Silicon Valley’s Challenge to Intellectual Property Law

Posted on Categories Intellectual Property Law, Public, Speakers at Marquette1 Comment on Silicon Valley’s Challenge to Intellectual Property Law


Ted Ullyot titled his Helen Wilson Nies Lecture at Marquette Law School on Tuesday, “Innovation, Disruption, and Intellectual Property: A View from Silicon Valley.” He made it clear which two of those three elements are looked on favorably within that bastion of high-tech culture: innovation and disruption. That leaves one not looked on so favorably: intellectual property law, if you define that as protecting creative work through patents, copyrights, or trademarks.

Ullyot has gained great insight into what goes on between technological visionaries on one side and corporate lawyers on the other. From 2008 to 2013, he was general counsel of Facebook. That covered a period in which Facebook grew at an amazing pace, its stock went public, and it was sued by Yahoo! for patent infringement. Ullyot described the Yahoo! case in detail in his lecture, including the way that many of the leading figures in Silicon Valley who had no connection to Facebook were rubbed wrong by the Yahoo! suit because the culture of innovation was so oriented against asserting intellectual property rights. Continue reading “Silicon Valley’s Challenge to Intellectual Property Law”

Mapping Out the Copyright Semicommons

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Plan of a Mediaeval ManorMy previous two posts on the upcoming Nies Lecture (Thursday, April 16, at 4:30pm — it’s not too late to register!) attempted to sketch out where I think Prof. Smith is headed, based on the abstract and his previous work. In this post I want to reflect for a moment on the implications of viewing copyrights as a type of semicommons.

Copyright was born, in the eighteenth century, with a focus on who had the right to print, publish, and reprint works of authorship. That is, the concern was to exclusively reserve the manufacture of complete works — books, maps, and nautical charts — to the person who created them, or any downstream purchaser of those rights. Although the copyrighted work is intangible — it is the particular creative expression that is embodied within a book, map, or chart — for the first century or so of its existence that expression as a practical matter had a one-to-one correlation with physical objects. In that realm, it is easy to conceive of the property rights assigned by copyright, and the open access rights to the public domain, as dividing lines dividing up an imaginary space — this tract over here is the book Moll Flanders, which is owned by X; that tract over there is public domain, and thus can be used by anyone.

Over the course of the nineteenth century and into the early twentieth, that early, simple framework broke down as courts embraced the notion that the intangible object protected by copyright could be infringed in ways other than reprinting physical copies of the original. Continue reading “Mapping Out the Copyright Semicommons”

The 2015 Nies Lecture: IP as Semicommons

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cows-on-meadow-1410432-mThe title of the 2015 Nies Lecture, being given by Harvard Law Prof. Henry Smith on Thursday, April 16th, at 4:30pm (register here), is “Semicommons in Fluid Resources.” What’s a “semicommons,” and what does it have to do with intellectual property? (I should note that I haven’t talked to Prof. Smith about his lecture; Tuesday’s post and today’s are based just on the abstract read in light of Prof. Smith’s previous scholarship.)

Before I go further, let me recap Tuesday’s post. Prof. Smith has, in a series of articles, laid out a theory of property law that takes into account the informational costs of assigning property rights in various ways. Some ways of describing who has a certain right, and monitoring whether that right is being respected, are very concise: “Kerry owns that red ball.” “Hey, that’s not your ball, it’s mine!” I called these object-based rules, but Prof. Smith calls them “exclusivity rules.” The idea is the same: saying Kerry has the exclusive right to use the red ball for any purpose is a short and easily comprehended way of assigning all uses of that particular object to Kerry. It’s easy to identify who Kerry is, what the object is, and what Kerry (or anyone else) can do with it.

But that’s not the only way to assign rights to objects. Instead of giving all uses of a particular object to one person in an undivided lump, we could instead specify various uses of the object under various conditions, and say that different people can engage in those uses. In other words, we could manage access to the ball. Continue reading “The 2015 Nies Lecture: IP as Semicommons”

The 2015 Nies Lecture: What Is “Intellectual Property,” Exactly, and How Does It Relate to Water Law?

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Fall StreamI’m very excited about this year’s Nies Lecture, which will be delivered by Prof. Henry Smith of Harvard Law School in just a little more than a week — Thursday, April 16th, at 4:30pm. (Register now to attend!) The title is “Semicommons in Fluid Resources,” but that only hints at the depth of the waters, so to speak, that Prof. Smith is likely to explore. As I understand it, the topic is nothing less than the nature of property itself, and how some forms of it — rights to water, and intellectual property — occupy a “middle ground” between communal governance and individual ownership. That has important ramifications for copyright law in particular, in which the dividing line between common goals and individual incentives lies at the heart of numerous doctrines.

The issue is this: suppose you have some sort of resource that multiple people want to use. Say it’s a particular piece of land. As Smith has written previously, there are two basic ways of specifying rules for what people can do with that resource: you could draw lines around objects, or you could draw lines around uses. That is, you could identify a particular object, such as a plot of land, and say that one person has the right to decide all permitted uses of it. (Or that everyone has the right to decide what they will do with it, turning it into a commons, or no one does, turning it into a forbidden zone.) Alternatively, you could draw lines around uses, not objects, and say that person X has the right to engage in activity A using the piece of land in question, and spell out rules governing each person or set of persons and telling them what uses they can make of the land and which they can’t, and under what conditions.

As Smith has argued, these different methods are best viewed as lying on a spectrum. Continue reading “The 2015 Nies Lecture: What Is “Intellectual Property,” Exactly, and How Does It Relate to Water Law?”

Congratulations to Marquette’s 2015 Giles Sutherland Rich Moot Court Teams

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Congratulations to 3Ls Ariel Dade and Keith Reese-Kelly for reaching the quarterfinals of the Giles Sutherland Rich Memorial Moot Court Competition regionals in Atlanta. 3Ls Brian Brockman and Nathan Cromer also competed, and Professor Kali Murray served as the teams’ faculty advisor. The teams were coached by Attorneys Ryann Beck, Garet Galster, and David Hanson. This year’s competition problem involved two issues: first, the proper definition of a claim, and second, the public availability status of a printed publication.

Marquette Law School to Host First Annual Mosaic Conference

Posted on Categories Intellectual Property Law, Legal Scholarship, Public, Speakers at Marquette1 Comment on Marquette Law School to Host First Annual Mosaic Conference

Canterbury-mosaicI am very excited to announce that this weekend, Marquette will host the First Annual Mosaic Conference: Diverse Voices in IP Scholarship, co-sponsored by Marquette University Law School and Institute for Intellectual Property and Social Justice, and with additional funding provided by William Welburn, Associate Provost of Diversity and Inclusion, Marquette University. The goal of this first Mosaic Conference is to bring together intellectual property scholars, policy makers, and activists of diverse and multicultural backgrounds and perspectives to explore socially progressive and non-traditional ideas in IP law, policy, and social activism. The Conference begins with a Reception and Dinner tonight and will conclude on Sunday morning.

Throughout the global community, intellectual property regimes play a critical role in human development, socio-economic empowerment, and the preservation and promotion of social justice. Many IP regimes, however, have been structured or interpreted to reflect only the interests of an entrenched status quo; socially cognizant IP theses are often ignored or rejected as tangential or antithetical to commoditization-centered theories of IP protection, often impeding broader social utility concerns including equitable access to IP protection and output and stimulating innovation. Through the First Annual Mosaic Conference, IP scholars and practitioners will come together with policy makers, social activists, and others to present ideas for progressive and activist-oriented scholarship for assessment as to social relevance, legal significance, and doctrinal integrity. Continue reading “Marquette Law School to Host First Annual Mosaic Conference”

Is Hachette Being Hoisted by Its Own DRM Petard?

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booksRebecca Tushnet points to this column by Cory Doctorow arguing that Hachette is being held hostage in its fight with Amazon over e-book versions of its books because of its “single-minded insistence on DRM”: “It’s likely that every Hachette ebook ever sold has been locked with some company’s proprietary DRM, and therein lies the rub.” Doctorow argues that because of the DMCA Hachette can no longer get access, or authorize others to get access to, its own books:

Under US law (the 1998 Digital Millennium Copyright Act) and its global counterparts (such as the EUCD), only the company that put the DRM on a copyrighted work can remove it. Although you can learn how to remove Amazon’s DRM with literally a single, three-word search, it is nevertheless illegal to do so, unless you’re Amazon. So while it’s technical child’s play to release a Hachette app that converts your Kindle library to work with Apple’s Ibooks or Google’s Play Store, such a move is illegal.

It is an own-goal masterstroke.

Everyone loves irony, but I can’t figure out how to make Doctorow’s argument work. First, I can’t figure out what the anticircumvention problem would be. Second, I can’t figure out why Hachette wouldn’t be able to provide other distributors with e-book versions of its books. Continue reading “Is Hachette Being Hoisted by Its Own DRM Petard?”

Why Isn’t Aereo a Cable System?

Posted on Categories Intellectual Property Law, Public, U.S. Supreme Court3 Comments on Why Isn’t Aereo a Cable System?

Aereo tiny antennaThe Aereo case was argued this morning, and before Paul Clement could even get rolling on his introduction on behalf of the broadcaster plaintiffs, Justice Sotomayor hit him with this:

JUSTICE SOTOMAYOR: Why aren’t [companies like Aereo] cable companies?

MR. CLEMENT: They’re not ­­–

JUSTICE SOTOMAYOR: I’m looking at the — everybody’s been arguing this case as if for sure they’re not. But I look at the definition of a cable company, and it seems to fit.

I’ve been wondering this too. The question presented in Aereo is whether Aereo is engaged in a “public performance” when its servers automatically save and transmit recorded broadcast television programs to subscribers at their request, or whether that activity is properly understood as only the users’ activity. (Scotusblog has a good backgrounder on the case.)

In debating that issue, both the broadcasters and Aereo have at separate points analogized Aereo to a cable system — the broadcasters in the course of claiming that Congress intended to define what Aereo is doing as a “public performance,” just as it did with cable retransmission; Aereo in claiming that it is engaged in disruptive innovation, just as the early cable operators did. But that raises a somewhat different question: why isn’t Aereo subject to Section 111 of the Copyright Act? If it is, then the Court could avoid the entire debate over public performances; the text of Section 111 provides a direct route to liability for certain retransmissions without even mentioning the words “public performance.” And yet, as far as I can tell, it has not been raised by the broadcaster plaintiffs as a basis for a preliminary injunction. Continue reading “Why Isn’t Aereo a Cable System?”

Disney and Phase 4 Films Settle Lawsuit over Frozen Logo

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Earlier this year, Disney and Phase 4 Films settled a lawsuit over Phase 4’s attempts to capitalize on Disney’s latest animated success, Frozen. Phase 4’s film was originally titled The Legend of Sarila. According to the complaint filed by Disne​y, it was released November 1, 2013, a few weeks before Frozen’s release, to dismal box office revenues. Phase 4 then changed the film’s name to Frozen Land, and redesigned the film’s logo to mimic that of Disney’s Frozen. For a side-by-side look at the logos, see the complaint filed by Disney here. 

In the settlement, Phase 4 agreed to immediately stop marketing and distributing its film under the name Frozen Land, and pay Disney $100,000. At first I was skeptical of Disney’s claim, but after comparing the separate logos, it seems highly unlikely that this was anything but a blatant attempt to profit off of Frozen‘s success. The logos contain the same color scheme, the same shape, and almost identical fonts.

As far as the Lanham Act violation claim, it seems almost certain that consumers would be confused as to the relation between the two movies, perhaps reasonably assuming that Frozen Land is a spin-off of Frozen. They also settled an unfair competition claim that was based on Disney’s claims that Phase 4’s Frozen Land caused irreparable damage to Disney’s goodwill and reputation.

My Official Super Bowl Television Post

Posted on Categories Intellectual Property Law, Public, Sports & Law4 Comments on My Official Super Bowl Television Post

kitten bowlThe 48th annual Super Bowl is tomorrow, which means of course that people are thinking about intellectual property law. (Doesn’t everyone?) No, I’m not going to talk about whether your local grocery store infringes on the NFL’s trademark when they advertise “Super Bowl Savings,” except to pose the question of whether a single person ever has been actually confused about whether that indicates a relationship between the NFL and the grocery store. Or the makers of this thing. Rather, I’m going to talk about television. Specifically, what size television can you watch the Big GameTM on?

The NFL caused a bit of confusion on this score when they sent a cease and desist letter to an Indiana church back in 2007 that was planning on hosting a Super Bowl party for church members, with a fee for attendance and the game displayed on a “giant” TV. (I can’t find a description of the exact size.) In the letter and in subsequent pronouncements, the NFL took the position that it was a violation of copyright law to display the Super Bowl to a public gathering on a screen larger than 55 inches diagonally. In the face of likely congressional legislation in 2008, the NFL backed down and said it would not enforce its rule against church groups. But it still maintains that others cannot display the game publicly on sets larger than 55″.

News stories about the controversy have gotten some parts of the relevant copyright law correct, but are still a bit confusing on the 55-inch “rule” and where it comes from. So I’ll try to clarify. The short version: There is no 55-inch rule, at least not for the game itself. Continue reading “My Official Super Bowl Television Post”

Redskins and Hog Rinds–Trademark Denied

Posted on Categories Intellectual Property Law, Public, Race & Law, Sports & Law3 Comments on Redskins and Hog Rinds–Trademark Denied

Pork RindsThe United States Patent and Trademark has recently refused to register the trademark “Redskins Hog Rinds” for a California food company on the grounds that the mark is “disparaging” and therefore prohibited by Section 2(a) of the Lanham Act, the federal trademark statute.

The ruling, handed down on December 29 by an attorney-examiner, can be appealed. The decision concluded that there was no reason to deny registration of the mark except for the fact that it was disparaging to Native Americans. The examiner reached this conclusion on the basis of dictionary definitions that identified the term as disparaging and by the opposition to the continuing usage of the term “Redskins” by a number of Native American groups, including the National Congress of American Indians and the Oneida Nation, as well as articles about Indian activist opposition to the term that appeared in the Washington Post and the magazine, Indian Country Today.

This is not the first time that the term “Redskins” has been ruled disparaging. In recent years the Washington Redskins football team has unsuccessfully attempted to register variations on its famous mark.

Presumably, if the applicant in this case had attempted to register the mark “Indian Pork Rinds,” it might have succeeded (if no one else had previously registered that mark).

Why is the term “redskins” deemed to be so much more offensive than other names for Native Americans? How did it become the R-word?

There is little doubt that many people today believe that the word “redskin” is a racial slur that has no place in public speech. However, while the historical treatment of Native Americans in culture was admittedly degrading in most respects, there is little evidence that the word “redskins” was perceived as an inherently offensive term for Native American before the late 1970’s or early 1980’s.

Traditionally, the word “redskin” was viewed as a synonym for Indian, and its usage did not carry the negative connotations that have long attached to ethnic and racial slurs like “chink,” “wetback,” “kike,” or “nigger.” Until the 1970’s, sportswriters covering teams with any type of Indian nickname used the terms “Indians,” “Braves,” and “Redskins” interchangeably without any apparent awareness that the third was more offensive than the first two.

As the Smithsonian’s Ives Goddard has demonstrated, prior to the twentieth century, Native Americans frequently used the adjective “red” in reference to themselves. In fact, the term “redskin” appears to have originated as a translation of a Native American term used to differentiate Indians from other Americans.

English language dictionaries in use as recently as the 1950’s and 1960’s reflect no acknowledgement that the term “redskin” was understood as disparaging to Native Americans. For example, the 1952 edition of the Universal Dictionary of the English Language, described “redskin” as a “Native American Indian, a Red Man” (p. 981), but makes no reference to the word being offensive. The American College Dictionary (1956 ed., p. 1016); The Grosset Webster Dictionary (1957 ed., p. 1016); and Webster’s New International Dictionary, Unabridged 2nd Edition (1957 ed., p. 2088) all define “redskin” as a “North American Indian,” again, with no indication that the term was considered offensive.

In The American Heritage Dictionary of the American Language (1969 ed., p. 1092), produced more than a decade later, the same definition is given, but with the qualification only that the term was “informal.”

In fact, the Merriam-Webster Company, the country’s leading publisher of “serious” dictionaries, did not indicate that the term was objectionable until 1983, when it added the cautionary phrase “usually taken to be offensive” to its previous definition, “A North American Indian.” (This definition appeared in the 1983 editions of Webster’s Third International Dictionary and Collegiate Dictionary, 9th Edition.)

In contrast, the same dictionaries from the 1950’s and 1960’s clearly indicate that the word “nigger” is understood to be offensive and derogatory. The comments so indicating range from “colloquial, contemptuous” (Universal Dictionary, p. 774) and “offensive” (American College Dictionary p. 820) to “substandard, now chiefly contemptuously” (Webster’s New International, p. 1651) and “vulgar” (American Heritage Dictionary p. 887). The Grosset-Webster Dictionary omitted the word altogether, presumably because it was in such bad taste.

Today, of course, the understanding is quite different. Contemporary dictionaries clearly identify the term “redskin” as disparaging. The Online Oxford Dictionary describes it as “dated and offensive.” Similarly, Merriam-Webster’s online dictionary identifies it as “usually offensive,” while the online Thefreedictionary defines it as “used as a disparaging term for a Native American,” and further classifies the term as “offensive slang.” Moreover, the word has almost completely disappeared from everyday usage, except in reference to sports teams with the “Redskins” nickname.

So, how did the word “redskin” become so offensive so relatively recently? First of all, there is nothing remarkable about a word’s meaning changing over time, especially when it has racial or ethnic connotations. In the 1950’s, it was widely believed that African-Americans preferred to be called “colored” and “Negro,” and at the same time considered the label “black” insulting. By the end of the 1960’s, the situation had definitely been reversed, with only those who were insensitive to racial issues continuing to use the traditional terms.

Moreover, beginning in the late 1960’s, the American Indian civil rights movement campaigned to convince other Americans that most of the images of Native Americans in American popular culture were wildly inaccurate and insulting. No image was more stereotypical than the image of the Plains Indian “on the warpath,” which was a staple of film and television westerns.

Because “redskins” was often the western movie’s term of choice for Native Americans and because westerns usually depicted Native Americans an “uncivilized savages” (even if heroic), the term redskin took on a secondary meaning as “savage Indians.” At least for those Americans who came to regret the traditional depictions of Native Americans, “redskin” became an unpleasant term and a reminder of the dominant culture’s insensitivity to the feelings of its aboriginal counterparts.

A second explanation comes from the fact that the word “redskin” obviously uses a color to describe a racial group. While “black” and “white” became acceptable terms in the 1960’s (and are still widely used), during the same era the practice of referring to Asians as “yellow” fell into disfavor and came to be viewed as an expression of anti-Asian racism. Social pressure to avoid “yellow” references in regard to Asians may have had an impact on public attitudes toward defining Native Americans as “red.”

In addition, there has always been something slightly disparaging about the “skins” component of the word “redskins.” “Skins” can connote images of animal pelts cut away from the body by fur hunters. While there is absolutely no basis to the frequently (and irresponsibly) repeated claim that the term “Redskins” once referred to the hides of Native Americans which could be exchanged for a bounty, there is something a little unpleasant about the similarity between “coonskin” and “deerskin” on the one hand, and “redskin” on the other.

Although the California applicant in the Redskins Pork Rinds case seems to believe that the term has market value, it seems unlikely that any newly created sports team in the 21st century will take the name “Redskins.” Pork rinds and other rural consumption items notwithstanding, the primary issue is whether or not sports teams with the name “Redskins” whose use dates back to a time when the term was not perceived as offensive should be allowed to continue.

One could argue, however, that the real issue with the Redskins is not whether or not the name is especially offensive. When George Preston Marshall named his football team the Braves in 1933 and then changed it to Redskins the following year because of a switch in stadiums, he had in mind a plan to exploit the linkage between the team and Native Americans.

However, his plan had nothing to do with intentionally insulting Native-Americans by choosing a degrading name; the plan was to exploit the Native American as a symbol of patriotism and ferocity in battle. For similar reasons, many non-Indian U.S. military units in World Wars I and II adorned their helmets with Native American symbols.

It seems to me that the focus on “disparagement” missing the real issue with Native American team names, since it is hard to argue that “Indians,” “Tribe,” “Braves,” or “Chiefs” are inherently disparaging names. The real question, at least as I see it, is whether the appropriation of Native American symbols, even with good intentions, is an inappropriate usage of someone else’s cultural property.

The NCAA has framed the issue in this way by recognizing a de facto property interest in tribal names that can be “licensed” to sports teams (like the Florida State Seminoles), if the tribe wishes to do so. Since no one can “own” generic terms like Redmen, Indians, Chiefs, and Braves, those names are off-limits to colleges.

Special thanks to Marquette University Law School alum Daniel Friedman for calling the Pork Rinds ruling to my attention.