Stifled Words - The DMCA and Censoring Free Speech

Since its enactment at the cusp of the 21st century, the Digital Millennium Copyright Act in the United States has been the subject of discussion within the IP community, practitioners and even the public in general. With its inception being in the early days of the internet, back when our full understanding of the scale and complexity it will achieve later in its life was all but naught, the provisions in the DMCA can be seen as being quite broad and outdated in their application to the Internet as we know it today. The Electronic Frontier Foundation published a white paper some 2 years ago, detailing very thoroughly the potential abuse of the DMCA and its provisions, and this writer can agree that the DMCA has its issues and needs to be addressed by the US legislature. That being said, a lot of laws have their negative applications (some IP related discussion can be found here and here), but could the DMCA be used to stifle free speech, even abroad?

For the uninitiated, under the DMCA a noticed can be issued to a service provider to request the taking down of copyright infringing works on that provider's services, for example, on a website, under 17 USC section 512. After a sufficient amount of information is provided, the content has to be taken down, should the material alleged actually be infringed as described. While the provision purely affects intellectual property rights, there have been instances where the takedown notice has been abused, and more often than not, service providers will comply with the request just to cover their own backs.

Discussions can be odd at times (Source: HiJinks Ensue)

A recent instance, as discussed above, prompted this writer to look into a matter where the DMCA was clearly used for more nefarious purposes, and not to protect legitimate interests in one's intellectual property. The case in question was Automattic Inc and Oliver Hotham v Nick Steiner, for which summary judgment was passed early last month (PDF copy can be downloaded here), regarded a young journalist called Oliver Hotham. Mr. Hotham, in his journalistic endeavors, contacted an organization called Straight Pride UK, one which advocates their notion of current discrimination of heterosexual people in the light of emerging gay rights. In his email communication to Straight Pride UK Mr. Hotham identified himself as a 'freelance journalist' and asked the organization some questions relating to them and their agenda. They promptly answered a week later, attaching a document titled "Press Release", in which they detailed their answers to most of Mr. Hotham's questions. He subsequently cleaned up the answers, rearranged them and published them in his blog article "It's great to be straight... yeah" (quoted in full here), which garnered a great deal of traction. Due to the article painting Straight Pride UK in a less beneficial light, they threatened to, and did, issue a takedown notice under the DMCA if the article wasn't take off Mr. Hotham's blog. Wordpress did, however, take down the article, yet after some voicing out on Mr. Hotham's part as to his ordeal, Wordpress took action and sued Straight Pride UK (through their representative, Nick Steiner) for abuse of the DMCA.

Under section 512(f) a claim can be brought against a false DMCA notice that has been issued through materially misrepresenting that the activity in question infringes their rights, i.e. that you claim someone's post on a website infringes your copyright when it (potentially at least) doesn't. Wordpress asserted that, as Mr. Steiner represented that "[the] [u]ser http://oliverhotham.wordpress.com did not have my permission to reproduce this content, on Wordpress.com or twitter account or tweets, no mention of material being published was made in communications... [and that] [i]t is of good faith belief that use of the material in the manner complained of here is not authorized by me, the copyright holder, or the law". As Mr. Hotham had identified himself as a journalist, and the work sent had been titled as a press release, clearly Mr. Hotham did not infringe copyright in the US, or hypothetically even in the UK had the case been brought forth here. Wordpress firmly contested Mr. Steiner's assertion and the court agreed with their argument, issuing a summary judgment in their favor.

Although the case discussed nothing in terms of substantive arguments relating to section 512(f), it highlights an important issue regarding the potential abuse of DMCA when it comes to freedom of expression, and not only limiting it to the US (as the case was here, and wholly related to two UK entities and a US service provider). Had Mr. Hotham not been a journalist (says the writer, writing his own 'journalistic' blog) the nature of the case could have been very different. The DMCA, or any provisions regarding copyright, should protect legitimate interests, and not merely those aiming to stifle criticism or dissent in the veil of protecting copyright. However, as was stated by Paul Sieminski, Chief Legal Counsel for Automattic: "...[this] DMCA abuse may go unpunished this time. But, we're heartened that our case makes some good new law for future cases. There's very little case law in this area, and previously no case law about what damages were available if a plaintiff were to win". Arguably this is very true, and serves as an important milestone in the protection of free speech under the DMCA.

Source: The Guardian

Can You Patent Embryonic Stem Cells? - Preliminary Thoughts

Sometimes people seeking patents just seem to want to be the focus of hatred or controversy, especially when it comes to newer areas of medicine or scientific progression. Although this blog has discussed more unsavory topics, such as patenting clones or the method of selecting desirable traits for your child, the field constantly brings forward more interesting questions posed to the judiciaries of various countries. It so happens yet another such a question has been posed, this time pertaining to the potential patenting of embryonic stem cells; a topic which has been discussed at length by our neighbors across the pond in the US.

The case in question is International Stem Cell Corporation v Comptroller General of Patents, initially having been dealt with in the High Courts of the UK, having since been referred to the European Court of Justice for clarification. Although the opinion delivered is of the Advocate General Cruz Villalon's, it still remains an important indication of the potential direction of the ECJ's ultimate decision on the question, but is no way binding.

What the matter dealt with were two patent applications filed by the International Stem Cell Corporation, namely GB2431411 and GB2440333 (application numbers GB0621068.6 and  GB0621069.4 respectively), which effectively sought to patent certain applications for the use of human stem cells taken from embryos. Upon first inspection the patents were rejected by the UK Intellectual Property Office, based on the ECJ's previous decision in Oliver Brüstle v Greenpeace almost three years ago, which sought to decide what the definition of a 'human embryo' was under Directive 98/44/EC. This decision was important for the case in hand as it effectively limits the patentability of embryos, through which embryonic stem cells, for commercial or industrial purposes. The decision in Brüstle was why the patents were rejected at first instance, and serves as a platform from which the Advocate General formulated his view on the case.

To give more exposition on the patents at hand, as said above, they both deal with specific applications involving human stem cells extracted from embryos. Application GB0621068.6, titled "Parthenogenic activation of human oocytes for the production of human embryonic stem cells", to put in incredibly simplistic terms, deals with the production and cultivation of stems cells from unfertilized oocytes (female egg cells) through the manipulation of oxygen tension. These cells are often referred to as "parthenotes", which can turn into practically any cell type in the human body. Application GB0621069.4 deals with the use of said parthenotes to produce synthetic corneas. What is worth noting is that the ECJ saw, in Brüstle, that "...any human ovum after fertilisation, any non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted, and any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis constitute a ‘human embryo’". This would, through superficial assessment, include Stem Cell Corporation's inventions and therefore prevent them from being patented.

The distinguishing factor for the Stem Cell Corporation, in their argument, is that the cells harvested have been modified so that they cannot continue human development; a reason under which the UK IPO rejected the application: "...Brüstle was intended to exclude from patentability only organisms capable of commencing the process of development which leads to a human being". This would run contrary to Schedule A2 of the Patents Act 1977 and the Directive it implements. According to the Stem Cell Corporation "...the inventions in question concern parthenogenetically-activated oocytes [ which are] not 'capable of commencing the process of development of a human being...' due to the phenomenon of genomic imprinting" and are therefore beyond the interpretation of Brüstle and the legislation.

The Advocate General's opinion is an interesting one, as he argues that "[t]he wording of Article 6(2) [of the Directive] itself makes clear that the list of prohibitions is non-exhaustive", which leads to an issue of whether the Directive would therefore include a non-developmentally capable parthenote. Mr. Villalon proposed that "[t]he non-exhaustive character of the list in Article 6(2) of the Directive implies that the exclusion of a parthenote from the concept of human embryo contained in Article 6(2)(c) of the Directive, does not prevent a Member State from excluding parthenotes from patentability based on Article 6(1) of the Directive".

Mr. Villalon furthered this point by arguing that the Directive is not one which is meant to be the 'law of bioethics'. Interpreting the Directive can lead to a discussion of morality and public impression; a discussion the judiciary will have to address to a degree. He leaves the matter more for Member States to decide, to see whether they deem the prohibition of embryonic patents a necessity in light of morality of public order.

Discussing submissions from the UK, France, Sweden and the Stem Cell Corporation, in addition to his understanding of the Brüstle case, Mr. Villalon did come up to a conclusion where he saw that the term 'human embryo' should not include developmentally incapable parthenotes: "Unfertilised human ova whose division and further development have been stimulated by parthenogenesis are not included in the term ‘human embryos’ in Article 6(2)... of [the] Directive... as long as they are not capable of developing into a human being and have not been genetically manipulated to acquire such a capacity".

Whether the ECJ sees things like the Advocate General will remain to be seen, but the opinion at least leaves the option of embryonic patents relating to cells which are not able to develop into a human being. This is a promising sign in light of future developments in the field of using stems cells to treat humans, yet still limiting it to ones where there is a lesser issue of morality, i.e.  the development of a human being. This writer for one is quite keen on reading the Court's opinion upon its publications, along with a healthy amount of others I am sure.

Source: PatentlyO