CFA 311 Intellectual Property Preliminaries Ed Lamoureux, Ph. D. © Ed Lamoureux, 2014

DRM looms large and can work at the “pre-infringement” levels. Joined with the DMCA, this could come to mean “if you don’t navigate and use the stuff the way we tell you to, you are circumventing our content controls.” Politicians don’t like to get involved/there’s little or no “user law.” Over time, “fair use” has changed what WERE legislated protections surrounding the utilitarian use of cultural artifacts (for the further development of arts and culture in society) TO natural rights-like protection of every aspect of creative works (protecting in-place rights holders) Increased use of the web combined with increased amounts of observation, tracking, and punishment have tilted the entire playing field into the direction of large, corporate (deep- pocketed) rights holders.

Eight key changes/issues After 1976/1988, no copyright (re)registration. Copyright Extension Act of 1998 added twenty years. These two produce an enormous number of orphans as only about 20% of all content is valuable enough for registration/re-registration if we had it. That means that since we don’t, everything gets treated equally so the stuff that no one cares about (wouldn’t make money) is still locked up for a lifetime. Corporations hold most IP content; they don’t want to go back to registration because the process costs them in time, effort, and money. DMCA contains anti-circumvention requirements. This brings crime in prior to infringement (and the laws are supposed to be about infringement). A number of court cases have validated “click through/shrink wrap agreements.” It’s clear that few users read click throughs/shrink wraps, TOS, or EULAs and that even if they did, they could not understand them. In most contract law, this might obviate their strength. Not in digital cases. Also, age restrictions to contracts don’t much apply in digital.

“The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” 1.It’s important to remember that this is in the Constitution (lots isn’t) 2.Established copyright and patents 3.To what degree does the present regime adhere to these principles? The Clause

Lay people struggle. But so do the “conservators” of our intellectual culture—libraries, schools, museums— How to collect and protect our cultural heritage? Can we trust Google with solving this? Maybe not, but the legislative process takes a LONG time. Section 108, for example, took over 5 years and only produced recommendations, none of which were ever adopted into law.

Fair Use –Usually thought to apply to copyright, but can also apply in other contexts, but NOT patent –A major exception to IP law, but VERY fuzzy and increasingly under attack –Might be responsible for EXPANDING the protections it was designed to NARROW. –Users risk with this protection: One has to risk infringement first, the a court decides about a fair use defense. –Four Factors: Purpose and character of the work Nature of the “fair” use “transformation” is an issue here [see derivative rights, slide 7] Amount of the copyrighted work used Effect of taking the work –Examples: Teaching  News Reporting Criticism  Scholarship Comment  Research

Quick review of IP categories

Copyright Applies to literal expression (not to the underlying concept/idea). –Life of the author plus 70 years (the “Sony Bono” extension was upheld in Eldred). 120 in works made for hire. Original Works of Authorship: –Literary, Dramatic, Musical, Artistic Gives exclusive rights to: –Reproduce –Distribute –Make derivative works (this compromises “transformative” fair use) –Publicly perform/display works –These rights can be “layered” across a number of aspects (for example, a musical composition, that is recorded, then performed, and then broadcast. A copyright is established when the author fixes the work in a tangible medium of expression –Pen to paper; Musical notes to sheet; material to digital file Additional rights (ability to sue for damages & fees) follow with registration and display of the symbol. (Submit Form, $30.00-if online-, copy to US Copyright Office). –Really important as timely registration enables recovery of compensatory damages AND fees

Liabilities for infringement –Penalties could include: Fines not less than $750 or more than $30,000 Fines up to $150,000 for willful infringement Actual damages and any profits made by infringement –Initial Thomas award (80,00 each) –Initial Tannenbaum award (40,00 each) Without timely registration, only actual damages (loses) can be recovered (and the cases usually cost way more than that)

RIP- A Remix Manifesto 2.webloc

Trademarks Trademark: Protecting the marks/symbols of identity for representational clarity. Identifying word or logo (can also be a color, sound, package shape, or smell) Public Use In Commerce In state or national Term: 10 years, renewable E.g. Clorox, Kodak, Ivory URLs, domain names, search terms and meta- tags are trademark issues Trade dress (associated with trademark law)

Patents Patent: utility/design/plant: protecting inventions and discoveries. –Lately has included business processes; this is now strongly under review. –Software is included (this is also contested) Originally (the Constitution) treated with copyright. Soon thereafter, split out. –New, useful, not obvious device –Disclosure to PTO –20 year exclusivity –Prevents others from making, selling, using; Does not “guarantee” that the holder can! In American law, patents are only assignable to identifiable entities (people & corporations). This effects the way(s) we treat “native” people and their “stuff” As the new law takes effect, this part in March, 2013, we change from “first to invent” to “first to file” (a change that probably advantages large, corporate entities over small businesses and individual inventors).

Trade Secrets Not “registered” anywhere. Information –With economic value –Not generally known Reasonable efforts to maintain secrecy –Unfair competition legislation (often associated with trade secret law)

Content Torts Defamation (libel/slander) Invasion of Privacy –privacy, in general is not an IP issue; privacy surrounding personal identity can be Rights of Publicity

Defamation False Statement of Fact Causing damage to reputation –Per Se, especially about: Commission of crime Disease Unfitness or lack of integrity in office or employment Inability in trade or profession It’s somewhat difficult to defame a celebrity (though it IS possible) It’s MUCH more difficult to defame a public official or the organization they run. 1 st amendment law “controls” many defamation cases

Rights of Publicity Right to control one’s image, especially in commercial environments. Based on state statutes California and New York lead the way Illinois also has a statute Generally involve celebrities. However, the law applies to everyone and in this internet age, non-celebrities are implicated and protected to an extent.

Invasion of Privacy Most privacy issues dealing with surveillance are not IP issues. IP privacy applies to certain issues of personal identity –Portraying someone in false light –Intrusion into the seclusion of another