Butter, but No Rolls

As you can see, Ip's What's Up is going through a face lift and a little url-liposuction.  You can now find us at www.ipswhatsup.com (http://ipswhatsup.blogspot.com will still redirect you here).

We've got this pretty new butter color background, which is much easier to read than the old navy and some easier to navigate sidebars.  However, it turns out the Ippers aren't great at plastic surgery - don't ask us for a new nose, you might lose it altogether.  In the process of creating our new, improved look, we lost the old blog rolls.  We will be redoing the blog rolls in the coming weeks.  If you know of a blog that was on the old blog roll, or should have been, and you don't see it on the new one, please let us know. 

Thanks!
~ the Ippers

Do You Know What Your Field Is?

Intellectual Property is a fascinating area and those working in it can get quite caught up in the glamour of copyright, trademarks and patents.  However, just as intellectual property is constantly moving in on all areas of life, those areas are also moving in on IP.  This was the topic addressed by an INTA panel this week.  (The panel was poorly advertised and not particularly well executed, but the information was important.)

Those working in the intellectual property law field must now also be acutely aware of defamation, free speech and media law issues.  During the panel, Rachel Matteo Boehm explained how these two formerly separate areas of law can sometimes conflict with each other.  Intellectual property laws, especially copyright and trademarks, are viewed in the United States as tolerable encroachments of free speech.  Media law focuses mostly on the protection of free speech.

While we tend to speak of these conflicting issues in terms of the First Amendment in the US, the issues are not particular to one country.  For example, defamation and liable are particularly important when dealing with the UK.

This particular Ipper doesn’t know much more about the particulars of this intersection (and found the panel extremely hard to follow), but she does know this: if you are in a intellectual property field or planning to be in one, you should at least be able to recognize when media law issues arise.  It’s better to get outside help for the problems you can’t address than to not realize they are there in the first place.

Some Good in ACTA?

Sometimes us copyright enthusiasts (on either side of the battle) get so caught up in the fervor of the copyright/copyleft war that they miss some sort of key part of the puzzle.  Ipper goldenrail found herself quite guilty of this during the opening remarks at this year’s INTA (International Trademark Association) meeting when the INTA President mentioned benefits of ACTA.

Several blogs have reported on ACTA, the Anti-Counterfeiting Trade Agreement being worked out in secret between big countries under the influence of big companies.  Most of the posts deal with the copyright and enforcement implications of  the new trade agreement.  (example) 

As it turns out, ACTA might actually have some benefits, it might deal with, gasp, anti-counterfeiting!  Although the trademark battle against counterfeit goods is in the title of the trade agreement, this aspect has often been overlooked.  Anti-counterfeiting protection is important on a different level than copyright protections.  Copyright protections protect right holders.  Anti-counterfeiting measures protect brand owners and the public.

The purpose of a trademark is to let consumers know at a glance what they can expect from a protect.  Consumers associate brand names with certain levels of quality and expect consistency.  Counterfeit goods destroy this reliance and can jeopardize the health and safety of consumers.  The public welfare concerns implicated by counterfeit goods make tougher anti-counterfeit rules a plus for everyone except the counterfeiter. 

[*note: sometimes people confuse counterfeit and generic, especially in regards to pharmaceuticals.  These are not the same thing; generics do not pose the same risks.]

It would be nice to take a look at the anti-counterfeiting provisions in ACTA to see specifically how the trade agreement might help protect against counterfeit goods.  Unfortunately, the secrecy about which many scholars have bitterly (and rightly) complained prevents us from taking a close look.

Happy Thoughts Series: Idea/Expression Dicotomy

Although some argue the idea/expression dicotomy in US Copyright law is a bad thing and others argue it no longer exists, Ip's What's Up would like to add the idea/expression dicotomy to the list of good things about copyright law.

The essence of the idea/expression dicotomy is that an author can copyright his own expression of something but not the underlying idea itself.  For example, if I were to paint a picture of an apple, I would have copyright over that particular apple picture but not over all paintings of apples.  The idea to paint the apple is not protected by copyright.

This dicotomy can sometimes be tricky, but it is still a plus in the US copyright system.  It allows authors to create freely from their surroundings and influences in their lives without risking infringing on someone else's work.  Some ideas are common and shared among communities, others may be thought of by more than one person.   Different authors may both create television series about a space ship and its crew of different species traveling through space, encountering aliens, visiting strange places and engaging in battles.  Some viewers may prefer this idea in a fairly serious drama expression, other viewers may prefer the idea in the form of a relaxed, and sometimes vulgar, comedy.  The idea/expression dicotomy allows authors to express this space crew idea in both these forms and many more.

By protecting only the expression of the idea, copyright law allows a greater amount of creations.  Authors produce different works based on similar things.  Members of society have the ability to choose the expression they like best.  Authors get more freedom.  Society gets more choices.  That's a happy outcome.

Souter's Mark on IP

United States Supreme Court Justice David Souter announced last week that he will be retiring from the Court at the end of next month. Justice Souter authored several important opinions in the field of IP, including Markman, Grokster, and Campbell.

Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) changed the face of patent litigation. Markman challenged the Court with the question of whether interpreting patent claims was a question of law or a question of fact. This is an extremely important question because in American court cases, questions of law are decided by the judge but questions of fact are decided by the jury. The Court in Markman held that the interpretation of patent claims was a question of law to be decided by the judge. This led to the development of mini-trials now generally referred to as Markman Hearings. During these hearings, the judge basically determines the meaning of the patent. Sometimes the judge's determinations may lead to a settlement of the case or the plaintiff dropping the case completely, because of how the judge has interpreted the claims of the patent at issue. The value and appropriateness of Markman hearings remain much debated issues. [Some views on Markman hearings here and here.]

MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), is the case that put an end to the popular post-Napster file sharing programs. Grokster, like Napster, was a program made for people to share files. However, in an attempt to avoid the same fate as Napster, Grokster allowed file sharing without owning or running any of its own servers. Grokster was strictly peer to peer. However, in Grokster, the Court held that one who distributes a device or program with the object of promoting copyright infringement may be held liable for the resulting infringement by third parties. Thus, Grokster could be held liable for the infringement of its users. Like Napster before it, Grokster became a set of blue prints for the development of the next stage of file sharing software, eventually leading to BitTorrent and the recently litigated Pirate Bay.

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) firmly established parody, whether commercial or not, as a fair use of copyrighted material. In this rather infamous case, publishing company Acuff-Rose claimed 2 Live Crew's rap song "Pretty Woman" infringed on their rights in the Roy Orbison hit "Oh, Pretty Woman." The Sixth Circuit had found that 2 Live Crew did commit copyright infringement because of the commercial nature of their song. The Supreme Court overturned this decision, saying that all of the fair use factors need to be considered, not just the commercial nature of the new work. Parody is considered as an aspect of free speech, something American jurisprudence holds in high regard. This case gets the best lawyering award because both Ippers and many scholars do not think Pretty Woman was actually a parody. But it was close enough that the legal argument won the day at the USSC.

Despite his simple lifestyle and his brief, rather uncontroversial, time on the Court, Souter has made a large impact on intellectual property law in the United States and the future of technology development in the country.

Nigeria and the Special 301 Report 2009

Last November, Ip's What's Up did a special two-part segment on Nigeria and the United States Trade Representative (USTR) Special 301 Report.  (Part 1, Part 2.)  Nigeria has never appeared on the Special 301 report, and this year, the country continued its good work.

The International Intellectual Property Alliance (IIPA) submits a list of recommendations to the USTR each year.  Despite IIPA's inclusion of Nigeria on their "Special Watch List," the USTR did not feel problems in Nigeria warrant inclusion on the Special 301 list.  This is certainly good news for Nigeria!

[The IIPA report on Nigeria basically contains the same information as previous years' reports.  It is available here.

Infringing Cakes

Last week we looked at whether cakes are copyrightable.  We had several great comments, including one from brandyk, who pointed out that cakes are useful articles.  If viewed as such, then cakes are outside of the realm of copyright.  However, the case law on useable items and copyright is less than crystal clear.  As promised, today we are going to look at how one might infringe a copyrighted cake.  [Justen and Tony got into this a bit in last week's comments, so we'll try to include some of their ideas here.]

Copy Cake

A cake is not something you easily copy by photocopying or uploading to Kazaa.  In order to copy the cake, you would need to bake it and make it look exactly the same.  That is a very difficult task.  Frosting colors may come out slightly different; people have different handwriting; you might not have the right shaped-pan, etc.  For this reason, it is highly unlikely that a cake would be infringed by a direct copy.

What about substantial similarity, as Tony mentioned in last week's comments?  Let's say you walk into a bakery and see a cake you like.  You go home and decide to try making it yourself.  It doesn't come out exactly the same, but you're satisfied with the cake.  (We have to use you as the example instead of me, because my cake would not come out close enough to the bakery cake to be satisfactory.)  Did you infringe on the original cake?

This Ipper would argue no.  (Though she is open to reading other's ideas in the comments.)  There are many similar cakes that are all based on the same concept.  (example)  They may even be based on each other.  If you go to the bakery and see a cake you like and attempt to recreate at it home, you are taking the idea of the cake and making your own cake based on this idea.  Ideas are not copyrightable.

As discussed in last week's post, many of the elements of cake decorations are so common, they are necessary parts to decorating a cake.  There are also common ways in which these elements are arranged on cakes.  Both these elements and their arrangements would have such thin copyright protection, it would be hard to infringe upon them without making an exact replica.  Even then, the arrangement may be too common for protection.

Photographs

A photograph of a cake has its own copyright, but here we are looking at whether the photograph is infringing the cake in the photo.  17 USC 101 defines derivative work:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”

A photograph is not really a recasting or transformation of the cake, although it is a different medium.  A photograph seems unlikely to change the cake any more than gluing cards on ceramic tiles changes the pictures on the cards.  (See Lee v. A.R.T. Co.)  The photo is just capturing the scene at the grocery store, not recasting the cake.

Even if we assume a cake is copyrightable, it seems nearly impossible to actually infringe on the copyright.