Intellectual Property in Cyberspace, note set 3 Spinello’s CyberEthics ch. 4

Doctrine of First Sale, p. 103 Can you resell, give or loan a book you no longer want? Why? – Copyright holder’s rights to change the ownership of a copy end once that copy is sold. This is the doctrine of first sale. What if this was a CD or DVD? What if this unwanted item was an iBook? – DRM What if this unwanted item was computer software?

Viewpoints of Copyright Control Pp Copyright maximalists – extreme position, would do away with Fair Use Copyright minimalists – de-emphasize property rights; “information wants to be free” Digital Dilemma: limitless, perfect, cheap copies possible; encumbering DRMs

Point of View Baase in Gift of Fire acknowledges that “the ‘problem’ looks different from different perspectives.” – Consumers value cheap and convenience – Artists value being paid for their time and effort – Industry wants their investments protected Often delaying technologies that threaten – Amateur artists don’t want unreasonable burdens – Scholars and courts seek to find a balancing of interests

The Sonny Bono Copyright Term Extension Act Pp Mickey Mouse was headed to the public domain but was saved by CTEA – Duration of life +50 or 75 years upped to life +70 or 95 years. Subject of the Supreme Court case Eldred v. Ashcroft (2003) – Congress has the power – Thinking question: does this hold with utilitarian objectives of protecting IP?

DRM Digital Rights Management – tech. to control use of IP – Baase “prevent saving, printing, making more than a specified # of copies, distributing, extracting excerpts, fast forwarding commercials” DRM can operate to prevent fair use uses – Can avoid the “first sale” limitations DMCA and encryption: p. 109 see part on fair use implications. DRM cracking & DMCA – The DeCSS case, Universal City v. Remeirdes p Including First Amendment implications

Video Sharing Main questions to examine: – “What uses of copyrighted material does fair use permit?” Four factor fair use test is a must; no blanket guidelines – “Are site operators responsible for copyright infringing material posted by users?” Hiding out: Takedown notice: if sites remove material when asked by the copyright owner they fall into the DMCA safe harbor of avoiding liability – “Abuse” of take down notices – » Often fair use considerations are not applied “fairly”

Suppose … You want someone to take your creative work and build on it. – The Creative Commons You build software and you want others to take your work and build on it. – Open Source Software, pp – 5 basic premises, p. 121 – Concept of copyleft, p. 121

Trademark review Defined as: a symbol, word, color, sound that operates to identify goods of a manufacturer. – “Distinctiveness” test p, 105 – Idea is to give consumers confidence/assurance in from whom they are purchasing products by allowing them to distinguish goods from one manufacturer from another A service mark is used to distinguish the services of a business (HR Block, Stanley Steamer, etc.)

Trademark requirements Registration 10 yr, subj. to renewal Suppose you notice someone using the trademark. What happens? – You must bring an action to enforce your rights. – The Lanham Act provides c/a for: infringement, dilution, unfair competition and cyber-squatting.

Factors a Ct. looks at in Trademark infringement cases 15 U.S.C. § Ownership of valid, registered mark 2.Alleged infringer used 3.In commerce 4.The mark or similar symbol 5.In connection with offering for sale, distribution, advertising goods or services 6.the use caused likelihood of confusion, mistake or deception.

Factors in a Dilution case If your trademark become generic, it can no longer be registered. – “blurring” p. 105 – “tarnishment” USC § 1127 defines dilution as “lessening of the capacity of a famous mark to identify or distinguish goods or services” The idea is to bring a cause of action to protect your distinctiveness

Trademark cases Teacher example hypothetical: PINK panties Ty Inc. v. Perryman Chewy Vuitton: news-and-trends/louis-vuitton-malletier-sa-v-haute-diggity-dog-llc/ news-and-trends/louis-vuitton-malletier-sa-v-haute-diggity-dog-llc/ The Daniel Moore case v. UA – Opinion: – On Appeal: football-paintings/ football-paintings/ – CW letter from D. Moore: free-expression/ free-expression/

Factors in a Cyber-squatting case 1999 Anti-cybersquatting Consumer Protection Act – Creates a c/a for mark owners against those who in bad faith “register, traffics in, or uses a domain name” that is the same as or confusingly similar to a trademark. – See pages

Trademark issues presented by: Hyperlinking: – Pp – Ticketmaster v. Microsoft Meta tag baiting: – pp – Playboy v. Wells

Patent review Quid pro quo – Disclosure  protection period exclusive rights (make, sell, use) – IP viewpoints: Criticism of monopolist power v. utilitarian incentive for breakthrough inventions Eligibility of software, change to allow patent, Diamond v. Diehr original process involving computer calculations includable in patent.

Business Methods Patents Examples of online business methods: – Priceline.com’s “name your price” – Amazon’s one-click checkout, see case study pp – eBay’s “Buy it Now” Page 124: “Software-enabled business methods (or processes) can be patented as long as they meet the criteria for a patent such as novelty & nonobviousness.” – Bilski v. Kappos US S Ct 2010 (a.k.a. Bilski v. Doll) Utility patents are not just limited to the machine or transformation test.machine or transformation test

Business Method Patents, cont’d IP viewpoints on business method patents: – too broad in scope, w/o justification of investment, p. 125 – “important asset in a corporate differentiation strategy” p. 125 – “fundamentally allows somebody to patent an idea … at odds with so much that we hold sacred.” p. 140

Current issues in the news Apple and Microsoft filing patents for touch- less gestures controls. – Details: – patents patents – From what we’ve discussed before, what can you tell me about why they are seeking a patent instead of a copyright?

Looking at a tech patent Apple’s most recent approval: – Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fn etahtml%2FPTO%2Fsearch- bool.html&r=11&f=G&l=50&co1=AND&d=PTXT&s 1=apple&OS=apple&RS=apple Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fn etahtml%2FPTO%2Fsearch- bool.html&r=11&f=G&l=50&co1=AND&d=PTXT&s 1=apple&OS=apple&RS=apple – awarded-unlock-screen-gesture-patent awarded-unlock-screen-gesture-patent Other physical gestures that have been patented: – that-have-been-patented that-have-been-patented