating music, film, content, and experiences for fans, and also to be great at making the most of their intangible assets through IP strategies.

Most commentators agree that Google v. Oracle is the most important copyright decision of the last 25 years (since Campbell v. Acuff-Rose Music). But what if the Court got it wrong?  The Court has not always done well with issues of technology (the Sony v. Universal “Betamax” case being an exception), and the majority decision in Google v. Oracle appears to be more of the same. For many reasons, the powerful dissent from Justices Thomas and Alito may be the better opinion.

For every action there is an equal and opposite reaction, or so states Newton’s third law of motion. It is safe to say that Newton never met an intellectual property lawyer, and he never had to deal with the whims and fancy of an arbitrary and capricious Supreme Court. Earlier this week, the Supreme Court issued its much-anticipated decision in Google v. Oracle, in which the Court ruled that Google’s intentional copying of 11,500 lines of computer code from Oracle was a fair use despite the fact that Google made many tens of billions of dollars in the process, and despite the fact that the record showed that Google consciously chose to copy, rather than independently create, because programmers were already familiar with the 11,500 lines of code they wanted to take.

On Monday, the U.S. Supreme Court handed down a ruling that still has many in the intellectual property world reeling—and not just copyright practitioners. The Court found a way to both accept without examination the Federal Circuit’s holding that the declaring code copied by Google was copyrightable and to reverse the Federal Circuit’s ruling in favor of Oracle, explaining that Google met the fair use exception to copyright law. The Court did this in part by asserting that computer programs are different when it comes to copyright protection, and further from “the core of copyright” than other kinds of works.

On Friday, April 2, the United States Court of Appeals for the Second Circuit issued a Summary Order affirming a district court’s finding that the Metropolitan Museum of Art’s use of a photographer’s photo on its website to illustrate a museum exhibit constituted a fair use. The photo was taken by Lawrence Marano in 1982 and depicted Eddie Van Halen playing his iconic “Frankenstein” guitar. The Metropolitan Museum featured the photograph on its website as part of an exhibit of rock n’ roll instruments. Marano initially brought his complaint against the museum in the United States District Court for the Southern District of New York in 2019, and the court dismissed it in 2020 for failure to state a claim, “finding that Marano had ‘failed to show why the Met’s use of [the Photo] is not protected by the fair use exception.’”

In characteristic form, the Supreme Court has once again managed to blow it in another intellectual property case. This time, the Justices blessed Google’s copying of Oracle’s code and called it fair use despite the fact that Google copied that portion of the Sun Java API that allowed programmers to use the task-calling system that was most useful to programmers working on applications for mobile devices. In the infinite wisdom of the Supreme Court, the copying of this code was found transformative because Google only used it to circumvent the need to license Java from Oracle with respect to Android smartphones. Of course, that isn’t exactly how the Supreme Court characterized it, but make no mistake, that is what they decided.

The U.S. Supreme Court this morning found Google’s use of Oracle’s Java application programming interface (“API packages”) a fair use as a matter of law, with Justices Thomas and Alito dissenting. The decision reverses a 2018 Federal Circuit ruling in favor of Oracle. Google appealed that decision to the Supreme Court in January 2019, and three attorneys made arguments to the High Court in October 2020: Thomas Goldstein of Goldstein & Russell argued for Google; Joshua Rosenkranz of Orrick argued for Oracle; and Deputy Solicitor General Malcolm Stuart argued on behalf of the U.S. Government. Although the justices’ questioning at that hearing seemed skeptical of Google’s arguments, it also revealed that the Court wanted to avoid upending industry practices in computer programming.

On March 26, the U.S. Court of Appeals for the Second Circuit reversed The United States District Court for the Southern District of New York’s decision that Andy Warhol’s Prince Series constituted fair use of Lynn Goldsmith’s photograph, holding that “the district court erred in its assessment and application of the fair-use factors and the works in question do not qualify as fair use.” The Court of Appeals further concluded that the Prince Series works were substantially similar to the Goldsmith Photograph “as a matter of law.” In 1981, Defendant-Appellant Lynn Goldsmith (Goldsmith) took several photographs of the then up-and-coming musical artist Prince Rogers Nelson (Prince). In 1984, Goldsmith’s agency, Defendant-Appellant Lynn Goldsmith, Ltd. (LGL) licensed one of the photographs from the 1981 photoshoot to Vanity Fair magazine “for use as an artist reference.” Unbeknownst to Goldsmith and LGL, the artist who used her photo as inspiration was Andy Warhol, and not only did he use her photo for inspiration for the image Vanity Fair commissioned, but he continued to create an additional 15 works, which are known as the “Prince Series.”

Fundamental to building and executing any successful patent licensing program is the ability to find and prove evidence of infringement, often through reverse engineering methods. A product is purchased and deconstructed to understand how it was built, how it works and what it is made of. The process of reverse engineering usually involves multiple types of analysis; which type of reverse engineering to apply is determined by the type of technology and the industry in which the patented invention is being used.   Intellectual property law does not discourage innovators from dismantling the inventions of their competitors, whether the technology is software, electronic, chemical, or mechanical. But there are still limits on how the results of a reverse engineering effort can be exploited.

Copyright holders can require licensees to implement technical measures to prevent infringement, the Court of Justice of the EU (CJEU) has ruled in its latest decision on the “right of communication to the public” in EU copyright law. (Case C-392/19 VG Bild-Kunst v. Stiftung Preußischer Kulturbesitz.) The Court’s Grand Chamber, comprising 15 judges, gave its ruling on questions referred from Germany in a dispute between a copyright collecting society for visual art, VG Bild-Kunst, and Stiftung Preußischer Kulturbesitz (SPK), a cultural heritage foundation that operates a digital library called Deutsche Digitale Bibliothek. The digital library includes thumbnails of images and links to the institution providing the subject matter.

The National Security Commission on Artificial Intelligence (NSCAI) recently issued its Final Report outlining a strategy for the United States to “win” the artificial intelligence (AI) era. Critically, the Commission argues that the United States government is not currently organizing or investing to win the technology competition in AI against a committed competitor (i.e., China), nor is it prepared to defend against AI-enabled threats and rapidly adopt AI applications for national security purposes. In addition to the potential patent-eligibility and data ownership IP issues noted in the Report, other IP uncertainties unique to AI technology continue to persist, such as machine authorship and machine inventorship of valuable contributions. As part of the United States’ overall strategic interests in winning the AI era, the Commission recommends that the United States adopt IP policies to incentivize, expand, and protect AI and emerging technologies, as well as recognize IP as a national priority. But significant questions remain as to whether U.S. courts will reliably permit IP holders to proceed with AI-focused IP infringement claims against potential offenders, or if patent-eligibility, inventorship, fair use, and other defenses will tip the scales towards trade secret protection.

Creative people need a quick, efficient and inexpensive way to recover damages for copyright infringement. They need a place to submit their charge of infringement and collect damages. Until recently, their only option was to bring a lawsuit in a federal district court; a process that is complicated, expensive and time-consuming. The Copyright Alternative in Small Claims Enforcement Act of 2020 (CASE Act) gives them another option, but it is problematic. It is also a problem for small businesses, which are at a disadvantage because the act benefits copyright trolls. It creates a new efficient vehicle for copyright trolls to prey on your clients.