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.

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.”


The FTC Finally Targets an IP Troll

For any who don’t know, a “troll” is a company (and its lawyers) that sends out thousands of cease-and-desist letters threatening a lawsuit against a supposed infringer of that company’s supposed intellectual property. It’s a nasty practice that has brought the trolls (and their lawyers) many hundreds of thousands of dollars over the years. Finally, the Federal Trade Commission is beginning to protect the innocent public against these unscrupulous “licensing” demands.

American Broadcasting Companies vs. Aereo, Inc.

A couple of weeks ago, overshadowed by the Hobby Lobby decision, SCOTUS handed down a copyright decision that may substantially limit the ability of transmitters to transmit copyrighted broadcasts without a license to do so.

In American Broadcasting Cos. v. Aereo, Inc., 573 US ___ (2014), Aereo is a subscription broadcasting service that sold “…to its subscribers a technologically complex service that allows them to watch television programs over the internet at about the same time as the programs are broadcast over the air.” Slip Op. at 1. The technology is detailed in the case, so I do not reproduce it here; suffice it to say that through a complex series of technological events, each Aereo subscriber ends up having his or her own dedicated antenna through which copyrighted content is streamed to one computer only. The US District Court for the Southern District of New York, affirmed by the US Court of Appeals for the Second Circuit, found that this technology does not infringe the rights of the copyright holders of the shows that Aereo streams to its users because, first, Aereo does not “perform” within the meaning of the Copyright Act and, second, even if it does “perform,” it does not do so “publicly” because there is a dedicated antenna connected to only one computer, making the streaming a private showing, thus falling outside the “public” performance requirement of the Act to qualify as infringement.

SCOTUS disagrees. In a 6-3 decision delivered by Justice Breyer (the dissent comprises Justices Scalia, Thomas and Alito; all others concur in the majority opinion), the Court decreed that the 1976 Copyright Act was put in place, in large part, to overturn their decision in Fortnightly Corp v. United Artists Television, Inc., 392 US 390 (1968), which held that community-antenna television falls outside of the scope of the Copyright Act of 1952. Given the clear intent of Congress to make such activities fall very definitely within the scope of the Copyright Act, and given that Aereo’s activity are not substantially different from those of Fortnightly, the Court felt duty-bound to overturn the Court of Appeals for the Second Circuit’s holding that Aereo’s activities do not infringe copyright. SCOTUS holds for the plaintiff in determining whether (a) Aereo “performs” within the meaning of the Act and (b) Aereo performs “publicly” within the meaning of the Act.

There is language in the case that indicates that this case can be read narrowly, but this case puts rebroadcasters on notice: The act of rebroadcasting is a “transmission” within the meaning of the Act, and the viewer and broadcaster “perform publicly” within the meaning of the Act.

I advise my clients that it’s always easiest, best, cheapest to get a license to use the copyrighted works of others. This case just goes to show that this advice is still good.

The oral arguments on both sides are actually interesting for those of us who like copyright matters.

DirecTV and AT&T Merge

By now, everyone’s heard that AT&T is proposing to buy DirecTV for $48.5 billion in cash and stock.

I’m wondering why.

DirecTV and AT&T compete in a few marketplaces in the US, but not really in enough markets to justify a $48.5 billion takeover, especially in the current technological environment. DirecTV’s technology will do nothing to enhance AT&T’s current technology in that DirecTV does not offer internet service and AT&T cannot use it to improve their mobile service. More and more people watch video online, on sites like YouTube (owned by Google, Inc.) and Netflix, meaning the additional customer base for pay TV is likely to continue to dwindle (last year, the number of households that use pay TV actually dwindled). Satellite TV has its issues, too; when I had DirecTV, any interference with the direct line of vision between the dish and the satellite pixellated the picture or canceled the transmission altogether. Snowstorms and rain storms are examples of “interference with the direct line of vision.” In the Great Northeast, we get both on a regular basis.

Regulators are likely to have concerns over this merger, too. This would reduce the number of pay TV options available to consumers in about half of the US markets. Because decreased competition can have the effect of raised prices, this would seem to me not to be in the public’s best interest. This merger makes AT&T the second-largest provider of pay TV services, assuming all of the current customers stick with them (Comcast/Time-Warner is larger). Monopolies are not popular with regulators, either.

I can think of all these reasons for AT&T not to enter this merger; I can’t think of a single reason for them to do so.

So … why?

DNA Data

Seems Harvard has encoded data — a lot of data — in a DNA strand.

I’m not sure what I think of this. Is it WAY cool technology? You bet. However, the thought that a life-force molecule like DNA can be used to store 700 terabytes in one drop? Hmmm… WHAT data will now get stored? WHO controls the storage? HOW can data stored be expunged? WHEN will the data deteriorate or be eliminated? WHERE will the technology lead us? WHY do we do this to ourselves?

Sometimes, technology advances at such a fast pace that we plunge ahead without considering the ramifications. This particular technology has ramifications that boggle the mind; data storage is only a drop in the bucket. To paraphrase Michael Crichton, who said it best in Jurassic Park: “Sometimes we did it because we could without stopping to think about whether we should.”

Maybe this is one of those times.

HathiTrust Copyright Case Rumbles On….

On September 12, 2011, what purports to be the largest copyright infringement suit in history was filed in the US District Court for the Southern District of New York. At stake are copyrights in digitized works of authorship. Filed by several authors’ guilds from several nations, the suit takes to task the University of Michigan, the University of California, the University of Wisconsin, Cornell University, and the HathiTrust, a partnership formed in 2008 “to contribute to the common good by collecting, organizing, preserving, communicating and sharing the record of human knowledge.” In other words, HathiTrust’s mission is to copy and distribute works of authorship. They have a digital archive of library materials, many of which are protected by copyright under the laws of the United States and other countries.

The universities and HathiTrust, of course, argue fair use. The works in question are so-called “orphan works” — works whose authors cannot be found. Only the University of Michigan has announced that it has suspended the digitization of potentially copyrighted works pending the outcome of the case.

Plaintiffs’ choice of venue is not accidental. They could have brought suit in Wisconsin, Michigan, California, or in any district where the HathiTrust has a member. However, the US District Court for the Southern District of New York encompasses New York City, home to the publishing industry. This court is well versed in copyright law and has a large volume of precedent cases that are favorable to copyright holders.

There was a procedural hiccup in the case not long ago; some defendants, who exist far away from New York City, wanted their depositions to be taken in their own home territory. The attorneys have settled that matter out, but the consequence of this skirmish is that the close of discovery has been pushed back until June 8. This tightens the schedule for summary judgment. US District Judge Harold Baer wanted the summary judgment motions to be fully briefed by July 20. I don’t know if that’s still reasonable, since allowing the necessary time for each side to respond to the other’s papers means that the motions must be filed in mid-June, which is too close for comfort to the end of discovery.

Since Judge Baer has taken July off (Article III judges can do that…), it might be wisest to allow the parties to take July to brief their motions. I doubt that will happen, but it would likely result in a much better product for the Judge to rule on when he comes back.

Meanwhile, this behemoth of a case (which is closely related to the Google digital library case) rumbles on, with next due dates in mid-June when summary judgment motions are due.

Star Trek Technology is Swedish

Star Trek influences many aspects of our society; flip phones, for example, came from Captain Kirk’s flippy communicator. Now, it seems, the Romulans are getting in on the 21st Century act. A Swedish company, BAE Systems, has conjured up a cloaking device. See Bae Systems’ cloaking device.

I love it when sci fi isn’t so fi anymore.