Copyright/Intellectual Property

Quality digital content can’t break through sea of online garbage

7 December 2018

From Axios:

Tech platforms have littered the media universe with crap — stolen ideas, pirated video, plagiarized text, manipulated content, and fake news. And efforts to protect and elevate quality original content have faltered in the digital era.

Why it matters: While technology has made it easier for creators to find an audience and upend media hierarchies, it’s also made it harder for owners of original content to get paid for their work. Just ask the news industry.

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What’s happening: A slew of new laws and market conditions are beginning to swing the pendulum the other way — albeit slightly — and return at least some power back to original content owners.

  • In news, Google executives have warned that they will shut down Google News in Europe if policymakers there move forward with implementing a “link tax,” a provision that would give publishers copyright over content that is shared online via platforms like YouTube or Facebook, per The Guardian.
  • In music, Taylor Swift announced last month that as a part of her new contract with Universal Music Group, she negotiated a provision that would help fellow artists get a cut of Spotify shares owned by UMG, if they were to ever sell them. The move comes just months after Congress passed a hallmark law that will also help music creators and record owners get paid.
  • In video, AT&T discontinued internet service to customers who have repeatedly violated the company’s piracy policies, signaling that telecom companies are taking video piracy more seriously as they get into the original content business themselves.
  • In streaming, many new subscription video players are in a bitter fight over who can afford to create the most original content and buy up the most popular franchises. This is considered great for production studios, but terrible for TV networks who can’t afford to pay up.

Link to the rest at Axios

Brand Protection Conference in Frankfurt

7 December 2018

From The IP Kat:

I have recently returned from the Second Brand Protection Congress in Frankfurt.

It was a very interesting event with a wide range of speakers and topics all linked to brand protection. The talks ranged from the various online anti-counterfeiting tools and latest technological developments and intermediary liability through to the various methods that brands have adopted to protect their rights.

. . . .

Ekaterina Makarova of Sberbank gave us a sneak peak into its cyber squatting problems. The most memorable copycatwas a purported airline (an unusual second line of business for a bank) which mimicked the bank’s branding colours, website layout and overall appearance. These issues are being successfully litigated via the Russian courts.

Magdalena Kaput of Oriflame Cosmetics discussed the Protection of image rights. This is particular issue under their direct sales model where social media engagement and photos of Oriflame events are an important part of their business. As Magdalena explained in the world of post GDPR it is important to understand context and consent before using an image. Getting this wrong can create major reputational harm and a large liability under GDPR.

Magdalena highlighted a particular feature of celebrity and model contracts which needs to change – whilst they can be very long regarding location timing, lighting, hair and makeup to be used they do not tend to include specific consent to use of the image. This is a major omission which will need to be resolved in model/celebrity contracts to avoid problems in the future.

Link to the rest at The IP Kat

For those not familiar with GDPR, here is a high-level description PG has culled from various sources:

The General Data Protection Regulation is a regulation in EU law on data protection and privacy for all individuals within the European Union (EU) and the European Economic Area (EEA).

At its core, GDPR is a new set of rules designed to give EU citizens more control over their personal data. It aims to simplify the regulatory environment for business so both citizens and businesses in the European Union can fully benefit from the digital economy.

The reforms are designed to reflect the world we’re living in now, and brings laws and obligations – including those around personal data, privacy and consent – across Europe up to speed for the internet-connected age. From social media companies, to banks, retailers, and governments — almost every service we use involves the collection and analysis of our personal data. Your name, address, credit card number and more all collected, analysed and, perhaps most importantly, stored by organisations.

Through the power of information technology, any enterprise that sells products or provides services via the internet is technically a global business. Regardless of whether your organization is a one-person operation selling novelty T-shirts or a Fortune 100 company providing sophisticated cloud computing solutions, you are likely to have customers residing outside your country of origin.

Data breaches inevitably happen. Information gets lost, stolen or otherwise released into the hands of people who were never intended to see it — and those people often have malicious intent.

Under the terms of GDPR, not only will organisations have to ensure that personal data is gathered legally and under strict conditions, but those who collect and manage it will be obliged to protect it from misuse and exploitation, as well as to respect the rights of data owners – or face penalties for not doing so.

GDPR applies to any organisation operating within the EU, as well as any organisations outside of the EU which offer goods or services to customers or businesses in the EU.

The types of data considered personal under the existing legislation include name, address, and photos. GDPR extends the definition of personal data so that something like an IP address can be personal data. It also includes sensitive personal data such as genetic data, and biometric data which could be processed to uniquely identify an individual.

Because of the sheer number of data breaches and hacks which have occurred over the years, the unfortunate reality for many is that some of their data — be it an email address, password, social security number, or confidential health records — has been exposed on the internet.

One of the major changes GDPR will bring is providing consumers with a right to know when their data has been hacked. Organisations will be required to notify the appropriate national bodies as soon as possible in order to ensure EU citizens can take appropriate measures to prevent their data from being abused.


Graffiti Artists are Gaining Recognition—and Rights

1 December 2018

From OUPblog:

Graffiti used to be thought of primarily as vandalism—as a furtive, illegal activity that defaced public property. It was seen as both a reflection of and contributor to urban decay.

However, several recent high-profile lawsuits involving what is now called “exterior aerosol art” reveal just how far graffiti has advanced in cultural esteem and recognition as a legitimate art form. While some corporations are using aerosol art’s newfound popularity turn a profit, aerosol artists are pushing back and asserting their authorial rights in court.

For example, earlier this year H&M attempted to use a piece of graffiti art on a Brooklyn handball court as the backdrop for an ad. The work had been put there illegally. When the artist objected, H&M asked a court to declare that illegal graffiti art is not entitled to copyright protection. In the face of a swift social-media-fueled backlash against the clothing chain for appearing disrespectful to street artists, it dropped the suit and apologized.

In another case, this time involving legally made aerosol art, a Swiss artist who goes by the name Smash 137 is suing General Motors for including one of his commissioned murals in a Cadillac commercial set in a Detroit parking garage. The artist claims that GM violated his copyright by using images of the mural without his knowledge or consent.

One of the most noteworthy lawsuits involving graffiti art is the recent decision (currently under appeal) in the 5 Pointz case. In November 2017, 21 aerosol artists were awarded $6.75 million by a federal judge in a landmark lawsuit against the developer of the 5 Pointz factory complex in Long Island City, in Queens. In the 1990s, the developer, Jerry Wolkoff, began allowing aerosol artists to use the sprawling complex to develop and display their work. He even employed a curator to manage the site, with the mutual understanding that eventually all of the work would be destroyed. 5 Pointz, which is visible from the New York City Subway’s 7 line, began to attract attention from aerosol artists around the world as well as tourists. The site was featured in a TV show, a movie, and in multiple music videos. Ironically, its success as a “graffiti mecca” may have helped to hasten its demise by increasing the value of the property.

In 2011, Wolkoff announced that he planned to demolish the factory buildings in order to build two apartment towers. The artists objected. Citing the Visual Artists’ Rights Act (VARA), a federal statute which protects works of art with “recognized stature” from destruction, they sought an injunction in court against the destruction of their murals. Wolkoff falsely claimed that he needed to begin development of the complex right away, lest he lose certain tax benefits, and the judge denied the injunction in late 2013. As it turned out, Wolkoff had not even applied for the permits he needed to develop 5 Pointz. He used the opportunity to whitewash all of the 5 Pointz murals in the middle of the night, without warning the artists. A jury subsequently found that 45 out of 49 of the works were of “recognized stature” and awarded $150,000 in damages for each work, for a total of $6.75 million.

While some worry that the outcome will have a chilling effect on opportunities for exterior aerosol artists to receive permission from property-owners to develop their work, the ruling is significant for several reasons. It was the first time that VARA had been applied in a case involving graffiti art, and it thereby affirms its status as a legitimate art form.

Second, it highlights the delicate balancing act between the rights of property owners and artists that judges must undertake when applying this law to works of art permanently affixed to walls. It is one thing for the law to enjoin the owner of an oil painting of recognized stature against destroying it: this seems like a relatively minor restriction of a property owner’s rights. But when the protected artwork is part of a building, one potential implication of VARA is that the building owner could be forced to preserve the artwork for the life of the artist.

. . . .

While VARA comes under the umbrella of US copyright law, the statute protects the so-called “moral rights” of artists, which are their non-economic or reputational rights in their artworks. This enables a visual artist to her artwork but still maintain certain rights with respect to it, because that artwork serves as a representative of her name brand as an artist. If the work is distorted, it may harm the reputation of the artist whose name is attached to the work. (VARA protects all works of visual art, whether they have recognized stature or not, from modification or misattribution). But unlike traditional forms of visual art, aerosol art on building walls cannot easily be bought or sold, and they are usually understood to be ephemeral by their very nature. In one sense, this makes exterior aerosol art an uncomfortable fit for the paradigmatic VARA cases presumably intended by Congress when it passed the statute nearly thirty years ago. On the other hand, however, it highlights the interest that the 5 Pointz artists had in the preservation of their works: they could not sell them, but their ongoing presence could lead to future commissions and professional opportunities. In that sense, moral rights, despite their designation as non-economic rights, can have very real material consequences for artists. Reputation is a form of wealth.

Moral rights laws are generally understood to protect the reputational interests of visual artists. But they also protect the interests of the public, which can regard cherished works of art as its own, as part of a cultural patrimony.

Link to the rest at OUPblog

The curious story of the adoption of “patent troll” and “internet trolling”

30 November 2018

From The IPKat:

So how did we get from the mythical troll to its current uses in IP discourse? First consider the “patent troll”. The account given by Roger Kay is that the term arose when a spokesperson for Intel described opposing counsel in a patent infringement case, the late Raymond Niro (see here for a Kat remembranceof Mr. Niro), as a “patent extortionist”. Mr. Niro, hardly a shrinking violet when litigation was involved, filed suit against Intel for defamation. In-house counsel for Intel scrambled to come up with a term that would avoid a claim of defamation. Peter Detkin (then) of Intel suggested “patent troll”. As reported by Roger Kay–

Detkin defined patent troll at the time as “somebody who tries to make a lot of money from a patent that they are not practicing, have no intention of practicing, and in most cases never practiced.” Despite the basic nastiness of the term, the mythical troll can be a cute little gnome, leaving just enough ambiguity while preserving an essential pointedness.

By using the term, Detkin sought to cast in a negative light an entity that merely seeks to enforce the legal rights in the patent for monetary gain, as opposed to the inventor, or patent owner, who has an interest in actually making something under the patent. No matter that legally enforcing a valid patent is not an illicit act. No matter that there is no consensus on the metes and bounds of what entities are included in the term (is a university or a research center in or out?). No matter that there are also exists the term “non-practicing entity”, which presumably embodies the same notion as a “patent troll”. Migrating from literature, music, and art, the troll had made a triumphant entry into the way that the IP profession have described some of its own members.

. . . .

From an historical perspective, the term [internet troll] seems to reach back to the early 1990’s, in the largely benign sense in connection with a user of that time who was thought to be raising or discussing an issue that veteran users believe had been adequately covered. (One wonders to what extent Detlin was familiar with these early uses of the term in connection with the internet.)

From those origins, the terms as widely used on the internet today have morphed (some might say grotesquely so) to include a multitude of less bad or more bad behavior on the internet. A small amount of “trolling” behavior might constitute illicit activity, but in the main the term appears to lie outside of the realm of legal constructs. Moreover, it can be questioned whether internet “trolling” is disreputable conduct or merely the kinds of uses and effects that are part and parcel of the internet.

Link to the rest at The IPKat

Several years ago, PG had the opportunity to work with Ray Niro, mentioned in the OP, on some patent infringement litigation.

Litigators of all stripes tend to be colorful characters, but Ray would certainly be among the leaders in any competition based upon litigation war stories. He seemed to have a story to illuminate any advice he provided to his IP clients.

Debunking a Plagiarism Removal “Trick”

29 November 2018

From Plagiarism Today:

Recently, YouTube sent me down a rabbit hole of videos purporting to have found a “trick” to remove plagiarism in any document.

The videos, mostly made in 2016 and 2017, claimed that they had found a simple way to fool any plagiarism detection application. Though the videos showed several different techniques, many of which we’ve covered before, one new “trick” kept coming up and over and over again: The space replace.

The idea is fairly straightforward. Using your word processor, you simply replace all of the spaces in the document with a character, usually capital “T” and then make that character white.

The idea is that the document will look fine to a human reader but that an automated plagiarism detection tool will simply see a long string of semi-random, albeit unique, characters.

While all of that is true, there’s one very simple problem with this “trick”: It doesn’t work.

No serious plagiarism detection tool will be fooled by this and no one experienced in plagiarism detection will be deceived. If anything, this “trick” risks making the plagiarism even more obvious.

. . . .

Nearly all of the videos demonstrate the trick in Microsoft Word. Word’s find/replace functionality makes it very easy to find the spaces and change the font of what replaces them.

. . . .

I first copy and paste that text into a document and then export it as a docx.

. . . .

With some effort, I was able to replace all of the spaces with white “Ts” and, almost immediately, a problem emerged. Since the text, in the eyes of the word processor is just a handful of really long words, the document’s formatting gets messed up and the spell checker goes a bit crazy. These would be red flags to anyone reading the document that something is off.

. . . .

It doesn’t help that my document, which is clearly over a hundred words, is listed as having just 16. Also, if you highlight the text, you can see the Ts, if only barely.

. . . .

Nonetheless, we export that document to docx and then run it through PlagScan . . . . This time, PlagScan reports that it is 0% plagiarized. However, even in the document listing, something is clearly wrong.

The document preview clearly shows the Ts in between the words. Things get even worse when you open up the report itself.

. . . .

The reason for this is simple, when plagiarism checkers examine a document, they strip away all formatting. This is what makes it possible for this “trick” to obtain a 100% originality score, but it also means that anyone who looks at the document, or even previews it, in the plagiarism checker will immediately see that it’s been tampered with.

. . . .

To put it bluntly, this trick doesn’t work. If anything, it may make a plagiarism situation far worse. It joins similar tricks such as replacing letters, using macros, using article spinners and so forth as tricks that either don’t work or produce very low-quality writing.

Instructors, administrators, and those who work in the plagiarism field know this and find these kinds of tricks to be of little threat. The danger is to the students.

These videos and tutorials are targeted at students who are, rightly or wrongly, worried about being accused of plagiarism. However, rather than providing education about citation standards and how to properly paraphrase, the videos teach students that they can easily defeat plagiarism detection tools without having to improve their citation skills or even do their own writing.

. . . .

If you see a trick like this and it seems too good to be true, it probably is. Given what’s at stake, especially with the possibility or proving the plagiarism to be malicious, it’s simply not worth the risk.

Link to the rest at Plagiariasm Today

For more information on the detection of plagiarism, here are links to PlagScan, Plagiarism Checker, and Quetext.

PG is definitely not an expert on plagiarism checking, but each of these services looked competent. Some plagiarism checkers even include a semi-automatic citation creation feature to let the potential plagiarisn cite the source and avoid plagiarism.

PG has not heard whether any publishers run manuscripts through any process to detect plagiarism.

Girl Scouts Sue Boy Scouts for Trademark Infringement

23 November 2018

From American University Intellectual Property Brief:

Many adults in America today can say that they were participants in the Girl Scouts Program or the Boy Scouts Program. Often, they have fond memories of the gender segregated programs. The arrival of 2018 brought groundbreaking change as the Boy Scouts of America began to accept girls into its ranks, causing the Girl Scouts to break out the claws.

Hell hath no fury like a Girl Scout scorned. Last fall, the Boy Scouts of America, also known as the BSA, made the groundbreaking announcement that it would start accepting girls starting in 2018. In May of this year, the BSA made yet another announcement: it was officially changing its name to Scouts BSA to reflect the decision to include young women in its programs. While the organization will remain the same, the name of the program for older youth will be changed.

The Girl Scouts of the United States of America (GSUSA) initially responded in a fiery blog post in October 2017, shortly after the BSA’s announcement that it would include girls. Specifically, the organization stated, “We believe strongly in the importance of the all-girl, girl-led, and girl-friendly environment that Girl Scouts provides, which creates a free space for girls to learn and thrive.” The organization goes on to defend the advantages of the single-gender environment and all of the unmatched outcomes it provides to young girls. The organization summarized its post: “The need for female leadership has never been clearer or more urgent than it is today – and only Girl Scouts has the expertise to give girls and young women the tools they need for success.” In the era of the #MeToo movement, there may be some merit to this argument. Yet, at the same time, the push for equality between the sexes implies that perhaps it is time to end the segregated programs.

On November 6th, the GSUSA finally responded to the BSA’s announcement of its name change by filing a trademark infringement lawsuit against the BSA. These girls are done playing nice. In the complaint filed in a Manhattan federal court, the GSUSA claims trademark infringement, unfair competition, and trademark dilution. The GSUSA claimed that the BSA doesn’t have the right to use “scouts” or “scouting” and further notes that the Girl Scouts brand and activities will be marginalized as the result of BSA’s rebranding effort. The GSUSA claims that the name change has caused confusion among the public, leading people to assume that the Girl Scouts no longer exist or have merged with the BSA. The complaint also declares that only GSUSA has the right to use the GIRL SCOUTS and SCOUTS trademarks with leadership development services for girls. The complaint includes photographic evidence of fundraising and other materials that point to concrete evidence of actual confusion.

Link to the rest at American University Intellectual Property Brief

Is Your Turkey Wishbone Protected By Copyright?

21 November 2018

From Trademark and Copyright Law:

The use of a bird’s furcula, or “wishbone,” for divination purposes dates back to the ancient Etruscans, and the ritual of two people pulling on the furcula to determine who would get married first has its origins in late medieval Europe. From there, some version of the custom likely was brought to America by the pilgrims, who would have referred to the bone as a “merrythought.” Given all that history, the modern tradition of pulling the Thanksgiving turkey wishbone for luck is hardly original.

But what about the originality of the wishbone itself? Could a plastic wishbone sculpture, based on something found in nature, nevertheless be original enough for copyright protection?  Yes, according to the Ninth Circuit in Lucky Break Wishbone Corp. v. Sears, Roebuck & Co.

. . . .

In 1999, Ken Ahroni was sitting around the table after Thanksgiving dinner when he came up with the idea for a wishbone “for the masses so everybody, including vegetarians” would get to make a wish on Thanksgiving.  Using as a model the turkey wishbone from that very meal, Ahroni started to design what was to become a “revolutionary advance in plastic wishbone technology,” the Lucky Break Wishbone.

As a first step, Ahroni had a three-dimensional scan of one side of the bone created. Then a designer worked with that scan to create a computer model of the full two-sided wishbone. From that computer model, the designer created graphite electrode models using a computer-aided cutting system. These electrodes were manually altered to achieve the right look and then used to create molds from metal blocks, which in turn were used to create a plastic wishbone prototype.

In 2005, after he created the prototype, Ahroni was approached by an advertising agency working for Sears, Roebuck & Company, which was considering using plastic wishbones for a Thanksgiving-time promotion in its department stores. Lured by the enticing prospect of a million-unit sale, Ahroni provided Sears with some sample wishbones made from his prototype molds. However, instead of purchasing wishbones from Ahroni, Sears passed on Ahroni’s samples to a Chinese manufacturer. When Thanksgiving rolled around, Sears gave out over one million plastic wishbones to its customers, all made by the Chinese company.

. . . .

In 2006, Ahroni filed suit for copyright infringement in the Western District of Washington. The most interesting issue in the case was whether a sculpture made to resemble a specific feature of avian anatomy could be the proper subject for copyright protection. In order for an author to copyright a work, the work must be original. For copyright purposes, the term “original” has two elements. First, it must be independently created, which means that the author’s contribution cannot be a mere slavish copy of something else. Second, that authorial contribution must possess some minimal degree of creativity or, as the Supreme Court once described it, “some creative spark, no matter how crude, humble or obvious.”

Sears argued that Ahroni’s Lucky Break Wishbone was no more than a plastic reproduction of a naturally occurring item, and as such could not be protected by copyright. In denying summary judgment, the District Court disagreed with Sears. The Court acknowledged that objects found in nature are in the public domain and can not be copyrighted. However, the fact that an author bases a creative work on a naturally occurring object does not preclude a finding of originality where there is evidence that the author added some creative contribution.

Here, Ahroni presented evidence that, during the various stages of the production process, the designer made several non-utilitarian aesthetic contributions to the prototype in order to create an object that was sleeker and more attractive than a natural wishbone. The goal was not to replicate the wishbone from Ahroni’s 1999 Thanksgiving, but rather to create the idealized “image of the perfect wishbone.” In further support of his argument, an expert ornithologist from the Florida Museum of Natural History opined that the Lucky Break Wishbone included seven osteological features that would not be found in nature, but rather were “of distinctly human creation or design.” These included the curve of the clavicles (i.e., the “legs”), the bilateral symmetry of the surface indentation, and certain smooth surfaces.

. . . .

After summary judgment was denied, the case eventually went to trial. The jury saw things pretty much the same way and awarded Ahroni approximately $1.7 million in damages. In 2009, the Ninth Circuit affirmed.

Link to the rest at Trademark and Copyright Law

Walt Whitman Championed Democracy and Fought for Copyright

18 November 2018

From The Illusion of More:

“Publishers move without concert, harmony, or agreement. There is no law to regulate their rights, and they have none (which are respected) by courtesy.  They print the same book, and the spirit of competition is such as to destroy all correctness, all taste, and all chance of profit.  The result is, that the author gets nothing, the publisher is subjected to losses, and the public are never satisfied.  An international copyright law would remove these evils.”

 — Nahum Capen, 1844 —

This excerpt from a Memorial written by a notable Boston author, editor, and publisher fairly well sums up the state of book publishing—and most creative work—in the embryonic America of the mid-19th century. It is not mere coincidence that the evolution of an American artistic voice parallels the development of U.S. copyright law; and the passage of an international copyright statute in 1891 was a key milestone—culturally, economically, creatively, and politically—in the nation’s progress toward global maturity.  One important advocate of that law also happened to be one of the nation’s first truly domestic creative voices—the poet Walt Whitman, who viewed the adoption of international copyright as a matter of democratic principle even more than a matter of economic purpose.

Creativity today is entirely democratic.  We understand that works of great genius and value might come from anywhere.  But many of America’s most influential authors and thinkers, during the years between the Revolution and the Civil War, believed that literature should remain tethered to classical, elitist traditions.  Thus, while American copyright law evolved throughout the 19th century, charting a course distinct from the antecedents of English common law, a new American creative voice was emerging at the same time.  Indeed, there was a conscious, creative/political movement that may be roughly bracketed between an 1837 speech by Ralph Waldo Emerson and the literary apotheosis expressed in Whitman’s Leaves of Grass in 1855.

It was August 31, 1837, when Emerson spoke to the Phi Beta Kappa Society at Harvard University in which he called upon young, domestic authors to write the narrative of the new nation rather than to continue to “feed on the sere remains of foreign harvests.”  Emerson’s address helped galvanize a broad, cultural shift that was just percolating among the first post-Revolution, literary figures in the nation, and among these was Whitman, who published his first short stories in a new periodical founded on the principles of this movement—the United States Magazine and Democratic Review.

Link to the rest a The Illusion of More

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