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Category: Copyright

Right to Use versus Right to Exclude

The law provides for different rights, depending on the subject matter concerned, the evolution of the law through courts and legislative bodies, and practical implications.  Some people think that a patent or a trademark gives the owner a right to use the subject matter covered by the patent or trademark.  They don’t.  Patent rights are exclusive rights: they give the owner the right to exclude others from making, using, and selling the content claimed in the patent.

The world of patents is a complex playing field of evolving rights.  New patents are being introduced all the time, and expired patents are constantly falling out.  In this complex field, the right to practice an invention and the right to keep others from practicing it are forever changing.  Inventors must understand the difference between the right to use and the right to exclude.  In what often seems a paradoxical situation to inventors, having a patent does not mean you can make and use your invention.  It only means you can prevent others from making and using your invention.  Inventors may question the value of a patent if this is true, but that exclusive right is the value.  It is the value in controlling the marketplace by keeping others out.  But when the Patent Office grants you a patent, it is merely saying that you now have an right to exclude others from practicing your invention; it does not make a judgment as to whether you can practice it yourself.

You may wonder in what situations you would have a patent on your invention but not be able to use the invention.  Just as you, as a patent holder, can prevent others from practicing your invention, other patent holders can prevent you from practicing theirs.  And if your invention borders too closely to theirs, they can prevent you from practicing yours.  Further, practicing your invention may be impossible if it involves something that breaks the law.  This is it, essentially.  Because what you have created may be prohibited by law or by someone else’s patent rights, you can be prevented from using your invention.

Here’s a very rough analogy.  Are keys to a car equivalent to a right to use the car?  Not really.  Just because a person is in possession of keys to a car doesn’t mean they have the right to use that car.  Their license may have been revoked.  The car may be impounded.  It might be inside someone’s garage.  The person may be under age 16.  Some other third party has decided whether they have the right to use the car.  But, as long as they hold the keys, they can keep other people from driving that car. The keys confer, roughly, not the right to use the car (because that ability is determined by outside forces), but the right to keep others from using the car.

Registering for Federal Copyright Protection

Copyright is protection for original works of authorship fixed in any tangible medium of expression.”  If you make something creative on your own, and it is something tangible or on something tangible, the work is eligible for copyright protection. The protection exists from the moment the work is created; not from the time you register the work or put a copyright notice on it.

I previously wrote about the effects of merely placing the copyright symbol on your work.  Registering your work with the federal government gives additional protection.

By registering your copyright with the federal government, you add several features of protection to your work. First, you place the public on notice of your copyright. Second, if you register the copyright within 5 years of publishing the work, your copyright registration becomes evidence in court that your copyright is valid. Third, you can bring an action in federal court for infringement of your copyright. Fourth, and perhaps most attractive, you can be awarded statutory damages and attorney’s fees if you are successful in a lawsuit.

Who owns my logo? The graphic design company that developed it or me?

You may have hired a graphic artist or agency to develop your company’s logo. Do you know who owns the rights in it?

There are two main types of intellectual property rights that can reside in a logo: copyright and trademark. Copyright protects an original work of authorship fixed in tangible means of expression; typically, a creative or artistic piece that is drawn, painted, saved, or otherwise recorded. Trademark rights protect the use of a symbol or identifier in connection with the sale or advertisement of a product or service.

Copyright usually vests in the person that created the work. However, when someone is hired by another to develop a work, the copyright may be owned by the employer or hiring party. Generally, in standard salary-based employment relationships, the employer will own copyright in works produced by the employee. But a graphic artist hired to develop a logo isn’t a standard employee – he or she is an independent contractor. The fact that the work is being produced expressly for the company’s use as an emblem for its identity likely weighs toward finding that the company is the owner of the copyright in the work, but it doesn’t provide a guarantee. A contract should be in place between the company and the graphic artist defining the relationship, and it should also cover the copyright in the work(s) produced.

Why is copyright a concern? Technically, if it were determined that the graphic artist retained ownership in the copyright, then the company would be infringing that copyright each time it used the work as its logo (absent a licensing agreement). Ouch. Or, if the company wanted to make a similar logo with a few slight differences, that newer logo could be considered an infringing derivative work of the original. Losing control of the copyright effectively equates to a loss of the ability to use and develop the logo.

Trademark rights are more clear-cut. Trademark rights arise only where there is use. While the graphic artist may have developed the logo, she did not use it in a trademark sense; in other words, she did not advertise a product with the mark affixed or sell an item that carried the logo. She has merely created the mark, and creation alone does not spawn trademark rights. Therefore, trademark concerns shouldn’t be too problematic when using a graphic artist to develop a logo.

Nevertheless, make sure that the contract with the graphic artist deals with trademark rights. There isn’t a reason for the graphic artist to hold onto any copyright or trademark rights that might arise in the work she creates. Her business isn’t holding copyright and trademark lawsuits over people’s heads; it is helping people develop creative and effective logos for their businesses.

Copyright Protection and Fonts

A friend of mine is working on a children’s book and wanted to use some highly stylized fonts for the story. She asked me if she had to worry about copyright for any fonts she might use, and I was stumped. Copyright protection generally extends to an “original work of authorship fixed in a tangible means of expression.” My mother Pam Galvani is a calligrapher, so I know a little about fonts and typefaces. Clearly, fonts are the product of creative work, and they therefore seem to technically qualify for copyright protection. But I have never come across the issue before and something in my mind was telling me that the issue was more complex than simply meeting the test of an “original work of authorship fixed in a tangible means of expression.”

Intellectual property theory often recognizes public policy, and it seemed possible that Congress could have said that fonts should not be subject to copyright protection so that the use of language would be proprietary. In other words, at first I though Congress might have decided that giving a select few font owners the power to exclude others from using fonts would limit the very ability of people to communicate and thus might have removed fonts from copyright protection.

A little research later…. Congress and the courts have said something along those lines. One case notes (calligraphers begin crying here) that “typeface is an industrial design in which the design cannot exist independently and separately as a work of art.” Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978). The regulation 37 CFR 202.1(e) says “typeface as typeface” is not eligible for copyright protection or for applications for copyright registration. What does “typeface as typeface” mean? Essentially, fonts as you think of them are not protected by copyright. They are specifically excluded by statute. However, software that produce fonts – generally PostScript or TrueType – are protected because they are computer programs, which typically are protected by copyright So you get a slight dichotomy: copying the computer program to produce the font would be copyright infringement, but “copying” a single character of the same font would not be copyright (generally).

That doesn’t mean that you can go out and copy any stylized lettering you see in print. The design of the letters may nevertheless be protected by copyright – it truly depends on the nature of the design, the amount of creativity involved, the amount of functionality, and other factors. And to address the letter-artists’ worries: while the individual design of a letter may not fall under copyright protection, your greater work probably is protected as an artistic piece, considering the arrangement of lettering, the use of space, background, organization, and all the other creative aspects that go into your work. Concerns beyond copyright: copying lettering could also raise trademark issues depending on the content you are emulating.

I usually don’t double-down with this disclaimer, but here I will. This area of copyright is complex and highly fact dependent. This post is a really high-level view of fonts, typefaces, and copyright. Please consult with an attorney before proceeding with a decision involving this area of the law.

Copyright Infringement on the Web – DMCA Takedown Notices

Congress created a procedure that content owners can use to ask websites to remove content protected by their copyright. The mechanism creates an incentive for webhosts, internet services providers, and search engines to remove (or at least investigate removing) material that may violate the content owner’s copyright. It is called a DMCA Takedown Notice.

Before this mechanism, content hosts could be liable for copyright infringement, even if they had not uploaded the offending content themselves. For instance, Google could be liable for copyright infringement if someone posted a Beastie Boys music video on YouTube. This provision now says that Google, if it receives proper notice of the music video, can avoid liability if takes steps to investigate the matter and remove the offending content. The idea is that by fostering communication between the content owner and the content host, copyright rights can be maintained and protected without litigation.

There a number of procedures that must follow. First, the protection is only available to the web host if it designates an agent to receive Takedown Notices and lists that agent with the Copyright Office. This allows a content owner to look up the name and address of the agent fairly easy, so that he or she can send the Notice without difficulty.

The Notice itself must conform to a number of requirements. Most importantly, it must identify the protected work, and the manner or location in which it is being infringed on the offending site. It must include a signature and a statement made in good faith that the content is being used without permission. Tied up in this is the requirement that there be copyright infringement (or at least alleged infringement). Merely copying a few words from one site to another is probably not copyright infringement. Using the overall design of a website for another site is probably not copyright infringement. Thus, there are some instances where, although the content owner may feel wronged, the actions don’t necessarily amount to infringement that can support a DMCA Takedown Notice. However, there are many instances where a serious argument can be made that the offending site is infringing, and in those circumstances a Takedown Notice is appropriate.

It is best to consult with an attorney before sending a Takedown Notice. A Notice that is spurious or lacks support can be a big mistake – the sender can be liable for damages, which may include the costs incurred by the webhost or search company in hiring an attorney to investigate the Notice.

TED Talk: Johanna Blakley: Lessons from fashion’s free culture

In this video, Johanna Blakley provides a good overview of the interaction between copyright and fashion. There are some slight inaccuracies in what she presents, but overall it is an excellent talk.  And her remarks in the last few minutes bring up some interesting issues.  From TED:

A Lesson in Copyrights and Licensing from The Verve

Do you remember the Rolling Stones Tongue Logosong Bittersweet Symphony? It was a huge hit around the world in 1997, used in movies, TV shows, and commercials. It has been sampled many times for re-use in other songs. The hit was written and performed by the English band The Verve. It has an incredibly distinct symphonic backing that most gen X-ers and some gen Y-ers should recognize.

The song has its roots with The Rolling Stones, however. While The Verve wrote the lyrics, the underlying orchestral melody was performed and recorded by the Andrew Oldham Orchestra for The Rolling Stones’ song The Last Time. Oldham was the Stones’ manager in the ’60s around the time The Last Time was recorded.

It seems that some part of the original song was negotiated for, allowing The Verve to sample it. However, after Bittersweet Symphony took off in the charts, the Stones’ later manager Allen Klein alleged that the sampling had gone too far. The Verve lost, and Allen Klein subsequently licensed wide use of the song to the great dismay of The Verve. Not only did they not receive royalty payments, but their song came to be used in car commercials and sneaker spots, and when it was nominated for a Grammy, Mick Jagger and Keith Richards were the nominees.

Some might say the band that “wrote” the song never profited from it. Clearly, the validity, clarity, and power of the license here were incredibly important. A band can really expose itself to liability if it never seeks a sampling license, but even with one, risk still persists.

Is Web Scraping Legal?

I had a friend get in touch with me a while back about the legalities of web scraping. He found, and I’m finding too, a tremendous lack of information about web scraping. I think this is a result of there being so many strange ramifications depending on the many variables in the facts of each situation. I got interested in the legal issues involved in web scraping, and so I put together a hypothetical to test some of them out.

I am going to reiterate the disclaimer in the legal notice of this website: this is not legal advice. The situation I describe here is incredibly specific and is the product of my imagination. There is almost no chance this situation is going to be the same as yours. In fact, the situation here isn’t even a complete (or real) one. I’m not going to spend the time to come up with a technologically-savvy hypothetical. This will have to do. Your situation is going to contain facts, details, and nuances different and exclusive from the one here. If you’re reading this for educational purposes, great – this should be a wonderful starting point to better inform yourself. Talking to a lawyer about your specific situation should be the next step in informing yourself.

The Hypothetical Situation:

My home ski area publishes the status of their lifts online. I develop a program that jumps onto the site, downloads the page to memory, scans that page for the lift status, uploads that status to a database, and then dumps all the data. With my iPhone I can then hit my new app which connects to the database on the server and grabs the data to display on my iPhone. Now I can see what the wait time is for a lift on the other side of the mountain while I’m skiing, or I can decide if I want to stay home for the day if I’m looking at the app off-mountain. What exactly are the consequences of doing this? Can I get in trouble for web scraping?

Web scraping brings many possible areas of liability into focus. It can potentially implicate contracts, copyright, trademark, patent, internet law, various federal statutes, and some other areas, too. Let’s hit them one by one.

1. Contract: Terms of Use

Perhaps the easiest and most straightforward analysis. Terms of use, terms and conditions, end use license agreements – whatever the agreement may be called, you often agree to use a site according to its terms when you access and stay on the site. Courts routinely uphold terms of use despite the fact that you’ve probably never read them.

Terms of use – and thus violation of those terms – can be highly unique. What is allowed on one site may be prohibited on another site but may be permitted only to a limited extent on still another site. It is almost impossible to draw any sort of conclusion about whether web scraping will violate terms of use without having the site’s terms available. My home ski area actually doesn’t have any terms of use, for some reason, so this shouldn’t be a problem. However, if the terms of use said something like: “the site is only to be used for personal use” or “reproduction or display of any material from the site is prohibited” or “scraping content from this site is not allowed,” I’m probably in hot water.

2. Copyright

Copyright can be troublesome for this app. Information on a website can be protected by copyright. Copyright protection exists in creative material fixed in some semi-permanent medium. However, copyright protection does not extend to facts because they aren’t considered creative. This creative threshold is quite low, but facts don’t pass it; creative arrangements of facts, however, can qualify for protection. My home ski area’s website has a good deal of information on it. The lift status is displayed in a few ways: with a green/yellow/red icon next to the lift’s name, with wait time next to the lift’s name, or with a green/yellow/red line superimposed over the lift’s route on the trail map. However, that is merely the display. The data scraped is just that: raw data. Raw facts. Most likely, copyright protection does not extend to this, so I should be in the clear for the data itself.

However, I’m clear only if my app scrapes just the data. If it loads the entire page, culls the code for the data it needs, and discards the rest, a temporary copy has been made of the page. The page is almost certainly protected by copyright, and courts have found that even a temporary copy stored in RAM is a sufficiently permanent copy such that it can lead to infringement. So, the app may be infringing the ski area’s protection of the webpage that contains the lift data, even though I’m just trying to grab the data itself.

3. Trademark

Trademark law shouldn’t be much of a problem. Trademark law protects the public from becoming confused about the source of a product. My app will obviously display the name of the ski area so the user can look up a resort by name and find its lift wait times. The display of that name can’t create the appearance that the mountain is sponsoring the app. This shouldn’t be too hard. It is necessary to use the name in the app, but it can be done carefully: by stating something like “lift times at X Ski Area” should be sufficient to not endanger a likelihood that a consumer would be confused by the use of the name. Something like, “lift times at X Ski Area, provided by MyiPhoneAppName” would be even clearer. A disclaimer somewhere would be an additional safeguard against consumer confusion.

4. Patent

Patent infringement can be a tricky area. Patent owners can exclude anyone from making, using, or selling their technology. By accessing the site and interacting with the data, the app would arguably be using the technology. It is really difficult to analyze whether this app would infringe any patents without knowing exactly what the ski resort has patented (or licensed). Typically, software isn’t much of a patent-heavy industry, because it changes so rapidly that the time and money necessary to file and procure a patent just isn’t worth it. Further, a lot of ski resorts (and probably other places with online wait times) have this similar feature, which means either everyone is licensing it (doubtful), websites are stealing it (also doubtful), or the technology is in the public domain (most likely). I would venture to guess that my ski area doesn’t have a patent on the technology involved in the lift status display, but you never know.

Now, there may be other apps out there that use similar technology. My app could possibly be stepping on their patents if they have any. But do they have any? Again, hard to say. Only a really thorough freedom-to-operate opinion could tell me whether anyone has a patent on this technology and, if so, whether my app infringes it. Most likely though, because of the short-lived effective life of software and iPhone apps, there probably isn’t a patent on this sort of technology. If the technology has been around for a while, the chance that it is patented is even smaller.

5. Trespass to Chattels

Trespass to chattels is a physical-world legal wrong that has been adapted to the internet. In the tangible world, trespass to chattels is interference with someone’s personal property – trespassing on their stuff. The theory has been successfully applied to spammers, with ISPs claiming that the volume of spam ate up their bandwidth, reduced the quality of their service, and ultimately risked their business. The law has also been applied against bots that crawl sites looking for information, where those bots occupied only a small percentage of the site’s bandwidth but the risk of increased usage was feared. However, in California, where most of this law arises, the theory has been trimmed significantly, and actual damage or impairment is now required.

Central to the question of whether my app risks trespass to chattels is the coding. If the app has to jump onto the ski resort’s site every time to download information, then I risk having thousands of iPhones querying the site every day during the winter. The aggregated traffic from all these apps could cause some degradation of the site. However, if the app communicates instead with a central database, as described in the hypothetical, then the load on the site is reduced. Instead of having thousands of queries from thousands of iPhones, the site is touched only by one database several times a day, and the iPhones get all the information they need from the database without burdening the ski resort’s site.

6. Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act (“CFAA”) is a federal statute that imposes civil liability where someone or something accesses a computer without authorization, or accesses a computer in a manner that exceeds the authorization that it did have. For example, if you hack into a database on a server that you were never given access to, you can be liable. If you had access to the server, but not the database, you’ve exceeded your authorized access, and can still be liable. Of course, you’re only liable if there is resulting loss or damage, but this is generally easy to find. There must be $5,000 in damage, and it can come in the form of lost revenue, repair costs, damage assessments, impairment to data, or costs of responding to the unauthorized access. The breadth of the types of damages, and the relative ease with which they can be shown (hire an IT guy to mull over your system, hire an attorney to respond to the hacker, etc.), make this element an easy one to satisfy.

The ski area gives people access to its site, of course – it wants people to visit, see the lift waits, and then come to the mountain. Those are people, though – not bots. Whether a bot has access may depend on the Terms of Use of the site and also the robots.txt file. And, even if access to the webpage is given, the ski area would almost certainly argue that scraping the data exceeded any access that was authorized. This is a big hurdle to overcome for my app.

7. Digital Millennium Copyright Act

The Digital Millennium Copyright Act (“DMCA”) is a controversial law that many see as an unnecessary clamp-down on fair use rights. The DMCA is designed to give copyright owners greater protection of their digital content. The DMCA creates liability for working around technological measures that protect copyrighted works (or trafficking in products that do so). For example, if you crack an RSA key to access someone’s computer and copy documents on it, you’ve not only committed copyright infringement, but you’ve also violated the DMCA for circumventing the protection that was blocking your access to the copyrighted work. A recent case has changed the law slightly, noting that the DMCA only prevents you from circumventing technological measures protecting copyrighted work and copying that work; if you circumvent the technology but only access the work, there is no DMCA liability. The case is incredibly new and there will probably be some fallout from it across the country. After all, merely “accessing” work online still necessarily requires a RAM copy to be made, and other courts have found that a RAM copy is sufficient to find copyright infringement.

My iPhone app probably doesn’t run afoul of the DMCA, though. The app doesn’t work around any technological measures protecting the lift status or the webpage. The web page source code can be viewed and scraped without bypassing any security measures. Therefore, the DMCA is probably not a problem. If, however, the lift status were hidden behind a CAPTCHA code, this would bring the activity under the DMCA.

So, it looks like my app has a couple of problems. Of course, there are some factors that balance in my favor. Does the ski area want to sue me, a skier, a customer, and a developer of a helpful iPhone app? If they do, they’ll have to spend some pricey legal fees, and they also risk the possibility that the public gets upset about a ski area suing its customers. It generally doesn’t fit with a ski area’s image.

Take Down Duties for Copyrighted Material

Ben Sheffner writes about the recent Viacom v. YouTube case, which he finds extremely disappointing in its dodging of the question of what, besides an official takedown notice, can require an online content provider to remove copyrighted material.

Quick background: the DMCA requires that a content provider, such as YouTube, Facebook, Flickr, etc., remove copyrighted content if: 1) it has “actual knowledge” the material is infringing; or 2) it is “aware of facts or circumstances from which infringing activity is apparent.”  The first situation arises easily: a copyright owner sends a takedown notice complying with the DMCA’s substantive requirements, and the material is removed (generally).  Result: no liability for the infringing work.

What leaves Ben, courts, and countless others baffled is the circumstance in which the second situation would arise.  What are facts and circumstances which show infringing activity?  Apparently, material labeled “illegal” or “stolen” is not sufficient – in the context of pornographic photographs.  Ben questions “whether the panel would have ruled the same way had actual red flags been waved in the defendants’ faces.”  I think so.

Yeah, that situation is far-flung.  But the “illegal” or “stolen” descriptors on porn run parallel to the content – they increase the excitement value and more likely describe the source of the pictures rather than the status of the copyright.  A thin distinction, but an important one.

Imagine a video that gains global attention.  Any video: Lady Gaga’s latest music video, in its entirety, is posted by CpyrghtAbUsr.  For whatever reason, this video soars to the top of YouTube.  It overwhelms their transmission lines.  Corporate decides to dedicate huge amounts of bandwidth for this single video.  The Today Show covers the video.  Lady Gaga herself refers to it, but for some reason never sends a takedown notice.  Would this qualify as a red flag?

Perhaps this is a ridiculous situation, but that may be the very nature of the case that finally forces a court to decide what satisfies the test.  Until then, the judiciary may continue to dodge and weave, and we’ll be left without meaningful interpretation.

Think Only Record Companies are Suing? Think Again.

Everyone knows of the widespread copyright infringement the Internet made possible.  And I think most of us are aware that the RIAA and record studios have been the most visible face of copyright infringement lawsuits.  But movie studios also sue.  I had a friend who got a warning from Stanford several years ago for downloading a movie, presumably prompted by a studio.  The IP ADR Blog just wrote a nice post on the continuing efforts to clamp down on copyright infringement.  The article describes how saber-rattling has taken a new form: a company/law firm trolls P2P networks for IP addresses of those downloading movies, links up with a studio or filmmaker, sends out subpoenas to the IP address holders, and then ask for settlement cash. A fairly easy, quick, money-making strategy.

The article also points out reluctance by some in the business to pursuing this tactic.  Sam Bozzo, an indie film director, says that torrent releases create buzz about a movie, consistent with an article I wrote about a bit ago.