Introduction to Intellectual Property

Question Deadline

In order to be fair for all (and to prevent any confusion), the question deadline--the time after which I will no longer answer exam-related questions--will be 10:00 PM on Monday, April 19. I'll try to have all questions answered--and posted to the blog--by midnight April 19.

question from email

For question 6 on the practice exam, wouldn't photocopying only the recipe portions of the page still pick up some elements of formatting even if you remove the title and clip art (such as breaks in text, font choice, etc.)? I know this might seem like grasping at straws, but since the requirements for creative input are so low I thought when taking the test that this would put it above none - though I suppose it all hinges on the word likely.

Well, you've got a point -- one might imagine cases where there was sufficiently original choices in font or text layout to support some copyright infringement. But given the facts presented in that question, this is too speculative to support an answer.

question from email

The other day, walking down the street, I saw a truck hauling junk that seemed to be part of a nationwide junk-hauling business. The side of the truck was emblazoned with "1-800-Got-Junk". At first, I thought it was highly unusual that they hadn't had their pants sued off for dilution (I'm assuming they came after the "Got Milk" slogan, which has been around for more than a decade). But then I got to thinking: "Got Milk" is an extremely famous MARK, but almost nobody knows exactly whose mark it is (I think it's the "milk processing board" or something like that). It seems like the truck would satisfy the tests outlined for dilution, yet all the goodwill in the "Got Milk" slogan seems to bear on the generic product "Milk" rather than the producer. So: If a company is freeloading off a famous mark, but the original mark doesn't satisfy the trademark purpose of making consumers think of the PRODUCER, rather than the mark itself, has one diluted the mark at all? I doubt it makes any difference, exam-wise, but I was just curious.

[1] Got Milk appears to be a collective mark, so it's likely to be okay that the goodwill connects to the product or the producers generally rather than any specific producer.

[2] Because of #1 above, then you might well have a dilution claim under your hypo. In the more general case, remember that distinctiveness is a requirement for dilution to lie, so if the mark didn't connect its goodwill to anything, then you have no dilution (or, indeed, any infringement either.)

Audio Files

Several of the audio files on the web site seem to be missing or incorrectly linked. Specifically:

(1) the files for the two sessions of the 02/03/04 marathon of intellectual property are the same (both seem to be for the second session); and

(2) the links to the files for the session on 02/23/04 (Patent II: Disclosure) are nonfunctional.

Basic IP Questions

Please feel free to tell me that these can wait until the review session - but yes/no or really short answers are fine...thanks!

- (1) can you patent business methods? (I have conflicting information in my notes about this - at one point it was a judicially created exception to patentable subject matter, but now it is allowed?)
- (2) what exactly is the relationship between copying, improper appropriation, and substantial similarity for infringement?
- (3) what are the different rights that come into play for sound recordings and musical compositions - I know the rights are separable, but is the major difference just compulsory licensing?
- (4) is the focus on the patent enablement requirement just the prevention of undue experimentation?
- (5) for patent infringement, the analysis is claim by claim - just have to show all the elements (or equivalents) of a claim were present in potentially infringing device? So then does that infringing device simply have to get rid of that one claim and can keep everything else or is the whole product worthless?
- (6) for TM, geographically misdescriptive is okay with secondary meaning but geographically deceptively misdescriptive is not?
- (7) why does product design need secondary meaning and why can't it be inherently distinctive (I'm thinking of the classic coke bottle - but is that considered secondary meaning...it's not functional, right?)

Why the original Napster wasn't bad for music

Before I go into my opinion, I’d like to list some of the statistics and information I discovered about the Internet and album sales:

On the RIAA web page (www.RIAA.com), there is a segment of FAQs. The first question is: “Does uploading music on the Internet hurt anybody? Isn’t it promotion for the artist?” One particular aspect of the question intrigued me, as it seems to support my opinion below, rather than the industry’s public opinion. “Though most people do not realize it, only about 15 [%] of all releases sell enough copies to make a profit and those record sales support the other 85%, including those from new and emerging artists.” First of all, the majority of “new and emerging artists” out there are not signed by the labels, being hurt by these downloads. The emerging artists are generally struggling to get by and giving their music away for free or selling it for $10 at their shows. In addition, to the best of my knowledge, the music industry has not instituted a revenue sharing program (such as the one in the NFL), where the richer labels/artists, share their profits with the less successful. Finally, it is difficult to justify labeling any artist signed to a Major [label], as a “new and emerging artist.”

Here are some interesting statistics*:
1998:
CD unit shipments grew 12.5% from 753.1 million in ’97 to 847 million in ‘98
CD dollar value grew 15.1% from $9.9 billion in ’97 to $11.4 billion in ’98 – an INCREASE of $1.5 BILLION.

1999:
CD unit shipments grew 10.8% from 847 million in ’98 to 939 million in ‘99
CD dollar value grew 12.3% from $11.4 billion in ’98 to $12.8 billion in ’99

2000:
CD unit shipments grew 0.4% from 939 million in ’99 to 943 million in 2000
CD dollar value grew 3.1% from $12.8 billion in ’99 to $13.2 billion in 2000

2001:
CD unit shipments DROPPED 6.4% from 943 million in ’00 to 881 million in ‘01
CD dollar value DROPPED 2.3% from $13.2 billion in ’00 to $12.9 billion in ’01

2002:
CD unit shipments DROPPED 8.9% from 881 million in ‘01 to 803.3 million in ‘02
CD dollar value DROPPED 6.7% from $12.9 billion in ’01 to $12 billion in ‘02

*I would like to point out that the music industry filed the lawsuit against Napster on December 7, 1999. The first court decision (District Court for the Northern District of California) was on May 8, 2000 and an injunction was finally issued in mid-2001 that shut down the network. This leads me to question how Napster was “bad” for music? 2001 was the first year of the recent trend in annual losses, suffered by the industry. I still have not heard a convincing argument that proves how shutting down Napster improved “music,” or the industry on the whole. However, the CD singles market did virtually disappear: dropping from 66.7 million units shipped in ’97 to 4.5 million in 2002 (about $195 million lost in revenue). Selling one song for $6 (minimum) always seemed wrong to me anyway. In addition, I think the labels made up for it - with the increase of music DVDs (from 485,000 units and $12.2 million in revenue to 10.7 million units and $236.3 million between 1998 and 2002). While I do not have actual statistics, these numbers have certainly increased since 2002, more than making up for the loss in singles sales.

In my opinion, despite the fact that downloading music without permission is illegal, Napster has been, and will continue to be, a positive force for the music industry. As a huge music fan, I have always been interested in the business behind the scenes. I try not to label artists or their work, instead judging them by my own ears. As a result, I have discovered many unique and underground artists over the years and watched them either rise to the number one spot on TRL or struggle in small, unpublicized venues. Napster, Kazaa, and other online/downloading software enabled smaller, abstract artists an opportunity to succeed. The music industry is finally becoming diversified, giving bands the chance to fulfill their dreams. However, Napster did hurt the major labels and their investments. With consumers finally being able to discover music on their own (instead of being force fed label-built groups by MTV, Clear Channel, etc.), more money has been going to small, independent labels instead of the massive majors. High school students discovered bands such as Dashboard Confessional, who later found success on MTV. The lead singer established himself in a virtually unknown, yet talented, hardcore band, Further Seems Forever. Kids have found hip-hop artists, such as Jurassic 5, who have been massively exposed through the Internet and have had incredible opportunities to expand their style of sound into mainstream America. In fact, an absurd amount of artists have been able to survive by the exposure they’ve received over the Internet, by making most of their money in performances.

One cannot deny that market diversification, through illegal activity, is unfair to those artists and labels, who established themselves prior to Napster’s success. The online availability of music removed a segment of the Majors’ profits, spreading it among the smaller labels. As a result, the artists who sell enough records to make significant profits lose revenue with the illegal, online music ventures. It is morally incorrect for people to infringe on these artists’ labor. At the same time, the selfishness of label executives made a serious mistake and cast a shadow over this issue. Record executives, joined by the band itself, argued that Metallica was suffering because of Napster’s infringement. The band has been one of the most popular rock outfits since the mid/late-1980s. If their bank accounts are “suffering,” then these guys have other issues to worry about besides their “Napster-lost” profits. I wonder if it ever occurred to them that their album sales have dropped because their music isn’t as good as it once was or the age disparity between themselves and Teenage-America has spread so far. I did think that it was rather interesting how much better their recent album did in sales after they “went back to their roots” and released an album closer to their early-1990s sound than their late ‘90s/Napster-era sound.

I also have a hard time sympathizing with the Majors, who have a history and reputation of ripping off their artists. With corporate-America running the industry today, the artistry of the music has really suffered. Not only is some of the current, mainstream music created by executives (i.e., “boy bands”), but there are also examples where labels have taken control and claimed ownership over musicians’ works. Recently, Geffen released the Guns N’ Roses “Greatest Hits” album, without permission from any member of the band. What’s even worse is the fact that the individuals, who put forth their labor in creating the music, did not have any input into the release date, album artwork, or even the track selection. In fact, the three most prominent members of GNR (Axl Rose, Slash, and Duff McKagan) filed a petition with a court, seeking a temporary restraining order and preliminary injunction on the release, which was recently denied. The album quickly jumped to the third spot on the Billboard 200 (listing top album sales in a given week – see www.billboard.com) and number one in a few European nations. (For more info, see the following: Guns N' Roses Sues To Block 'Greatest Hits', GUNS LEGAL CLAIM REJECTED, or Gn'R Lose Compilation Lawsuit)

It is difficult to justify downloading music that is played 500 times per day on one radio station. This is illegal and a waste of time, as you can turn on the radio or MTV if you’d like to hear a particular song. However, is it really wrong to download music from those artists who benefit from the exposure? I’m not so sure. I do think downloading music for free, without an ARTIST’s permission, is infringement and morally incorrect. But in reality, Napster was not bad for the music industry on a whole. If the record labels had started working with Napster (and other ventures) back when this new era began, instead of fighting technology and the development of a new marketing tool, the industry would be in a more stable position today. I also think the labels are legally justified in going after companies such as Napster, that contribute to mass infringement. However, going after college and high school students in the “John Doe” suits seems to be an attempt by the labels to make up for their past business mistakes.

While I think the new, pay-per-download music services have the potential to be as convenient for consumers and the industry, the majority of the paid programs now lack the most attractive and beneficial aspect of the “original Napster.” Napster, now partnered with the Majors, only offers major releases, so it is difficult to find the bootlegs, remixes, rare tracks, or underground artists that were some of the highlights a few years ago. “Fortunately,” the Majors have been buying out every independent label possible, which does give consumers access to mid-size artists that were once difficult to find. However, it is going to cost you $1 to hear a full sample (30-second samples are free). Happy spending!

Oh yeah – another interesting story involves members of the Majors who tried to weasel their way onto the Napster board (Click here for link). Shawn Fanning, Napster’s creator, had to bring individuals to court, in attempts to oust them.

Click here for a a good summary piece

Protecting Mickey, but not Madison: Where were the Conservatives in Eldred v. Ashcroft?

[If any of this is redundant, my apologies; it was meant to be posted before Tuesday's class]

In congressional statutes, it seems, as in parody (see Campbell v. Acuff-Rose Music, 510 U.S. 569, 589) and news reporting (see Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 564), “context is everything”. Thus, one cannot begin to consider the merits and implications of the 1998 Sonny Bono Copyright Term Extension Act (CTEA) without benefit of an additional piece of information: Without it, Mickey Mouse would have entered the public domain in 2004 (75 years after “Steamboat Willie” hit the silent big screens), and would thereafter only be protected by trademark retention. Not surprisingly, then, Disney was the leading lobbying voice urging Congress to protect its most prized creation, contributing millions to that end. As such, the CTEA, coined by its supporters in honor of the late Sonny Bono, was soon derided by its critics (to the delight of legal headline writers) as the “Mickey Mouse Copyright Act” (e.g., “The Mouse that Ate the Constitution”, “Why the Public Domain is not just a Mickey Mouse Issue”, etc). This corporate back-story would also suggest, of course, that Congress is not done—and will never be done—tinkering with the system; it is a safe assumption that a newly enlarged CTEA will be debated around the year, say, 2019.

If that isn’t distressing enough to those of us who have always assumed that the Copyright Clause’s “limited times” proviso means just that (though admittedly the term doesn’t lend itself to a bright-line rule), consider this surreal tidbit of legislative history. Mary Bono, speaking on the floor of the House, noted that “Actually, Sonny wanted the term of copyright protection to last forever”, but because she was “since informed by staff that such a change would violate the Constitution", Congress might consider Jack Valenti’s proposal of a copyright term of "forever less one day", and added that “perhaps the Committee may look at that next Congress.” 144 Cong. Rec. H9952 (daily ed. Oct. 7, 1998). As Justice Breyer points out in dissent in Eldred, Mary’s matrimonial recollection was indeed correct—years earlier, from the House well, Sonny did question why copyrights should ever expire (104th Cong. 1st Sess., 94 (1995)).

While the majority blithely remarks that there is “nothing to glean from [the dissent’s] selection of scattered statements from individual members of Congress” (Eldred, at n. 16), it would seem that the statements of the CTEA’s chief sponsor and its namesake are important indicators of congressional intent, and not the musings of interested bystanders. The majority attaches great weight to the fact that no one suggested that copyrights be a “forever thing” (id.), but in doing so ignores the reality—the underlying context—that shaped the CTEA. In short, what could not be suggested overtly because of a constitutional obstacle was precisely what was being done covertly, incrementally, and with great effect. Thus, when read in the context of these twin factors—a corporate hegemon intent on protecting its animated stars, and a willing congressional sponsor unfamiliar with the plain words of the Copyright Clause—the majority’s assumption that “nothing . . . warrants construction of the [1998 Act’s] 20-year term extension as a congressional attempt to evade or override the ‘limited Times’ constraint” seems naïve and benighted.

Lawrence Lessig has recently written in hindsight that the original theory informing his argument in Eldred was that, ideally, a “pragmatic court committed to interpreting and applying our framers' Constitution would see that if Congress has the power to perpetually extend existing terms, then the constitutional requirement that terms be limited has lost its force”. (See http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.html) As a constitutional scholar, he simply assumed that the limiting principle that the Rehnquist Court articulated for the Commerce Clause in Lopez—that Congress does not have the power to declare for itself the bounds of Interstate Commerce—would be transposed to “its second cousin”, the Copyright Clause. But by not listening to more experienced Court practitioners and not clearly emphasizing the real economic, intellectual and creative harms involved—choosing instead to rely on a strictly constitutional argument—the conservative voices on the court were unmoved to rule against, in Lessig’s description, “the most powerful media companies in the world.” This, in Lessig’s estimation, was how he “lost the Big One.” He forgot about politics.

In the end, we don’t really even know what the Court’s conservative bloc thought of the enumerated powers argument. The conservative voices of the Court (they of the Lopez and Morrison decisions) were completely silent in Eldred. Not even a Scalia concurrence. Lessig had compiled economists and professors from the right as amici; the dissenter on the Court of Appeals (Judge David Sentelle) was a conservative who did so on enumerated powers grounds; and Judge Posner had weighed in against the CTEA in a 1998 speech. But the Eldred silent-majority simply chose to ignore Lopez (a perfectly reasonable position for Justice Ginsburg, but not for Lopez’s crafters), and interpreted the “limited times” constraint (a particularly unforgivable sin for purported originalists) to allow anything this side of infinity, if Congress so desires. There is no limiting principle at work in the majority whatsoever, but rather an invocation to past congressional practice—“if this is bad, everything that came before it must be bad too”—hardly the stuff of heady constitutional argumentation.

It is left to Justice Breyer to make the historical/originalist argument. He begins his dissent by “reviewing the basic objectives of [the Copyright] Clause”, noting that “Madison, like Jefferson and others in the founding generation, warned against the dangers of monopolies”, and that Madison thought limited monopolies were justified for the authors (and not their heirs/corporate sponsors) of books, and then only because the monopoly was “temporary” (the term originally being 14 years—once renewable). Breyer leaves the historical argument at that, and proceeds convincingly to note that what Congress has done, measured in economic terms, is to grant 99.9997 percent of a perpetual terms (an argument that is rather nonsensically countered by the majority by doubting whether “those architects of our Nation, in framing the ‘limited Times” prescription , thought in terms of the calculator rather than the calendar.”).

But in at least acknowledging Madison and Jefferson’s role in shaping the Copyright Clause’s temporal restriction, he has shamed the Conservatives into mutely supporting a politically-driven opinion that divorces present Copyright law from its historical moorings. As the Court noted in the seminal patent case Graham v. John Deere—an opinion which the majority even quotes from, if selectively—the qualified authority of the Copyright Clause was written against the “backdrop of the practices . . . of the Crown in granting monopolies to court favorites in goods or businesses which had long been enjoyed by the public.” 383 U.S.1 (1966) (emphasis added). In other words, context, once again, is everything: the “limited Times” clause was a conscious incorporation, written so as to foreclose the granting of perpetual business favors. Conversely, the CTEA rewards private coffers—heirs and corporate entities—and not public access—the countless institutions, professionals, hobbyists, and researches who “want to make the past accessible for their own use or for that of others”. Breyer, at 8-9. It does not incentivize long-dead authors to create more posthumous work; it retards, rather than promotes, the “Progress of knowledge and learning.” In confining the “cultural content of early 20th century” into “intellectual purgatory” (id. at 11), the Court ignored the original context of the Copyright Clause, and turned a blind eye to the blatant corporate subtext that was ancillary to the CTEA. In so doing, the majority in Eldred got both the public policy and the constitutional construction wrong.

Clearplay DVD players on sale now at Walmart

http://story.news.yahoo.com/news?tmpl=story&cid=598&e=5&u=/nm/film_walmart_dc

Walmart has started selling censoring DVD players with Clearplay technology!

Derivative Works; more Q's

1) Falling back to 27 Jan and Rocky IV.

If copyright "permeates" and so the derivative is protected too, why do we need copyright protection on the derivative work at all? As the ppt puts it, "Won't standard infringement suffice?"

Maybe, to answer my own question, if X is in the original, and XY is the derivative, that new element, Y, doesn't have (c) protection w/o derivative rights. But then, isn't that new element, Y, a work of authorship under standard (c) that gets (c) rights anyway?

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While I'm here, a few more questions that are on my list:

2) Can you copyright a design? Could Samarra (v. Walmart) have (c)'ed their seersucker dress design instead of trying to claim TM?

3) Can you TM a slogan? If it has secondary meaning? "Like a good neighbor"

4) Patents - to infringe do you need exact identity?
Say there is a Patent on invention comprising of claims A, B, and C.
Does ABCD infringe?
What of the reverse? Say ABCD is patented. Does ABC infringe?
Does the doctrine of equivalents change this analysis?

Update: Laptops okay

The Registrar's Office has agreed to allow the use of laptops during the exam. This is obviously optional -- the entire exam is scan-tron (bring a #2 pencil!) -- but it might be useful for those of you who have notes, etc. only in electronic form.

The Registar asks that you recognize that this is an exception to the school's firm 'no laptops without examsoft' policy, and not agitate with her office for broader exceptions. That is, arguments of the form "But we're allowed to do it in Professor Wagner's exam . . ." will be dismissed out-of-hand.