30 May, 2014

Ties to Free Content - European Court of Justice Rules on Hyperlinks

Hyperlinking is arguably one of the most important developments in the evolution of the Internet since being introduced by Tim Berners-Lee in 1989, creating what he would call the World Wide Web. Through this content within the newfangled Internet could be connected more fluidly than in its directory system prior to hyperlinking's integration. Arguably it has made the Internet better, easier to use, and more convenient. Although linking in its many forms has been an issue of some dispute in the legal world, one could have imagined it has mostly seen its heyday in the courts. In a rather interesting turn of events, a new case was recently decided by the European Court of Justice based on a case in Sweden, addressing this very topic earlier this year.

The case in question was Svensson v Retriever Sverige AB, concerning a number of Swedish journalists who regularly posted their journalistic content on the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. The defendant in the case, Retriever, offered a service to its clients by gathering and sending them lists of articles on other websites in clickable link form. Although the articles in question were freely available on the newspaper's website for all to view the journalists argued that when the clients were provided the lists of articles, it was not clear to them that these links would lead to content on other websites; in other words, could be lead to believe Retriever provided them with this content. The journalists then sued Retriever for copyright infringement, arguing they had made use of their articles without prior authorization and sought compensation. The case was rejected by the Stockholm District Court (Stockholms tingsrätt) at first instance, and on appeal to the Svea Court of Appeal (Svea hovrätt) deferred the question to the ECJ for further assistance.

What the journalists argued was that Retriever had illegally made their content available to the public under the Swedish Act on Copyright in Literary and Artistic Works (a copy in Swedish can be found here). The ECJ's concern was how this act would be interpreted under Directive 2001/29/EC, more specifically Article 3(1).

The questions posed to the ECJ were (1) whether the provision of a link to another by a third-party, without the authorization of the copyright holder, would constitute a communication to the public under the Directive; (2) would this assessment be affected if the content is freely available to all on the website to which the link refers to; (3) should a distinction be made between the link showcasing the content on its original website, or if the content is shown in such a way to create the impression that it is appearing on the actual website when it is not; and (4) can a Member State give more protection to copyright holders by enabling communication to the public to cover a wider range of acts than is provided under Article 3.

The Swedish courts are not the only Swedes potentially blocking things
Through previous considerations in ITV Broadcasting and Others the ECJ saw that, for there to be a communication to the public under Article 3(1), there has to be "... an ‘act of communication’ of a work and the communication of that work to a ‘public’". The assessment of whether there has been an act of communication has to be done broadly, and with respect to Article 3(1) more directly: "..it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity". Under the ECJ's judgment the mere provision of links to content would be an act of communication under the Directive, as the content is made readily available to a public through Retriever's service. Whether this communication is done to a public, the ECJ has deemed that "...by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons". Arguably Retrieve's service does offer content to a large, indeterminate number of people, and falls under the Article.

Although the ECJ saw that Retriever's service would therefore be under the definition of Article 3(1), the matter was not that straightforward. The communication has to be done to a 'new' public, one which the copyright holders would not have foreseen the content being communicated to when they authorized that content's communication. As the journalists' articles were already freely available potentially to every Internet user, it would not be possible for them to have not anticipated Retriever's users to not be able to access that content. As such, in the ECJ's decision, no authorization is required under Article 3(1), and Retriever would not infringe the journalists' rights in communicating their works. This would be the same even if the content is displayed as to imply its existence on the original website when it is not, as the content is still very much available to all. The ECJ did specify that should the content be made only available to subscribed users, and the service, such as Retriever's, would circumvent that pay-wall, it would clearly be beyond the anticipation of the copyright holders when authorizing the communication of their works.

The ECJ also rejected the potential of allowing Member States to widen their range of what can be seen as a communication to the public, as it would create uncertainty within the Union as to what would entail communication to the public if every Member State would have a varying degree of protection.

The Svensson decision was very important in how the Internet would function on a much larger scale, and had the potential to restrict its operation within the European Union. If hyperlinks were to have been deemed to infringe copyright in the event that they link to freely available content, it would be much harder for the end-user to find content relevant to their interests or new content altogether, as external links would infringe copyright and be a liability for third-parties. This writer for one is glad the decision allowed for the linking to outside content, as this very blog does so regularly, and would prefer not to be in hot water as a result.

Source: JDSupra

22 May, 2014

Amazon Patents Photography on White Background - Or Did They?

Some times patents can lead to mass confusion as to their application and capability to prevent normal, everyday activities from regular citizens. More often than not these have very little effect on the Average Joe, but can impair small and up-and-coming businesses trying to break into an area heavily controlled by patent owners. In this context patents are a double-edged sword; they both enable innovators, both in technology and techniques, to protect their inventions, but they can also cause a field to be nearly impenetrable for those upstarts, hindering the creation of new small businesses. Arguably this is an act of balancing both interests, but every so often new patents surface which create potential controversy, something which the big online retailer Amazon recently faced.

Amazon's patent showcases truly unattainable standards of beauty
The patent in question was Patent 8,676,045, granted some 4 days ago, through which Amazon was given the patent over a very specific photography studio arrangement. Roughly explained this setting encompasses a white cyclorama as a background in front of which there are lights shining onto the background. Then there has to be a platform on top of which the subject of the photograph is placed, be it a human or an item, and in front of this the device which takes the photograph, and finally behind the device is a light shining onto the subject. What makes the patent even more specific are the settings which the camera has to have when taking the picture: "...[the device has to be] equipped with an eighty-five millimeter lens, the at least one image capture device further configured with an ISO setting of about three hundred twenty and an f-stop value of about 5.6". Although, on the face of it, the patent seems like it could be used against hobbyist and professional photographers alike, the matter is not that straight-forward.

What makes the patent highly irrelevant to most photographers is just how specific it is. Clearly Amazon seeks to protect a method of photography it intends to use for its own purposes, potentially to take photos of items being sold on their website. This is why the patent is so specific, and should it have been more general it probably would have been rejected by the USPTO. Most photographers will not use an exact replica of Amazon's set-up, and can actively avoid it now that the patent has been accepted and published. Although it has created an outcry in the photography community, this can be argued to be for naught.

In addition to its specificity the patent would be very hard to enforce against those who would use the same or a very similar set-up. This was explained well by Peter Thorniley: "[h]ow can you distinguish an image created through their [Amazon's] process, from an image created in another way, to which some post-production has been applied? I am not sure it would be immediately obvious". Arguably Mr. Thorniley is right, and it seems highly unlikely Amazon would even pursue the matter against your typical photographer, as the investigation into their photographs and the method through which they had been produced would consume both money and time. What was also mentioned by Mr. Thorniley, and this writer agrees, is that the patent would most likely be used against industrial producers of photographs or even other online retailers. Pursuing these entities would make sense monetarily and protect Amazon's interests in how their products are displayed in their pictures.

As one can see patents can often be misconstrued, or even seen as threats. Certainly a level of healthy skepticism is good to have, and some patents should be scrutinized or even challenged, but more often than not patents will not hinder the practices of every day people or small-time professionals. Should Amazon's patent cause any issues to individuals or businesses it probably will be challenged in court, and the existence of prior art in this particular set-up can be said to be near certain. Chances are this patent will quietly slip into Amazon's extensive patent portfolio, so no need to cancel your Christmas photos this year in fear of infringement.

Source: TechDirt

16 May, 2014

Retrospective - Software Patents in the US

With the Alice Corporation v CLS Bank Supreme Court decision looming in the horizon, and the patentability of software in the US faces its most recent judicial challenge, this writer thought it was best to look at the origins of the current stance of such patents in the United States. Software patents are incredibly lucrative, generating an estimated 20 billion dollars yearly to tech giants such as Google and IBM. Regardless of this their patentability can be questioned, and an answer that still stands today was provided by the US Supreme Court 4 years ago, which is now effectively being challenged by Alice v CLS.

The case in question is Bilski v Kappos, decided in mid-2010. It dealt with Bernard Bilski and Rand Warsaw's application for a patent (found on page 79) for a method which hedged risks in the selling of commodities over time. The method, roughly explained, would have a third party selling the commodities in question to parties at a fixed price, mitigating any spikes in price should a single entity buy those commodities in large quantities at once. This also ensures that the providers of the commodities would not suffer either, as the third party purchaser would safeguard them from a lull in demand after a big buyer would take their share, ensuring that the price of the commodities would not dip below the third party's fixed price. The patent application for this method, more specifically described under Claim 1 and Claim 4 (both under contention), the latter of which puts the former in a mathematical equation, were initially rejected by the patent examiner. The decision was subsequently appealed, and through an en banc decision of the Court of Appeals, finally ended in the US Supreme Court.

What the Court was faced was an assessment of whether the patent contravened 35 USC § 101, under which one cannot patent fundamental principles, abstract ideas, laws of nature or natural phenomena. Could a process such as Bilski's one be patented as a process under section 101, or would it be merely patenting an abstract idea? The Supreme Court would have to assess Bilski's method under the machine-or-transformation test to determine if it is a process or not: "...(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing". What this could be is the method's usage through a computer for example, making the method a more specific one as opposed to just a pure idea, being a process and thus patentable. The machine-to-transformation is not, according to the US Supreme Court, the only definitive test, but more of "...a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under §101".

Gavin always thought in the abstract
The majority's decision hinged heavily on its previous decisions of Gottschalk v Benson, Parker v Flook and Diamond v Diehr. The three decisions quite heavily dismiss the possibility of patenting processes very similar to the one which Bilski was attempting to patent, as the Court saw in each case that those processes would merely be patenting abstract ideas, leaving them outside the remit of patentability. Although Benson and Flook failed, Diehr succeeded as the process which was attempted to be patented was an actual process, unlike in the former two which attempted to patent formulas rather than real processes, leaving the door open for such attempts should they sufficiently fall within the Diehr precedent's line.

In the end the majority rejected Bilski's appeal, stating that "The concept of hedging, described in claim 1 and reduced to a mathematical formula in claim 4, is an unpatentable abstract idea, just like the algorithms at issue in Benson and Flook. Allowing petitioners to patent risk hedging would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea". This can be said to be right based on the precedents used by the Court in their decision. Bilski attempted to patent an idea of how to hedge risks, lacking a secondary component which would make the method a process aside from just a principle under which a business would operate, clearly making it just an idea, not a process.

What the Bilski case establishes does have an impact on software patents, but can be argued to be distinguishable from the forthcoming Alice case to an extent. What Bilski attempted to patent was just an idea of a process; however should a software patent sufficiently establish a process akin to what was seen in Diehr, it could very well be patentable. On the face of it the Alice patent would seemingly fall under the Benson and Flook precedent, potentially causing it to be not eligible for patentability; however this remains to be seen once the Supreme Court presents its decision on the case.

10 May, 2014

Can You Patent Clones?

As this humble writer is an identical twin, the existence of two things which are at least genetically almost exactly the same, was never in doubt and almost seemed mundane at times. Yet for others this may not be this easy to comprehend, and can almost act as a novelty of sorts. A subject matter of pure science fiction, cloning has always been a topic of great discussion, even outside of genetic oddities such as identical twins. Although personally this writer has never indulged in the idea of patenting his own sibling, the question has risen with regards to clones in the United States in a recent case a mere few days ago.

The decision in question is In Re Roslin Institute, which was dealt with in the US Court of Appeals early this month. The case concerned the creation of a woolly mammal, Dolly the Sheep, by Keith Henry Stockman Campbell and Ian Wilmut in Edinburgh Scotland in the mid-1990s. Dolly was cloned through a method called somatic cell nuclear transfer, where the nucleus of a cell is removed and planted into an enucleated oocyte; the female's egg cell prior to it maturing. By fusing the two Mr. Campbell and Mr. Wilmut could create an embryo, which could subsequently be implanted into a surrogate mammal, creating a cloned copy of the animal from which the original nucleus is taken from as a baby animal. The creator's of this new cloned mammal were awarded a patent for the process in 2009; however the patent was not at issue in this case. What was at issue was their US Patent Application No. 09/225,233, which was initially rejected by the Patent Trial and Appeal Board and then appealed.

Lauren was disappointed not being able to patent her sister
Under contention in their '233 application were a few claims, more specifically claims 155 and 164: "155. live-born clone of a pre-existing, nonembryonic, donor mammal, wherein the mammal is selected from cattle, sheep, pigs, and goats... [and] 166. The clone of any of claims 155-159, wherein the donor mammal is non-foetal". The case is one of the first to apply the new Myriad Genetics Supreme Court decision (more on which can be found here and here), where the Court saw that isolated genes cannot be patented as they were naturally occurring and not "...markedly different" from their natural forms. Roslin did argue that clones "...[are] the product of human ingenuity... [and] not nature’s handiwork, but [their] own". Clearly on the outset one can argue that a genetic clone, although clones by humans, is still the handiwork of nature as the clone is still a near identical copy to the original cell donor. Further proving this very point, the court pointed out that Dolly does not have "...markedly different characteristics from any [farm animals] found in nature", even though the process of cloning was one done by man. To put things bluntly: "Roslin did not create or alter any of the genetic information... of its claimed clones... [n]or did [Roslin] create or alter the genetic structure of [the] DNA used to make its clones". Clearly therefore the clone cannot be patented, as it is not markedly different from the original cell donor.

The Roslin Institute did argue that the resulting animal would be different from the donor animal in terms of phenotypic differences, such as size, color and shape. The claims contain nothing pertaining to differences in phenotype, and what is claimed still maintains the genetic copy, which would be natural and have no marked differences. This was discussed in the Funk Bros. Seed v Kalo Inoculation: "[t]heir qualities [i.e. phenotypes] are the work of nature. Those qualities are of course not patentable. For patents cannot issue for the discovery of the phenomena of nature".

Justices Dyk, Moore and Wallace dismissed the appeal, and therefore closed the door on patenting clones, at least to some extent: "To be clear, having the same nuclear DNA as the donor mammal may not necessarily result in patent ineligibility in every case. Here, however, the claims do not describe clones that have markedly different characteristics from the donor animals of which they are copies[, therefore making them ineligible]". Some opinions have been given against this decision, such as Pilar Ossorio who saw that "[t]his ruling is taking away an incentive for research organizations to pursue more research into cloning, at least on the margins".

The impact of this decision can be said to potentially negatively affect the future of cloning, and more so cloning either in agriculture or medicine. The court did still leave the patentability of clones open for future consideration, however on the face of the decision it seems highly unlikely unless the new clones are markedly different from the original organism from which they are cloned.

Source: JDSupra

05 May, 2014

The US Supreme Court Faces Aereo and Web Streaming

Ever since its emergence in early 2012 the tech company Aereo has ruffled some feathers within the broadcasting sphere, and rightfully so. As discussed prior on this very blog, the website offers the ability to both stream and watch TV on-demand for a subscription fee, and functions much like a online DVR system as opposed to a licence based service provider such as Netflix. Although initially winning in the District Court of New York, the case has finally come to the US Supreme Court for final judgment, and presents a curious argument which will potentially affect the future of online streaming quite significantly.

The initial article on this blog discussed the Aereo case in the District Court of New York where the plaintiffs failed to demonstrate they would prevail on the merits of their infringement case, after which the case was subsequently appealed and went to the US Court of Appeals. It is worth discussing the issues again in light of this decision, facing final consideration in the US Supreme Court.

Under US copyright a copyright holder has an exclusive right to publicly perform their copyrighted works such as TV shows. Through this the Court was faced with determining whether Aereo's broadcasting of TV shows to its subscribers, whether live or on-demand, would amount to an infringement of this right as no licence was sought or paid for from the copyright holders of their respective contents broadcast over Aereo's systems.

"There has to be a better way!", thought Terry
The case largely hinges on the Transmit Clause within the US Copyright Act 1976, under which a public performance of a copyrighted work includes its transmission via cables, such as cable TV programming. The Clause's interpretation in the case of Cartoon Network v CSC Holdings, or more commonly known as the Cablevision case, is highly important in relation to Aereo and their potential infringement of the aforementioned public performance right. Under the Cablevision interpretation of the Transmit Clause, the Court of Appeals had to first consider the potential size of the audience of the transmission. A smaller amount of viewers, or a restricted ability to view the content, such as individual copies, would clearly weigh against the finding of a public performance of the copyrighted work. Secondly the court would have to avoid aggregating private transmissions of the works, making it irrelevant for the court to consider a large number of individual transmissions as opposed to a single, viewable by all transmission. This is important when assessing the first point, as a restricted and isolated transmission of a work would not be a public performance, clearly then not infringing that right. Thirdly the court would have to aggregate any transmissions made from a single copy of the work, i.e. if a single DVD is played in a player and distributed to several TVs. That transmission would clearly be a public performance of the work, at least more so than individual transmissions from individual copies. Finally, the court would have to take into account the factors which limit the potential size of the public who would view the transmission (emphasis the court's) in applying the Transmit Clause.

The Cablevision decision hinged on the very fact that all copies of the TV shows which were recorded through their DVR system were individual copies, and not merely a copy which was available to all. This limited both the actual and the potential amount of viewers for the copied transmission, clearly not making the performance a public one. Aereo's service functions much like Cablevision's DVR system, only creating a single copy viewable by that particular user upon their request to record it. As such Aereo's copies would, arguably at least, not be public performances, and not infringe the plaintiffs' rights in that content. Aereo's lack of licence is irrelevant as one is only required for public performances; something which Aereo's services are not doing. The Court of Appeals also reject the aggregation of Aereo's transmissions, as Cablevision's DVR functioned in a very similar way, and aggregating Aereo's transmissions would mean that Cablevision's transmissions would also have to be aggregated, clearly going against the precedent set by the case. The Court of Appeals rejected the plaintiffs' appeal, which is now being taken to the highest court in the US for final consideration.

The decision would have quite wide-ranging implications for both cable broadcasters and services much like Aereo. As the company pays no licencing fees to copyright holders, should they be allowed to operate and be deemed not to infringe copyright, similar services would undoubtedly spring up and cause significant losses to cable providers. On the other hand should the Supreme Court decide that Aereo infringes copyright, it could potentially restrict the future of the Cloud and cloud computing, further restricting the freedom of use over copyrighted content, at least on a commercial level. What ever the result will be, this writer for one is very interested in the decision and its potential impact on either side of the field.

01 May, 2014

Retrospective - What is a Trademark?

Image and association through that image is a very powerful thing in the success of a product in addition to its sustainability as a strong brand. Trademarks have always aimed to protect that image, functioning as an indicator of certain qualities, value or consistency, giving the customer or client reassurance as to their expectations. Even though arguably self-explanatory or even obvious, what a trademark truly is is often left in the dark to the layman and even some legal practitioners. Trademarks encompass a wide array of possible marks which can be registered in the common law, yet they all share a common purpose in their registration and existence. This purpose was discussed under current EU, and subsequently applying to UK legislation, after the introduction of the EU's very first Directive dealing with trademarks.

The case in question was Canon v Metro-Goldwyn-Mayer, initially dealt with in the German Federal Court of Justice (Bundesgerichtshof) and then referred to the Court of Justice of the European Communities for further clarification in 1998. The case dealt with the mark "CANNON", which was applied for registration by MGM in Germany in relation to films recorded onto cassettes and their subsequent uses in distribution and production for example. MGM's application was then objected to by Canon under the old German Trademark Law (Warenzeichengesetz), arguing that their registered trademark "CANON" would be infringed should MGM be allowed to register the word "CANNON". Initially MGM's mark was rejected by the German Patent Office (Deutsches Patentamt) due to the marks being analogous; however a second examiner at the Patent Office dismissed the initial decision and rejected Canon's opposition for lack of similarity. The case was further appealed to the German Federal Patent Court (Bundespatentgericht), where the Court rejected Canon's appeal, deciding the two marks were not similar. The case was then ultimately brought to the aforementioned Federal Court of Justice, from where the case was brought to the European Court of Justice.

Tony proudly carried his badge
Under Directive 89/104/EEC the Union sought to unify the Member States' approaches to trademarks, under which the German laws were amended. The Directive also applies to the UK, which enacted the Trade Marks Act 1994 to bring their legislation in-line with the EU regulations. Relating to the case, the Federal Court of Justice referred this question to the European Court of Justice: "May account be taken, when assessing the similarity of the goods or services covered by the two marks, of the distinctive character, in particular the reputation, of the mark with earlier priority (on the date which determines the seniority of the later mark), so that, in particular, likelihood of confusion within the meaning of Article 4(1)(b) of Directive 89/104/EEC must be taken to exist even if the public attributes the goods and/or services to different places of origin?"

The question can be seen in simpler terms: would the judiciary have to take into account the reputation of an earlier existing mark (in this case CANON) when assessing the registerability of a newer mark (in this case CANNON), even if the public would understand the different origins of the two competing items bearing their respectable marks? What the European Court of Justice emphasized was the tenth recital of the Directive, which states that "...the function of [of a registered trademark]... is in particular to guarantee the trade mark as an indication of origin". This, in the Court's decision: "...enabl[es] [the consumer], without any possibility of confusion, to distinguish the product or service from others which have another origin", adding that "...it must offer a guarantee that all the goods or services bearing it have originated under the control of a single undertaking which is responsible for their quality". In the Court of Justice's decision, answering the German Federal Court, the earlier mark's reputation has to be taken into account and just the risk of confusion would mean that there is a likelihood of confusion even if the two products have two distinct origins.

A trademark therefore offers a guarantee of quality and origin to the consumer, and has to be protected as such to prevent any confusion to the consumer as to this fact; a badge of origin, as it is often referred to as. Should other marks be allowed to be registered the consumer could be confused, at a quick glance at least. This position has been fully accepted in the UK under the Trade Marks Act 1994, and even in Canada the Canadian Supreme Court in Kirkbi AG v Ritvik Holdings saw that a trademark is "...a symbol of a connection between a source of a product and the product itself"; creating a similar description to what the European Court of Justice did.

As one can clearly see, trademarks offer a unique type of protection and a specific function. The origin of a product or services can be the deciding factor between the consumer purchasing your product rather than the other, and enabling that consumer to fully understand what they are buying is imperative. Trademarks offer this guarantee, protecting both the consumer and the owner of the trademark, making them incredibly valuable to all parties involved.