Santa Cruz, Japan?

One thing the Ippers like to do on this blog is discuss strange IP sightings, things they’ve seen that look like they could include an intellectual property issue. This past weekend the Ippers had a splendid one!

Ipper dtrizzle and his friends take an annual camping trip to Big Basin Park, and for the past two years, goldenrail has been fortunate enough to go along. This weekend excursion always includes a Saturday afternoon spent at the historical Santa Cruz Boardwalk. In addition to the amusement park rides, sandy beach and cotton candy vendors, the Boardwalk features a large arcade. A large arcade with one of dtrizzle’s favorite games, Street Fighter II.

While dtrizzle was busy proceeding through the game, destroying every opponent in his path, goldenrail was standing idly near by, occasionally watching, occasionally peering at other nearby games. Next to Street Fighter II stood a game called drummania 10th Mix. Similar to the drum set portion of Rock Band, the screen rolled through lists of “popular” songs from which the player could choose. The reason I say “popular” in quotes is because the game billed the songs as such but none of them were familiar. It soon became apparent why.

A young boy came over and plopped a few tokens into the game. As the game began its warm-up cycle, a license flashed on the screen, “This game for sale and use only in Japan.” (goldenrail wasted a dollar in tokens attempting to get the notice to reappear for a picture, but it did not. She already knew she is terrible at fake music games and did not need an attempt to play drummania 10th Mix to reconfirm this for her.)

It’s possible the game was sold in Japan, but it was certainly being used in not-Japan. This explained not only why the songs were not familiar, but why so many of them were in a mix of English and Japanese, and why the screen often flashed Japanese warnings. [If anyone would care to translate the warning to the left, the Ippers would be most obliged.]

There are several reasons a game like this might have such a licensing restriction on it. This Ipper thinks it most likely that the licenses obtained by the game owner for the music included in the game are not international licenses. International licensing in music can be very complicated, often requiring dealing with collecting rights societies in each country where the music will be performed. It is also quite common for different parties to own the rights to the same song in different geographical areas.

Another possibility is similar geographical restrictions on patents that might be part of the game. Or, perhaps there is an agreement between manufacturers and distributers that certain versions of the game only go to certain regions, or that only one distributor may sell in a given area. Maybe the licensing restriction has to do with delayed release dates, with the games first being made available in Japan and other countries needing to wait (similar to Hollywood movies in the US verses elsewhere.) These reasons are all speculation of course; the real reason for the licenses restriction is not clear from the license notice itself. One thing, however, is clear: that game does not belong in Santa Cruz, California.

Purchase your own drummania 10th Mix here.

Stop, Moon, Thief!*

The Solar and Intergalactic Atomic Association (SIAA) has filed suit against the Moon for copyright/patent/trademark infringement. It also accuses the Moon of reverse passing off, attempting to claim the Sun’s light as its own and calling it Moonlight.

Proponents of the Sun claim that the Moon has persisted in the willful infringement of the Sun’s product for too long, sometimes going so far as to completely block the Sun’s product from getting to its intended market.

According to the SIAA, the Sun makes its light by a very detailed scientific process; nuclear fusion is not something anyone can do. The specific shape of the Sun’s appearance, the shade and hue of its light and the intensity of its glow are all results of the Sun’s creativity in deciding how to render itself to Earth. The bright yellow/white spear and white light are symbols that clearly represent the Sun.

“The Moon not only steals the light from the Sun, it adapts it, and then distributes the adaptation, all for its own credit!” explained SIAA spokesperson H.E. Apollo, further explaining that the Moon is also attempting to benefit from the good will of the Sun by redirecting the Sun’s light for its own purpose. “In a case like this,” Mr. Apollo continued, “we can’t rely on trade secret protection. Earth scientists have already discovered how we create the beautiful glow and warmth that is our business. We must rely on copyright, patent and trademark to protect our product.”

Representative for the Moon, Diana Mawu calls the SIAA’s claims baseless. “The Moon is not stealing anything, and is very offended at being accused of such behavior,” she told reporters yesterday. According to Ms. Mawu, the Moon’s behavior is perfectly legal. “The Moon obtains its light from the Sun via a millennium-long agreement. If the Moon desires to share this light with others, it is the Moon’s right.” Even if the Moon did not have such a long-standing agreement with the Sun, the Moon’s behavior would still be protected, Ms. Mawu claims. “The Moon is transforming the Sun’s product into something new. A new product that is not attempting to replace the Sun’s but meet the needs of a market in which the Sun is not likely enter, Night.”

The SIAA argues that the Moon is not “sharing” its light in the true sense of the word because no matter how much light it gives away, the amount it has is not diminished. As for the transformation argument, Mr. Apollo claims that the use of the Sun’s product is hardly transformative; the Moon merely dims the Sun’s light. In addition, the Moon takes a substantial portion of the Sun’s work in making this so-called transformation, most of its light. “The Moon is trying to claim that it is doing good work by delivering light to those who cannot receive it from the Sun. It is not the Sun’s fault that some are not in a position to obtain the Sun’s product. All are welcome to make arrangements with the Sun to obtain light directly from its source instead of through this third-party infringement.”

Mr. Apollo expressed the SIAA’s position at a press conference earlier this week: “The Sun’s products highly valued on Earth. We all know that life as we know it could not survive without the hard work of the Sun. This work needs to be protected. I am confident that the law will prevail and not let such an important producer sit unprotected in the sky, free for anyone to steal its creation.”

Ms. Mawu also remains confident, but that the Moon will “succeed in thwarting this blatant extortion attempt.” “The Moon is doing nothing wrong!” she insisted. “Besides,” she added, “the Sun has failed to file any trademark or copyright registrations or applications for patents.”

*Hopefully it goes without saying that this report is fictional, but just in case, “this report is a fictional story used for illustration purposes.”

Image credits: Winter Moon in Red Oak Frame, cc-by-nc-nd, Ray Schroeder; Sun, author.

Hat tip to The Boondocks episode Riley Wuz Here for the line, "you know Riley, the moon steals its shine from the sun, and no one ever gets the two confused."

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.

Celebrating IP and Malaria Days with TRIPs

This weekend included both World Malaria Day (yesterday) and World Intellectual Property Day (today).  In recognition of both, we're taking a look at not-yet-ratified Article 31bis of TRIPs (the agreement on Trade Related Aspects of Intellectual Property).  The aim of Article 31bis is to increase developing countries' access to generic versions of important patented medicines.

[left: stuffed malaria]

TRIPs has always included a special provision allowing for compulsory patent licenses in certain situations.  (Article 31.)  The reason for the addition of Article 31bis was because the original provision limited the licenses to uses "predominantly for the supply of the domestic market."  (Art. 31(f).)  The problem with the original article is that most of the countries needing access to patented medications for deadly diseases do not have the ability to manufacture the drugs in their own countries.  That means even if they get the compulsory license, they will still not have access to the medicines.  [Same problem for countries who are not yet required to patent pharmaceuticals. (Art. 66.1, date of compliance extended to 2016 by Doha.)]

Article 31bis was devised at the Doha round negotiations in 2001.  The General Council adopted the provision in 2005, but it has not yet been ratified by the required number of WTO members and so is not actually part of TRIPs.  However, it is still sort of usable.  A 2003 declaration by the General Council waves the "predominantly for the supply of the domestic market" part of Article 31.  In order to waive this provision, the importing member must be eligible under certain guidelines (mostly Least Developed Countries) and notify the Council for TRIPs of all specifics relating to the medicines it wishes to import.  The exporting member must notify the Council of TRIPs of its willingness to grant the required license and of all particulars relating to its shipment of the medicines.

This all sounds pretty nice and simple, but in practice, it really hasn't turned out that way.  Only one member, Rwanda, has ever used the 2003 declaration to import patented medicines.  The actual legal meaning of this set-up remains a mystery.  First, there is the vague language in the original article, Art. 31, that limits using a patent without first attempting negotiations to "national emergenc[ies]."  (Art. 31(b).)  How likely is a WTO panel to decide something is not a 'national emergency' after a country's government has declared it so? 

Second, Article 31bis has never been ratified and is not part of the TRIPs agreement.  This may seem like it is not that big of a deal since the 2003 declaration waves the problematic part of Article 31.  But the declaration only adds to the confusion, and that brings us to: Third, what is this declaration?  It is not part of the TRIPs agreement.  It is not public international law (which WTO panels look to when deciding cases).  It is a declaration by the Council.  What does that mean?

Logistically, these are concerns that do not matter until someone challenges the use of the declaration.  Rwanda was able to use the declaration without any problems.  Perhaps if any other members should try, they would also encounter no opposition to using the declaration.  Guess we shall just have to wait and see.

The Uncertain Future of Business Method Patents

This is an unscheduled News Update post.

Yesterday, the Court of Appeals for the Federal Circuit affirmed the denial of a patent for a business method of risk management relating to changes in energy costs.   The court ruled that in order to qualify as patent-able subject matter, a process must meet both parts of a two-part test (displacing the State Street "useful, concrete, tangible" test):

1. "tied to a particular machine or apparatus"
2. "transforms a particular article into a different state or thing"

There's plenty of coverage on the blogosphere:

Some US opinions seem very excited and optimistic for the downfall of business method patents: Techdirt and TechCrunch.

One British point of view seems a bit calmer; no point in getting excited until the case gets to the Supreme Court: The Guardian.

PatentBaristas gets down and dirty with the nitty gritty, including some court vs. legislature banter.

A rather in-depth look at the court's opinion is available at Patently-O.

And, if you're really interested, you can check out the whole opinion.

 

It will be interesting to see how the case affected the patent auction in Chicago yesterda, as well.  From the looks of IP Finance's report, the case shouldn't cause too much of a tidal wave in the area of IP trading.

Gimme an I! Gimme a P!

I know in my last post I said I would continue looking at Congress' reasons for the PRO-IP bill (S.3325) this week, but I changed my mind.  I'm human; I'm allowed to do that.  Looking back over the first month of posts, I'm a bit disappointed.  They're all so negative.  I got carried away with the over-the-top-ness of the new PRO-IP bill and focused mainly on the downsides to intellectual property laws.  But IP laws aren't all bad.  I'd venture to say even the PRO-IP bill isn't all bad.  So I would like to take this post to present:  Some Good Things about IP Protection.

Of course, to start with, we have the time-honored intellectual property laws "promote the progress of science and the useful arts".  People are beginning to question this statement, but I think it's true.  Some people do things because they want to do them, or just because they can, but the majority of people work for some sort of incentive.  The question is finding the optimal amount of incentive, that illusive "balance" between creator and user.  So we can put down as good thing #1: promotes creativity.

Intellectual property rights (IPR) also promote other things, like investments.  If I want to create something, but I don't have the capital to do it, I have better chance of getting a money if I can offer the source of the funds something in return.  Knowing that my creation will have value, and could have a very large value, gives the people with money incentive to invest.  This is especially important in places like the drug industry, where lots of investment is needed.  There is also the emerging IP Finance industry, which allows IPR owners to use IP as collateral.  Good thing #2: promotes investments.

Some IPR even protects us.  Trademarks let consumers know about a product without having to do lots of research every time they want to buy something.  They allow companies to build a brand name, so the companies care about their products and services.  This results in better products for the consumers and better ability by the consumers to find those products.  Good thing #3: protects the general populace.

Besides the economic incentives for creators, IPR also provides assurance that the creator can maintain some control over their creation.  Even creators who forgo possible economic incentives usually hold on to some sort of control over their works.  Do a search on http://search.creativecommons.org and compare how many authors reserve some control rights compared to the number than only request attribution (which is also a right, but reserving no rights puts a work in the public domain).  Without this assurance, creators might be dissuaded from creating, for fear of creating a Frankenstein's monster over which they have no control.  Good thing #4: assurance for creators.

That leads us into a fifth benefit of IPR: identification.  Patents require a name; trademarks are registered to a company and copyrighted works; even if done anonymously or pseudonymously, copyrighted works have an author somewhere that can be contacted somehow.  That means if you like what a person created and want more of it, you know where to look.  Good thing #5: facilitates locating the creator.

Some people argue that IPR, especially copyright, inhibits building off of other people's work, because it gives the original creator full rights to all derivative works.  But this is only one side of the coin.  Copyright also encourages collaboration.  When one creator wants to use another creator's work in their own, they will need to contact the original creator (or rights holder, or licensing agency) to get permission (and pay money).   This will open a dialogue between the second creator and the first creator (or someone who has connections to other works) and could stimulate further ideas.  Two heads are better than one, they say.  Good thing #6: stimulates ideas and collaboration.

For brevity's sake, I'll stop there.  But I'd like to know: What are some of your reasons that IP protection is good?

WIPO's New Direction with WIPO's New DG

The WIPO General Assembly began its thirty-fourth session this week.  One of the first orders of business on its agenda: electing a new Director General.  On Monday, Francis Gurry of Australia gave his acceptance speech.  (You can read his full speech here.)

Gurry's Goals
Mr. Gurry's acceptance speech contained all the expected rhetoric of unity and working together to improve the global state of IP.  It also contained thoughts on some specific areas needing attention.  Primarily, and encompassing all others, is the explosive growth of technology.  A backlog of patent applications in Patent Offices around the world is one direct effect of this growth.  Another is the increase of copyright infringement, made easier by developments in digital technology.  Mr. Gurry encourages building upon the existing Patent Cooperation Treaty (PCT) to address the first. The second issue, he says, requires a reexamination of WIPO's role as "the international organization responsible for intellectual property."

Beyond these classic IP issues of patent procedure and copyright infringement, the new Director General discussed issues of global concern where IP might be of assistance.  Mr. Gurry seems enthusiastic that IP holds possibilities for LDCs (Least Developed Countries) in terms of closing the knowledge gap and improving economies.  IP protection of traditional knowledge and "a global knowledge infrastructure" are two steps towards these goals.

Indeed, both of these are projects in process.  The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has been discussing international IP protection of these areas for eight years, and the newly established Committee on Development and Intellectual Property (CDIP) is working to implement a list of recommendations that includes expanding its PATENTSCOPE® database, creating agreements for access to other existing databases, and establishing "inter-regional IP Search Databases."

Mr. Gurry highlighted the relationship between advancements in technology and the fight against climate change, disease, and other such global concerns.  He urged WIPO to add its IP contribution to these challenges and proposed that a new Division in the Secretariat would focus on these concerns.

Where's WIPO
When BIRPI, the predecessor to WIPO, was originally formed, its purpose was to help facilitate international protection of patents, trademarks and industrial designs (under the Paris Convention), and literary and artistic works (under the Berne Convention).  The current focus appears to be a bit blurry.  As seen from the Director General's speech, WIPO's concerns now include:

• "the stimulation and diffusion of innovation and creativity"
• "the establishment of order in the market"
• "dealing with the growth of demand and internationalization of the patent system"
• "returning value to creators, performers and their business associates"
• dealing with "the scourge" of "risks to health and safety and consumer protection" arising from counterfeit goods
• "contribut(ing) to the reduction of the knowledge gap"
• contributing to "greater participation on the part of developing and least developing countries in the benefits of innovation and the knowledge economy"
• capacity building of LDCs
• "making intellectual property work to the advantage of all countries"
• "broadening intellectual property to make it more responsive to the needs of the developing world"
• "address(ing) global challenges" such as "climate change, desertification, epidemics, access to health care, food security and the preservation of biodiversity"

Intellectual property encompasses so much and touches on so many areas of life.  In its attempt to handle issues in several areas, WIPO seems to be pulling itself in different directions.  Is it a development org? An environmental agency?  An enforcement body? An administrative support system?  Mr. Gurry did recognize this confusion to some extent in his acceptance speech.  Commenting on WIPO's role in copyright, he pondered two alternatives:

Should that role be confined to awareness-raising and the training of customs officials, the police and the judiciary?  Or should it encompass a more robust engagement and, if so, alone or in cooperation with other concerned international agencies?

In some ways, it is good that one organization is trying to address all these issues.  It means that each representative is (or should be) aware of what's going on and how these issues coincide.  This could lead to more well-rounded and effective agreements, if agreements are ever reached.  Some committees, like the IGC, appear stalled with sharp divisions between developed and developing countries.  However, the CDIP actually seems to be getting somewhere.  At its first meeting, the committee began sorting through the list of recommendations it is to implement and took action on six of the forty-five items.

In Sum
Mr. Gurry has a lot of ideas for guiding WIPO.  The organization has been under scrutiny lately, and the world is very interested to see in what kind of direction this new Director General will take "the international organization responsible for intellectual property."