Previous posts on IP litigation and IP generally.

Here is a link to an index of some of my previous posts on intellectual property litigation. There should be more added to the list in 2014.

The ongoing debate over misuse of copyright.

A copyright owner has the exclusive right to reproduce, adapt, publish, perform and display his or her copyrighted work. You regularly can find people posting copyrighted content on the Internet. Sometimes, these people will say that their conduct is not copyright infringement, because they are not making money. That is not really true. Not making money from copyright infringement is a factor in determining whether fair use applies, but it is not dispositive.

If you reproduce, adapt, publish, perform or display a copyrighted work, and you do not meet one of the exceptions (like fair use), you are infringing another's copyright.

The more content that is fair use, the less speech is inhibited. The less content that is fair use, the more speech is inhibited. Larger companies tend to have greater power in getting content removed than smaller companies or individuals. This can lead to abuse, and there is an ongoing debate over copyright misuse inhibiting free speech.

The latest example is a copyright professor who used a copyrighted song during lecture for instruction, and the video of the lecture was posted on YouTube. The recording company of the song complained to YouTube, and YouTube removed the lecture. The professor's lecture is clearly fair use, because it was for nonprofit educational purposes, and would not have affected the market for sales of the song.

Copyright infringement when a mark is not being used "in commerce": The Baltimore Ravens example.

This is an interesting case involving an atypical application of copyright law. The plaintiff created a logo for the NFL's Baltimore Ravens shortly after the team announced its move from Cleveland in 1995. The plaintiff faxed his copy of the logo sketch to the team, and when the Ravens' logo was later released to the public, it was practically the same as the plaintiff's.

Normally, logo-copying is the province of a trademark infringement suit. However, the plaintiff here could only sue for copyright infringement, because his logo was not being used in commerce. If it had been used in commerce when the plaintiff faxed the logo to the team, he may have had a viable trademark infringement claim. Alternatively, if he had been a team official, he could have filed an intent-to-use trademark application when he created the logo, and an affidavit of use once it was being used in commerce.

Ideas versus their expression in copyright law.

Copyright protects the expression of ideas, but not the ideas themselves. An idea is conceptual; a product of the mind. Expression is the tangible result of an idea. The same idea usually produces multiple different forms of expression.

There are relatively rare scenarios when expression is not copyrightable. This happens when there is only a limited number of ways to express an idea. In such cases it would be unfair to hold someone liable for copyright infringement when he or she had no choice but to infringe when expressing an idea. Generally, however, expression of ideas is copyrightable.

Ad-skipping technology does not violate copyright law.

Just this week, the Ninth Circuit decided that "ad-skipping" technology allowing people to completely bypass commercials and advertisements does not violate copyright law. The ruling pertains to recent DVR technology that allows viewers to automatically bypass a commercial break without any human intervention (i.e., without having to press fast-forward on a remote control).

Basically, the rationale is that ad-skipping technology is a fair use, because it does not make any copies of a copyrighted work. Additionally, nothing forces viewers to pay attention to commercials anyway, and viewers have long had the ability to skip commercials manually, by fast-forwarding.

The duration of copyright protection.

Original works of authorship are protected by current copyright law for the life of the author, plus 70 years. For joint works, it is 70 years after the death of the last surviving author. If the work is anonymous, it is protected for 95 years after the first publication, or 120 years after its creation, whichever occurs first.

This has not always been the case. The English Statute of Anne in 1710 protected works for 14 years if published before 1710 and 21 years if published after. If the author survived until the end of the term, it was extended for another 14 years. The Statute of Anne influenced the American Copyright Act of 1790, which protected works for 14 years, with the possibility of another 14 if the author was still alive.

Lobbying and longer life spans contributed to extensions in copyright duration. It is possible copyright duration will be extended again in the future. This article provides an interesting perspective on copyright duration. It argues that current law provides too much protection, and harms the public. The purpose of copyright grants is to promote progress, which does not occur if the law provides too much protection. Copyrights are not simply a reward to the author. They are granted to spur innovation insofar as they do not harm the public.

Principles regarding the fair use exception to copyright infringement.

Here is a good article on principles regarding the fair use exception to copyright infringement. It is directed to journalists, but the same principles generally apply to non-journalists. It is a lengthy article, but there is some good information in it.

Secondary liability for copyright infringement.

Direct copyright infringement, as discussed in previous posts, consists of a personal trespass to a copyright owner's statutorily-granted rights. In certain situations, one can be secondarily liable for contributory or vicarious copyright infringement. Neither is expressly permitted in the Copyright Act, but neither is prohibited.

To be liable for contributory infringement, the defendant must contribute or enable an infringement by intentionally inducing or enabling another to engage in direct infringement. This would be the proverbial devil on one's shoulder, encouraging that person to infringe someone's copyright.

To be liable for vicarious infringement, the defendant must profit from an infringement while declining to stop or limit it. Implicit in this is the ability to control the infringing activity.

The "fair use" exception to copyright infringement.

Yesterday, I wrote about copyright infringement as it relates to Usher's situation. For the unaware, Usher and Justin Bieber are being sued for copyright infringement. Unless the plaintiff's account of facts is inaccurate, Usher and Bieber are probably liable for infringement.

Even if a defendant violates a copyright owner's right to reproduce, distribute, perform, display or prepare derivative works of a copyrighted work, there are exceptions to liability. One of which is "fair use," which is the most common exception to liability for infringement.

A "fair use" occurs when a defendant uses a copyrighted work for criticism, comment, news reporting, teaching, scholarship or research. Contrary to popular opinion, it is not automatically a fair use if you do not make money off of it. Even if you use a work for one of the specific fair uses in this paragraph, courts still look at four factors in determining whether to apply the exception in an individual case:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
2. The nature of copyrighted work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for or value of the copyrighted work.

So for instance, even if you use a work for scholarly purposes, it may not be a fair use if you affect the potential market for sales of the copyrighted work. Or if you use the work for criticism, it may not be a fair use if you use the entire work in your critique.

Registering your work of authorship with the Copyright Office.

In another post, I discussed the low-bar for copyright registration. In short, as long as your work is "fixed" and "original," it can be protected. Even without registration, your work can be copyrighted work, but there are clear advantages to registering your work.

A copyright is available for the expression of a work, but not its underlying ideas. Here is a list of the types of works that can be copyrighted. In order to copyright your work, you need to file it with the Copyright Office. To properly file, you need to fill out the application, make payment, and deposit your work. Some works can be deposited online, and some require hard-copies. Even when a hard-copy is required, the application without deposits of work can be completed online. After filing, it takes a little while before you get the registration certificate. So, prepare for the process to take several months.

The low-bar for copyright protection.

The grant of copyright protection comes from the Patent and Copyright Clause of the U.S. Constitution. It secures the right of authors to protect their works from usurpation. The requirements for a copyright are pretty minor. The work must be "fixed," and "original." To be "fixed," the work must be sufficiently permanent for perception or communication. This requires fixation for more than a short or fleeting period. To be "original," the work must be independently created and have a minimal degree of creativity.

Copyright protection does not necessarily require registration, but it is required to commence an infringement suit. To have copyright protection, one should provide notice, in the form of the circled "C," or "Copyright," followed by the year of first publication. Even if you have not registered, you should provide this notice. Ideally, you should register, because that entitles you to seek statutory damages and attorney fees in the event of later infringement. If you do not register initially, and only register when infringement arises, then you cannot receive statutory damages and attorney fees.

Now, attorney fees may not seem like a big deal to you, but it effectively adds to any total award you receive, because you would presumably pay your attorney out of your winnings. It is as if you received an additional award for the amount of the attorney fees and paid the attorney with it, rather than paying the attorney from your award without attorney fees. If you have spent a lot of time on a work, the prudent thing to do is to register it within three months of first publication.

People tend to be surprised when they find out that copyright protection theoretically attaches the moment something is "fixed" and "original." Undoubtedly, you have created something with copyright protection in your lifetime. You just likely have not registered it with the Copyright Office.

Back to basics: Do you need copyright, patent or trademark protection?

It is common for non-lawyers to confuse the subject matter of copyrights, patents and trademarks. The Patent and Copyright Clause of the U.S. Constitution grants authors and inventors protection in their works and inventions. The Commerce Clause grants protection to those who own source identifying marks used in commerce. Today, the distinction is of no great consequence. Copyrights, patents and trademarks all constitute valid intellectual property.

Copyright protection extends to original works of authorship in any tangible medium of expression, including:

• literary works,
• musical works,
• dramatic works,
• choreographic works,
• pictorial works,
• graphic works,
• sculptural works,
• motion pictures and other audiovisual works,
• sound recordings, and
• architectural works.

Copyright protection cannot extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of how it is described. Basically, copyrights protect the embodiment of ideas or their expression, but not the ideas themselves.

Patent protection extends to new or improved, useful and non-obvious processes, machines, compositions of matter or articles of manufacture. I am not licensed to discuss patents in great depth, as I am not a patent attorney. Patents are much more technical than copyrights and trademarks, and require special licensing. Patents involve a written specification and claims. The latter describes the metes and bounds of the patent and exactly what is protected.

Trademark protection basically extends to anything that identifies a mark owner's goods or services in commerce. Typically, a trademark is a name, word, phrase, symbol, color or design. It is important to emphasize that trademarks must be used "in commerce." If you are not using a mark in commerce, as in directly connected to a good or service for sale, you cannot gain trademark protection. You can file an intent-to-use application, but eventually there must be a bona fide use in commerce. A token use in commerce simply to reserve rights is insufficient. As long as a trademark is used in commerce, you can gain trademark protection if it is source identifying. Source identification of a mark is established through inherent distinctiveness or secondary meaning.

Why you should care about the "Copyright Alert System."

What happened:
Major Internet Service Providers ("ISPs") agreed to monitor peer-to-peer file sharing over their networks to identify and prevent copyright infringement. The measure was lobbied for by the Recording Industry Association of America and the Motion Picture Association of America. The "Copyright Alert System" provides for "mitigation measures," which include decreasing Internet access of alleged infringers and directing their searches to "educational" web pages on copyright infringement.

Why you should care:
It is another example of the recording and film industries getting their way through lobbying efforts. Surely, copyright infringement is not a good thing. I am not advocating it. But most large companies are bullies. When it comes to any kind of property rights, they always assert more rights than they have. It is simply smart business to do so. It would not be smart business to claim less rights than you have, because you could get trampled on by other businesses or those with adverse interests to your company. As a result, legitimately protected use of copyrighted material may be limited by this measure, because fair use of copyrighted material is unlikely to be acknowledged by the copyright holders.

This measure is unnecessary, and is in response to failed legislation. I do not see what ISPs get out of the deal. Yesterday, they were unable to monitor their networks for infringing content. As a result, they were afforded the benefit of the safe harbor provision of Section 512 of the Digital Millennium Copyright Act (DMCA) (provided the ISP was "passive"). A passive ISP is transitory, does not have actual knowledge of infringing activity, does not know of facts and circumstances leading it to believe infringement is apparent, and does not gain a financial benefit from the infringing activity. Today, the ISPs can monitor for infringing content, and are doing so for no disclosed benefit.

What changed that ISPs are now able to monitor for infringing content, when they could not before?  Also, why would ISPs agree to limit Internet access of paying customers for the benefit of the recording and film industries? By itself, the measure is relatively innocuous. Copyright holders have access to remedies for copyright infringement, and this is an example of ISPs doing more to prevent infringement. But it just does not add up to me: What do ISPs get out of the deal? Why are they all of the sudden monitoring for infringing activity today when they were unable to do so yesterday?