Copyright in the United States; Lexology, October 29, 2018

Hunton Andrews Kurth LLP - Jeff C. Dodd, Jonathan D. Reichman and Susanna P. Lichter, Lexology; Copyright in the United States

[Kip Currier: This is a very useful and informative overview of U.S. Copyright law.]

"Can copyrightable works be protected by other IP rights (eg, trademarks and designs)?

Where applicable, copyrightable works can be protected under trademark rights, patent rights and trade secrets. 
For example, software can be protected by both patents and copyrights. The copyright would protect the artistic expression of the idea (eg, the software code itself), while the patent would protect the functional expression of the idea (eg, using a single click to purchase something online).  An additional example would be a logo for a brand. The logo serves as a trademark indicating that products affixed with the logo are from the same source. The creative and artistic aspects of the logo may also be protected by a copyright. "

U.S. charges Chinese spies and their recruited hackers in conspiracy to steal trade secrets; The Washington Post, October 30, 2018

Ellen Nakashima, The Washington Post; U.S. charges Chinese spies and their recruited hackers in conspiracy to steal trade secrets

[Kip Currier: Just lectured on Trade Secrets in my IP course yesterday. So it was timely to see this recent development after class.

The U.S. and E.U. have both beefed up trade secret protection and prosecution mechanisms in just the past two years: the U.S., with the Defend Trade Secrets Act of 2016, and the E.U., via its E.U. Trade Secrets Directive (EUTSD).]

"The Justice Department on Tuesday unsealed charges against 10 Chinese spies, hackers and others accused of conspiring to steal sensitive commercial airline and other secrets from U.S. and European companies.

The indictment marks the third time since September that the United States has brought charges against Chinese intelligence officers and their recruits for stealing American intellectual property.

“This is just the beginning,” Assistant Attorney General John Demers said. “Together with our federal partners, we will redouble our efforts to safeguard America’s ingenuity and investment.”"

New homepage for USPTO.gov; USPTO, October 25, 2918

USPTO Alert

New homepage for USPTO.gov

Earlier today we published a new homepage for USPTO.gov, part of a larger effort to improve the public's online experience with our agency. The new page includes features our customers have requested and incorporates input from the Patent and Trademark Public Advisory Committees and the independent inventor community. We’ll be releasing more improvements gradually to USPTO.gov, and we welcome feedback.  Below are screenshots of the new page, including a prominently placed "Find It Fast" feature, and of the mobile-friendly version designed for small-screen devices. Learn more about the key features of the redesign in our latest Director’s Forum blog post.

YouTube CEO asks creators to ‘take action’ against EU copyright law; CNet, October 22, 2018

Richard Nieva, CNet; YouTube CEO asks creators to ‘take action’ against EU copyright law

""This legislation poses a threat to both your livelihood and your ability to share your voice with the world," Wojcicki wrote in a blog post. "And, if implemented as proposed, Article 13 threatens hundreds of thousands of jobs, European creators, businesses, artists and everyone they employ."

She added, "Please take a moment to learn more about how it could affect your channel and take action immediately." She also asked creators to protest using the hashtag #SaveYourInternet."

Inside the windowless bunker where Disney stores its 'secret weapon'; The Guardian, October 20, 2018

Rory Carroll, The Guardian; Inside the windowless bunker where Disney stores its 'secret weapon'

"Some in Hollywood still refer to Disney as the House of Mouse but the company archives showcase its real key to world domination: intellectual property (IP)." 

Harvard’s Admissions Process, Once Secret, Is Unveiled in Federal Court; The New York Times, October 19, 2018

Anemona Hartocollis, The New York Times; Harvard’s Admissions Process, Once Secret, Is Unveiled in Federal Court

"Although many selective colleges are known to engage in the same admissions tactics, Harvard’s lawyers lamented in pretrial papers that being forced to produce application materials would be like divulging trade secrets, and would allow students and college counselors to game the process, which is in full swing right now. The judge even likened Harvard’s formula to the recipe for Coke.

In the end, however, Harvard’s lead counsel, Bill Lee (Harvard Class of 1972), said this week that it had been necessary to spill some secrets.

“I’ve definitely not revealed the secret of Coke,” said Mr. Lee, who represented Apple in a patent suit against Samsung — another trial that exposed closely guarded secrets. But, he acknowledged, “you’re learning a lot about the admissions process that never would have been public otherwise. We want you to know. Once you understand it, you can understand how decisions are made.”"

Library now patent, trademark center; The Daily Sentinel (Grand Junction, Colorado), October 14, 2018

Amy Hamilton, The Daily Sentinel (Grand Junction, Colorado);

Library now patent, trademark center

"[Grand Junction, Colorado's] Mesa County Libraries' Central Library, 443 N. Sixth St., will have a grand opening of its designation as a U.S. Patent and Trademark Resource Center, a service that allows patrons access to information and databases on existing patents and trademarks.

The closest centers to Mesa County are in Durango, Salt Lake City and Denver."

The Music Modernization Act has been signed into law; The Verge, October 11, 2018

Dani Deahl, The Verge;

The Music Modernization Act has been signed into law

"President Trump has signed the Music Modernization Act (MMA) into law, officially passing the most sweeping reform to copyright law in decades. The bill, heralded by labels, musicians, and politicians, unanimously passed through both the House and Senate before going to the president.

The bill revamps Section 115 of the U.S. Copyright Act and aims to bring copyright law up to speed for the streaming era. These are the act’s three main pieces of legislation:

• The Music Modernization Act, which streamlines the music-licensing process to make it easier for rights holders to get paid when their music is streamed online
• The Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society (CLASSICS) Act for pre-1972 recordings
• The Allocation for Music Producers (AMP) Act, which improves royalty payouts for producers and engineers from SoundExchange when their recordings are used on satellite and online radio (Notably, this is the first time producers have ever been mentioned in copyright law.)"

All Rights Reserved, A Copyright Relic; Above The Law, October 11, 2018

Krista L. Cox, Above The Law;

All Rights Reserved, A Copyright Relic

This language is no longer necessary for copyright. And yet, it persists.

"PSA: The phrase “All Rights Reserved” isn’t necessary today, but it does have historical origins.

In order to understand why “All Rights Reserved” isn’t legally necessary for copyright protection, it’s important to remember that the Berne Convention for the Protection of Literary and Artistic Works — which has 176 contracting parties — did away with formalities. The Berne Convention, which sets minimum standards for protections, provides automatic copyright protection — that is, copyright exists from the moment of creation and is not dependent on registration or notice. While formalities, like registration, might still be required in order to obtain certain remedies (for example, statutory damages in the United States), the existence of copyright is not dependent on such formalities. While notice is no longer required for works created today, it can still serve a useful purpose, for example, to provide information to users that the work is indeed under copyright protection and provide evidence in a copyright infringement case. “All Rights Reserved,” however, is more of an historical remnant."

His customers wanted a new sound for their electric guitars, so he patented one; The Pittsburgh Post-Gazette, October 15, 2018

Nora Shelly, The Pittsburgh Post-Gazette; His customers wanted a new sound for their electric guitars, so he patented one

"After a few weeks of tweaking the algorithm to get rid of the sharp clicking noise typical of any audio disruption — the sort of noise that sounds like a firecracker has gone off next to your ear drum — the two had a pretty unique invention.

Unique enough that it got approved by the U.S. Patent Office in notably quick fashion: 11 months, start to finish.  

George Mason University’s law school found that, on average, the waiting time for a U.S. patent is a little over three years, according to 2015 research."

Microsoft open-sources its patent portfolio; ZDNet, October 10, 2018

Steven J. Vaughan-Nichols, ZDNet; Microsoft open-sources its patent portfolio

"Several years ago, I said the one thing Microsoft has to do -- to convince everyone in open source that it's truly an open-source supporter -- is stop using its patents against Android vendors. Now, it's joined the Open Invention Network (OIN), an open-source patent consortium. Microsoft has essentially agreed to grant a royalty-free and unrestricted license to its entire patent portfolio to all other OIN members.

Before Microsoft joined, OIN had more than 2,650 community members and owns more than 1,300 global patents and applications. OIN is the largest patent non-aggression community in history and represents a core set of open-source intellectual-property values. Its members include Google, IBM, Red Hat, and SUSE. The OIN patent license and member cross-licenses are available royalty-free to anyone who joins the OIN community."

X-Men: 'Dark Phoenix' Gets an Animated Trailer; Comicbook.com, October 7, 2018

Jamie Lovett, Comicbook.com; X-Men: 'Dark Phoenix' Gets an Animated Trailer

"In September, 20th Century Fox released the first trailer for Dark Phoenix. Now a fan has taken that trailer and recreated it using footage from X-Men: The Animated Series.

The trailer, which can be seen above, was created by YouTuber Darth Blender. It uses the audio from the Dark Phoenix trailer with visuals from X-Men: The Animated Series."

Drugmakers play the patent game to ward off competitors; Kaiser Health News via NBC News, October 2, 2018

Sarah Jane Tribble, Kaiser Health News via NBC News; Drugmakers play the patent game to ward off competitors

"Yet the patenting of a small change in how an existing drug is made or taken by patients is part of a tried-and-true pharmaceutical industry strategy of enveloping products with a series of protective patents.

Drug companies typically have less than 10 years of exclusive rights once a drug hits the marketplace. They can extend their monopolies by layering in secondary patents, using tactics critics call “evergreening” or “product hopping.”

Lisa Larrimore Ouellette, a patent law expert at Stanford University, said the pharmaceutical industry gets a greater financial return from its patent strategy than any other industry does."

Music Modernization Act Heads to Oval Office; The National Law Reviw, October 5, 2018

Erin S. Hennessy, Annie Allison, Jonathon K. Hance, The National Law Review; Music Modernization Act Heads to Oval Office

"The Music Modernization Act (MMA) is headed to the President's desk for signature following unanimous approval from the House of Representatives and the Senate. The bill, now called the "Orrin G. Hatch Music Modernization Act" (H.R. 1551),  provides a significant update to how artists are paid for their music. The Copyright Alliance plugged the bill as "the most significant improvement of music copyright law in more than a generation, making it easier for creators across the music industry to earn a fair living through their creativity."

The MMA combines the following three separate pieces of legislation to bring music royalties into the modern era:

• The Music Modernization Act of 2018, S. 2334, which updates licensing and royalties for music streaming services;
  
• The CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act) which opens up music royalties for pre-1972 songs; and
  
• The AMP Act (Allocation for Music Producers Act) which provides for royalties for music producers and engineers."
  

Publishers Escalate Legal Battle Against ResearchGate; Inside Higher Ed, October 4, 2018

Lindsay McKenzie, Inside Higher Ed; Publishers Escalate Legal Battle Against ResearchGate

"The court documents, obtained by Inside Higher Ed from the U.S. District Court in Maryland, include an “illustrative” but “not exhaustive list” of 3,143 research articles the publishers say were shared by ResearchGate in breach of copyright protections. The publishers suggest they could be entitled to up to $150,000 for each infringed work -- a possible total of more than $470 million.

This latest legal challenge is the second that the publishers have filed against ResearchGate in the last year. The first lawsuit, filed in Germany in October 2017, is ongoing. Inside Higher Ed was unable to review court documents for the European lawsuit.

The U.S. lawsuit is the latest development in a long and increasingly complex dispute between some academic publishers and the networking site."

The popularity of zombies is due to one mistake in Night of the Living Dead; The Verge, September 2, 2017

Andrew Liptak, The Verge; The popularity of zombies is due to one mistake in Night of the Living Dead

[Kip Currier: Yesterday, while updating a public domain lecture for my IP graduate course and having just read this interesting piece in the PittWire about this week's 50th anniversary of the seminal 1968 zombie horror film Night of the Living Dead's world premiere at Pittsburgh's then-Fulton Theater, I came across this fascinating 2017 7-minute Night of the Living Dead - Horrors of Copyright video and played it in class for my students. The video shows how the unforgiving get-it-right-the-first-time-or-else federal copyright registration requirements of the U.S.'s pre-1976 Copyright Act registration system resulted in Night of the Living Dead entering the public domain, due to an unintended mistake by persons associated with the George R. Romero-directed film.

One of the most illustrative and informative aspects of the video is a comparison of the public domain-dwelling-ghouls-cum-zombies in Night of the Living Dead with the 1818-published Frankenstein of Mary Wollstonecraft Shelley that inspired the Frankenstein's monster portrayed and popularized by famed actor Boris Karloff in the 1931 James Whale-directed classic. As the Horrors of Copyright video points out, Karloff's iconic expression of Shelley's 19th century Frankenstein is still owned by Universal today and still protected under U.S. copyright law because of the longer copyright protection periods of the U.S. Copyright Act of 1976 and the 20-year copyright-extending Sonny Bono Copyright Term Extension Act of 1998.]

"Zombies are everywhere, with blockbuster TV shows like The Walking Dead and in Game of Thrones, and films such as 28 Days Later, World War Z, Zombieland, and many others. That popularity stems directly from George R. Romero’s 1968 film Night of the Living Dead. A new video essay from Kristian Williams delves into how one mistake with the film’s release led to the renaissance of zombie stories that terrify and entertain us.

That popularity is due in part to the fact that when Night of the Living Dead was released, its distributor forgot to place a copyright indicator when it changed the title from Night of the Flesh Eaters to its current moniker. According to copyright law at the time, leaving that symbol and the year off meant that it entered the public domain. “The film’s entry into the public domain became the ultimate distribution tool,” says Williams, because theaters, video stores, and TV stations could air it at no cost.

Here, you can watch it right now on YouTube, or download it off of the Internet Archive..."

Romero Lives!; PittWire, October 1, 2018

PittWire; Romero Lives!

"In an ironic twist, even though Romero and his team were professional filmmakers, they knew little about the business of film. It was marketed without a copyright and was distributed willy-nilly. The upside: It was constantly being shown at many venues.

The downside: No one made a dime."

Librarians from across the Pacific gather for conference on open access, collaboration; University of California Berkeley Library News, September 24, 2018

Virgie Hoban, University of California Berkeley Library News; Librarians from across the Pacific gather for conference on open access, collaboration

"This past week, more than 60 librarians from universities across the Pacific descended upon the UC Berkeley campus, converging for a two-day deep dive into the experiments and achievements of fellow librarians working toward a more open, connected world.

The Pacific Rim Research Libraries Alliance, or PRRLA, is a group of libraries that share important resources and ideas in hopes of improving the state of scholarly research around the world. The alliance meets annually to exchange stories about various technologies and programs — and the strides and bumps along the way."

Compromise Music Modernization Act Will Bring Old Sound Recordings into The Public Domain, Tiptoe Towards Orphan Works Solution; TechDirt, September 19, 2018

Mike Masnick, TechDirt; Compromise Music Modernization Act Will Bring Old Sound Recordings into The Public Domain, Tiptoe Towards Orphan Works Solution

"So, this new amended bill creates a very minor tiptoe towards an orphan works concept, just with sound recordings and only for "certain noncommercial uses of sound recordings that are not being commercially exploited." This is way, way, way too limited, but it's a start. Under the rules, someone engaged in non-commercial use (and boy, I can't wait to see the litigation fights over what counts as commercial v. non-commercial use...), has to make a "good faith, reasonable search" to see if a work is being commercially exploited. Following that, they have to file a notice with the Copyright Office announcing their intention to use the sound recording, allowing a 90 day period for someone to object. If there are no objections then, the work may be used in such non-commercial projects. This is extremely limited (way too much so), but hopefully will be useful to sites like the Internet Archive and various libraries. It would be nice if it went much further, but considering that no attempt to deal with orphan works has ever gone anywhere, this seems like at least a tiny step in the right direction. At the very least, hopefully it can be used to show that the world doesn't collapse when there is a way to make use of orphan works when the copyright holder cannot be found."

Europe's Copyright Reforms Are More Than (Just) A Boring Policy Change; NPR, September 27, 2018

Andrew Flanagan, NPR; Europe's Copyright Reforms Are More Than (Just) A Boring Policy Change

"In the "Information Wants To Be Free" corner, you have advocates like Cory Doctorow, who is of the opinion that regulations on the Internet can have a stifling effect on freedom of expression. They want to preserve the web "as a place where we can fight the other fights" like "inequality, antitrust, race and gender, speech and democratic legitimacy," as Doctorow put it in a recent podcast. (Doctorow obliquely references a 2004 copyright dispute around Woody Guthrie's "This Land Is Your Land," which Guthrie, in an unconfirmed statement, said he didn't "give a dern" if others performed.) Doctorow's point is that creativity is best when it's unanchored from profit motive, and thus available to be copied freely. (Doctorow himself walks the walk, making his novels available for no charge.) James Rhodes' recent experience with music that wasn't even protected by copyright isn't exactly encouraging in this regard.

Meanwhile, some copyright holders are very much interested in being paid for their creations. Lisa Alter, a visiting professor at Yale Law School and practicing attorney who specializes in music copyright, tells NPR: "Obviously, whenever there's something new, there will be a period of time where systems are worked out and glitches, but I don't see those insurmountable in the year 2018." As to situations like the one Rhodes experienced with his Bach video? "Could there ever be a erroneous takedown? Sure, but then you let them know and they should put it back up," she says. "But I don't see it being an epidemic. And the technology will get better, the filtering system will improve."

Don’t Make the Register of Copyrights into a Presidential Pawn; Electronic Frontier Foundation (EFF), September 25, 2018

Elliot Harmon, Electronic Frontier Foundation (EFF); Don’t Make the Register of Copyrights into a Presidential Pawn

"The Register of Copyrights Selection and Accountability Act (H.R. 1695) passed the House of Representatives last year, and now, the Senate is looking to take the bill up. Under H.R. 1695, the Register of Copyrights would become a presidential appointee, just like the directors of Executive Branch departments. Naturally, the president would appoint a Register who shares their interpretation of copyright law and other policy stances, and the nomination could come with a highly partisan confirmation process in the Senate.

The Copyright Office is at its best when it has no political agenda: it’s a huge mistake to turn the Office into another political bargaining chip. The Register of Copyrights has two important, apolitical jobs: registering copyrightable works and providing information on copyright law to the government. The Office serves officially as an advisor to Congress, much like the Congressional Research Service (both offices are part of the Library of Congress). It has never been the Register’s job to carry out the president’s agenda. That’s why the Copyright Office is situated in Congress, not in the Executive Branch."

Copyright enforcement in the United States; Lexology, June 25, 2018

Hunton Andrews Kurth LLP - Jeff C. Dodd, Jonathan D. Reichman and Susanna P. Lichter, Lexology; Copyright enforcement in the United States

 

[Kip Currier: Informative, succinct primer and overview of key aspects of U.S. copyright law enforcement.]

Open-access journal editors resign after alleged pressure to publish mediocre papers; Science, September 4, 2018

Jop de Vrieze, Science; Open-access journal editors resign after alleged pressure to publish mediocre papers

[Kip Currier: Post #3,500, in 11 years of blogging about IP and "Open" Movements on this site.]

"The conflict is salient because this week 11 European national funding organizations announced that beginning in 2020, research they fund should only be published in open-access journals, which make articles publicly available, as opposed to traditional journals, which sometimes block access to nonsubscribers. To maintain a level of quality, scientists will be directed to publish only in journals in the Directory of Open Access Journals."

Scholastic fixes greedy copyright rule in this year's awards; BoingBoing, September 25, 2018

Rob Beschizza, BoingBoing; Scholastic fixes greedy copyright rule in this year's awards

"Last year, 8th-grader and cartoonist Sasha Matthews discovered that the Scholastic Awards had a nasty rule buried in the fine print: all the childrens' work submitted for consideration became the property of Scholastic. This year, Scholastic fixed the rules, only taking a license to publish the entries. It's a big victory for the kids and a smart decision by the company."