GoalsOfGreenTech

Happy Earth Day 2017!

The patent world is full of technologies that support the Earth. From solar panels to ever-more-efficient batteries to new recycling technologies, inventors throughout the USA are working to protect our environment.

Even the oil and gas industry have worked, at least a little, to help keep things cleaner. According to www.oilprice.com:

Oil companies, working alongside environmental organizations, scientists, biologists and engineers have developed numerous solutions for spills occurring both on land and in the water. Water spills can now effectively be cleaned by presses that involve straining and draining while containing the oil slick, using “floating booms” to corral the oil while skimmers and vacuum pumps cleanse the water and reclaim large percentages of the spilled oil.

Another “eco-friendly” oil spill management method for both water and land spills is called “Bio-Remediation. It’s a technique that uses living organisms such as bacteria and fungi to degrade, break down and in some cases; actually eat the oil as it safely cleanses the spill without hurting the environment.  Meanwhile, serious upgrading of the technology now being used for the drilling and refining of oil is cutting previous pollution levels down tremendously, as the oil industry increases profits by processing more usable oil while polluting a lot less.

Oil companies are now investing billions of dollars in socially responsible programs and are quickly becoming one of the largest supporters of environmentally friendly programs worldwide. Oil is already largely responsible for many of the major advances in medicine, pharmacology and world wide health care infrastructure, but now they are some of the largest supporters of research dedicated to promoting renewable energy sources.

This text was written in 2009; whether it remains true in the new administration or not is questionable. Our current administration is not friendly toward our planet, and that fact needs to be mitigated through strong Congressional action that puts into statute environmental protections which have, up until now, been administrative.

So, along with lobbying for science, we need to lobby for statutory control of air pollutants, water pollutants, increased use of green energy sources, and all the rest of the stuff formerly regulated by the Environmental Protection Agency. There is so very much technology out there already to support an eco-friendly country … we just need to have the backing of the government to continue to develop and use it.

GoalsOfGreenTech

Cheerleader Outfit Designs ARE Covered by Copyright

Star Athletica, L.L.C. v. Varsity Brands, Inc., et al., 580 US ___, a newly (22 March 2017) decided copyright case, finds that the design elements of a cheerleading outfit can be covered by copyright.

According to the syllabus of the case, SCOTUS holds: “A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated. That test is satisfied here.”

This case is interesting because it tells us where lies the line between industrial design, which is not protected by copyright (it may be protected by patent), and artistic design, which is. Courts have disagreed where that line lies.

Here, the District Court held that the designs did not qualify for protection under copyright because the designs served the useful purpose of identifying the outfits as “cheerleading uniforms.” The designs are therefore utilitarian, cannot be separated out to stand on their own, and therefore cannot be protected by copyright (you can read the District Court’s opinion at 2014 WL 819422 (WD Tenn., Mar. 1, 2014)).

The US Court of Appeals for the Sixth Circuit disagreed; they held, with one dissent that upheld the District Court’s opinion, that the graphic designs are indeed “separately identifiable” because a cheerleading costume without design is still identifiable as a cheerleading costume, so the graphics on such a garment can indeed be separated out and separately displayed and are thus protectable under copyright (read the 6th Circuit’s opinion at 799 F. 3d 468, 471 (2015)).

The Supreme Court affirms the 6th Circuit.

So what does this case teach us? We now know that designs on clothing CAN be separated out from the clothing, making the design on the clothing, even if the design relates to the function of the clothing, protectable under copyright.

We know that “The statute … provides that the “design of a useful article” can include two-dimensional “pictorial” and “graphic” features, and separability analysis applies to those features just as it does to three-dimensional “sculptural” features.”

We know that “…a feature of the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.”

Copyright remains one of the most case-by-case determinations around. The findings of this case have yet to be tested on utilitarian items other than clothing; we’ll watch this with some interest to see what, if anything, happens.

GoalsOfGreenTech

Crowdfunding IP

This is a good article about the taxability of crowdfunding.

But who owns the intellectual property in a crowdfunding situation? Does the inventor or author always get to keep the rights to the Big Idea they fund?

Well, as with whether a crowdfunding campaign is taxable or not, that depends.

Intellectual property is transferred by agreement between the owner of the rights (the originator of the work or an assignee) and the assignee of the rights. If the originator of the work assigns the work to another, then that other owns those rights. If s/he does not, then that other does not own those rights.

So what makes a valid transfer of rights?

A signed writing that transfers the rights. This need not be a contract; there need be no consideration.

That writing can be a “work made for hire” agreement, in which the originator of the work agrees that s/he has been hired by another to create, and the results of the creation belong to that other.

That writing can be an assignment of rights, in which the originator of the work assigns the rights to another. This assignment can take the form of a contract (offer, acceptance, consideration), or it can be a simple assignment without the trappings of contract.

Without that signed writing, though, the IP rights remain with the current owner, who may be the originator or an assignee.

If the crowd were to get rights to the intellectual property it funds, the owner of those rights must assign those rights to the crowd. That doesn’t happen very often; in fact, I know of no instance in which the crowdfunders have shared in the IP rights their funds help to develop. The crowd must generally settle for something else. Stock, for instance. Or a sample of the product. Or even just a T-shirt. But IP rights? Possible, but not likely.

Crowdfunding and venture capital are entirely different in this regard. Venture capitalists regularly take ownership interest in the company, including the IP rights, in exchange for funding.

GoalsOfGreenTech

What Is the DOJ Thinking?????!

The Department of Justice has basically denied songwriters a living wage from their hard work. 

Yuck. There is some light at the end of this tunnel, I don’t see a lot of it.

This is administrative law. Admin rulings like this can be appealed at the District Court level, but not for content per se; only for abuse of power. Since there is 60-year-old precedent in place, and since federal courts are all about precedent, it will (not “would”; “will”) take a really good litigator to convince the judge to rule against the DOJ (that’s not me; I’m a transactionalist). Once it’s in the court system, it can proceed through the appeals process like any other case.

Even though I am not a litigator, it’s always fun to do some backseat driving in cases like this. I’d do a bit of forum shopping before I would take this to the District Court. Whoever brings the admin appeal to the District Court should be sure to bring it in either the US District Court for the Southern District of New York (that court is king of copyright and performing arts) or in the US District Court that covers L.A. and Hollywood (that court is the other king of performing arts). That shouldn’t be a tough one; songwriters live in droves in those places. The lawyer would just need a local client to bring this to the attention of one (or both) of those two courts. If it gets brought in both places (two different plaintiffs), hope to God the rulings disagree with each other. That makes the appeal easier to get through the chinks, especially if they appeal to the 2nd and 9th Circuits and those rulings disagree. That could turn it into a SCOTUS case … if SCOTUS grants certiorari. That’s a big “if.”

 

GoalsOfGreenTech

Cuozzo v. Lee, 579 US ____ (2016)

I was present in the Courtroom for the announcement of the Cuozzo decision by SCOTUS. This decision makes it clear that inter partes review by the USPTO is not appealable, and that the USPTO can institute such review sua sponte (by its own initiative). It’s an interesting decision.

35 USC §314(d) says that the “determination by the [Patent Office] whether to institute an inter partes review under this section shall be final and nonappealable.” (Emphasis added.)

35 USC §312 says that petitions must be pleaded “with particularity.” Those words, in its view, mean that the petition should have specifically said that claims 10 and 14 are also obvious in light of this same prior art. Garmin’s petition, the Government replies, need not have mentioned claims 10 and 14 separately, for claims 10, 14, and 17 are all logically linked; the claims “rise and fall together,” and a petition need not simply repeat the same argument expressly when it is so obviously implied.

The “No Appeal” provision’s language must, at the least, forbid an appeal that attacks a “determination . . . whether to institute” review by raising this kind of legal question and little more. §314(d).

Moreover, a contrary holding would undercut the Patent Office’s significant power to revisit and revise earlier patent grants. Congress would not likely have granted the Patent Office this reexam authority if it had thought that the agency’s final decision could be unwound under some minor statutory technicality related to its preliminary decision to institute inter partes review. Congress has told the Patent Office to determine whether inter partes review should proceed, and it has made the agency’s decision “final” and “nonappealable.” §314(d). SCOTUS’s conclusion that courts may not revisit this initial determination gives effect to this statutory command.

However, the Court limits its green-lighting of the USPTO’s unappealable reviews: “… we need not, and do not, decide the precise effect of §314(d) on appeals that implicate constitutional questions, that depend on other less closely related statutes, or that present other questions of interpretation that reach, in terms of scope and impact, well beyond “this section.”” The Court does not “…categorically preclude review of a final decision where a petition fails to give “sufficient notice” such that there is a due process problem with the entire proceeding, [or] enable the agency to act outside its statutory limits by, for example, canceling a patent claim for “indefiniteness under §112” in inter partes review.”

GoalsOfGreenTech

AVVO Gets Sued for Using a Lawyer’s Professional Information Without Consent

According to the ABA Journal, a Chicago lawyer is suing the lawyer review and ranking site Avvo “…contending that the company’s online lawyer directory is violating a[n Illinois] state statute by using professional information on the site without permission.”

It’s an odd suit. Evidently, this Chicago lawyer is aggrieved that Avvo compiles data, including her name, from publicly available sources, then uses that compiled information to market its attorney marketing services to lawyers. She sees this as Avvo profiting from her personal information. She hasn’t paid Avvo for its services and doesn’t want them to be able to use her information for their own benefit. Since lots of other lawyers in Illinois have also not paid Avvo for their services but have their personal information used in this same way, this complaint is filed as a class action suit.

It’ll be interesting to see what Avvo’s response to this complaint is. I suspect they’ll basically tell the plaintiff that her suit is a bunch of hogwash, but we’ll see.

GoalsOfGreenTech

“Happy Birthday To You” Is Apparently Public Domain

For years now, we have labored under the impression that a valid copyright exists on “Happy Birthday To You.” Evidently, that copyright’s validity is … um … questionable.

It’s not often that a big, dramatic revelation happens in a court case, but in Good Morning to You Productions Corp. et al. v. Warner/Chappell Music, Inc. et al., currently before the US District Court for the Central District of California, a new piece of evidence has just turned up that turns the copyright on “Happy Birthday” on its ear. Evidently, “Happy Birthday” is a derivative of a song called “Good Morning to You,” which was published under the 1909 Copyright Act — without notice of copyright. Today, notice means little in the world of copyright, but under the 1909 Act, notice was everything. If notice of the copyright wasn’t published with the work, the copyright in the work was void.

Interestingly, the important subtitle on the song’s manuscript was blurred in the version given by Warner/Chappell to Good Morning to You Productions as a document produced in discovery (late, I might add). That made people curious. With some good document analysis, the truth came out: the work was published without notice and therefore without copyright.

This case is still ongoing at Docket #2013-CV-04460; no court has actually invalidated the copyright on “Happy Birthday To You,” but I don’t think we need to wait too long for the Central District of California to enter judgment on behalf of Good Morning to You Productions, voiding the copyright. We will soon be able to sing “Happy Birthday” without worrying about paying a royalty.

GoalsOfGreenTech

Changes Coming for Copyright…

This year’s two-year Congressional House Judiciary Committee’s review of copyright “focused on music licensing, discussing recently introduced legislation that has the backing of the music industry. One proposal, the Fair Play, Fair Pay Act, would establish a performance right and also require all radio formats to pay royalties for the performance of pre-1972 recordings.

These changes to copyright are, for obvious reasons, supported by the musicians and recording artists. Royalties for playing their pre-1972 songs on the radio, in all radio formats no less, are a really good thing for them in that the royalties add additional income to the songwriter’s purse, enabling them to have at least a larger subsistence. It might even enable some of them to leave their day jobs to write music full time, which would add bounty to the music of the culture for which they write.

But wait. Let’s look at the radio stations for a minute. Radio is still a viable medium, but the radio industry has changed from the FCC-recognized model of the station and the broadcast tower and the receiver to the internet. There are literally thousands of shows run by people who want to do a radio show for whatever reason; some of those shows are talk shows, and some are music shows, and some are just junk. I worry about the music shows that play the oldies under this new law. These folks do not, as a general rule, follow the intricacies of the changes to copyright law, and, without proper publication and warning about this new royalty requirement, they could be caught in a vise from which they do not have the means to escape. I can see coming down the pike a reenactment of the RIAA vs. Music Downloaders huge number of cases of the early 2000s. That didn’t work well then; I see no reason why it would work better today.

Don’t get me wrong. I support this addition to the Copyright Act. I want to see songwriters get paid fairly for their contributions to the world, and I think that pre-1972 music should be compensated just as much as post-1972 music. However, I support the addition with the proviso that the public be thoroughly and completely noticed using communication means that they simply cannot miss getting something through even the foggiest radar about this new law. I want to see and hear discussion of this new copyright provision on the news, in the newspapers, on the radio, on PSAs, and all over Facebook and Twitter, and I want to see multiple iterations of the warnings that this new law can, and probably will, cause liability for a careless radio show host for a large bundle of preventable judgment money and attorneys’ costs. This new liability will be in effect even for a fly-by-night internet radio show host. These are the folks who stand to lose the most and who therefore need to see the warning of the effect of this new addendum to the Copyright Act.

GoalsOfGreenTech

Copyright Alert System

Huh. Isn’t this interesting. The ISPs are initiating a six-strike system to help enforce copyright.

I’m glad to see the ISPs getting involved more proactively in the enforcement of copyright. The internet is a wonderful invention, but it does lend itself to infringement. Copying without permission is very, very easy in this online world, but that copying may infringe the rights of others. That’s how the recording industry made $millions from the “free” downloading of protected music.

GoalsOfGreenTech

Google and Publishers Settle Their Suit

Well this part of the suit against the Google Library Project is done. The American Association of Publishers (AAP) has settled with Google.

Google, as you may know, took on the ambitious project of digitizing libraries to make that content available online. The Google Books site provides book excerpts for free. Not unexpectedly, this project really bothered copyright owners, and the AAP, the Author’s Guild, photographers and visual artists and several individuals filed suit to stop the project in 2005.

Although the full terms of the AAP settlement are confidential, the settlement, importantly, allows publishers to opt in or out of Google Books, and thus in or out of the digitization project.

The AAP settlement still does not resolve the authors’ separate suits, which are still pending in the Southern District of New York, still presided over by Judge Chin (sitting by designation after his elevation to the Second Circuit Court of Appeals).