29 August, 2013

Free Textbooks for All?

Anyone who's ever been in higher education, be it in law or any other subject, will vividly remember just how expensive textbooks are. This applies to both new and used ones, with some easily exceeding the 100 dollar mark. In the course of several years of education this can amount to a very large sum of money. Textbook prices have increased over 80% in the last ten years alone, while continuing to increase at a 6% annual pace. In a negative economic climate it is no surprise students are against this constant increase, and are using every avenue possible to mitigate the financial dent textbooks make. A new movement has emerged on the students' part which seems to make a questionable move to change things.

A familiar sight to most University students
The movement in question is the Textbook Liberation Project, which aims to give access to all students at the University of South Florida to textbooks for free. The project's founder, Tristan Lear, has stated that his aim is to "...take down the publishing industry and replace it with an alternative open source system". While arguably hyperbolic in its goal, the movement can be said to have the right motives, however their approach is wholly wrong from a legal perspective.

What Mr. Lear is doing is providing free PDF copies of textbooks for certain classes, while encouraging others to share their books in an equal fashion. He has also passed on flyers which contain scannable links to copies of textbooks which students can download directly onto their phones, tablets and computers. This, in Mr. Lear's mind, is purely an action against both the publishing industry and the book stores which provide legitimate copies of books both on and off-campus.

So what could Mr. Lear be liable for? Under US copyright legislation there is no particular provision which imposes secondary liability, although there are provisions which protect from it. The courts in Intellectual Reserve v Utah Lighthouse Ministry saw that the situation is not completely black and white even though there are no provisions for secondary liability: "Although the copyright statute does not expressly impose liability for contributory infringement, the absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity".

Indeed one could argue that Mr. Lear could be liable for contributory infringement through inducement, due to the fact that he is fully aware that the people he distributes the information and links to can infringe copyright, and arguably do so when presented with the option. He actively participated in his cohorts' infringement, knowing full well that they are using his methods to create infringing copies of textbooks (cases which deal with the subject matter more extensively are Sony Corporation v Universal Studios and Metro-Goldwyn-Mayer Studios v Grokster). In his own words he intends to utilize mass infringement as a means to overthrow the current copyright system for another, clearly presenting a motive to compel others to infringe copyright.

The world of academia is harsh and unforgiving, both financially and intellectually. Although one can be sympathetic to the financial hardship that modern students face, having personally experienced it for the last few years myself, Mr. Lear's approach and mentality are not ones which harbor a healthy and open forum of discussion and change. Should students be able to contravene long-standing copyright laws and practices purely to save money? The answer from a legal stand-point is a simple no, but arguably there is room for improvement on part of both the publishers and institutions of higher education. Whether Mr. Lear will be taken to court remains to be seen, but should his movement start spreading into the wider United States publishers would have incentive to do so to nip the issue at the bud.

Source: TorrentFreak

26 August, 2013

Liberation Music Takes on Lawrence Lessig

The haven of the Internet for all that is video, YouTube, often presents an interesting situation for both copyright holders and content distributors. While there are guidelines and measures in place on YouTube's part to prevent infringing material from being uploaded to the website, often this type of content slips through the cracks. In order to address issues such as this, content owners can submit a copyright infringement notification, effectively having the video removed from the service. There have been instances where content has been frivolously claimed to infringing copyright, causing legitimate videos to be removed from the site when there really is no basis for such a claim. In a recent turn of events such a claim was submitted over a video of a lecture by Lawrence Lessig, arguably one of the greatest legal minds in modern copyright; and Mr. Lessig chose to take action.

The Electric Freedom Foundation has taken action on behalf of Mr. Lessig in a recent complaint to the District Court of Massachusetts which involves the takedown of a lecture video by Mr. Lessig entitled "Open". In their complaint the EFF argue that Liberation Music, an Australian record company, have frivolously claimed that Mr. Lessig's lecture, which contained a short piece of the song Lisztomania by Phoenix, infringed their copyright due to the use of the song which is owned by the record company. The EFF claim that the use of the song fell under fair use, and therefore would not be an infringement of copyright.

In addition to seeking the use of the song to being declared fair, Mr. Lessig is also seeking damages under 17 USC § 512, which limits the liability of parties in relation to materials online. While the provision protects certain uses of materials it also provides relief in the instance of misrepresentation, which means that should a copyright holder submit a claim for infringement, knowing that it does not, they can be held liable for damages.

Lawrence Lessig was just as baffled as you were over the claims
In expressing his reason to take action Mr. Lessig stated that: "The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them... I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight." Given the trigger-happy nature of some DMCA takedown claims, Mr. Lessig's position can be argued to being completely valid, but raises the concerning notion that it needed to happen to one of the premier figures of copyright for there to be action taken against these misuses. Should  Mr. Lessig prevail in his claim, companies surely should be more careful when submitting their claims in the future, and providing an avenue for any frivolous claims should the companies not take adequate steps to insure their claims are valid.

Clearly this matter will be taken to court, as Mr. Lessig's intentions are not to seeking merely monetary compensation, but to set a precedent. The future of the case shall be discussed once it has been heard in the District Court sometime later this year.

Source: Ars Technica

22 August, 2013

Retrospective - Passing Off

Success often breeds those who wish to follow in your footsteps, or even attempt to utilize it for their own gain. In the world of consumer products, distinguishing one's products is imperative, but what if your competitor uses your characteristics, or attempts to mirror them closely in order to improve their own sales? Such attempts could fall under the tort of passing off, where a competitor will try to imitate the market leader's product by making it look as similar to it as possible, in essence passing it off as it it were the same product or of equal quality. This can be a similar logo, shape or other characteristic that distinguishes the product which is being imitated from other such products. Passing off is used if that mark or characteristic is not registered, therefore not falling under any specific trademark legislation. The tort also applies to services. The defining case for passing off was Erven Warnink BV v J Townend & Sons (Hull) Ltd in England, however a later case distilled the essence of the tort itself; Reckitt and Colman Products Ltd v Borden Inc & Others.

A product that definitely isn't a lemon
Reckitt and Colman v Borden concerned the incredibly well-known product called a Jif Lemon. What this product is is a yellow lemon shaped container with lemon juice inside. For Pancake Day enthusiasts and other lemon lovers, a quintessential product for their purposes. What makes this product so easily distinguishable is its shape and striking resemblance to a real lemon, which has been used since the 1930s. Some decades later, Borden Ltd, who had sold lemon juice under the name ReaLemon, attempted to break the UK market by selling their lemon juice in a lemon shaped container only slightly deviating from the Jif design. In the course of several complaints on Reckitt and Colman's part Borden did change the shape, color of the cap and the size of their container, but still maintained the lemon shape. Reckitt and Colman subsequently sued Borden, and the final decision came from the House of Lords in 1990.

Passing off hinges heavily on one factor which has to be explained, called 'goodwill'. The concept of goodwill is reputation, how well-known the product is and how well consumers identify that particular product among others of a similar type. The less goodwill the product has, the less likely an action in passing off will succeed. This does not necessarily amount to just the longevity of the period in which the product or services is traded in, but can be merely its introduction as the only product of its kind, effectively becoming the only one consumers identify as the defining product of that type.

Lord Oliver provided a summation of the law's position in passing off, containing three requisite elements to prove the tort: "First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying 'get-up' (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff's goods or services. Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. Whether the public is aware of the plaintiff's identity as the manufacturer or supplier of the goods or services is immaterial, as long as they are identified with a particular source which is in fact the plaintiff. … Thirdly, he must demonstrate that he suffers or … that he is likely to suffer, damage by reason of the erroneous belief engendered by the defendant's misrepresentation that the source of the defendant's goods or services is the same as the source of those offered by the plaintiff".

In the court's judgment, delivered by Lord Oliver and Lord Jauncey, the tort of passing off was a matter of answering three questions:
"(i) Have the respondents proved that the get-up under which their lemon juice has been sold since 1956 has become associated in the minds of substantial numbers of the purchasing public specifically and exclusively with the respondents' (or "Jif") lemon juice? 
(ii) If the answer to that question is in the affirmative, does the get-up under which the appellants proposed to market their lemon juice in all or any of the Mark !, Mark II or Mark HI versions amount to a representation by the appellants that the juice which they sell is "Jif" lemon juice? 
(iii) If the answer to that question is in the affirmative, is it, on a balance of probabilities, likely that, if the appellants are not restrained as they have been, a substantial number of members of the public will be misled into purchasing the defendants' lemon juice in the belief that it is the respondents' Jif juice?"
What Lord Oliver is asking is whether the product or service in question has goodwill or reputation; whether there has been a misrepresentation on the other party's part; and where there has been damage or there is a likelihood of such should the other party not be prevented from misrepresenting their product as the other. The assessment of each given factor is a matter of evidence, and there is no steadfast rule as to any hardline indicators proving either goodwill, damage or the likelihood of damage. In the case at hand their Lordships saw that Borden Ltd were liable under the tort of passing off, purely for the reason that the products' similarities would likely cause confusion on the purchaser's part and therefore cause damage to Reckitt and Colman. Borden intention was to not necessarily confuse the purchaser, but to identify their product with the other, causing the purchaser to pick up either product purely on the instinct that it is what they think it is due to its indicative shape. Their Lordships heard arguments over matters relating to a possible monopoly should the shape be kept strictly under Reckitt and Colman's control, and the possibility that the shape was commonly used in the trade (thus making it available for all to use in that trade); however none of these arguments were accepted.

The tort of passing off is incredibly important in the protection of traders' goods through the common law. Should this protection not be offered, distinctive shapes, marks or other characteristics which are not registered could be freely used by others to the detriment of the original trader. Some laws do offer protection through statutory means, such as the Australian Consumer Law (Competition and Consumer Act 2010) in Australia or the Trade-Marks Act in Canada, but the tort still remains an important part of the common law.

18 August, 2013

Copyright and Advert Hopping

To the avid TV watcher, commercials can be both the bane of their existence, providing a break at the crucial moment of your favorite show just when it got interesting, or giving you the perfect opportunity to make a quick snack or to dash off into the bathroom. Since the advent of digital means to record TV, both through the early years of VCRs down till the modern DVR or even recording live TV on demand when you desperately need to pause the action, consumers have always wanted a way to skip them if they so please. For companies who provide your weekly fix of digital entertainment galore, they're a necessary source of revenue. These two conflicting interests pose a dilemma, and a struggle from both sides to keep their respective interests in front of the other. But could skipping commercials infringe copyright? In a recent decision, the US Ninth Circuit Court of Appeals had to decide this very fact.

Foxes are very protective of their copyright
The case of Fox Broadcasting Company v Dish Network LLC concerned a service offered by Dish called the "Hopper". What this little nifty device was what is commonly referred to as a DVR, a Digital Video Recorder, which can be set to record any given TV show at any given time, much like its analogue cousin back in the era of VCRs. After some years of launching its Hopper device, Dish started to offer a capability in the device called "Autohop", which automatically would skip over commercials, only subjecting the person watching the show to the first few seconds and the last few seconds of any given commercial break. Unlike older versions of similar technologies, the function does not require any action on the viewer's part, but skips the commercials once the feature is enabled, whereas in older iterations of DVRs one would only have the ability to skip a certain time, for example 30 second increments. Fox Broadcasting and Dish had a contract between them, where among other things Dish customers were not to be able to fast-forward through any commercials when recording Fox's shows. Fox subsequently sued Dish for breach of contract and copyright infringement, of which the latter is of more interests to us in this instance.

In seeking a preliminary injunction, stopping Dish's service, Fox would have to prove (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. In analyzing the court's decision at first instance, the Court of Appeals looked through precedent to establish whether Fox's claim would fulfill the above criteria to acquire an injunction. Drawing from the Sony Betamax case (discussed on this blog here) the court had to assess whether Dish's service would fall under fair use, which it did. In their decision the court saw that the District Court had correctly decided that Fox did not have a likelihood of success in their case, as Dish was not the one making the copy of the program; Fox would not have suffered irreparable harm due to Dish's service; nor was there a public interest for the granting of an injunction. In finding that there was no likelihood of success for Fox, the court saw that the scales were not tipping in their favor, which solidified Fox's case as one which did not merit an injunction.

The court did note that Fox did not have a claim to begin with as they do not own the copyright to any of the advertisements shown on its network. Without copyright there cannot really be infringement on that copyright, or at least a claim for such. Arguably the court's view was the correct one, and forcing consumers to watch adverts through technological means seems harsh at best. Technology should be used to enable better consumer experiences as opposed to being force-fed something which they potentially don't want to see. Fox can still claim damages for copies made by Dish for quality assurance purposes, which did infringe copyright, but whether they take action will remain to be seen, although seemingly a point of principle should they opt to do so.

Source: Electronic Frontier Foundation

13 August, 2013

Retrospective - Manner of Manufacture in Australia

With the Myriad Genetics appeal here in Australia looming in the near future, I thought it'd be time to discuss an important aspect in the case, both at first instance and in the appeal; what can be classed as being a 'manner of manufacture'? To give more clarity as to where this stems from, a component for an invention to be patentable is that is has to be 'a manner of manufacture' under the Patents Act 1990. This requirement dates as far back as the Statute of Monopolies 1623 in England. What can be classed as such has not been restricted to a literal meaning of the phrase, but has encompassed a wide variety of things, not purely industrial inventions relating to the manufacture of goods. The leading case in Australia in what can be seen as a 'manner of manufacture' is National Research Development Corporation v Commissioner of Patents, often referred to simply as the NRDC case.

The bane of every budding farmer
NRDC concerned a patent relating to the killing of weed plants in agriculture. NRDC had developed a method of using previously known chemicals and applying them directly to the soil, killing weed plants but still retaining the crops. What was new in this invention was that the chemicals only killed the weeds if applied in this specific manner, when it was previously believed they would not have this effect. NRDC applied for a patent for their invention which was rejected by the Patent Office based on the fact that it was not a manner of manufacture under the (at the time in force) Patents Act 1952 as the chemicals used were already known and their application in that manner would not constitute a 'vendible product'. The matter was taken further to the Deputy Commissioner of Patents, who also rejected the patent based on the same facts. NRDC subsequently appealed and the case went all the way up to the High Court of Australia in 1959.

The High Court therefore had the final say in determining whether NRDC's invention was indeed a 'manner of manufacture' under the 1952 Act, which was previously rejected both during the initial application and on its appeal. Their Honors considered other matters in the case, such as novelty, however these are not relevant to determine what can constitute a manner of manufacture; although equally still important as requirements for patentability in their own right.


A manufacturer with great manners
In their decision Justices Dixon, Kitto and Windeyer boiled down the matter into one single question: "Is this a proper subject of the letters patent according to the principles which have been developed for the application of s 6 of the Statute of Monopolies?" This was, in their mind, a matter of weighing the old definition according to the evolution of patents and how they have been assessed relying on older precedents and formulating an approach that would encompass the considerations put forth prior. Their Honors considered the case of Re GEC's Application where Justice Morton formulated the definition for what could amount to a 'manner of manufacture': "a method or process is a manner of manufacture if it (a) results in the production of some vendible product or (b) improves or restores to its former condition a vendible product or (c) has the effect of preserving from deterioration some vendible product to which it is applied". The judges in NRDC criticized this approach as having a narrowing effect if given a literal interpretation. This however links a 'manner of manufacture' to the idea of a 'vendible product', which was the consideration taken into account in the Patent Office's decision regarding NRDC's patent. Putting forth a clarification on Justice Morton's 'rule', their Honors stated that "It is, we think, only by understanding the word "product" as covering every end produced, and treating the word "vendible" as pointing only to the requirement of utility in practical affairs, that the language of Morton J.'s "rule" may be accepted as wide enough to convey the broad idea which the long line of decisions on the subject has shown to be comprehended by the Statute." Their Honors therefore accepted Justice Morton's approach, but insisted that the term 'vendible product' be given a wide and generous interpretation so as to not limit it.

Setting out the test for what would amount to a 'manner of manufacture', their honors saw that the invention "...must be one that offers some advantage which is material... the process belongs to a useful art as distinct from a fine art... [and] that its value to the country is in the field of economic endeavour." Applying this to the case at hand their Honors saw that the method employed by the claimant fell squarely within the definition of a manner of manufacture. The method can be considered a 'product' as it consists of an artificial state of affairs which can be observed if looking at the growth of the crops and the weeds when used. The method also has a significant economic effect as it gives an advantage to its users, yielding more and better crops. Clearly it also is a useful art as opposed to a fine art. The judges accepted the appeal and saw that NRDC's application should be accepted as lodged.

As one can easily see, the test for what can amount to a 'manner of manufacture' is quite broad, and justifiably so. With new technologies evolving fast and new inventions taking on wholly new functions and applications, leaving the test narrow, much like in Justice Morton's test, would hinder the progress of industry and lower the desirability of patenting those inventions or methods. Even though the test was formulated over 60 years ago, it still plays an important part in modern litigation; most recently the genetic patent litigation (which was discussed on this blog previously here) involving Myriad Genetics. What the appeal will yield still remains to be seen, but whether the isolation of genes is a 'manner of manufacture' still plays an important part in that determination.

09 August, 2013

Copyright and Social Media - Viacom takes on YouTube

As people use various social media outlets more and more, their relation to copyright and possible issues they present become ever more prevalent. Could social media websites such as YouTube and Facebook be infringing copyright through their users' submitted content? With YouTube receiving over 100 hours of video every minute, some of which clearly being copyrighted material, it was only a matter of time before the courts had to address this issue. Media giant Viacom took it upon themselves to bring this matter forth, suing the video hosting service for copyright infringement.

The lengthy legal battle began back in 2010, when the matter was taken to the New York District Court in the case of Viacom v YouTube. The defendant argued, in their application for summary judgment, that they were protected from being held liable under the safe harbor provisions in the Digital Millennium Copyright Act. Should YouTube have lacked actual knowledge of any infringing material or acts being conducted in their service; would not be aware of any facts or circumstances making such activity apparent; and have acted promptly on any knowledge of such acts or materials being published by removing them, they would be exempt from liability. In Viacom's argument, for partial summary judgment, YouTube had actual knowledge and were aware of facts and circumstances which made such acts apparent, but did not act upon that knowledge to stop it; they received financial benefit from this infringing activity and could control it; and did not result solely from providing storage and direction of a user in their facilitation of that content as specified in the section. In the court's conclusion YouTube did not infringe copyright and were safe under the provisions as a service provider. Even though the site did contain infringing material, YouTube's prompt removal of that content when notified of it prevented it from being liable. Should they have not acted upon the knowledge of the material, they could have been liable.

In taking things further, Viacom appealed, and their case was heard in late 2012 in the New York Court of Appeals. In the decision the court saw that the judge at first instance had not considered the issues of YouTube's awareness of the material or had actual knowledge of any specific infringements; whether they had 'willfully blinded' themselves, in other words ignored, the infringements; whether they had the right and ability to control that activity; and whether the content was syndicated, in other words controlled, by a third party (the user), only using the service as a means of storage and direction. In that light the case was sent back to the District Court for final summary judgment.

A plethora of possibilities
In its final decision the District Court saw that YouTube was indeed safe under the DMCA safe harbor provisions. The service had not willfully blinded itself to the infringing content, which was found through evidence in the form of internal emails between executives. Even though the exchanges did identify specific content that was infringing and discussed their removal, in themselves they were not enough to showcase any level of ignorance through choice. The site also did not have the right and ability to control users activities, as this would have meant an ability to do something beyond the mere typical control of a website. Finally their potential financial gain was not seen as an issue, as they did not encourage the uploading of infringing material, nor did they have active control over the content which was uploaded (pre-screening the videos etc.) In its judgment the court threw out Viacom's case and found in favor of the defendant.

So after years of litigation, what can we say about the relationship between copyright and social media? The relationship does still remain a complex one, and the nuances of each service provide different aspects that need to be assessed. What can be taken away from the Viacom litigation is the potential issue of "willful blindness", as websites cannot simply abuse the DMCA provision in the guise of not knowing that infringing acts are occurring. In short, ignorance is no defense if it's through choice. Websites don't have to take an active role necessarily in screening everything that is posted, but do have to act once informed of any misuses. As social media grows and evolves, it will provide newer challenges and potential issues going forward, but as it stands, the Viacom case gives us a great illustration of how social media and copyright interact.

04 August, 2013

Retrospective - The Nature of Copyright

One of the most important aspects when dealing with copyright is the definition of what it actually protects. Does it protect the financial interests of authors? Cultural interests at large? Without the understanding of what it exactly is that it protects, the scope of copyright would be near impossible to determine, leaving it either open for abuse, or it would leave it too strict as to prevent further dissemination of information or expression creating something wholly new. This issue was decided as far back as 1890 in the English case of Kenrick v Lawrence.

The case dealt with Mr. Kenrick and Mr. Jefferson who owned a printing and publishing company called the Free Press Company. During the 1800s, Mr. Jefferson had noticed that illiterate voters had a hard time understanding how to vote, effectively consisting of drawing a cross in a certain part of a piece of paper indicating who you would vote for, without the aid of a picture or pictures showing them exactly what to do. In attempting to resolve this he sought the help of Mr. Bott to draw a hand drawing a cross in an enclosed box, as per his own initial sketch. Mr. Bott did exactly that, and the drawing was determined to being the creation of Mr. Jefferson and the property of his company under the Fine Art Copyright Act 1862. Subsequently the defendant, Mr. Lawrence, published a similar informational card where the hand was in a slightly difference position also finishing a cross in a blank box, and was sued by the plaintiffs for copyright infringement.

An incredibly 'complex' form of expression
What had to be looked at by the courts is what is often referred to as the 'idea-expression dichotomy'. This rule was formulated to protect the expression of ideas as opposed to the ideas themselves. As mentioned above, should ideas be protected expression would be severely hindered. To illustrate this further, if someone drew a picture of a castle and was therefore offered the protection over the concept of a castle, effectively preventing anyone from using that idea, clearly any subsequent authors would be hindered. The original author should be able to protect the expression of that idea in his particular way (the look of the castle for example) from possible copycats, but protecting the whole idea of a single thing would prevent any dissemination of similar ideas in the future.

Looking at the issue at hand, should the 'idea' of a hand drawing a cross be protected by copyright? The court in its judgment rejected this notion. In his opinion Justice Wills saw that if the work is copied exactly, there could be an infringement, but if the idea of a hand drawing a cross is used but expressed in a different manner, as what Mr. Lawrence had done, there would not be infringement. Offering Mr. Jefferson protection for the concept of a hand drawing something would impede others from drawing anything similar, as anyone attempting to draw a hand drawing something would inevitably end up with something similar to what Mr. Jefferson had produced. Justice Wills did admit however, that the more skill and labor has been put into a work, the more protection will be offered to it as a consequence. In summarizing the court's position, Justice Wills stated that:
"It seems to me, therefore, that although every drawing of whatever kind may be entitled to registration, the degree and kind of protection given must vary greatly with the character of the drawing, and that with such a drawing as we are dealing with the copyright must be confined to that which is special to the individual drawing over and above the idea - in other words, the copyright is of the extremely limited character which I have endeavored to describe. A square can only be drawn as a square, a cross can only be drawn as a cross, and for such purposes the plaintiffs' drawing was intended to fulfill there are scarcely more ways that one of drawing a pencil or the hand that holds it. If the particular arrangement of square, cross, hand, or pencil be relied upon it is nothing more than a claim of copyright for the subject, which in my opinion cannot possibly be supported."
Copyright does not serve as to protect broad concepts like ideas, but a very specific expression of those ideas. The complexity of the work will play into its protection, as more abstract concepts are harder to recreate without any influence or copying of the original work, but simple concepts can be recreated without any prior knowledge of them due to their simple character. Once this is understood, copyright finally shows its true colors and intent, and more detailed considerations in any given case can be assessed.