Posts Tagged ‘intellectual property’

SOPA and PIPA vs The Internet: The Epic Copyright Battle

Wednesday, 18 January, 2012 15:40 Written by Danie Roy 2 Comments

Danie Roy

Before we begin, I’d like to make some statements that you may remember from when I discussed embryonic stem cells: this article is largely meant to be informative, although it is very difficult to stay completely unbiased when I am informing you about the opinions of other people. I apologize in advance if my own opinion shines through too brightly, largely because this seems to be an issue that is polarizing people more than stem cells ever could. Add the previous sentence to the list of things I never thought I’d say. Then again, this is the internet.

By now, you’re probably aware that you can’t access Wikipedia or Craigslist as you normally would. You’ve gone to see teh lolcats or hang with your bronies, and you’ve been greeted with a popup begging you to take action. The Google doodle is now a black box. Even the news stations are talking about the sites going down. What’s going on? Just a preview of what could happen if SOPA and PIPA pass in their current forms.

SOPA and PIPA are bills in the House of Representatives and Senate, respectively, that were intended to stop online piracy from overseas sites like The Pirate Bay. Currently, nobody can touch The Pirate Bay, as evidenced by their response letters (or, as Scott called them, f/u letters). The language of the bills is entirely too broad, however, and reeks slightly of “did not do the research.” For instance, you don’t have to infringe to be taken down, you just need to be capable of infringing: that is, have a comment box, text, links, a link to someone else’s link, etc. And you may be guilty until proven innocent.

These are popping up everywhere today.

I’ll be the first to admit that most people have no idea what’s going on in Congress most of the time. I personally would rather read image file wrappers, watch paint dry, or have a root canal than watch C-SPAN. It’s boring, and in a language called “legalese.” Great for curing insomnia, though.

Before I get too far into this, I’m going to be perfectly clear: I am FOR protecting intellectual property. I’d be an out-of-work hypocrite if I wasn’t; protecting intellectual property is my job as a patent agent. However, I personally believe that SOPA and PIPA can’t protect intellectual property in their current forms.

Here’s why people are protesting and your favorite sites are dark:

  • A site does not necessarily have to infringe to be taken down. A site that could infringe, in other words, has a comment box, links, or any upload capability, can be targeted.
  • If you’ve been accused, there is no real defense: you’re assumed guilty until proven innocent, and the bill makes proving yourself innocent extremely difficult. In order to be innocent, your website must not have the functionality to infringe; which of course, all websites have. So, you’re either infringing or you’re perjuring yourself. Take your pick.
  • Takedowns are incredibly easy to initiate. The RIAA already has a history of using questionably ethical legal tactics to take out legitimate businesses. Imagine what they can do with SOPA and PIPA on their side.
  • Ever posted anything to any website? YouTube, ICanHasCheezburger?, even Facebook? Yep, you’re a potential target.
  • Ever used Gmail, Yahoo! mail, or AOL mail? Same deal.
  • Fair use will be practically considered obsolete… and ignorance will not be a defense.
  • Anyone working for the government (like our wonderful Congresspeople) is immune from the consequences of violating SOPA and PIPA.
  • The link I posted to the f/u letters? That could be a violation of SOPA/PIPA, due to The Pirate Bay’s unsavory activities.
  • Earlier versions (and possibly later versions) allowed for destabilizing the infrastructure of the internet in order to “protect” IP. That is, addresses could be removed from the universal internet lookup system, DNS, which would make site spoofing that much easier… hello viruses and stolen personal info!

To quote a godly entity, you “should pretend like it is a big deal, because it is.” Whether you’re for or against SOPA/PIPA, you really need to speak up about this issue. It affects the internet as we know it, and it affects intellectual property, too. If you’re like me, you’re for protecting intellectual property, but against seriously inhibiting the free flow of the internet.

To read more:
Tim O’Reilly’s thoughts (with some from Nancy Pelosi)

Wikipedia’s two working English pages: SOPA and PIPA

LA Times: Three congresspeople drop support, including FL Senator Marco Rubio

PCWorld’s rather factual take

I Got Sued By A Copyright Troll, Part IV: Discovery Shenanigans

Monday, 26 December, 2011 05:55 Written by Aaron Thalwitzer 0 Comments

We’ve discussed the basics of pre-suit strategy, defenses both procedural and on the merits. Now let’s follow these cases through their usual trajectory to try and answer a common question: “What if I don’t settle AND the troll obtains my identity from my ISP?” We know that the IP address often leads to a rabbit hole of defenses, so where will they go next? Surely they don’t expect a defendant to personally admit to infringement — in fact, the defendant may assert his or her Fifth Amendment right not to incriminate him or herself, since there are potential criminal penalties for copyright infringement. But there are other ways to discover what’s lurking in a defendant’s closet, so to speak.

I will rule out depositions, requests for admissions, and interrogatories, since the Fifth Amendment may be asserted in most of these cases. (But note that in civil cases, there is no Constitutional prohibition on inferring a reasonable adverse inference from a party’s invocation of the privilege.  This is the subject of many a law review article, the telling of which I will mercifully spare you. See Baxter v. Palmigiano, 96 S. Ct. 1551 (1976).). The trolls will serve requests for production of documents, inspections of defendants’ computers and other digital devices, and subpoenas to produce documents and other things. It’s asking a lot from a judge to inspect all connected devices in a home after already having asked for the identities of defendants based solely upon an IP address and the name of the ISP account holder (the “subscriber”). It’s not that it’s unusual to inspect hard drives the like, but to do all this without even knowing who did it is pushing the limits of most judges willingness to exercise their sound discretion. Even if such discovery is ordered on an expedited basis, it only takes a few minutes to destroy a computer, as one alleged doe defendant reportedly said he’d do. Without inspecting the connecting devices, the troll will probably find it very difficult to prove the infringer’s identity.

This begs the question: Why do the demand letters demands thousands of dollars from  YOU (the subscriber) pay thousands of dollars for the infringement that YOU, if the troll, even with the identity of the subscriber, is still unable to determine who is responsible?

Early discovery, that is, generally, before a Rule 26(f) conference, discovery is only granted in limited circumstances. “As a general rule, the use of “John Doe” to identify a defendant is not favored. However, situations arise . . . where the identity of alleged defendants will not be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.” See Gillespie v. Civiletti, 629 F. 2d 637 (9th Circ. 1980). The truth is, judges could go either way on this.

For reasons already discussed, if you get a subpoena from your ISP, call a lawyer! (unless you don’t mind being forever attached to a copyright infringement lawsuit related to porn).

 

Disney Goes After Pixar Petroleum for Trademark Infringement

Friday, 09 December, 2011 09:38 Written by Mark Malek 1 Comment

By: Mark R. Malek

If you have read my articles in the past, you may have figured out that I frequent the Disney Theme Parks often, and I watch most all of the Pixar movies (see my most recent article about Disney here).  I would like to blame that on my kids but, in all honesty, I was a Disney season passholder and a fan of the Pixar movies long before I had kids.  I do like most of the Pixar movies (with exception to Wall-E) and, since Steve Jobs was a majority stakeholder in Pixar, I was somewhat saddened by his passing last month.

I came across a story last week in the Wall Street Journal that caught my eye.  As it turns out, an oil and gas company in Calgary, Alberta announced that it would organize its oil sands and carbonate bitumen interests into a subsidiary called Pixar Petroleum Corp. Even more interesting, however, is the name of Pixar Petroleum’s parent company – Paramount Resources Ltd.  The article went on to note that Paramount Resources Ltd. also has a subsidiary named Fox Drilling Inc., and maintains an interest in MGM Energy Corp.

It seems to me that this is just a group that gets a kick out of choosing names for their companies that are similar to those of the movie industry. Who knows, maybe these folks are big movie fans. It is not as though the names are not famous. Most everyone has seen a movie made by one of these companies in the past few years.  Disney Enterprises, Inc. owns a slew of trademarks on the Pixar name.  There are several different variations, each directed to the different movies that Pixar has created.  It is amazing to me that nobody at Pixar Petroleum stopped for a second and thought, “maybe Disney is not going to like this so much.”  Besides Google and probably GE, is there another company that has deeper pockets that you are looking to pick a fight with?  Probably not.

I understand that the argument for Pixar Petroleum to attempt to make is that there is no likelihood of confusion between the entertainment industry that Disney is involved in with the petroleum industry that Pixar Petroleum is involved in.  The analysis does not end there.  There is a trademark dilution issue that has to be addressed.  Rene Dial has posted some articles on trademark dilution (see here and here). The Wall Street Journal article cited attorney Gloria Phares who noted that “just because you have a mark in one area, like in animation, doesn’t mean you have a monopoly on a mark.” Gloria’s analysis is correct, but I really hate the use of the word monopoly when referring to intellectual property.

Technically speaking, intellectual property rights do not provide a monopoly to the owner. Instead, it provides the owner with the right to exclude others from using their intellectual property. I know that you are now saying “what’s the difference?” The difference, especially in patent law, is that intellectual property does not give you the right to make and sell whatever you have protected – it merely gives you the right to exclude others from doing so. It is a subtle difference, but it is a difference nonetheless. Over time, however, it seems as though intellectual property owners have tried to over force and over interpret the rights that they have. This behavior is, in my opinion, improper, and is the driving force for much opposition to intellectual property rights.  This discussion has to be saved for another article – possibly a series of articles.

Back to the issue at hand – perhaps, as indicated in the Wall Street Journal Article, this was a jab at Disney and Pixar for their recent jabs at big oil.  The plot of Cars 2 (which I saw in the theater with my kids…twice) revolved around big oil trying to destroy a new company that was introducing alternative fuel.  Yes, it was a bit difficult for the kids to follow, but all is forgiven when Mater does something funny.

 

 

 

 

Copyrights ARE Constitutional

Wednesday, 30 November, 2011 14:16 Written by Danie Roy 1 Comment

Danie Roy

At Tactical IP, we usually find our own subject matter to write on. Occasionally, someone will find something really exciting or current to write about and offer it to someone due to write an article soon (Scott in particular very good at this.  Thank you, Scott). Very, very occasionally, one of us will tweet something, which sparks a discussion, which leads to an article. This is one such article.

Recently, Mark tweeted about an article which claimed that copyright is unconstitutional. Of course, this led to a great pounding of heads upon desks and much gnashing of teeth at the office. We may not all be lawyers (I, for instance, am not a lawyer), but we all know that, not only are copyrights and patents explicitly constitutional, but that the argument made in the article is not particularly sound. So, when Mark suggested that I write a response article, I jumped on the opportunity.

Let’s start with the abridged version of the article in question (for those of us who can’t be bothered to click all the links). The author believes that the First Amendment negates the right of copyrights and patents to exist. The author also believes that infringement fines are disproportionately too high.

This is whatever the Supreme Court says it is.

Now, about the constitutionality of copyrights and patents: the U. S. Constitution, Article I, Section 8, states specifically that “[t]he Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  The First Amendment to the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The issue here is the freedom of speech/press part of the First Amendment. The author argues that this clause automatically negates the rights to patents and copyrights. What the author doesn’t understand is that freedom of speech and the press is not absolute by any means. For instance, you can’t shout “fire” in a crowded theatre, and treasonous/seditious speech is never protected. Want a less dangerous but equally malicious example? Slander and libel aren’t protected, either. Freedom of speech and expression is limited by the “harm principle.” That is, if the speech/expression in question would cause harm to someone other than the speaker/expressor, the speech may and should be limited. To take away copyright and patent rights in the name of “free speech” could easily be argued to be harming the creators of that intellectual property they have worked hard to protect. Protection doesn’t come cheap or easy, either; the average patent costs more than my car, and not every application gets to mature into a patent.

The author also fails to understand that intellectual property is regarded as exactly that: property. By the author’s logic, I should be able to copy his article, post it here, and giving him credit is completely optional. Granted, I would never do this, because I actually understand the concept of intellectual property, but, if I did, the first thing the author would likely accuse me of is “stealing” his article. Now, correct me if I’m wrong, but isn’t it impossible to steal something that isn’t property, in other words, owned by some entity? If we eliminate copyrights and patents, are we also going to eliminate property ownership altogether?

The problem is that author is operating on a very flawed concept of intellectual property. He sees it merely as a method of expression rather than a true product. While intellectual property can be, and often is, a method of expression, it is also property. If you were the first person to string a set of words or ideas together that had some type of useful impact on the world, you should, at the very least, be credited for it. If it’s your trade, then you most certainly should get paid for it. Heck, even hobbyists can get paid to make what they love.

As for the penalty for infringement being too high, that is another discussion for another time. I feel that particular question is more a matter of opinion than a matter of the law itself.

The Trademark and Copyright Games Played at Disney

Sunday, 27 November, 2011 23:01 Written by Mark Malek 0 Comments

By: Mark R. Malek

As is the case on many weekends, I spent this past weekend at the Disney Theme Parks.  Mostly in part because some dear friends were in town there with their kids, and we wanted to get together with them.  (On a side note, check out their webiste – they do a lot for kids with autism.)  We spent tome time at the Magic Kingdom on Friday, Hollywood Studios yesterday to see the Osborne Family Spectacle of Lights (if you have never seen it, put it on your bucket list – absolutely amazing) and today we rounded out the weekend with a quick trip to Animal Kingdom.  I really love Animal Kingdom, and the kids seem to have a great time there.  We are usually in and out after riding one or two rides, and spending time in Dino Land.

As usual, we had another great weekend at the happiest place on earth.  As we were leaving Animal Kingdom, however, my oldest son spotted the face painters, and decided that he wanted to have it done.  In six years, and countless birthday parties that always had face painting at them, he never once let someone get near his face.  When he told me he wanted to have face painting done, I knew right then and there that I didn’t care how much it cost, he was going to get his face painted up.  Parents who have had their kids’ faces painted up know the routine.  The kid switches back and forth about ten times trying to decide which face painting they want, and right before they sit down, they lock in their choice.  We had gone through a panda bear, a lion, a dinosaur, and right before he sat down, he picked Spider Man.  Well, not Spider Man, but “Webbed Hero.”

I’m not going to lie to you – it came out great.  He sat still and the face painter did a fantastic job in about 5 minutes.  I had a happy kid when it was all said and done.  Right when he picked it out, though, I was kind of shocked.  I always thought that Spiderman was a Universal thing – the theme park just down the road, right?  Then I remembered that Disney bought Marvel Entertainment just a couple of years ago (source), and that Spiderman was a Marvel Comic.  So if Disney has some rights to Spiderman, why not call him Spiderman, instead of “Webbed Hero?”

I guarantee the answer to that has something to do with why there is still a Spiderman Ride at Universal Studios (Disney’s biggest competitor in Orlando).  I suspect there has to be some sort of deal where Disney has licensed some use of Spiderman to Universal, and has reserved for itself some copyrights that would allow face painters to paint kids up as “Webbed Heros.”  Unfortunately, when they reserved the copyrights, they probably did not reserve any trademark rights, i.e., rights in the name, which is why they did not advertise a “Spiderman” face painting option.  I am not sure what the real deal is here, but it just struck me as weird as I was watching my son get his face painted.  Just some musings from my weekend.  Hope everyone had a great Thanksgiving Day weekend.

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