Copyright/Intellectual Property

US Publishers and Alliance Back Congressional Letter on Copyright Restatement

5 December 2019

From Publishing Perspectives:

An interesting discussion around copyright is developing with Tuesday’s (December 3) release by the Association of American Publishers (AAP) of a statement on a “copyright restatement project” underway at the American Law Institute (ALI). That comment from the AAP has been followed Wednesday (December 4) by a similar statement from the Copyright Alliance.

And while the core of the argument developing here lies deep in legal assessment—less accessible to many in publishing than the familiar top-level questions of copyright protection for authors and publishers—the occasion is important for just that reason: A quiet but potentially influential reappraisal of copyright law could, as one commentator has put it, “introduce greater confusion into its area of focus.”

At the publishers’ association, president and CEO Maria A. Pallante goes so far as to call the restatement project “a back door effort to circumvent the authority of Congress and undermine the copyright system that fuels our creative economy.”

. . . .

At the Above the Law newsletter, Scott Alan Burroughs of the art law firm Doniger/Burroughs wrote in January both about what has become customary from ALI—and why a copyright restatement is out of character: “The ALI is known for its restatements of laws,” Burroughs wrote, “regarding areas of state law that differ greatly in their application from state to state, such as torts.

“In an unprecedented departure for the organization, it has set now set its sights on federal law promulgated by a federal statute, the Copyright Act.”

Not only is this effort of more than three years by ALI an unusual foray for the organization, Burroughs wrote, but it appears to be a potentially dangerous gravitation toward the support of major tech media companies.

“From a preliminary review of the project’s language,” Burroush wrote, “the copyright law is being ‘restated’ in a manner that greatly favors Big Tech and their confederates in their ongoing campaign to devalue art and content. … If adopted and relied upon, it will make it even easier for Big Tech and other corporate interests to exploit original content without artist compensation or consent (an advantage that they certainly do not need).”

In February, Washington Legal Foundation’s Glenn G. Lammi wrote at Forbes, “ALI has built its reputation in the judicial and legal communities by releasing treatises that add value to an area of law. Re-wording a federal statute and offering commentary on which among many judicial interpretations of that statute’s provisions is ‘right’ doesn’t add such value.”

. . . .

The congressional letter first echoes the surprise of many in the community about the nature of the ALI project: “Throughout its almost 100 years of existence,” the Congress members’ letter reads, “ALI has never chosen to draft a restatement of an area of the law that is almost exclusively federal statutory law—until now. We are deeply concerned by the ALI’s current Copyright Restatement Project.”

The lawmakers note that the US Copyright Office shared its leadership’s concerns with ALI in the same January period in which Burroughs’ and other observers’ articles of alarm were appearing in the news media. Expressions of concern also were registered by the US Patent and Trademark Office and the intellectual property law section of the American Bar Association.

The congressional letter then creates a short list of questions, calling on ALI to state its intentions. Some of the points of inquiry the lawmakers demand answers to are, in essence:

  • Why now? What triggers a restatement of federal copyright law, which “has been in existence for more than twice as long” as the American Law Institute has been.”
  • How is ALI approaching the restatement process?
  • How much weight is given to existing law and legislative history?
  • Are recent copyright law changes being taken into account and respected? These include one with which Publishing Perspectives readers are familiar, the CASE Act, which creates a small claims board in the Copyright Office for inexpensive claims of copyright infringement and misrepresentation.

. . . .

In the Association of American Publishers’ statement of support for the lawmakers’ inquiry, the AAP quotes the lawmakers, who note, “Any restatement or other treatise relied on by the courts that attempts to diminish the importance of the statutory text or legislative history relating to that text would warrant concern. Courts should rely on statutory text and legislative history, not restatements that attempt to replace the statutory language and legislative history established by Congress with novel interpretations.”

Link to the rest at Publishing Perspectives

PG is reminded of an old Southern rural saying, “The stuck pig squeals.”

The American Law Institute (“ALI”) is a fusty old institution that belches forth a “restatement of the law” on some legal topic every few years. It has always reminded PG of a high-brow legal Cliff’s Notes which provides a summary of various cases and statutes to make them easier to understand for those who don’t want to actually do the work of researching statutes and case opinions to find out what the law actually is.

PG never tried to cite anything from an ALI Restatement back when he was doing a lot of litigation because he knew most of the judges before whom he appeared would have responded by asking him if he had any actual legal authority in the form of a statutory reference or an opinion of an actual court on the topic and making some sort of sarcastic comment about PG wasting their time.

Back to the stuck pig, the Association of American Publishers is a mouthpiece for all the major publishers in the US together with the owners of those publishers which are mostly located across an ocean. PG generally assumes that if the AAP opposes something, PG will probably support it on behalf of his author clients and Mrs. PG, who never seems to stop writing books.

PG will assure one and all that the depth of knowledge about copyright law held by virtually any United States Senator or Congressional representative can be measured in fractions of an inch. The Washington lobbyists are howling and the large publishers that employ them are promising campaign contributions and lunch with whoever the latest fashionable best-selling author is at the moment to those same elected copyright naifs who are jumping all over the ALI.

From the perspective of the ALI, all this criticism will likely increase sales of their Copyright Restatement when it is finally released. PG doesn’t think anyone he knows will actually buy a copy, but he may traipse to a local law school library to take a look.

The Boris Johnson Plagiarism Scandal

4 December 2019

From Plagiarism Today:

The United Kingdom is in the midst of what might be its most important election in a century. With the drama over Brexit swirling, the country is at a crossroads and it’s very likely that the next election will shape the future of the country for decades to come.

However, that election took a back seat on Friday following a terror attack on London Bridge that killed two people and injured three. That attack has now become a talking point of the election itself, with all sides striving to assure voters.

One of the more notable responses was from Prime Minister Boris Johnson, who is also head of the Conservative Party. In a 16-tweet thread, outlined why the alleged attacker was released, putting the blame on the Labour Party, his biggest political opponents.

. . . .

However, shortly after it was published, a pseudonymous blogger, The Secret Barrister, put out his own tweet calling the thread a plagiarism of his blog post, which had been published just hours earlier.

PG Note: Asterisks replace an interesting epithet PG hadn’t heard in this particular form before.

According to The Secret Barrister, Johnson cited the same sources he did, made similar observations and then “stripped out the inconvenient context and adopted a false conclusion.”

He also added:

“I find it fascinating that, having never previously shown any interest in explaining complex areas of law to the public, within hours of my posting of a full explanation of the legal issues involved in this case, the Prime Minister’s Twitter account embarked upon a 16-tweet legal thread…”

This, as with any case of political plagiarism, has led to a sharp divide. In the responses to the thread, many have used The Secret Barrister’s words against Johnson. Others, however, have defended him against the claim.

. . . .

It’s important to fully understand the allegations against Johnson. Even though many have called this a “copy and paste” plagiarism, including The Secret Barrister himself, it is not actually that.

The words between the two are completely different. In fact, there are a lot of differences between the two works, in particular with the conclusions. They are similar works, but they are not identical or even nearly identical.

Instead, the allegations center around a combination of the points that Johnson raises, the order that they are raised in and the source he cites. In particular, The Secret Barrister found it odd that both he and Johnson referenced the same document by the Prison Reform Trust charity.

To that end, it’s easy to see why The Secret Barrister and those that support him see the similarities. The tweet thread and his post are indeed very similar, hitting very similar points and differing only with the conclusions. Though no words are copied, one might say the structure of the posts are very similar.

But does this prove plagiarism? This is where things get thorny.

For The Secret Barrister, the case is open and shut, “The possibility that the PM’s own legal advisers drafted his thread without any regard to my witterings has to be carefully considered. But I just can’t see it.”

He goes on to add:

“The number of people who have (apparently independently) noticed the similarities in substance, even if the language has been changed, leads me to believe I’m not going mad. The most obvious explanation is that Johnson (or likely his special advisers) have taken their info from the blog, stripped out the inconvenient context and used it to present Johnson as a legal sage sharing his wisdom. Or, as I’m told academics would term it, plagiarism.”

But is it that straightforward? For me personally, while I agree that there is a reason to be suspicious and wary, it’s hardly an open and shut case. It may well be plagiarism, but there are some pieces to the puzzle missing as it stands right now.

. . . .

To prove that something is plagiarized, one usually has to answer three questions:

  1. Was the work correctly cited? If it’s correctly cited, it’s not plagiarism.
  2. Can the similarities be explained by common sourcing, including tropes, cliches, etc? If so, it’s not plagiarism, at least not a plagiarism of the work in question.
  3. Can the similarities be explained by coincidence? Coincidences happen. Look at the case of Dennis the Menace. Coincidences aren’t plagiarisms. [PG Note: See below]

The first two aren’t helpful here as there is no citation in either work and there’s no indication that The Secret Barrister pulled his format from another source or from a template of some kind. That leaves only the third issue.

But this is where things fall apart a bit. Coincidence is often very difficult to disprove satisfactorily. With verbatim plagiarism, this is relatively easy. We can show that certain strings are unique to the two works and that the odds of them being created independently are astronomical.

. . . .

The truth is that we don’t know and not only is there not enough evidence to say conclusively this is plagiarism but there likely never will be. Barring a confession by Johnson or additional information about who wrote the tweets and how, we are unlikely to have enough information to be 100% sure one way or another.

But, even if we did, the damage would be somewhat limited. While copying someone’s outline and one of their sources is certainly plagiarism, it’s also not as severe as verbatim copying or more direct paraphrasing.

The Secret Barrister’s original post has over 3,700 words and Johnson’s tweets barely break 700 (though they include images of documents). It’s not verbatim plagiarism and it’s not a paraphrase, it’s a different beast altogether. They are similar documents in structure and source only.

Link to the rest at Plagiarism Today

Here is a bit more about the Dennis the Menace case mentioned above, also from Plagiarism Today:

1951 must have been a very bad year to be named Dennis.

The reason is because on March 12 of that year two separate comics entitled Dennis the Menace went on sale, one in the UK, one in the U.S (Note: The UK version is dated March 15 but actually went on sale on March 12).

The UK comic Dennis, which first appeared in Beano #452, was created by David Law and published by D.C. Thomson as a comic strip inside a popular comedy comic book. It’s U.S. counterpart was created by Hank Ketcham and initially distributed by Post-Hall Syndicate as a syndicated comic strip for newspapers.

Though, based on this simple fact, many draw the conclusion that one of the two creators had to have plagiarized the other, it’s become clear that simply wasn’t the case. Not only did the two creators have no way of knowing what the other was working on, but the two characters are actually extremely different. The UK version is a true menace, a mean-spirited boy who likes to cause trouble, and the U.S. version is happy-go-lucky child that causes trouble without intending to.

The two creators largely agreed to allow each other to work on their respective comics and both are continuing in at least some form today (though the UK version is now known as Dennis and Gnasher, named after Dennis’ dog). Though the U.S. version may be the most popular internationally, the UK version is better known in its native country. No legal action has been taken against either creator.

Still, the coincidence is one of the best-known in the publishing world and was recently highlighted on Cracked. However, it also highlights one of the most difficult aspects of plagiarism detection, trying to separate what is a plagiarism and what is a coincidence. Sometimes, it can be nearly impossible to be certain.

Link to the rest at Plagiarism Today

PG notes that, under US law, plagiarism is not illegal unless it rises to the level of copyright infringement.

From PlagiarismChecker.com:

Plagiarism is using someone else’s work without giving proper credit – a failure to cite adequately.

Copyright infringement is using someone else’s creative work, which can include a song, a video, a movie clip, a piece of visual art, a photograph, and other creative works, without authorization or compensation, if compensation is appropriate.

Schools enforce plagiarism.
The courts enforce copyright infringement.

. . . .

Plagiarism

Plagiarism is using someone else’s work without giving proper credit. Schools deal with plagiarism by giving the cheaters academic consequences. Most teachers will give F grades for plagiarized work, and some will do more. When I was a teaching assistant at Stanford University, some students were suspended for copying answers during a test.

Plagiarism doesn’t have to include copyright infringement. For example, William Shakespeare’s plays are not copyrighted because they’re too old. Even though it would technically be legal to copy from one of those plays for an English assignment, it would still be plagiarism if you didn’t give credit to Shakespeare. Your teacher may not be able to take you to court over it, but she can certainly give you an F. You might even get suspended or expelled from school. Even though copying one sentence from a Web site is legal according to United States copyright laws, that may still count as plagiarism in your teacher’s book.

Copyright Infringement

Copyright infringement is using someone else’s work without getting that person’s permission. The author of any original work, including books, essays, Web pages, songs, pictures, and videos, automatically gets the copyright to that work, even if she doesn’t label it with the copyright symbol and her name. The work must be fixed in tangible form, which means it must be stored on something physical, such as paper, canvas, a CD, or a hard disk. This makes college students copyright owners, since they’ve already written many original works for school.

The owner of a copyright gets to decide who can legally make copies of that work. It is illegal to copy large sections of someone else’s copyrighted work without permission, even if you give the original author credit. Imagine someone making copies of the movie Finding Nemo without asking for permission. He sure won’t get away with it just by giving the authors credit on the DVD cover!

Fortunately, a fair use exemption allows you to legally copy small amounts of someone else’s work. Just make sure to give the author credit so you won’t be guilty of plagiarism!

The courts assign consequences for copyright infringement. This means someone may come after you with a lawyer if you violate his copyright. Your school can report copyright infringement to people who have the legal power to take you to court. Students have been sued for copyright infringement before. In some cases, the court may require you to pay the fees for both your lawyer and the copyright owner’s lawyer.

Link to the rest at PlagiarismChecker.com

Earlier this year, PG created a long post about Fair Use, Derivative Works, Transformative Fair Use which is not a Derivative Work and Infringing Derivative Works. He thought it was interesting, but you may not.

Open Educational Resources: The Story of Change and Evolving Perceptions

3 December 2019

From No Shelf Required:

Although the term may still not be familiar to the wider public—including college students and faculty—Open Educational Resources (OERs) have been an integral part of education worldwide for at least two decades. OERs generally refer to digital educational materials that anyone anywhere can use freely and legally, including the user’s right to copy, share, enhance and/or modify them for the purposes of sharing knowledge and enabling education. These run the gamut and stretch beyond digital textbooks—usually perceived as the most common educational resources—to include everything from course materials, university courses, e-learning platforms, software, and streaming videos to lectures and digital repositories of monographs and journals.

. . . .

Regardless of how different and varied OERs may seem at first—ranging from single books to multi-functional and comprehensive platforms—what makes a resource an OER is that it is freely available to anyone, notwithstanding a person’s location and affiliation. OER users may well be college and university students, but they may also be independent learners, researchers or lay readers. Of course, ‘open’ does not mean ‘without any restriction’ or ‘without any financial support.’ It simply means ‘free access.’

Likewise, ‘open’ does not mean ‘without financial backing.’ The mechanisms through which resources become ‘open’ and ‘free’ are complex, always evolving, and require ongoing financial support. A variety of financial models exist on the market that contributes to the sustainability of OERs (Downes, 2007), ranging from, among others, endowment models (funding is usually received from charitable foundations) and membership models (participating organizations contribute a certain amount as members) to sponsorship models (a range of commercial messages, more subtle or less subtle, may interrupt learning and reading), and institution models (various institutions assume the full responsibility for their OER initiatives and bear the financial burden).

WELL-KNOWN OERs

  • MIT OpenCourseWare, an online platform housing free
    eductional and teaching materials from MIT courses
  • Open Textbook Library, a catalog of free, peer-reviewed, and
    open textbooks
  • Open Course Library, a collection of materials, including syllabi,
    course activities, readings, and assessments
  • Khan Academy, an online source of short lessons in the form of
    videos and practice exercises and materials for educators
    National Science Digital Library, a library of collections and
    services supporting STEM education
  • OER Commons, a collection of over 50,000 university courses,
    open textbooks, interactive mini-lessons, and K-12 lesson plans
  • Wikipedia, the world’s most used free encyclopedia
  • Wikimedia Commons, a repository of free digital images
    and various media files

In the context of libraries, OERs as we know them have been around for longer than two decades. Librarians have, in many ways, contributed to the infrastructure of open education long before various types of OERs became the norm. The Internet Archive, for example, has been up and running for nearly a quarter of a century, while Project Gutenberg, the first online repository of public domain content—also a form of OER built and maintained by volunteers, including librarians—has its beginnings in the early 1970s. These initial undertakings paved the way for the advent of new, more specialized types of OERs used today. And as education began moving in the direction of open digital textbooks—scattered in disparate sources online that students and faculty had little awareness of—librarian roles in colleges and universities began to shift, requiring more active participation in the discovery of OERs.

What exactly has contributed to the explosion of OERs in recent years? The steep cost of textbooks and higher education in general, particularly in the United States, is frequently attributed to their popularity perhaps more than any other factor. According to the College Board, undergraduates now spend an average of $1200 on textbooks annually, and this remains a concern.

. . . .

  • OERs are widely and universally available
  • technology has made the cost of sharing OERs practically non-existent
  • given their digital nature, OERs can be modified to fit various needs
  • OERs help accelerate the advancement of human knowledge
  • due to ongoing technological improvements, OERs can reach learners faster than print textbooks
  • OERs allow students and parents to save significantly
  • OERs promote self-directed learning
  • OERs reach large numbers of learners at the same time, regardless of their location
  • OERs have revolutionized the way remote students or long-distance learners approach education
  • OERs allow for a more extensive peer review process

Link to the rest at No Shelf Required

You Wouldn’t Plagiarize an Airport

22 November 2019
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From Plagiarism Today:

In what has to be one of the more bizarre plagiarism stories in recent memory, Qatar Airways accused Singapore’s Changi Airport Group of plagiarizing not a paper, an idea or a proposal, but an airport.

The accusation was made by Akbar Al Baker, who is the CEO of both Qatar Airways and Hamad International Airport. In a recent press conference, he claimed that Singapore’s Changi Airport was a plagiarism of a planned expansion of Hamad International Aiport in Doha, Qatar.

According to Al Baker:

“When I show you the images later [of the planned expansion], you will realize that somebody copied our design, which was already on the table nearly six years ago … We had individuals from that country, I will not name it, that took our design and did it.”

Though Al Baker did not name the country by name, most sources indicate that he was referring to Changi Airport in Singapore.

. . . .

Both airports feature large glass ceilings with triangular frames, mammoth indoor waterfalls and lush green spaces for travelers to roam.

However, the Changi Airport Group has responded to the allegations saying that they began the competitive process for the redesign and awarded it in May 2013. According to them, the company that won has never done any business in Qatar and its CEO has never traveled to Qatar.

Though Al Baker has not responded to the rebuttal, it appears that actual plagiarism is at best highly unlikely if not completely impossible. Basically, two airports had similar designs and that led to some allegations of plagiarism. But what does the law say about this and could it ever happen?

Not only could it happen, it very likely has.

. . . .

To be clear, Al Baker and Hamad International never had a very strong case. They were accusing a Singapore airport that opened in April of this year of being a plagiarism of a project that they haven’t even broken ground on.

Given how much time, energy and resources go into designing and renovating an airport, the dates were never going to line up. When your airport isn’t going to be completed until 2022, it’s tough to claim that an already-open airport plagiarized it.

But this isn’t the first allegation of airport plagiarism. In 2018, architect Duangrit Bunnag was accused of plagiarizing their design for an airport terminal in Bangkok, Thailand. Bunrag won a contest for the job after the original winner was disqualified for failing to file the needed paperwork.

In this case, Bunrag was accused of plagiarizing not another airport but another architect, Kengo Kuma. Bunrag flatly denied the allegations saying that his design was inspired by the Thai forest and others noted that the elements that were alleged to be copied predated Kuma and were parts of traditional building techniques in the region.

. . . .

Though the United States isn’t relevant to these cases, it is the easiest for us to examine. Here, the law here is pretty clear. Architectural works are protected under copyright and have been since December 1, 1990. Likewise, three-dimensional artwork such as sculptures can be protected as well as other artistic elements that are not simply useful articles.

This means that building a substantially similar building without a license could be a copyright infringement. Even if the plans themselves were not copied, even an attempt to mimic another architectural work could be an infringement.

But while it’s certainly possible that a claim of copyright infringement could come from this kind of plagiarism, Al Baker would likely have an uphill battle proving it.

First, he would have to show that the architects of Changi Airport had access to his plans. If infringement is not physically possible, then no infringement took place, it’s that simple. That’s a huge hurdle in this case with the timing of everything. Proving that an already-completed airport infringed on one that hasn’t broken ground is going to be, at best, difficult.

But, even if that hurdle can be crossed, it’s still an uphill battle. Not all inspiration is infringement. Al Baker would still have to prove that the elements that were copied can be protected by copyright and are unique to his work. Elements such as indoor waterfalls and glass ceilings are hardly unique to any one architectural work.

Link to the rest at Plagiarism Today

Military Algorithms and The Virtues Of Transparency

21 November 2019
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From Jotwell:

For all the justifiable concern in recent years directed toward the prospect of autonomous weapons, other military uses of automation may be more imminent and more widespread. In Predicting Enemies, Ashley Deeks highlights how the U.S. military may deploy algorithms in armed conflicts to determine who should be detained and for how long, and who may be targeted. Part of the reason Deeks predicts these near-term uses of algorithms is that the military has models: algorithms and machine-learning applications currently used in the domestic criminal justice and policing contexts. The idea of such algorithms being employed as blueprints may cause heartburn. Their use domestically has prompted multiple lines of critique about, for example, biases in data and lack of transparency. Deeks recognizes those concerns and even intensifies them. She argues that concerns about the use of algorithms are exacerbated in the military context because of the “double black box”—“an ‘algorithmic black box’ inside what many in the public conceive of as the ‘operational black box’ of the military” (P. 1537)—that hampers oversight.

Predicting Enemies makes an important contribution by combining the identification of likely military uses of algorithms with trenchant critiques drawn from the same sphere as the algorithmic models themselves. Deeks is persuasive in her arguments about the problems associated with military deployment of algorithms, but she doesn’t rest there. She argues that the U.S. military should learn from the blowback it suffered after trying to maintain secrecy over post-9/11 operations, and instead pursue “strategic transparency” about its use of algorithms. (P. 1587.) Strategic transparency, as she envisions it, is an important and achievable step, though likely still insufficient to remedy all of the concerns with military deployment of algorithms.

Deeks highlights several kinds of algorithms used domestically and explains how they might parallel military applications. Domestic decision-makers use algorithms to assess risks individuals pose in order to determine, for example, whether to grant bail, impose a prison sentence, or allow release on parole. Even more controversially, police departments use algorithms to “identif[y] people who are most likely to be party to a violent incident” in the future (P. 1543, emphasis omitted), as well as to pinpoint geographic locations where crimes are likely to occur.

. . . .

As compared with domestic police departments or judicial officials, militaries using algorithms early in a particular conflict are likely to have far less and less granular information about the population with which to train their algorithms. And algorithms trained for one conflict may not be transferable to different conflicts in different locations involving different populations, meaning that the same problems with lack of data would recur at the start of each new conflict. There’s also the problem of applying algorithms “cross-culturally” in the military context, rather than “within a single society” as is the case when they are used domestically (P. 1565), and the related possibility of exacerbating biases embedded in the data. With bad or insufficient data come inaccurate algorithmic outcomes.

. . . .

Deeks argues that the military should “fight its institutional instincts” (P. 1576) to hide behind classification and limited oversight from Congress and the public and instead deploy a lesson from the war on terror—that “there are advantages to be gained by publicly confronting the fact that new tools pose difficult challenges and tradeoffs, by giving reasons for their use, and by clarifying how the tools are used, by whom, and pursuant to what legal rules.” (P. 1583.) Specifically, Deeks argues that in pursuing transparency, the military should explain when and how it uses algorithms and machine learning, articulate how such tools comply with its international law obligations, and engage in a public discussion of costs and benefits of using algorithms. (Pp. 1588-89.)

Link to the rest at Jotwell

PG notes the original article was published in The Virginia Law Review and is available here.

PG is inclined to think there is virtue in secrecy for algorithms used in military conflicts. At a minimum, disclosure provides a headstart for those who may be future opponents in developing the same sort of artificial intelligence. Additionally, there is a possibility of providing assistance to a future enemy in its development of counter-weapons to defeat or reduce the effectiveness of the original algorithms.

Supreme is Being Sued for Allegedly Hijacking Another Brand’s Camo Print

20 November 2019

From The Fashion Law:

Supreme is being sued for allegedly jacking another company’s camouflage print for a range of its ultra-hot-selling wares. According to the complaint that ASAT Outdoors LLC filed in a New York federal court this week, Supreme’s corporate entity Chapter 4 Corp. is on the hook for copyright infringement for its “unauthorized reproduction and public display” of a copyright-protected camo design that is “owned and registered by” Stevensville, Montana-based ASAT.

Apparel company ASAT asserts in the newly-filed lawsuit that Supreme – which maintains the title of one of the buzzy streetwear brands in the world – “copied [its camo] design and created derivative works of [it] and placed [them] on their apparel, such as hats, pants and jackets to sell on their website and in stores.” The problem with that, ASAT argues in its suit as first reported by WWD: “Chapter 4 did not license the design from [ASAT] for its apparel, nor did Chapter 4 have [ASAT’s] permission or consent to use or sell the design on its apparel,” such as its $218 “work” jackets and $145 cargo pants.

As such, ASAT claims that the New York-based streetwear brand has “willfully, intentionally, and purposefully, in disregard of and indifference to [ASAT’s] rights” infringed upon its exclusive right as the copyright holder to reproduce, copy, display, and make derivate works of – i.e., works based on or derived from an existing copyright-protected work – its protected camo print, thereby, running afoul of federal copyright law.

Link to the rest at The Fashion Law

Following are copies of a couple of exhibits from the Plaintiff’s Complaint, downloaded from the court’s file.

 

Debunking Copyright Myths

19 November 2019
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From The Copyright Alliance:

The U.S. Copyright Act is a strict liability statute. In other words, following a “rule” that you believe to be true but which turns out to be a myth will not excuse you from liability for infringement. Under certain circumstances, it is possible to plead “innocent infringement,” but even that only serves to reduce the amount of damages you may owe and does not excuse your infringement.

Here are four of the most common copyright myths—debunked.

Myth #1: Public Access = Public Domain

The first myth is that anything to which the public has access, or that is publicly available, is in the public domain; i.e., if it’s on the Internet, it can be used without a license or other permission. This is far from the truth.

Contrary to popular belief, whether a book, work of art, lyrics, sound recording, or other copyrightable work is in the public domain does not depend on where the work can be found. Instead, determining if a work is in the public domain depends on when the term of copyright protection for that work expired— or if it existed in the first place.

. . . .

Myth #2: The Poor Man’s Copyright

The second myth is a “theory” that has endured for a very long time and remains surprisingly popular with freelance writers. Instead of registering the copyrights in a work with the U.S. Copyright Office, the myth is that the protection of a “poor man’s copyright” exists when an author mails himself or herself a copy of a work and then preserves the unopened envelope when he or she receives it in the mail. A variation of the theory is having the work notarized.

Mailing yourself a copy of your work or having it notarized has no legal effect. While it may serve as evidence that the work is in your possession as of the date it was mailed or notarized, it in no way proves that you are the author who created that work or holds the rights in it. The only way to register a copyright and to have documentation of your ownership in a copyrightable work is to file an application with the Copyright Office, which leads us to the next myth.

Myth #3: Registration Isn’t Necessary

Unlike the first two debunked myths, there is some element of truth to the third myth, that registration with the Copyright Office is not necessary for a work to be eligible for copyright protection. But not registering the copyright in a work would be shortsighted and not recommended for anyone wanting to be able to enforce his or her copyrights.

Under current law, registration with the Copyright Office is not required for works created after January 1, 1978.9 Provided a work is sufficiently creative and falls into certain enumerated categories, an author’s work is protected by federal copyright law as soon as it is “fixed in a tangible medium of expression.”10 Copyright protection does not cover ideas, only the expression of those ideas. In other words, telling one or more friends about your idea for the next great American novel or of a portrait you wish to paint does not guarantee any rights under U.S. copyright law. But as soon as the idea is expressed tangibly—for example, by writing the novel or painting the portrait—the work is protected by copyright law. Then, if someone copies the novel, painting, or other work of authorship without getting permission, the author can assert infringement.

An author cannot bring a lawsuit for copyright infringement, however, without a certificate of registration from the Copyright Office.

. . . .

Myth #4: The 30 Seconds/500 Copies/Two-Thirds/200 Words Rule

The final myth is that permission or a license is not needed if only a certain number of copies are made or a certain amount or percentage of the work is used, and that sticking to these arbitrary numbers automatically qualifies the unauthorized use as “fair use” under the Copyright Act.

With acknowledgments for creativity, there is no bright-line rule that making fewer than a certain number of copies or using less than a certain amount of a work somehow makes copyright infringement permissible under copyright law. Unless a use falls explicitly under one of the enumerated limitations on a copyright holder’s exclusive rights set forth in the Copyright Act,17 permission must be sought from the rights holder to reproduce, distribute, publicly perform, publicly display, and/or create derivative works of a copyrightable work—whether or not it is registered with the Copyright Office.

Link to the rest at The Copyright Alliance

AI Inventorship

18 November 2019
Comments Off on AI Inventorship

From The IP Kat:

The UKIPO (United Kingdom Intellectual Property Office) updated its Formalities Manual on the 28th of October 2019,adding under 3.05  a provision  that “An AI Inventor is not acceptable as this does not identify “a person” which is required by law. The consequence  for  failing to supply this information is that the application is taken to be withdrawn under s. 13(2)”.

Although one could question how important and breathtaking this amendment is,  still,  it signals the intention of the UKIPO and the way that it perceives AIat this point  of time. It is difficult to be sure  what has triggered this new provision,, but it could  be related to the patent applications submitted in the UKIPO, UPSTO and EPO, respectively,  concerning (i) a new form of beverage container based on fractal geometry and (ii) a device for attracting enhanced attention valuable for search and rescue operations. What these patent applications have in common is the inventor, an AI called Dabus.

Naturally, humans are involved in these patent applications, namely in the form of the  applicants, two professors from Surrey University. The question is, of course, why the applications name the AI program as the inventor,  if not to provoke a reaction from major patent offices.

. . . .

Professor Ryan Abott, also a professor at Surrey University, is the head of the application’s project. One of his statements available on the website of Surrey University states,

 “Powerful AI systems could hold the key to some of the mega challenges facing humanity – from the cure for cancer to workable solutions for reversing climate change. But if outdated IP laws around the world don’t respond quickly to the rise of the inventive machine, the lack of incentive for AI developers could stand in the way of a new era of spectacular human endeavor.”

In fact, the patent applications are part of a project, the Artificial Inventor project.

Link to the rest at The IP Kat

PG suggests the OP depicts intellectual publicity-seeking.

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