A Torrential Result - No Requirement to Censor Torrent Search Results, Says Paris Court

Just the mention of 'torrent' files can send shivers down the spines of rightsholders and their legal representatives. Often synonymous with online copyright infringement, the BitTorrent protocol is actually a very legitimate way to send and receive files without having specific hosting facilities to do so, saving on costs and often bandwidth. In a nutshell, the protocol allows for an individual or entity to download a file from several sources, taking only pieces and ultimately compiling them into one completely copied file. Even though entirely legitimate, the protocol has been used by file sharers for some time, allowing for the efficient and fast downloading of illegal files from the Internet, often utilizing websites such as The Pirate Bay (or any other search engine, for that matter) to find the torrent files linking to the illegal content. With this availability so ubiquitous, could rightsholders censor search results on search engines to prevent copyright infringement?

While there are no official translations of the case available, this writer has used machine translation for the purposes of providing quotations, and any translations should be regarded as unofficial and (possibly) not fully accurate.

Two recent cases in France aimed to deal with this issue head-on, where the French music producers' association, Syndicat national de l’édition phonographique (SNEP), took both Google and Microsoft (the decisions are only available in French) to court. Under Article L336-2 of the Code of Intellectual Property, a court can, upon application, force an intermediary to take all appropriate measures to prevent or stop such infringement, including, potentially, allowing and/or facilitating (through search results) access to torrent files.

Dealing with the case against Google, the Parisian Court found that, although Google France had no direct control over search results (ultimately controlled by its American patent company, Google Inc.), it still "...develops a commercial activity, which ensures funding for services offered free to users and participates operation the search engine business". They could not therefore, be exonerated from the claim brought by SNEP.

Leading the charge against Internet censors

The Court then moved onto discussing the admissibility of the claim, they quickly dismissed SNEP's claim due to a lack of ability to represent the parties in question (the artists named were Kendji Girac, Shy’m, and Christopher Willem). This was largely due to the SNEP's role as an enforcement provider for a select segment of the audio entertainment industry, and would not therefore qualify as a 'professional defense body' per Article L336-2. The Court ultimately rejected the case against Google, not forcing the search provider to censor the results containing torrent files to infringing files.

In a similar case, Microsoft faced a challenge in relation to its Bing search engine, which also provided access to results containing infringing music files from the aforementioned artists.The Parisian Court would not exonerate the company on similar grounds as Google's subsidiary, as the companies were tightly woven into the business of providing the search facilities.

The Court further rejected an assertion that Microsoft would be acting as a subsidiary by not blocking access to the infringing content, as Article L336-2 imposes no duty on companies to prevent access to infringing content. Although asserted by SNEP, Microsoft had not failed to comply with their notification procedure in Article 6-l-5 of the Law of Confidence in the Digital Economy, as the Court deemed that any action under Article L336-2 would be a separate action from the notification procedure. Ultimately, the Court rejected SNEP's entire case, as the censoring of all pages containing torrent links to infringing materials (concerning the artists in question now and in the future), would be "...general surveillance measure[s] and could cause the blocking of legitimate sites", even under the guise of protecting legitimate interests. They also added that the measures would be ineffective, and are not necessary, as the search facilities is seldom used to search for the artists in question with the term "torrent", which is quite easy to circumvent if needed.

Although this writer knows very little about French law, the cases seem quite interesting, especially in the context of the wider Internet. Allowing for the blocking of specific terms and the term "torrent" in a much broader scale would clearly impact the Internet experience many of us enjoy, be the use legitimate or not. The Parisian Court seems to have made a decision stemming from pragmatism and a deeper understanding of the Internet. While rightsholders would be dissatisfied with the decision, one can appreciate the balance that has to be struck when it comes to more overarching censorship measures.

Source: Ars Technica

All Packed Up - UK Supreme Court Rejects Trunki Appeal

Community Registered Designs rarely get their time in the spotlight, but the Supreme Court's decision on the Trunki saga has been one that many intellectual property practitioners have been waiting for. The case is an important one, and sets the tone for the future of 3D registrations as designs, potentially impacting the vast amount of CRDs that use these types of illustrations (mainly through the use of CAD imaging) as their registration. With bated breath this writer awaited the decision, which was published yesterday.

The case of PMS International Group Plc v Magmatic Limited dealt with the Trunki travel case, designed by Robert Law in the late 1990s (at the time called the 'Rodeo'). The case is intended for kids, allowing them to ride the suitcase as well as use it in its traditional sense, incorporating child-friendly animal themes in its finished look. Mr. Law subsequently sought registration for the design, and attained his CRD in 2003 (No. 43427-0001), exclusively licencing the sale and manufacture of the design to Magmatic Limited, his own company. The registration used CAD imaging in the illustration of the Trunki suitcase, using a degree of tonal contrast to showcase the different components of the design (incorporating no decorations apart from the tonal differentiation of the wheels, "horns" and the strap at the top, for example). PMS International, having noted the success of the Trunki case, designed and manufactured its own version called the Kiddee Case, which incorporated a very similar design and child-friendly decorations (although, as the Court noted, with some distinct elements in the decorations and/or colors used). Magmatic then started the proceedings over the infringement of their design, ultimately culminating in the Supreme Court's decision.

What the Supreme Court had to answer was whether the Kiddee Case "...produce[s] on the informed user a different overall impression" from the registered Trunki design, therefore not infringing the design. This includes, to put it plainly, the appearance of the two products, especially in the light of the features shown in the CRD, reflecting the choices of the applicant at the time of filing (restricting or broadening the registration based on the inclusion or exclusion of features and/or ornamentation).

The Court had to deal with the disagreement between Justice Arnold and Lord Justice Kitchin in the first instance and appeal decisions, which dealt with the absence of ornamentation and the effect of the included two-toned coloring in the CRD documentation as detailed above. Lord Neuberger, handing down the unanimous decision of the Court, dealt with the disagreements in three parts, discussing each affecting element individually per the Court of Appeal's decision.

The horned animal appearance

In the judgment of the Court of Appeal, Lord Justice Kitchin considered that Justice Arnold had not fully given weight to the overall impression of the CRD as a 'horned animal', and the distinction between it and the more 'insect' appearance of the Kiddee Case, resulting in the Kiddee Case not infringing the design.

The Supreme Court agreed with Lord Justice Kitchin, and determined that Justice Arnold had not given proper weight to the overall appearance of the two cases. This is clearly a subjective assessment on Lord Neuberger's part, and this writer, although can see his point, will disagree that the judge did not consider the overall impression. Justice Arnold seemed to focus on the suitcase shape of the CRD, rather than its fanciful impression, and both perspectives can be accepted, however, he did not entirely dismiss the impression the design made as an animal or creature with 'horns'.

Decoration of the Kiddee Case

Similarly, Lord Justice Kitchin disagreed with Justice Arnold on the ornamentation of the Kiddee Case, and the lack thereof in the CRD. In his mind, the lack of ornamentation made the overall impression of the CRD seem more like a horned animal, whereas the ornamentation in the Kiddee Case highlighted its distinction from the former as a bug with antennae (or a tiger with ears), forming a wholly different impression on an informed user.

Intricate design or not, Trevor struggled with suitcases

The Supreme Court, again, agreed with Lord Justice Kitchin, confirming that "...the absence of decoration on the CRD reinforced the horned animal impression made by the CRD". Lord Neuberger did, however, consider that the inclusion of some ornamentation could potentially detract from the overall impression given as a horned animal, if sufficiently distinctive or eye-catching. This writer would wholly disagree with Lord Neuberger, and thinks that the lack of ornamentation should focus the inspection on the non-fanciful elements of the infringing product, and should not be included in the consideration of overall impression. What is important in the CRD is the shape or design of the product, and the lack of ornamentation should focus the assessment on just that, the design, rather than additional elements that can (arguably) be irrelevant to the design of an item, rather than its aesthetic appearance.

Lord Neuberger did address the appellant's concerns over the lack of ornamentation and its impact on a CRD (or in subsequent infringement actions), albeit obiter. In his mind the "... absence of decoration can, as a matter of principle, be a feature of a registered design" and that "...if absence of ornamentation is a feature of a registered design, that does not mean that because an item has ornamentation, it cannot, for that reason alone, infringe the registered design in question: it merely means that the fact that an allegedly infringing item has ornamentation is a factor which can be taken into account when deciding whether or not it does infringe that design".

His Lordship focused on the images as CAD images, rather than line drawings, and determined that the lack of ornamentation (although including colors and/or textures) would be treated as potentially distinguishing in the former, but not the latter. The inclusion of ornamentation reinforced the former point on distinction as different creatures, rather than be a full point of contention in its own right. He concluded that (again, obiter) "...the point of principle [is] that absence of ornamentation can be a feature of a Community Registered Design".

The two-toned coloring of the CRD

The final point of contention was Lord Justice Kitchin's disagreement in the use of tonal colors in the CRD, meaning the difference in color (gray and black) in some features, like the wheels or the strap on top. In his mind, the difference is an intention to include contrasting colors, rather than to simply distinguish the components, which implies a desire to use those contrasting colors in the actual registration as defining features. This brought into focus the color scheme of the Kiddee Case, further impacting the above assessment on its overall impression through these ornamental features. Arguably one can agree with the Supreme Court here, as the inclusion of different colors will be taken as that, even if the clear intention to differentiate the parts was not there at the time the application was drafted. Whether this is necessary or useful for the purposes of CAD drawings is beyond this writer's knowledge, but would be an interesting aspect of discussion if this is indeed the case.

Lord Neuberger agreed with Lord Justice Kitchin, and saw that the inclusion of contrasting colors in the registration (with or without the intent to do so) bares a need for the items to be compared in the same vein, i.e. through an assessment of not only shape, but color as well. He concluded that "...the design claimed in this case was for a wheeled suitcase in the shape of a horned animal, but that it was not a claim for the shape alone, but for one with a strap, strips and wheels and spokes in a colour (or possibly colours) which contrasted with that of the remainder of the product". The Supreme Court therefore upheld the decision of the Court of Appeal, and saw that the Kiddee Case did not infringe the CRD and made a different overall impression to the Trunki.

The Supreme Court also rejected a referral to the Court of Justice of the EU, determining that there is no question that requires answering, even in the light of the consideration that a lack of ornamentation could be a feature, which will remain a point of contention.

The case clearly will alter CRD practice, especially when CAD images are quite often used as the basis of the registration (with line drawings clearly being the preferred option from now on). What this writer finds perplexing is the lack of concrete answers, especially in the light of the question of a lack of ornamentation as a feature, and further laments the Supreme Court's rejection of a referral to the CJEU on these points. Lord Neuberger restricted his comments to obiter only, and a lack of referral will leave this question in the shade for the foreseeable future. Nevertheless, the Trunki saga has been an eventful one, and this writer has enjoyed the ride, but is saddened by the Supreme Court's lack of answers and an arguable wrong outcome.

Pirates Uncovered - Dallas Buyers Club's Landmark Case in Australia

Piracy is considered by many in the entertainment industry to be the plight of the 21st century creative minds and pockets (and the pockets' of many shareholders, one would think). What ever your thoughts on copyright piracy, the topic remains a hot-button issue, and the courts have been, and will undoubtedly continue to, battle with for years to come. With this in mind, the enforcement of rights online has proven difficult, especially when a user, either downloading or sharing said infringing content, is effectively hidden behind a single Internet Protocol (IP) number, which does not accurately identify the given user (as discussed here in some manner relating to the US). The battle between Internet Service Providers (ISPs) and copyright holders has been an active one regarding this, and a recent decision in Australia seems to have opened the door to potentially combating this issue on the copyright holders' end, at least for now.

The case in question was Dallas Buyers Club LLC v iiNet Limited, which dealt with the very successful movie Dallas Buyers Club that was, among other things, nominated for 6 Oscars in its year of release. Due to the movie's immense success, it was promptly shared online, and in an action for preliminary discovery, the movies' rights holder Dallas Buyers Club LLC sought to identify the individuals behind all 4726 unique IP addresses associated with sharing the movie online through the 6 respondent ISPs in the action. The ISPs contested this application on several grounds, but the first instance decision lay with the Federal Court of Australia.

Although the respondents actively contested the ownership of the copyright in the work (decided as being held by Dallas Buyers Club LLC, with very little resistance from the Court), and other matters underpinning the case at hand, the meat of the discussion lay in the possible allowance of discovery in relation to the aforementioned IP addresses.

The secret life of a copyright infriger (Source: Bizarro Comics)

Under the Australian Federal Court Rules 2011 a party can seek for the identification of an unknown party should they have a cause of action against that person under certain requirements: "(a) there may be a right for the prospective applicant to obtain relief against a prospective respondent; and (b) the prospective applicant is unable to ascertain the description of the prospective respondent; and (c) another person (the other person): (i) knows or is likely to know the prospective respondent’s description; or (ii) has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description." Clearly, as the individuals sharing the movie are behind an IP address, and therefore hard to identify without information from the ISP as to who is behind said IP address, Dallas Buyers Club, at least prima facie, had a case to find out who these people are under the Act.

Regardless of the ISPs' rejection of Dallas Buyers Club's assertions under the three requirements of the Act, the Court saw that they had fulfilled the requirements and were therefore entitled to disclosure as to the users' identities. They had a right to seek relief as to a potential breach of their copyright; they could not identify the individuals committing that infringement; and the ISPs knew or were likely to know who they were, or at least would be in possession of their subscriber details based on fixed IP addresses.

Even though Justice Perram allowed the disclosure of the users' information to Dallas Buyers Club, he did however set certain restrictions on it, which will be set by the parties later in the process. Dallas Buyers Club have indicated that they want the details disclosed by May 6th, but the letter that will be sent out will be determined on a later note as well.

Although the case is an important landmark in the fight against piracy, the disclosure of individuals' details in relation to copyright infringement is nothing wholly new. In Canada, under the Federal Court Rules, the disclosure of such information is very similar to the Australian provision; and Voltage LLC, the parent company of Dallas Buyers Club, has successfully used the provision to gain such information in Canada in the case of Voltage Pictures LLC v John Doe. Similarly, in the UK, a Norwich order (the equivalent of the Australian provision's application) was issued for copyright infringement through which subscribers' details were disclosed to the copyright holder in Golden Eye (International) Ltd & Anor v Telefonica UK Ltd. Both cases also discuss the restrictions needed in the event of such disclosure, such as: "[p]utting safeguards in place so that alleged infringers receiving any “demand” letter from a party obtaining an order under Rule 238 or a Norwich Order not be intimidated into making a payment without the benefit of understanding their legal rights and obligations... [s]pecific warnings regarding the obtaining of legal advice or the like should be included in any correspondence to individuals who are identified by the Norwich Order... [l]imiting the information provided by the third party by releasing only the name and residential address but not telephone numbers and e-mail addresses... [and] [r]equiring the party obtaining the order to provide a copy of any proposed “demand” letter to all parties on the motion and to the Court prior to such letter being sent to the alleged infringers". These, among others, will undoubtedly be considered by the Australian courts in their application of such orders in the future, and in this case specifically.

As one could imagine, the case has spawned a huge amount of discussion, especially relating to Voltage Pictures' previous strong-arm tactics in their letters to infringers. Nevertheless, the cold application of the law, at least to this writer, seems to be quite accurate, and individuals who engage in such activities need to understand the risks associated with illegal copying of media online. The Dallas Buyers Club case clearly sets the stage for more direct, stronger enforcement of copyright within Australia, and it remains to be seen how the provision will be utilized in the future, and what restrictions the courts ultimately put on the disclosure of subscribers' details and the usage thereof.

Source: Sydney Morning Herald

Can You Patent Embryonic Stem Cells? - The ECJ Ends the Fight, For Now

As was discussed quite extensively on this very blog some months ago, the genesis of human life and its formidable times are a topic riddled with controversy and a myriad of viewpoints, yet the topic has not come to contention much in the judiciary. Since the opinion of Attorney General Villalon, discussed by this very writer in the link above, the actual decision of the European Court of Justice has been anticipated by many, especially in light of the potential future of stem cell research in the EU. The ECJ's decision is hugely important in a world-wide context, potentially seeing a precedent which will either hinder or enable other similar jurisdictions to allow or disallow similar patents, even in light of the Myriad Genetics saga in the US.

The case in question, International Stem Cell Corporation v Comptroller General of Patents, Designs and Trade Marks, for the uninitiated, deals with two patent applications, filed by the International Stem Cell Corporation, relating to stem cells; more specifically "...methods of producing pluripotent human stem cell lines from parthenogenetically-activated oocytes and stem cell lines produced according to the claimed methods, and... the isolation of pluripotent stem cells from parthenogenetically-activated oocytes, and product-by-process claims to synthetic cornea or corneal tissue produced by these methods". To put things into more simplistic terms, the applications (GB0621068.6 and GB0621069.4) relate to the usability of stem cells or their production from oocytes (female egg cells). A more detailed expression of the facts and the prior judgments can be found in this writer's article discussing the Attorney General's opinion.

A parent's dream, endless potential (Source: Bizarro Comics)

The Court was therefore faced with the same question posed to the Attorney General: "...whether Article 6(2)(c) of Directive 98/44 must be interpreted as meaning that an unfertilised human ovum whose division and development to a certain stage have been stimulated by parthenogenesis constitutes a ‘human embryo’ within the meaning of that provision" and be unpatentable under the Directive. The interpretation of the Article in question hinges heavily, as discussed by the Attorney General, on the ECJ's earlier decision in Oliver Brüstle v Greenpeace, where the Court saw that "...any human ovum must, as soon as fertilised, be regarded as a ‘human embryo’ within the meaning and for the purposes of the application of Article... since that fertilisation is such as to commence the process of development of a human being". This is a key distinction, as the cells in ISCC's applications would not be capable of development into a human being. Even with this in mind the Court saw that "...a non-fertilised human ovum must be classified as a ‘human embryo’" as the cells, when harvested, are still capable of being fertilized and possess the potential to develop into a human foeatus, thus falling within the meaning of a 'human embryo'.

The Attorney General saw things differently in his interpretation of the law, and the Court in the case in hand agreed with him: "...a non-fertilised human ovum must necessarily have the inherent capacity of developing into a human being" to fall under the definition of a 'human embryo', contrary to Brüstle. ISCC's patents cover the use of cells in a state where they cannot possibly be fertilized and multiply, thus not, under the Court's current considerations, be classified as a 'human ebryo', and be exempt from patenting. The Court then summarized its position very well: "...where a non-fertilised human ovum does not fulfil that condition, the mere fact that that organism commences a process of development is not sufficient for it to be regarded as a ‘human embryo’... [and] [b]y contrast, where such an ovum does have the inherent capacity of developing into a human being, it should... be treated in the same way as a fertilised human ovum, at all stages of its development".

In the end the ECJ rejected the notion that ISCC's patents would encompass a 'human embryo', and accepted the patenting of stem cells, so long as they are truly incapable of development, either inherently or through genetic manipulation (which ISCC indicated it would be doing to the cells in their applications). What this decision demonstrates is a much more open approach to patenting stem cells, and in this writer's opinion, represtents a healthy and morally correct approach to stem cells and patents, especially in light of potential future developments in the field and a correct application of the law. 

Whether the courts will face any new cases dealing with different, potentially more nuanced and 'grey' approaches to stem cells or genetics in general in the future remains to be seen, but the potential dvelopment in the area is exciting, both from a human perspective and a legal one as well. 

Source: IPKat

Words in Action - Trademarks as Verbs

This writer, for one, will fully admit to often using very well-known brands as the descriptive term for all such items, for example calling all plasters Band-Aids and all cotton-tipped plastic cleaning things (a technical term, undoubtedly) as Q-Tips, regardless of all of those terms having been, or still being, registered trademarks. While my misstep in potentially diluting these valuable brands in using them in this way can be seen as a small error, or even wholly unnoticeable in the grand scheme of things, it still brings light to an issue all trademark holders face; the potential of losing your mark to genericization. While this topic has been discussed on this very blog before quite extensively, the use of trademarks as verbs specifically has been left a bit in the dark, yet is illustrative of a newer problem technology companies especially will face. Who hasn't said they will 'Google' something, or if they will 'Facebook' their aunt Mary; a grave threat the holders of those particular marks will lose sleep over. One such giant facing a recent challenge to its widely recognized trademark is Google, which posed an interesting question to all trademark holders.

The case in question is Elliot v Google Inc, where the claimant, David Elliot, registered over 760 different domain names combining the word 'Google' and another brand or a famous person, for example googledisney.com, or with generic terms such as googletvnews.com. As you might have guessed, Google has trademarked the term 'Google' in a number of variants; two of which were at issue in the case: US trademark 2884502 and 2806075. These two marks encompass the word 'Google' in several categories, such as web indexes and computer software - promptly leading to Google pursuing the domain names through the Uniform Domain-Name Dispute-Resolution Process (UDRP). In his defense Mr. Elliot asserted that the term 'Google' had become generic and could therefore be used by him (and others) without infringing on Google's marks. The domain names Mr. Elliot had registered were transferred to Google in the UDRP, which prompted Mr. Elliot to pursue the matter further in the US District Court of Arizona.

What Mr. Elliot's argument largely states, and what the court had to assess, was whether the term 'Google' had effectively become ubiquitous with the verb 'googling' - defined by the Oxford Dictionary as "[s]earch[ing] for information about (someone or something) on the Internet using the search engine Google" - rendering it generic rather than distinctive as to Google and/or Google's services. As trademarks need to specifically distinguish the origin of goods or services, becoming a generic verb can be the mark's end.

Stacy was unnerved after 'googling' herself

What the court had to determine was whether the mark's "...primary significance" was that of distinguishing the goods or services from other similar ones. The test was phrased well by Justice Brandeis in Kellogg v National Biscuit: "...the primary significance of the term in the minds of the consuming public is not the product but the producer". This is highly important, as if a product is named as the major brand (i.e. if you refer to all plasters as 'Band-Aids') in general terms, the mark loses its status as the seal of origin for that brand, or as stated by Justice O'Scannlain in Filipino Yellow Pages: "...if the primary significance of the trademark is to describe the type of product rather than the producer, the trademark is a generic term and cannot be a valid trademark".

Using a trademark as a verb does not automatically change the primary significance of that mark, and a mark, such as 'Google', can be used for both the designation of an origin for goods and services and as a term describing the searching of information via the search engine - noted by the court in the case. This synecdochian dual-functionality of a mark is wholly valid; however, should the perception of the public change drastically as to the meaning of the word, i.e. if most people would believe and/or use the term "to google" to mean using any search engine online to seek information, then the mark can be determined to be compromised, even with this accepted dual-functionality. This was phrased well by Justice McNamee (the name seems more than appropriate considering the case's subject matter): "It is thus contrary to both the letter and spirit of trademark law to strip a mark of legal protection solely because the mark—cultivated by diligent marketing, enforcement, and quality control—has become so strong and widespread that the public adopts the mark to describe that act of using the class of products or services to which the mark belongs". Arguably this argument holds well, and this writer for one agrees wholeheartedly with the court's view, as the stripping of a mark's distinctive nature the moment it becomes even partially descriptive of a class of products or services would run contrary to the value given by trademarks to brands and their place in a given class.

In the end the action failed, as Mr. Elliot failed to demonstrate how the mark 'Google' had turned generic, as the public still strongly perceived it as part and parcel to the company, not just internet search engines or internet searching at large. The case does bring light an important issue, and often something that the general public will not think about; how our daily use of terminology, especially trademarks, can alter their value. Some examples include 'Xerox' (become a term for all photocopying) and 'Thermos' (used as a term for all heat-retaining drinks containers), which have become generic due to their use as the identifying term in a given class. Due to this the International Trademark Association has even issued guidelines on the proper use of trademarks, which most of us will find potentially excessive, yet is quite important. As can be seen, trademarks are a dangerous beast, especially when they become famous to the point of ubiquity; however for most this risk is quite worth it.

Source: JDSupra

Aereo's Streaming Service Infringes Copyright, Says Supreme Court

Having discussed the Aereo saga quite extensively through its litigation life cycle (speculation on the Supreme Court decision can be found here, discussion on the District Court decision here), this writer for one bated his breath waiting for the US Supreme Court decision on the case. Arguably the outcome of the Justices' deliberation is important, especially as the Internet is slowly overtaking traditional means of media distribution all over the world. Netflix alone has over 30 million subscribers, showcasing how the paradigm is shifting towards a more convenient, on-demand consumption of media. In the end the final word was the Supreme Court's.

For the uninitiated, the American Broadcasting Companies Inc v Aereo Inc case dealt with the web-based service Aereo, which offered, for a subscription fee, the streaming, recording and live watching of TV programming. This was done on an individual basis, and relied on the subscribes' request to watch a given show, live or not. Subsequently several broadcast companies objected to this as the service potentially infringed on their copyright, and took Aereo to court. Initial judgments have gone Aereo's way, and the final word fell on the Supreme Court.

The question for the court boiled down to whether Aereo's service was a public performance of copyrighted works under 17 USC section 106, or in other words a transmission of a performance, and as such, infringed the provision. In the vein of the historical decisions of Fortnightly and Teleprompter, the court equated Aereo's service to those of cable providers, with Justice Breyer (in the majority's opinion) stating that "[t]he subscribers of the Fortnightly and Teleprompter cable systems also selected what programs to display on their receiving sets... The same is true of an Aereo subscriber". Through this likeness the court decided that Aereo was indeed performing for the purposes of the provision, and Congress' intent was to prevent just that with the amendments after the aforementioned cases. The latter part of whether this performance was public remained in the Justices' deliberation.

Justice Breyer's decision assessed whether the performance was a transmission to the public mostly through the court's view on Congress' legislative intent, largely ignoring technological differences of the transmissions. Whether the transmissions are made to individuals makes no difference as "...the members of the public capable of receiving the performance... receive it in the same place or inseparate places and at the same time or at different times", which does not make a difference to whether it is to 'a public'. As long as several people have the potential to watch those programs, the transmission is to a public within the scope of the provision.

Sharon was distraught after the decision

Justice Breyer summarized the judgment well: "...having considered the details of Aereo's practices,we find them highly similar to those of the CATV systems in Fortnightly and Teleprompter. And those are activities that the 1976 amendments sought to bring within thescope of the Copyright Act. Insofar as there are differences, those differences concern not the nature of the service that Aereo provides so much as the technologicalmanner in which it provides the service. We conclude that those differences are not adequate to place Aereo's activities outside the scope of the Act". Aereo therefore infringed the copyright of the TV broadcasts it transmitted, and was held liable.

Justice Scalia in the dissenting opinion saw things differently, and equated the service to more of a library card rather than an on-demand video service, as users access freely available content through a small antenna. The service is not automatic, and wholly relies on the user, furthering Justice Scalia's opinion. He outright rejects the majority's opinion on Aereo's potential performance, stating that "...Aereo does not “perform” for the sole and simple reason that it does not make the choice of content. And because Aereo does not perform, it cannot be held directly liable for infringing the Networks’ public-performance right".

The majority's opinion is an odd one, at least from the stand-point of argumentation. It relies heavily on Congress' intent, rather than the wording of the provisions. As was presented by Mitch Stoltz from SCOTUSBlog: "...the majority’s approach in Aereo transformed interpretation of the transmission clause into a common-law-style exercise in judicial discretion", leaving the provision very open to future application. Mr. Stoltz further argues that "[t]he opinion sets out guidelines that more closely resemble the open-ended fair use analysis, or perhaps the proximate cause analysis in a tort case", which one can wholly agree with. The future of the Transmit Clause remains less certain after the ruling, and its future effects on Internet service like Aereo will remain to be seen. Aereo for one will have to take steps and modify its service to remain usable.

Source: The Verge

Retrospective - What is an Invention? An Early Australian Perspective

When considering the humongous advances through invention humanity has undergone in its existence in this world, starting from the primitive inventions such as the ability to control fire to more modern marvels such as the Internet, one cannot be nothing but at awe with the collective capabilities of humans. Inventions themselves can cover almost anything when thinking in laymen's terms, but what amounts to an invention under law? In Australia this is judged based on the NRDC case, which has been discussed on this blog prior; however a case nearly 50 years earlier set the stage for NRDC which is often overlooked.

The case in question is Rogers v Commissioner of Patents, decided in 1910 by the High Court of Australia. The invention being dealt with in the case was a device or a contraption designed to burn down standing timber, causing only a segment of the bottom to burn, thus felling the tree once burned sufficiently. The device used kept the burning piece of wood used to burn down the tree in constant contact with the tree through a tripod of sorts (two forked pieces of wood) which rested the burning piece of wood against the base of the tree at an angle. Due to this the smaller burning piece of wood would fall towards the base of the tree as it was heavier, keeping it in constant contact with it as desired. 

Much like the aforementioned NRDC case the question at hand for the High Court of Australia was whether this device would fall under the 'manner of manufacture' requirement in the Statute of Monopolies 1623. Chief Justice Griffith contemplated the phrase's meaning in the majority decision, seeing that the word 'manufacture' can apply both to the product itself or the manner in which it is produced. He further distinguished that mere new ideas themselves will not be sufficient to be patentable, drawing from the case of Harwood v Great Northern Railway Co: "...you cannot have a patent for a well-known mechanical contrivance merely when it is applied in a manner or to a purpose, which is not quite the same, but is analogous to the mariner or the purpose in or to which it has been hitherto notoriously used". His Honor clearly refers to the use of the two forked sticks in the device in question as to whether they would fall under such a definition. In further explaining his position, his Honor referred to the case of Lane Fox v Kensington and Knightsbridge Electric Lighting Co: "A patentee must do something more; he must make some addition, not only to knowledge, but to previously known inventions, and must so use his knowledge and ingenuity as to produce either a new and useful thing or result, or a new and useful method of producing an old thing or result".

Joseph was confused as to how to use the device

As said above, the use of a very primitive device, clearly already known, would be hard-pressed to fall under the definition of a manner of manufacture under his Honor's considerations. His Honor does go into more detail applying the aforementioned precedents in the patentability of new ideas: "There may... in some circumstances be a patentable invention if the discovery involves novelty in the use of a known thing as distinguished from novelty of purpose or if any new modification of the thing or any new appliance is necessary for using it for the new purpose". In his mind a tripod, as the two sticks served as, did not fall under this doctrine, as the device was not a modification of the conventional tripod nor was there a new appliance; the sticks merely served as a tripod even under the new use. His Honor dismissed the appeal on these grounds.

Justice Isaacs showed a different approach, giving a dissenting opinion. In his Honor's mind new uses for old apparatuses could attract patentability, quoting a number of cases, the more illustrative of which is the House of Lords decision of Patterson v Gas Light and Coke Co: "...if by reason of knowing the theory he [the appellant] is enabled to make some improvements he may take out a patent for those improvements, but he cannot take out a patent to prevent others using what they had used before, though only empirically". In his Honor's mind the use of the tripods in this manner would be patentable.

As one can see the old views of what can be considered an invention, or a manner of manufacture, showcase themselves to be incredibly archaic, although still very useful in further considerations. Rogers v Commissioner of Patents was used extensively in NRDC, and therefore merits discussion, but it's application in today's patent law can be said to be minimal at best. Regardless, this case is still overlooked, and does give more insight to the origins of modern patent laws and their application.

Streaming TV Does Not Violate Copyright

In a time when services like Netflix and Hulu are showing the cable companies what's what through convenience, choice and pricing, one would imagine there would be no need for people to stream content outside of a wide array of services enabling you to watch almost what ever you want, when ever you want. This however, is a reality, and access to content is still tough for some either due to monetary or because of regional restrictions.

A website, Aereo, operates by receiving TV signals and then converting them into a different format, allowing subscribers to watch TV shows on-demand through their service via the Internet for a subscription fee. In this manner, the service is much alike Netflix; however allowing you to watch recently aired shows as opposed to entire seasons once on offer via Netflix. Aereo does allow you to watch live TV as well as programs which have been recorded once they have aired. Two media companies, Hearst Stations and WCVB-TV, objected to this and sued Aereo for copyright infringement.

In a recent ruling, the District Court of Massachusetts had to decide whether Aereo's activities would indeed infringe copyright under section 106; more specifically the ability to perform (i.e. transmit) the copyrighted content publicly. The Court in its assessment had to determine whether the service would be a remote recording service, much akin to a DVR in a home, drawing from the case of Cartoon Network v CSC Holdings (Cablevision), where a remote DVR service was seen to not infringe copyright as the recorded programs was not deemed a 'public performance'.

Some love streaming TV a 'bit' too much

Clearly one can draw also from the US view of fair use, more specifically time shifting, where a viewer can record a show to view on a later date and that act would not infringe copyright. Much like the case of Sony Corporation of America v Universal City Studios, the user selects which programs it would like to record on Aereo, therefore arguably time shifting the content they wish to view. The case at hand however did not touch upon this fact. Hearst was also unable to show irreparable harm resulting from Aereo's service, only citing the possibility of harm through the possible loss of cable subscribers and their bargaining position when dealing with cable companies; an argument which was rejected by Justice Gordon, stating that it would "...take several years to materialize".

The Court did consider other factors, but these remain the most relevant. In concluding the Court saw that Aereo did not infringe copyright through their service, although different courts in the US have seen this to be different. The plaintiffs have since sought the right of appeal from the US Supreme Court, attempting to have them finally decide this issue, due to other services like Aereo having been shut down in New York and California. The Supreme Court, should they choose to take the case on, would have to decide "...whether the performance of their copyrighted programming via Aereo is "public" and therefore prohibited by the copyright law, or if Aereo is engaged in tens of thousands of "private" performances to paying strangers".

Source: Gigaom

Color Me Purple - Cadbury Trademark Ends on Appeal

Colors have always been an interesting area of trademark legislation, and to the layman more often than not, something which proves to be inconceivable. In a world where distinguishing your goods from other similar ones is imperative, and can prove to be a vehicle of imitation if you are not careful (more of which can be read here). In the latter part of 2012, Cadbury successfully had their trademark on the color purple (a variant of the color to be more specific) upheld by the court, in the field of chocolate, which was subsequently appealed by the initial challenging party, Nestle.

On appeal, which was decided earlier this month, the court had a further look at the issue of whether the color purple could be trademarked in this instance. In the Court of Appeal's opinion the Hearing Officer, the initial body responsible for the approval of trademarks in the UK, erred in his decision to allow the color to be registered. More specifically, the error "...stems from the misinterpretation of the verbal description of the graphic representation of the mark for which application is made... i.e. being the predominant colour applied to the whole visible surface".

In the Court of Appeals judgment, the description given by Cadbury "...[when] properly interpreted, does not constitute "a sign" that is "graphically represented" within Article 2 [of the Trade Marks Directive 2008/95/EC of 22 October 2008]. If the colour purple is less than total, as would be the case if the colour is only "predominant", the application would cover other matter in combination with the color, but not graphically represented or verbally described in the specific, certain, self-contained and precise manner required". Due to the fact that Cadbury had used the word 'predominant' in their description, the description was not sufficiently clear to be accepted as a 'sign' under the UK Trade Marks Act 1994 and the EU Directive. Cadbury used the color purple in a multitude of products, associating other elements with it along with the color purple, thus creating a multitude of variants of that sign,  making the sign unclear.

Purple was George's favorite color. No one could've guessed.

To summarize the Court saw that "[t]o allow a registration so lacking in specificity, clarity and precision of visual appearance would offend against the principle of certainty. It would also offend against the principle of fairness by giving a competitive advantage to Cadbury and by putting Nestlé and its other competitors at a disadvantage". Clearly one can agree with the Court in their decision, as the registration of a color in itself is acceptable; however should it only be an element amongst other elements, it would not be a sign that distinguishes that product by itself. This is highlighted by such cases as Mars Australia Pty Ltd v Société des Produits Nestlé SA, where the color used was clearly the sign used (although the case in question did include other factors, such as the color's creation by Mars) and would distinguish the goods from others.

Source: Bloomberg

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.

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.

App Store Struggles End

Yet another chapter in the Apple litigation era came to an end roughly a week ago. The fight over the trademarked phrase "App Store" has raged between Apple and Amazon since early 2011,  having had its ups and downs during the two years. The matter ended once Apple approached Amazon with an agreement to end all current and possible future disputes over the term, effectively allowing both parties to use the phrase as they please. The case, set to have a hearing in August of this year, was subsequently dismissed by Judge Hamilton in the Oakland District Court.

A cavalcade of time-wasting apptastic action

For a bit further exposition in where the situation stood prior to this settlement, Apple own the trademark for the name "App Store", having applied for it in 2008. The name was contended as being too generic, covered under 15 USC § 1064, where the registration of a trademark can be cancelled should it stop from distinguishing the goods of the original registrar from others which are similar. Arguably with other companies such as Amazon and Microsoft using similar names in similar services offering applications for their respective operating systems, the term has indeed become generic and purely descriptive of a digital store-front for applications. As in their statement to Reuters, Apple will now have to distinguish its services from the rest of the pack purely on merit, not by the protection of a specific name to those services.

Only a few months ago in Australia the same trademark was rejected by the Australian Trade Marks Office due to it being merely descriptive and didn't distinguish Apple's services from their competitors. The application was rejected under the Trade Marks Act 1995. Instead of the name being considered generic, as was contended in the US, the mark was seen to only descriptive a store where applications were sold, and only functioned in conjunction with other well-known marks such as "iPod" or "iPhone"; the name itself didn't sufficiently stand on its own to distinguish Apple's store from others.

What this does is close the contention over the mark so dearly held on by Apple. From a legal stand-point Apple's decision to end the legal process was a sensible one, with a very high probability their mark would have been invalidated by the courts. Prolonging the process would have cost both parties more and yielded little or no reward in the long run. After all, a simple name change would probably have not pushed customers away from Amazon's services to use Apple's instead.

Source: Reuters

Retrospective - IP Addresses and Identification of Copyright Infringers

One of the more controversial aspects of the Internet is often thought of being the anonymity it offers to users. With nothing to particularly identify you as an individual, unless you provide specific information pertaining to who you are, the Internet often brings out both the good and bad in people; "Surely I can download this album or tell this person off, seeing as no one will know I did it?" There are methods of identifying someone, but as they stand today they are ineffective in pin-pointing exactly who did what, only giving an indication as to who might have been the infringer. The more predominant of those is the use of Internet Protocol addresses, or as they're more commonly known as; IP addresses.

"No Dale, you don't need to wear a balaclava on the Internet"

An IP address when put into simple terms is an indicator of a network and a device connected to that network. This is represented in a numerical fashion, such as 123.456.78.9. The numbers themselves represent the host network used and the location of that network. This information can be used to locate a person who has for example infringed copyright or done other things online which are deemed illegal. The problem with this method of identification is that it does not exactly tell us who has committed the infringement, but merely the location of the act. This essentially means that if Child A downloads music using his home Internet connection, shared by his Parents and Child B, the authorities will not be necessarily able to tell who in that household has committed that offense. This rough information can potentially be used in more questionable litigation processes, but has been used successfully in the prosecution and identification of individual in such proceedings.

"Sshh, I'm hunting infringers"

A case which dealt with the usability of IP addresses as a method of identification happened in early 2012 in the United States. K-Beech v John Does dealt with anonymous users (80 in total) who downloaded several videos of a not-so-family-friendly variety using BitTorrent technology, a work which was owned by K-Beech Ltd. In their application K-Beech alleged that the John Does had infringed their copyright by making an illegal copy of the work. These users were only identified through their IP addresses, and the court in its judgment deliberated whether it could be an accepted form of identification in such cases. Judge Brown made an interesting analogy in the matter: "An IP address provides only the location at which one of any number of computer devices may be deployed, much like a telephone number can be used for any number of telephones... it is no more likely that the subscriber to an IP address carried out a particular computer function – here the purported illegal downloading of a single pornographic film – than to say an individual who pays the telephone bill made a specific telephone call." This brings to light the point made above as to the ambiguity to who committed the given infringement in an Internet network. Judge Brown further expanded that with the ever-growing popularity of wireless connections the accuracy is fading even more, due to the even wider access to any given network by a larger number of individuals. In evidence to this the court drew on a previous judgment where it was noted that in 30% of cases the names which were given as the identified users were incorrect as to the infringing person.

What is important in the final observations of the case is the acceptance by the judiciary that an IP address can no longer effectively identify a user committing an infringement. Along with this proxy servers (a method where all network use is routed through a third-party server somewhere else, even on the other side of the globe) have even further blurred the line of actual user and who can be identified based on IP addresses alone. Judge Brown perfectly summarized this point in his conclusion relating to this point:

"In sum, although the complaints state that IP addresses are assigned to “devices” and thus by discovering the individual associated with that IP address will reveal “defendants’ true identity,” this is unlikely to be the case. Most, if not all, of the IP addresses will actually reflect a wireless router or other networking device, meaning that while the ISPs will provide the name of its subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper."

Since the case there have been other instances where the courts have further affirmed this point and can be seen as to have closed this avenue of identification for good, at least in the US. What can be said is that this is a positive development, since the ambiguity of the true user can lead to problems for people who have absolutely nothing to do with the matter. Of course one has to emphasize individual responsibility and the need for measures to prevent such uses, but with evidentiary standards being much higher in criminal proceedings for example, it would seem odd that such an inaccurate method of identification could have been accepted.

Happy Birthday to Us All? The Challenge Over the Well-Known Birthday Song

If there ever has been a song that most people on Earth have heard, it's the one sang in celebration of one's birthday; Happy Birthday to You. The copyright owners of the song, Warner/Chappell Music, have kept the rights in a tight grip, charging as much as $1500 dollars for a single use of the song, but recently the rights to the song have come into question.

In a recent court filing, Jennifer Nelson, an American film-maker, is seeking for the song to be declared to being in the public domain (and having been there since the 1920s) as opposed to under the ownership of Warner/Chappell. If the song were to be declared to being in the public domain, anyone and everyone could be free to use it as they wish.

Birthdays aren't always so happy

The song's origin is in the old folk song of 'Good Morning to All', published as far back as 1893.The rights were subsequently bought by several entities, originally from the authors Patty and Mildred Hill, ending up with Warner/Chappell in 1988. The song brings in 2 million dollars per year for the owners through licensing fees.

Should the courts not make the declaration being sought, the copyright for the song should end sometime in 2016 in Europe, due to the passing of Patty Hill in 1946 and copyright terms extending to 70 years after the death of the last author of the work. Should a European nation have a longer period, the changes made under European Union legislation will not affect that period and the song will enjoy copyright protection for that extended period. In the United States the song's copyright should have expired in 1991, however the period was extended twice; initially by the Copyright Act of 1976 and further by the Copyright Term Extension Act and protection should therefore extend till 2030.

What Jennifer Nelson is arguing in her case is that the song belongs to everyone, and should not be owned by any entity. When thinking of the important role the song plays in a very simple event, the celebration of someone's birthday and the commonality of the song's use, she could have a solid case. Unlike trade marks, copyright doesn't face the effects of genericization, where the trade mark has become eponymous with the product it represents - in other words the name has become intrinsically what most products in that category are called. Even if a song is deemed to being incredibly common or 'everyone's', it is still protected by copyright.

With the great extensions of American copyright terms and the strict nature of copyright as a means to protect your intellectual property, I have my doubts about the song being in the public domain. Albeit not the exact same case, the popularity or commonality of a book doesn't automatically place it out of strict protection and into the free use of the public, so what would make a song any different?

Source: Thomson Reuters