The Evolution of the Right to Repair; American Bar Association, September 15, 2023

Robert B Cunningham and Darby Hobbs, American Bar Association; The Evolution of the Right to Repair

"Where the scope of the right to repair is headed depends, as so much does, on politics. Consumers and their advocates have every interest in securing a right that is as broad as possible, at least until prices move upward. Manufacturers have no reason to give up on their arguments to constrain the right, recognizing that some arguments are likely more effective than others, e.g., cybersecurity and data leakage risks may carry more water than claims that non-authorized repair shops will disappoint consumer with poor services. It is possible that some manufacturers in competitive markets will see and seize an opportunity to compete on what might be called “repair liberality,” and in so doing preempt legislation. Or, reaching the same result by different ends, the intuitive appeal of advocates’ argument that “ownership includes repair” may overwhelm opposition. Looking only at the recent increase in proposed legislation, it would seem that manufacturers are on the back foot, but maybe all they need is to hone their arguments. One publicized case of a right to repair “going wrong,” perhaps a data breach, could move the parties into—or keep them at—equilibrium. What’s certain is that things will keep breaking, and need fixing."

Bizarre AI-generated products are in stores. Here’s how to avoid them.; The Washington Post, September 18, 2023

 Heather Kelly, The Washington Post; Bizarre AI-generated products are in stores. Here’s how to avoid them.

"Copyright and intellectual property issues around AI are still in the air...

The Authors Guild, which represents many authors whose work has been used to train AI tools, is asking for legislation and pushing companies to disclose when a book is written by AI...

“We see it as consumer protection, but it’s also a way to insulate the book marketplace because otherwise, you’ll just see an influx of AI-generated content on a platform like Kindle,” said Mary Rasenberger, chief executive of the Authors Guild. “It will take away from the market [demand] for human creative works.”

Rasenberger said that she doesn’t think AI can be held off forever and even sees a place for it as a useful tool for writers. The guild’s goal is to make sure AI is regulated, licensed and legitimate, with money going back to authors, she said."

Bad Spaniel's: barking the line between permitted parody and trademark infringement; Reuters, February 15, 2023

Deirdre M. Wells, William H. Milliken, and Kristina Caggiano Kelly, Reuters; Bad Spaniel's: barking the line between permitted parody and trademark infringement

"The 9th Circuit ultimately vacated the district court's judgment on trademark infringement, based on the two-part Rogers test. The Rogers test was established in the 1989 2nd U.S. Circuit Court of Appeals decision in Rogers v. Grimaldi, and balances trademark and free speech rights. Under this test, a trademark can be used without authorization as long as it meets a minimal level of artistic expression and does not explicitly mislead consumers.

To overcome VIP's First Amendment right to humorous expression, Jack Daniel's was required to show that VIP's use of its trademarks is either (1) not artistically relevant to the underlying work, or (2) explicitly misleads consumers as to the source or content of the work. The trial court did not apply the Rogers test as part of its analysis...

The 9th Circuit's application of the Rogers test — which has traditionally been used for expressive works like movies, music, and books — to the commercial setting has garnered the attention of attorneys and brand owners alike. The outcome of this case has far-reaching implications for gag gifts, novelty T-shirts, and even subtler fashion products."

The Freewheeling, Copyright-Infringing World of Custom-Printed Tees; Wired, March 16, 2020

Roger Sollenberger, Wired; The Freewheeling, Copyright-Infringing World of Custom-Printed Tees

"So, how can this model evolve without shortchanging IP owners or upending an industry with so much to offer? Do we need a new DMCA—and one for trademarks? Will anything change without new laws?"

Steal This Intellectual Property; Reason, March 2020 Issue

Dierdre McCloskey, Reason; Steal This Intellectual Property

"I want you to steal what the lawyers self-interestedly call "intellectual property": Hoffman's book or my books or E=mc² or the Alzheimer's drug that the Food and Drug Administration is "testing" in its usual bogus and unethical fashion. I want the Chinese to steal "our" intellectual property, so that consumers worldwide get stuff cheaply. I want everybody to steal every idea, book, chemical formula, Stephen Foster lyric—all of it. Steal, steal, steal. You have my official economic permission. 

What?! A liberal (in the classical sense) wants people to steal? You bet. Here's why. An idea, after it is produced, has no opportunity cost."

‘Rhapsody in Blue’ (1924) just reached the public domain, showing the insanity of U.S. copyright law; The Los Angeles Times, January 4, 2020

Michael Hiltzik, The Los Angeles Times; ‘Rhapsody in Blue’ (1924) just reached the public domain, showing the insanity of U.S. copyright law

"The liberation of all these creations, however, should also be an occasion for mourning. They would have been released to the public domain in the early 1960s, if not for an aggressive campaign staged in Washington by big media companies, especially Walt Disney Co., desperate to keep lucrative control of their copyrighted works for as long as possible.

Copyrights prevent consumers or creators from accessing, building on, or even repurposing artistic works without the permission of the copyright holders or the payment of a fee that can be steep. That’s arguably an obstacle to cultural development, and raises the question of why the heirs should exercise so much power and collect such payouts so many decades after the creators are gone."

Nobel laureate takes stance against allowing research to be intellectual property; The Auburn Plainsman, April 11, 2019

Trice Brown, The Auburn Plainsman; Nobel laureate takes stance against allowing research to be intellectual property

"George Smith, recipient of a 2018 Nobel Prize for Chemistry, spoke to a crowd of students and faculty about the problems that arise from making publicly funded research intellectual property.

Smith said one of the greatest problems facing the scientific research community is the ability of universities to claim intellectual property rights on publicly funded research.

“I think that all research ought not to have intellectual — not to be intellectual property,” Smith said. “It’s the property of everyone.”"

Drug Company ‘Shenanigans’ to Block Generics Come Under Federal Scrutiny; The New York Times, April 14, 2018

Robert Pear, The New York Times; Drug Company ‘Shenanigans’ to Block Generics Come Under Federal Scrutiny

"At a time when researchers are using sophisticated science to develop new treatments and cures, the fight over physical samples — a few thousand pills — sounds mundane. But it has huge implications for consumers’ access to affordable medicines.

The F.D.A. says it has received more than 150 inquiries from generic drug companies unable to obtain the samples needed to show that a generic product works the same as a brand-name medicine. Some of the disputes over samples involve drugs that are costly to patients and to the Medicare program and that have experienced sharp price increases in recent years.

“Without generic competition, there is no pressure to drive down the costs of these medications,” the food and drug agency said. Under current law, it said, it cannot compel a brand-name drug manufacturer to sell samples to a generic company."

You can’t trademark yellow, Cheerios; , August 25, 2017

Cody Nelson, Minnesota Public Radio; You can’t trademark yellow, Cheerios

"The Cheerios’ shade of yellow isn’t “inherently distinctive” enough to qualify for a trademark, the federal Trademark Trial and Appeal Board ruled this week.

General Mills had spent the past two years trying to trademark “the color yellow appearing as the predominant uniform background color” on Cheerios boxes, Ars Technica reports.

Turns out the Cheerios yellow is just too average. For intellectual-property regulators to deem a color trademark-able, consumers must consider it to have a certain “distinctiveness.”"

Gucci sues Forever 21 for trademark infringement; CBS News, August 10, 2017

CBS News; Gucci sues Forever 21 for trademark infringement

"International fashion house Gucci has been sending its iconic stripes down the runway for more than half a century in blue-red-blue and green-red-green.

But they're not alone, reports CBS News' Dana Jacobson. Similar designs with similar stripes are being sold by Forever 21. Now Gucci is suing the fast-fashion retailer for trademark infringement.

"Gucci is really having a moment and driving a lot of sales with these stripes," said Susan Scafidi, director of the Fashion Law Institute at Fordham University.

"How can you actually trademark stripes?" Jacobson asked.

"When consumers recognize a certain striped pattern, whether it's Gucci's green, red, green, or Adidas' three-striped mark, then we give those companies recognition that those marks belong to those companies," Scafidi said."

Current copyright regime makes entertainment industry boring; The Daily Texan, June 18, 2017

Usmaan Hasan, The Daily Texan; Current copyright regime makes entertainment industry boring

"The current system of copyright and intellectual property protections quells artistic expression gives consumers the short end of the stick.

Mickey Mouse, as a property of Disney, enjoys bipartisan support in Congress. He was created in 1928, and under the existing copyright regime of the time, Disney’s right to Mickey should have ended in 1956 at the soonest, 1984 at the latest. Yet with some Disney magic, without fail, Congress expands copyright protections every time the Mickey is about to lapse into the public domain.

The hypocrisy coming from Disney is staggering. It has gained its immense wealth by monetizing properties in the public domain – like Cinderella, a centuries old fairy tale owned by no one – lobbying for copyright protections for those properties, and then reworking properties while constantly expanding the lifetime of their protections. It is a company that has managed to exercise artistic reinterpretation of cultural touchstones while making it nearly impossible for others to do the same. In fact, Disney has made its wealth by making movies on at least 50 works in the public domain."

How a rigid fair-use standard would harm free speech and fundamentally undermine the Internet; Los Angeles Times, June 1, 2017

Art Neill, Los Angeles Times; How a rigid fair-use standard would harm free speech and fundamentally undermine the Internet

"In a recent Times op-ed article, Jonathan Taplin of the USC Annenberg Innovation Lab claimed that an “ambiguous“ fair use definition is emboldening users of new technologies to challenge copyright infringement allegations, including takedown notices. He proposes rewriting fair use to limit reuses of audio or video clips to 30 seconds or less, a standard he mysteriously claims is “widely accepted.”

In fact, this is not a widely accepted standard, and weakening fair use in this way will not address copyright infringement concerns on the Internet. It would hurt the music, film and TV industries as much as it would hurt individual creators...

Fair use is inextricably linked to our 1st Amendment right to free speech. We are careful with fair use because it’s the primary way consumers, creators and innovators share new ideas. It’s a good thing, and it is worth protecting."

Patents Are A Big Part Of Why We Can’t Own Nice Things: the Supreme Court Should Fix That; Electronic Frontier Foundation (EFF), March 21, 2017

Kerry Sheehan, Electronic Frontier Foundation (EFF); 

Patents Are A Big Part Of Why We Can’t Own Nice Things: the Supreme Court Should Fix That

"Today, the Supreme Court heard arguments in a case that could allow companies to keep a dead hand of control over their products, even after you buy them.  The case, Impression Products v. Lexmark International, is on appeal from the Court of Appeals for the Federal Circuit, who last year affirmed its own precedent allowing patent holders to restrict how consumers can use the products they buy. That decision, and the precedent it relied on, departs from long established legal rules that safeguard consumers and enable innovation."

Public Meeting on Consumer Messaging in Connection with Online Transactions Involving Copyrighted Works from 1 p.m. - 5 p.m. ET on April 18, 2017

Copyright Alert

Consumer Messaging in Connection with Online Transactions Involving Copyrighted Works

The U.S. Department of Commerce’s Internet Policy Task Force will host a public meeting on Consumer Messaging in Connection with Online Transactions Involving Copyrighted Works from 1 p.m. - 5 p.m. ET on April 18, 2017 at the U.S. Patent and Trademark Office’s headquarters in Alexandria, Virginia. The meeting will be webcast, and members of the public will have opportunities to participate. In its January 2016 White Paper on Remix, First Sale, and Statutory Damages, the Task Force concluded that when consumers download copies of works (such as eBooks, music, and motion pictures), they do not appear to have a clear understanding of what they can legally do with those copies. It also determined that consumers may benefit from having more information about the nature of their transactions related to copyrighted works delivered online—including whether they are paying for access to content or for ownership of a copy—to instill greater confidence and enhance participation in the online marketplace.  The Task Force is therefore convening this meeting to facilitate a dialogue about ways to improve consumers’ understanding of license terms and restrictions in connection with online transactions involving copyrighted works. The goal is to explore issues and facilitate a discussion, and to determine in what ways government can be of assistance. Please note, for those attending the event in person in Alexandria, registration is required. Registration is free. The meeting will be open to members of the public to attend, space permitting, on a first-come, first-served basis. Register to attend. Visit the USPTO's event page for more details and webcast information. For non-press inquiries, please contact Linda Quigley, Attorney-Adviser, Office of Policy and International Affairs (Copyright), USPTO, at linda.quigley@uspto.gov.

Under pressure from tech companies, ‘Fair Repair’ bill stalls in Nebraska; Guardian, March 11, 2017

Olivia Solon, Guardian; 

Under pressure from tech companies, ‘Fair Repair’ bill stalls in Nebraska

"“This has the potential to weaken security features in a host of electronic devices. It’s not about dead screen or battery,” said CompTIA’s Alexi Madon, adding that the bill applied to medical equipment and government servers. “Manufacturers are also required to give up sensitive intellectual property.”

Tony Baker, a Nebraska politician who previously provided information solutions to the US military, countered the suggestion that repair rights would infringe on the intellectual property rights and the security of software. He explained how his organization created software running on classified networks that granted different levels of access to different groups of people, depending on their level of authorisation or security clearance. He argued that manufacturers could do the same with their products."

US Finds Existing Copyright Law Suited For Software Embedded In Everyday Products; Intellectual Property Watch, 12/16/16

Intellectual Property Watch; US Finds Existing Copyright Law Suited For Software Embedded In Everyday Products:

"The United States Copyright Office has released a study that finds that existing copyright laws are sufficient to cover issues arising over software embedded in everyday consumer products. But it does call for some flexibility for consumers to tinker with their devices.

The report, which followed hearings and research in the field, is available here. The report was requested by Sens. Charles Grassley (R-Iowa) and Patrick Leahy (D-Vermont), the chair and ranking member of the Senate Judiciary Committee."

Consumers caught out as UK firms furnished with crippling copyright laws; Guardian, 11/21/16

Anna Tims, Guardian; Consumers caught out as UK firms furnished with crippling copyright laws:

"Voga, it transpires, reinvented itself as an Irish company in May to escape new UK copyright laws that would have rendered much of its merchandise illegal. There’s no mention of the relocation on its website, which also does not give an address, and the FAQs on delivery and extra charges are silent on the issue. Only deep down in the terms and conditions is it mentioned that customers must arrange their own delivery from Ireland.

McGrath is an early casualty of a change in British legislation which has made it a criminal offence to sell replicas of design icons without a pricey licence. The amendment to the Copyright, Designs and Patents Act, which came in to force in July, retrospectively extends the design rights to unregistered classic works created after 1957 from 25 years after their launch to 70 years after the designer’s death. This sounds the death knell for affordable replicas of 20th-century bestsellers such as the Arco floor lamp and Arne Jacobsen’s Egg chair and threatens to put scores of companies that supply them out of business.

A further proposed rule change will slap copyright on iconic pre-1957 designs which never qualified for copyright protection in the first place, making it a criminal offence to incorporate any element of them into a new work. This means that anyone without a licence from the copyright holder who is selling , for example, the Finn Juhl-inspired chair bought by McGrath could face a £50,000 fine and up to 10 years in prison. Householders who want to get the look will now have to fork out thousands rather than hundreds for a piece of furniture, and magazines will be penalised if they show photos of items protected by the copyright without buying a licence."

Warning: This article on trademarks may include language deemed ‘scandalous, immoral or disparaging’; Washington Post, 9/30/16

Fred Barbash, Washington Post; Warning: This article on trademarks may include language deemed ‘scandalous, immoral or disparaging’ :

"It is a law called the Lanham Act that gives the federal government the power to refuse to register or to cancel trademarks deemed scandalous, immoral or disparaging — let’s call it SIOD for short.

On the basis of that law, the United States Patent and Trademark Office, for example, determined that Redskins, as in Washington Redskins, was SIOD and canceled its trademark...

The primary purpose of the 1905 Trade Mark Act, later reenacted as the Lanham Act in 1946, is twofold, as Carpenter and Murphy wrote in their law review article, “including lessening of consumer search costs and encouraging producers of goods and services ‘to invest in quality by ensuring that they, and not their competitors, reap the reputation-related rewards of that investment,’ thereby protecting consumers from deceptive practices.”...

What is SIOD?

“It is always going to be just a matter of the personal opinion of the individual parties as to whether they think it is disparaging,” said the PTO’s assistant commissioner in 1939, as he explained his own discomfort."

People who pay for content but also infringe copyright spend more; ZDNet, 7/22/15

Chris Duckett, ZDNet; People who pay for content but also infringe copyright spend more:

"Consumers who flirt with the morally ambiguous line of content consumption spend more money, according to a survey released by the Australian Department of Communications.

Over a three-month period among respondents aged 12 and over, the survey found that those who consumed a mixture of copyright-infringing and non-infringing content spent on average AU$200 on music, AU$118 on video games, AU$92 on movies, and AU$33 on TV content. Consumers who only consumed non-infringing content spent only AU$126 on music, AU$110 on video games, AU$67 on movies, and AU$22 on TV; whereas pure copyright-infringing content consumers spent a mere AU$88 on music, AU$24 on video games, AU$53 on movies, and AU$8 on TV content...

"Rights holders' most powerful tool to combat online copyright infringement is making content accessible, timely, and affordable to consumers," Turnbull said on Wednesday."

Using copyright to keep repair manuals secret undermines circular economy; Guardian, 12/20/13

Kyle Wiens, Guardian; Using copyright to keep repair manuals secret undermines circular economy: "Perhaps it was characteristic of a generation touched by the Great Depression, but in my grandfather's era, repair information was practically public domain.... Ironically, we now live in an age where information has never been more abundant, and yet every day more repair manuals disappear. It's not an accident. Manufacturers of computers, mobile phones, appliances, and cars still create repair manuals for every product they ship. You're just not allowed to have them anymore. And that gap in repair information is hindering our efforts to create a circular economy.... It's unclear whether companies like Toshiba and Apple are within their rights. No one can legally copyright facts or procedures but you can copyright any form of creative work, like writing. Manuals, despite their lack of creative or artistic merit, are a form of writing. Companies aren't going out on a limb by hiding them behind the shield of copyright."