Technically Legal

This afternoon I came across Martin Goetz’s guest article on the patent law blog Patently-O.  As a long-time software developer and recipient of the first software patent issued, Goetz provides an interesting perspective on the ongoing software patent issue presently before the Supreme Court.

As lawyers, we’ve been trained to think from the legal perspective.  This sometimes contrasts sharply with the laymen understanding of why particular laws exist and why they function as they do.  In the last couple years, I can recount multiple watercooler conversations with non-lawyers, including software engineers and corporate executives,  who have difficulty understanding the unique problem of patenting software inventions under the current standard imposed by the Federal Circuit (the “machine or transformation test“) and the close relationship to non-patentable abstract ideas.

Often, their frustrations can be simplified to: “it’s mine, I developed it with my own ingenuity and the sweat of my own brow, no one else has done it, therefore I merit a patent and the exclusive rights afforded under the law like other inventions.”  While each of these factors are among the recognized reasons in favor of issuing patents, they fail to address the precise problem found in the boundaries of non-patentable inventions and patentable subject matter when applied to software inventions.

Of course, not every layman’s justification I’ve heard falls short of addressing the problem.  In fact,  Goetz’s article confronts several core issues in the debate with a perspective based on development experience.  Though his article does not describe the legal problems, it attacks the notion that software is an abstract principle or idea through a variety of analogies and thoughtful descriptions of enterprise software development.  He notes that the similarities of software development to hardware development process and other physical items of manufacture which are clearly within the realm of patentable inventions.  Interestingly, Goetz also describes software as being closer to a machine than a mere abstract principle when one considers the amount of R&D, workmanship, problem solving, and necessary infrastructure required to achieve a functional high-technology product.

Overall, I appreciated the perspective from a seasoned practitioner in the trenches and recommend the read, especially if you already have a good grasp of the legal principles before the Supreme Court.   Though many of his arguments are compelling on certain points, the Supreme Court will likely focus on many of the nuanced patent principles in addition to other counterbalancing factors in their final decision.

Comments Off Posted in: Commentary, Links on December 2, 2009

It’s rare that I feel confident saying that a particular criminal prosecution is clearly unconstitutional. This is one of those times.

Police arrested a senior vice president from Bieber’s label, Island Def Jam Records, James A. Roppo, 44, of Hoboken, N.J., saying he hindered their crowd-control efforts by not cooperating.

He was in custody Friday night, pending charges that could include criminal nuisance, endangering the welfare of a minor and obstructing government administration, Smith said.

“We asked for his help in getting the crowd to go away by sending out a Twitter message,” Smith said. “By not cooperating with us we feel he put lives in danger and the public at risk.”

There are prohibitions against compelled governmental speech, which is exactly what they were trying to do here. If the government cannot force you to display “Live Free or Die” on your license plate, they certainly cannot force you to tweet anything.

1 Comment Posted in: Commentary, Links on November 24, 2009

Groklaw has a story claiming that Microsoft was just awarded a patent for sudo with a GUI.

That’s not really the accurate. The patent covers a computer program that:
(1) Pops up when you don’t have permission to do something
(2) Figures out what users do have permission to do it
(3) Gives you a list of those users, and
(4) Lets you enter a password to do the process under that account.

Sudo, on the other hand, really only does the last element. Notably, sudo doesn’t tell you when you can’t do something, the shell does. Also, sudo doesn’t offer a choice of users to log in as.

While the patent may be invalid as a software patent, it certainly isn’t defeated by the prior art that is sudo. Also, it’s really bad security practice. Why should that user get a list of users who are allowed to do a process they can’t?

2 Comments Posted in: Commentary on November 11, 2009

Verizon recently announced two phones branded with the “DROID” mark. One of the phones is made by Motorola, the other by HTC. The name likely comes from the fact that both phones run the Android operating system.

Typically a trademark answers the question “Where am I from?” Not, “What am I?” For example, Swingline on your red stapler lets you know that the stapler is from Swingline. It doesn’t tell you that it’s a stapler.

DROID here doesn’t fall into either category. It doesn’t particularly tell you where it’s from, because the phones are on Verizon but made by two different companies. It also doesn’t describe the product itself.

Regardless, if Verizon filed for a trademark on the name DROID for cell phones, they would probably be given the trademark.

That is, if Lucasfilm hasn’t beaten them to it.

On October 9^th, Lucasfilm filed an applcation to register the word “DROID” for “Wireless communications devices, including, mobile phones, cell phones, hand held devices and personal digital assistants.” The serial number is 77845682, and you can search for the application through the TESS Engine at the Trademark office. Sadly, I can’t find a way to directly link to it.

We’ll follow this as it develops because a lot of issues might arise if these two companies clash. Stay tuned.

4 Comments Posted in: Commentary on November 5, 2009

Over the last couple of months, we’ve seen some interesting cases (e.g., Veoh and Scribd) crop up where parties claimed the “safeharbor immunity” of the Digital Millennium Copyright Act’s (DMCA) section 512.  This seemed like the perfect time to give you a rundown on section 512 and its application to User Generated Content (UGC) websites.

So, grab a cup of coffee or your favorite beverage, sit back, and prepare to dive into an abyss of procedural nuance and murky definitions!

(Prefatory note: This is NOT a comprehensive analysis of all section 512 issues.   So please don’t treat this as a guide or an authority on this area of law, as it includes as much opinion as it does statutory language.  As always,  this is NOT intended to be advice.  If you think you have legal problem consult with an attorney and DO NOT rely on the information here.)

THE BASICS OF 17 U.S.C. §512 and §512(c)(1)

DMCA §512 has multiple parts that limit liability of service providers for infringement of online content.  The main provisos that apply to the hosting and storage of UGC on a website including §§ 512(c), 512 (g),  512(i), and 512(k).  Each of these sections imposes requirements on online service providers in order to qualify for a limitation of liability.  §512(c) sets forth the basic components of the limitation of liability, 512(g) gives us the “notice and takedown” procedures and counter notification process, 512(i) imposes some additional requirements on website service providers to create policies to inform and handle users of site DMCA procedures, and 512(k) is chock full of useful definitions.

The language that provides the teeth of the safeharbor is found in §512(c)(1)which states:

(c)  Information Residing on Systems or Networks At Direction of Users.—

(1)  In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

(A)

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

§512(c)(1) is a mouthful.  More concisely stated, if you qualify as a “service provider” (as is defined under section 512(k)), you are immune from liability as long as you do not have “actual knowledge” of infringing material or infringing activity on your network, OR, if you are not aware of apparent facts  or circumstances which would give inference to the presence of infringing materials or activity, OR, if you do become aware, you act “expeditiously to remove or disable access to the material.”  Note that in addition to 512(c)(1)(A)(i),(ii), and (iii), requirements under (B), no financial benefits from infringing activity, and (C), takedown request compliance, will also need to be satisfied for the safeharbor to apply to a service provider (Sidenote– if you are wondering why this is, or have no experience with interpreting statutory construction, use of the word “;and” following (B) as well as the hierarchy of (A), (B) and (C) read together accomplish this.).

The definition of “service provider” is found separately in §512(k)(1)(A) and (B) and means “a provider of online services or network access, or the operator of facilities therefor, and includes [an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received].”  As the statute is worded, many entities can qualify as a “service provider” for immunity, as long as the other criteria in §512(c)(1) is satisfied.  This broad definition allows websites like YouTube and Veoh to potentially qualify for protection, as well as ISPs and other network conduits that send infringing packets between routers.

A separate section, §512(i), adds additional conditions.  It’s labeled “conditions for eligibility” and sets forth some requirements to be eligible for liability immunity under all of section 512.  §512(i) requires a service provider must have “adopted and reasonably implemented,” a “policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and accommodates and does not interfere with standard technical measures.” That phrase “standard technical measures” goes on to be defined as “technical measures that are used by copyright owners to identify or protect copyrighted works and– have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process; are available to any person on reasonable and nondiscriminatory terms; and do not impose substantial costs on service providers or substantial burdens on their systems or networks.”

§512(i) is a little more clearly worded than some of the other portions of §512.  Just as the language reads, a service provider needs to have implemented a policy and system for notifying users of policies and identifying and terminating repeat infringer accounts.  YouTube has some great examples of how they appear to have implemented these requirements, see YouTube’s Terms of Service, Content Management, DMCA Notification pages.

Provided that the requirements are met,  the effect of §512(c) is that a website will not be held liable for an infringement of online content which is being hosted at the direction of a user.  Prior to 1998, the year the DMCA was enacted, websites that hosted content at the direction of users were at risk for lawsuits based on the legal theory of contributory infringement.   This form of liability arises when at least 2 parties are involved–  a “direct” infringer who is actually violating the copyright, and the contributory infringer, who has (i) knowledge of the infringing activity and (ii) some form of material contribution to the infringement, either through assisting the direct infringer or inducing infringement.  In some early cases, the mere inference that some infringing activity was afoot or that the service was being used to facilitate acts of copyright infringement were enough for courts to find a service provider liable.  Even though the website was merely hosting a service and data, they could still find themselves embroiled in costly lawsuits even though they did not intend to participate in infringing activity.  This would have chilled innovation in this market chasm if the DMCA hadn’t been enacted.  Interestingly, during the legislative process of promulgating the DMCA, the concept of Web 2.0 was hardly as developed as it is today– so it’s hard to imagine the legislators envisioned the safehabor would be applied as it is today.   Nonetheless, it has played an absolutely critical role to ensure the continuation of similar innovations.

Note, however, that there are gray areas in the broad statutory language that is used.  For example, at what point does a service provider who is manipulating third-party content lose immunity because they are inserting or pre-rolling advertisements into user videos?  What is a financial benefit “directly attributable to the infringing activity”?  Some of these provisions are particularly troubling to website owners as there isn’t always a clear answer.  Moreover, certain groups of plaintiffs have an interest in ensuring the safeharbor is not broadly applied to new web services that become new conduits for hosting infringing materials.  Case law has provided some guidance, but often these decisions are highly fact dependent to the case at issue, leaving the application of immunity obfuscated and subject to well-developed technical arguments that simply aren’t addressed in the statutory language.

NOTICE AND TAKE DOWNS, §512(c)(3)

§512 has spawned what we’ve come to know as the “notice and take down” system for UGC websites like Veoh, YouTube, and Scribd.  If a lawful content owner finds his protected works being infringed on one of these websites, section §512 provides a remedy for the “expeditious” removal of the offending material.   The take down notice requirements are laid out in section 512(c)(3):

(c) . . . .

(3)  Elements of notification.—

(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

So, assuming a proper notice is sent to the correct “Designated Agent” of a service provider, the service provider must “act expeditiously” to “remove, or disable access to, the material.”   If the service provider complies with the take down procedure, they will be able to enjoy immunity from liability of copyright infringement under 512(c)(A)(iii).  This is why we see those wonderful notices on websites like YouTube such as “This video contains an audio track that has not been authorized by UMG. The audio has been disabled.” or “This video is no longer available due to a claim of ownership by UMG.”

COUNTER NOTICE AND PUT BACK PROCEDURES FOR UPLOADERS, §512(g)(3)

If you are a third-party user of an online service whose uploaded content was removed by the service provider, you are not without recourse if you have a “good faith” belief that the uploaded content does not infringe as suggested by the copyright holder.  §512(g)(3) lays out the requirements for a counter notification:

(g) . . . .

(3)  Contents of counter notification.— To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

After a notice is received by the service provider, the material may be replaced on the site without subject the service provider to further liability.  The essential effect of the counter-notice is that the third-party user acknowledges the claim of infringement and individually bears the liability from that point forward.  Once the counter notice is received by the service provider, they must wait 10-14 days to see if a lawsuit is filed.  If no suit is filed, the material can be put back onto the website.

An interesting point of contention is whether a claim of “fair use” suffices the “mistake or misidentification” requirement under 512(g)(3)(C).  The answer is yes, probably.  This comes with a huge caveat:  fair use is a defense to copyright infringement, not an inalienable or affirmative right, and, whether something qualifies as a fair use is by no means black and white.  The only true way to determine whether something qualifies as a fair use is a judicial determination in the course of litigation.  This hinges on the four factors set forth under 17 U.S.C. §107.  Even then, you could be looking at an extended period of litigation (as well as the associated costs!) that is subject to appeal before you have a finalized determination.

The characterization of fair use as a defense, rather than an affirmative right, underscores the opposing argument against allowing a fair use counter notice– if it’s not a right immediately conferred to a third party, then it cannot be grounds for “mistake” in a take down notice.  Due to the inherent ambiguity in pre-litigation fair use determinations, a person considering using such a counter-notice should understand the full implications before using one.  That said, there may be certain scenarios where the fair use claim is so strong that a copyright holder might not be willing to test it in court.  An interesting example from several years back which involved Wendy Seltzer (a friend and former law professor of mine) and a notorious NFL clip on YouTube that grabbed headlines for a period of time.

Some of the copyright research and public advocacy organizations (See e.g., the EFF, Citizen Media Law Project, and Chilling Effects) acknowledge fair use to be grounds for counter notices, but simultaneously caution against using such grounds without the advice of an intellectual property attorney.  Indeed, this is advice well heeded.

WHERE’S THE BEEF?: FINAL THOUGHTS

A quick reading of 512 might make the purposes of the section appear clear; however, the application of the safehabor is mired in shades of imprecise phrasing– perhaps even intentionally as is often done in legislative drafts.  If your brow is wrinkled after reading the statutory language, you are definitely not alone.

Certain phrases or words have become key points of litigation.  For instance, the latest UMG v. Veoh case, where UMG attempted to argue that  meant that because Veoh’s web service was frequently used for infringing uploads, UMG (or the RIAA) did not have to send individual notices per infringement.   This argument compounded the phrasing of the notice requirements under 512(c)(3) and the ambiguity of the phrase “facts or circumstances from which infringing activity is apparent” in 512(c)(1)(A)(ii).  Also argued in the same case was whether the “reasonable technical measures” described in 512(i)(1)(B) and 512(i)(2) and consequential imputation of “actual knowledge” under 512(c)(1)(A)(iii) would require a putative service provider to enable the best technology available to identify repeat infringers and other filter infringing content.  The court in UMG v. Veoh disagreed with these readings, and held that compliance with the notice and take downs and other requirements was sufficient to grant immunity to Veoh.  We will have to wait and see the reaction from other jurisdictions and whether this issue continues to be challenged by copyright owners.

The above points only represent a smattering of the problems when interpreting the 512 safeharbor.  Some other questions you might ask yourself include: “What is an ‘expeditious’ removal of material? Two hours? Four days?”;  “Does my online activity qualify as a ‘Service Provider’ under 512(k)?”; “What if the material alleged in a take down notice may qualify as a ‘fair use’?”; “What if it’s unclear that the material alleged in a take down notice is even protectable as ‘copyrightable subject matter’?”‘; “Where is the exact point ‘actual knowledge’ get imputed onto service providers?”

Many of these questions are not well defined under section 512.  Various jurisdictions have also provided some guidance in case law, although some splits in opinion still exist as a result of quirky facts, clever arguments, and unclear meaning.  Even so, the facial ambiguity of §512, like many areas of codified law, is not without purpose.  If the drafters of §512 made the statutory language more precise the law would not be well adapted to changes in technology paradigms or trends in UGC websites.  To some extent, we do want to rely on the ability of the parties and judges to clarify the imprecision to ensure a proper application of the underlying purposes of §512.

That should cover the tip of the DMCA safeharbor iceburg!  I can feel my co-bloggers cringing at the thought of such a long post.  As I noted before, this wasn’t mean to cover everything; but, hopefully it brings to light some of the nuances and functionality of the statute.  Hopefully in the near future we can dive into the case law that actually interprets some of the more murky provisions in section 512!

Comments Off Posted in: Commentary on October 9, 2009

We would like to welcome David Lu!!, a Ph.D. Candidate in Computer Science from Washington University, St. Louis, to the Technically Legal team!  Although David has not attended law school, he brings some excellent technical acumen to the table in additional to his strong laymen’s interest in technology related legal and policy concepts.   David will be a regular member of our weekly podcasts as well as a contributing author to the site.

In case you are wondering, the exclamation points following his surname are not entirely grammatically incorrect, but actually part his of legal name.  I’m sure there is a curious story behind the matter, but we have yet to get to the bottom of it.   He will have a heck of a time explaining this to a U.S. Senate committee someday.

Comments Off Posted in: Commentary on September 27, 2009

As we’ve mentioned before, Scribd is being sued for copyright infringement.

In addition to the traditional claims that they don’t qualify for protection from these kinds of suits under the DMCA, the plaintiff is claiming that Scribd’s filtering technology violates copyright.

Briefly, the filter works by making a copy of every file for which they receive a takedown notice. They then compare newly uploaded files with the database in their filter. If there is a match (presumably even a substantial, but not complete match) they won’t post the file.

But in April, this kind of use was endorsed by the 4th Circuit as Fair Use. In that case, students who submitted papers to TurnItIn had their papers copied and added to a plagiarism database. The court held that TurnItIn’s use was Fair Use under the copyright act because they transformed the paper from informative to useful in detecting plagiarism. This was despite the fact that the use was commercial, and used the entire original work. Another important factor was that there is not much of a market for licensing student papers for plagiarism databases.

Similarly, Scribd’s use was transformative, and there is currently no market for licensing copyrighted works for use in copyright infringement prevention databases.

For the record, Scribd denies copying the relevant files.

1 Comment Posted in: Commentary on September 25, 2009

Not to bite the hand that feeds us, but a recent post on Slashdot about a Massachusetts GPS Tracking case got it really wrong.

The case held that GPS tracking of a car requires a warrant, which the post seems to think is an invasion of privacy. True. It is. But Massachusetts is one of only a handful of states that says you even need a warrant to slap a GPS tracker on a car. Most states, and most Federal Courts, say that it’s fine to do so without a warrant as long as the GPS device isn’t inside the car. So, Massachusetts is more protective of rights than most of the rest of the country on this issue.

Second, the post says that Justice Gants dissented. He did not. He agreed with the court, but on different grounds. The majority of the court said that putting the GPS device on a car constituted a seizure of the car under the Fourth Amendment. That because the Police were using the car for their own purposes, they needed a warrant.

Justice Gants, and two other justices, said that this constitued a search under the Fourth Amendment. In other words, that people have a reasonable expectation of privacy that their car will not be followed 24/7 by police officers. He’s also wrong.

First, the reasonable expectation of privacy isn’t from just police intervention, it’s a general reasonable expectation of privacy. Second, police *can* follow your car 24/7 without a warrant. Yes, it is more difficult than using a GPS device, but ease of the investigation doesn’t bear on whether you have a reasonable expectation of privacy there.

I’d like to be clear. I agree that putting devices on the car is a seizure under the Fourth Amendment, and should require a warrant. So I don’t disagree with the result, just the reasoning of the concurrence.

One last note: While I’m talking about this in Fourth Amendment terms, and the case technically rested on the Massachusetts Declaration of Rights, the relevants standards are unchanged (see the concurrence at page 3).

Comments Off Posted in: Commentary on September 18, 2009

Several websites (see here, here and here)  have recently commented on the Google patent search portal, which was granted a patent (D599,372) this last Tuesday.  The application had been pending since 2004 and claims ownership over the design elements of the search page.  As with most Google search portals, the Google Patents page has 28 words or less—total.  Aside from  minimalist design, the patent only lays claim to its iconic  query field along with the two buttons “Search” and “I’m Feeling Lucky” as well as the typical hyperlinked text on a Google page.  In fact, the design claimed is the 2004 Google Patent page, but it differs little from its current state today.  Also, the Google logo is specifically disclaimed from the design.

What is most notable about this patent is not the audacity of the Mountainview company to claim these very basic portions of their webpage.  It’s that the vast majority of patents that are issued today are “utility patents,” which claim inventive ownership to products, processes, machines, compositions of matter, and manufacture.  Instead, this is a design patent, not a utility patent.

Design patents differ significantly from their cousins in the patent world.  As noted above, the utility patent covers a range of inventions that are encompassed in Section 101 under the Patent Act.  A utility patent protects the functional features of an invention, including use of the invention and method of functionality.  Design patents can be found under Section 171 of the Act and are described as “any new, original, and ornamental design for an article of manufacture.”  The most significant difference is that a design patent will only protect the ornamental features of a design, not any of its functional aspects.  Note, however, that a single invention can be the subject of both separate design and utility patents.

Unlike utility patents—which can have several claims—a design patent has only one claim: the drawings.  The protection afford focuses on the “visual appearance as a whole” claimed within the design patent with emphasis on “the visual impression it creates.” See Elmer v. ICC Fabricating, Inc. 67 F.3d 1571, 1577 (Fed. Cir. 1995), Durling v. Spectrum Furniture Co., 191 F.3d 100, 104-05 (Fed. Cir. 1996).  If an owner of a design patent were to enforce her rights via an infringement lawsuit, the court generally applies two tests to compare the two designs: the ordinary observer test and the point of novelty test.  In order to succeed, a plaintiff bears the burden of showing that both tests are satisfied.

The Supreme Court has explained the novelty test as the following:  “[I]if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.”  Gorham v. White, 81 U.S. (14 Wall.) 511, 528 (1871).  The more modern point of novelty test requires that the “accused design appropriates the novelty which distinguishes the patented design from the prior art.”  See Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984).

Typically,  it is challenging to win design patent infringement cases because of the difficulty to meet the above tests.  The designs must be very similar to one another.  Hence, this is why people shouldn’t jump to the conclusion that search engines with similar interfaces are in immediate trouble just because the Google patent was issued this week.

Design patents do play an important role in the intellectual property world.  They pick up where copyright law might leave off.  Since copyright can be used to cover certain design features (any original expression fixed in a tangible medium) it would be a likely source of protection for elements on webpages.   However, copyright does not protect the “functional aspects” of a work.  Since certain elements on a webpage are arguably functional (think nearly any of the code or click feature design), there would be parts of a search engine interface that are not protected.  Design patents allow for the ornamental features of these functional designs to be protected.  So, maybe it’s not such a surprise, nor audacious, that Google opted to protect these elements by way of patent.

1 Comment Posted in: Commentary on September 4, 2009

This week the Threat Level blog writes that the 91 year old misappropriation doctrine defeated a news aggregator site.

The misappropriation doctrine came out of a 1918 case called International News Service v. Associate Press. Yes, the same Associated Press. In that case the AP sued International News Service for essentially copying AP articles posted in public, and telegraphing them across the country before AP could publish those articles in other states. While the stories themselves weren’t subject to copyright (facts not being copyrightable), the Supreme Court said that the AP had a very limited in time right to profit off of the work they put in to gathering the news.

The AP recently sued an online news aggregator service under the same theory. However, the suit settled before a court could rule on whether or not this relic of a doctrine has survived revisions to the Copyright Act and fundamental changes in the way news is delivered. In short, the misappropriation, or “Hot News” doctrine, as Threat Level is calling it, was only argued, but never ruled upon. There are many reasons the defendant may have chosen to settle. It is unlikely that the force of the APs argument was one of them.

UPDATE: So after I wrote this post Wired substantially revised the article. The title changed from “‘Hot News’ Doctrine Defeats Aggregator Site” to “AP Defeats Online Aggregator That Rewrote Its News.” The first paragraph when from “In a victory for authentic news sites, The Associated Press has defeated an online aggregator in a federal court lawsuit relying on 91-year-old legal theory that does not rest on copyright ownership.” to “The Associated Press has defeated a news aggregation site it sued under a 91-year-old legal theory that does not rest on copyright ownership.”

The third paragraph also changed from “In that ruling’s aftermath, the parties announced the settlement Monday afternoon, in which All Headline News also agreed to pay an undisclosed monetary award to the New York-based wire service.” to “The parties announced the settlement Monday afternoon, in which All Headline News also agreed to pay an undisclosed monetary award to the New York-based wire service.”

The body of our original post will remain unchanged. One thing to note, apparently the judge did consider at least part of the misappropriation doctrine, but the extent of the opinion isn’t clear. Nothing was nearly as final, or clear as the Threat Level article made it out to be.

2 Comments Posted in: Commentary on July 13, 2009