Conflicted Owners - Intellectual Property Law and Ownership of Property

Saying something is truly yours is a rare thing these days, especially with the seemingly impossible future of house ownership in a lot of cities (especially for us here in London), and people often derive a huge sense of achievement and gratification from the fact that they've bought something and it is finally theirs to keep. Intellectual property law has rarely concerned itself with the ownership of physical things, but protects the underlying works rather than the tangible object itself, with the exception of counterfeit goods, for example. That said, there often can be confusion among the less IP-savvy of us with this distinction, but after a recent news article this misconception might not be too far off anymore. This begs the question: can intellectual property law interfere with your ownership of your things?

In a recent letter to the US Copyright office, John Deere, one of the largest manufacturers of agricultural, construction and forestry equipment, potentially put in doubt the ownership of individual's or companies in those fields over the equipment they have purchased. John Deere's comments come in the wake of an inquiry into the Digital Millennium Copyright Act, potentially allowing for the circumvention of technological measures, currently prevented under 17 USC 1201, under certain classes, for example software relating to cars or other vehicles or equipment. This exemption would allow for the breaking of software protection to aid in the diagnosis and repair of vehicles using that software, especially when it comes to non-licensed, cheaper mechanics than those licensed by John Deere, or even the modification of said software for your own purposes.

John Deere's position regarding the proposed changes is quite strong: "Circumvention of the TMPs for Class 21 will make it possible for pirates, third-party software developers, and less innovative competitors to free-ride off the creativity, unique expression and ingenuity of vehicle software designed by leading vehicle manufacturers and their suppliers". Admittedly, allowing for tinkering and free access to software does provide risks (malfunctioning of the vehicle etc.), but allowing for cheaper maintenance and possible customization potentially outweighs those issues. As for piracy, traditional copyright would still protect the software from being used by competitors or 'pirates', since the exception would only apply to repair, modification and improvements and not misappropriation or its blatant copying.

Brick was trying to find the software on his car, but couldn't

How does copyright impact, at least in John Deere's argument, ownership of your vehicle? Their argument is that "[a] vehicle owner does not acquire copyrights for software in the vehicle, and cannot properly be considered an "owner" of the vehicle software". From a plain understanding of copyright law, the argument runs true; when you purchase a piece of software, you don't 'own' the software itself per say, but garner a licence to use that software. Even with that in mind, the end-user does, and should, have rights in their use of the software, albeit not be allowed to make illegal copies of it and distribute it as they wish. John Deere acknowledge this: "...the vehicle owner receives an implied license for the life of the vehicle to operate the vehicle", which is true, at least in terms of the software. One could say it prevents the proper use of the car or its auxiliary uses (should the software fail or be irreparable due to age or lack of repair facilities), but one has to remember to distinguish ownership of the tangible from the intangible. Your car is still your car; the software isn't.

The United Kingdom does not have a similar set of broad protective measures against the circumvention of technological protection, although section 296 of the Copyright, Designs and Patents Act 1988 does prevent an individual from using devices to circumvent such protections (for example using 'mod-chips' to play illegal copies of video games on their consoles). Software is very much protected in the UK under copyright (more on which can be found here), and alleged misuses of vehicle software would very much be protectable against.

Copyright is a complex beast, and it does prevent one from enjoying the things you buy in the manner than some would hope to (i.e. as if they own the right to distribute the content etc.), but does not prevent you from using it in a legitimate, allowed fashion. However, do other IP rights prevent you from using your hard-earned items?

Trademarks apply to the sale of products, aiming to identify those of a certain quality or pedigree, and don't lend themselves well to the interference of ownership. Once you buy a bottle of Coca-Cola (or any brand, per your preference), the company cannot prevent you from using it to trick your siblings, or to make a mess; qualities it would possibly not enjoy associating with its brand. There has been an instance where Deadmau5, a popular electronic music producer, was told by Ferrari to remove unwarranted modifications to his Ferrari Spyder (such as changing the logo to a jumping cat one), and even though, on the face of it, it can seem like an interference with his right to use his own property, one could say the issue was probably more contractual than IP related.

Patents, similarly to trademarks, only really apply in a commercial context, and don't provide an avenue through which a patented item could be prevented from being used in a particular way. Even if your vacuum cleaner has a patented method of collecting refuse, you can still vacuum your pets without a worry or fear of interference from your vacuum brand. Any illegal copying or misuse of patented material would clearly be covered, which steps beyond the bounds of everyday use of said items.

That being said, John Deere and the other parties rallying against an exception to circumvent car software are not, as the article cited here would say, interfering with your ownership of your own items or seeking to do so. The protection of your software has been a long-standing ability within the world of IP, and their aim is not to prevent you from using your tractor that you have rightfully purchased. Whether the exception is introduced or not remains to be seen, but this writer would like to assure you your tractor is still very much yours to keep, at least for now.

Source: Wired

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

Retrospective - IP Infringement and Free Speech

Almost as holy as expression in its many forms, is the fact that, in most countries at least, expression is largely free of limitations, and that even dissenting opinions can, and should be voiced. With this vast freedom, especially in the United States, one can argue that the freedom of expression can be misused and utilized for nefarious means, or to harm others or their more intangible assets such as reputation or notoriety. In any instances where one's reputation is harmed through the freedom of expression (assuming that expression falls within the letter of the law), those parties would clearly want to prevent that speech through any means necessary; even more questionable ones. The attempted curtailment of speech has been discussed on this blog before, but that still leaves the question of can intellectual property rights be used to prevent freedom of expression? A case in the US Court of Appeals attempted to face this very question some decades ago.

The case in question was Rogers v Grimaldi, decided in the late 80s, which concerned a movie made by Frederico Fellini for the defendants in 1986. The subject matter of the movie, wonderfully titled as "Ginger and Fred", were two fictional cabaret dancers, Pippo and Amelia, who were known for their imitation of both Ginger Rogers (an Academy Award winning actress in the 1940s, and the plaintiff in the case), and Fred Astaire, who Ms. Rogers often co-starred with in various productions. The cabaret dancers were known as "Ginger and Fred" to their viewers in Italy, and the movie's title, and subsequent plot, refers to their reunion after years of retirement. After distribution within Europe and the US the movie was received rather negatively, and undoubtedly in the wake of this negative publicity, Ms. Rogers sued and claimed false designation of origin under 15 USC section 1125 and a violation of her common law rights to publicity.

Effectively what the case is assessing is a balance between free speech and the protection of an individual's (or entity's) rights in their trademarks, albeit more in the context of passing off than registered trademarks (more on which can be found here). Justice Newman presented the question well in the majority's opinion: "Poetic license is not without limits. The purchaser of a book, like the purchaser of a can of peas, has a right not to be misled as to the source of the product. Thus, it is well established that where the title of a movie or a book has acquired secondary meaning — that is, where the title is sufficiently well known that consumers associate it with a particular author's work — the holder of the rights to that title may prevent the use of the same or confusingly similar titles by other authors".

Frank was worried he would not be heard

In answering this question, the Court of Appeal approached the matter through a balance of public interest and those of any affected parties: "We believe that in general [15 USC 1125] should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. In the context of allegedly misleading titles using a celebrity's name, that balance will normally not support application of the Act unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work". What Justice Newman's opinion states, is that the potentially misleading title has to apply to the work it represents, or in other words, has to showcase or illustrate the work somehow, and not merely mislead a person to pay for the work thinking it is connected to a potentially affected party such as Ms. Rogers. Arguably this approach is sensible, as the use of IP rights to protect those rights has to be legitimate, just as much as the use of those rights in conjunction with newer works is. Free speech should be promoted through legitimate use, and not stifled merely to further shallow interests such as fame.

The Court of Appeal lengthily discuss the nuances of this approaches application, yet, what remains relevant is the use and applicability of those rights to the underlying work, and the legitimacy of that use. Ms. Rogers relied heavily on survey and anecdotal evidence in establishing a claim of false advertising of designation of origin; however this was dismissed handily by the Court: "...the title "Ginger and Fred" surpasses the minimum threshold of artistic relevance to the film's content. The central characters in the film are nicknamed "Ginger" and "Fred," and these names are not arbitrarily chosen just to exploit the publicity value of their real life counterparts but instead have genuine relevance to the film's story". No amount of confusion, arguably at least, will counteract freedom of speech, so long as the use of a name or names is relevant to the underlying work. As such the Court of Appeal dismissed Ms. Rogers' appeal.

Freedom of expression poses an interesting balancing act of human rights and commercial interests (or even other human's rights against said expression). The European Court of Human Rights weighed on the issue of copyright interfering with freedom of expression in the case of Ashby Donald and Others v France (case text only in French), and deemed that "...a conviction based on copyright law for illegally reproducing or publicly communicating copyright protected material can be regarded as an interference with the right of freedom of expression and information under Article 10 of the European Convention". Even so, the case saw that the copyright interests asserted did trump the appellants' human rights, as their interests were purely commercial and did not contribute to a specific expression or discussion of opinion. As such, the case can be seen to align with the view that intellectual property rights should not hinder legitimate expression, but can, and should, be used to protect commercial interests.

Overall one can appreciate that freedom of speech is seen as a valuable tool for discussion and a strong point of public interest, yet it should not overshadow the protection of some rights, at least in some instances. A blatant use of copyrighted material, or trademarks, for the purposes of making a quick buck should be dissuaded; however one man's folly should not silence a nation.

King.com Trademarks "Candy" - Discussion About the Mark

Mobile games have become huge in the last 10 years, with app sales having been predicted to reach 26 billion dollars in 2013 alone, making the field of mobile gaming incredibly lucrative. Examples like Angry Birds and Clash of Clans have shown that great monetary incentives lie in the production of simple, time-wasting games for your commute, and many others have succeeded in doing so as well. A recent example of immense success is a game called Candy Crush Saga made by the developer King.com, which in its simplicity consists of the alignment of icons in particular patterns, scoring points by destroying the patters and furthering your progress in the game. The game has been downloaded over 100 million times on the Android platform, while achieving great success on its iOS counterpart as well.

In a recent move, King.com have registered the term "candy" in relation to games and clothing, having been marked for approval in late January. This has created quite the uproar in the mobile gaming community, and I felt it would be appropriate to address the situation from a more legal stand-point given the discussion surrounding the potential mark.

Candy Crush, the analog game

In the US a trademark, under 15 USC § 1127, is defined as "...any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods". The mark has to be subsequently used in commerce, something which King.com clearly have done in using it in the name of a commercial application, and it has to be distinctive in order to distinguish the application from others in the category it is registered in. Distinctiveness has been divided into four categories in relation to trademarks: arbitrary/fanciful, suggestive, descriptive, and generic. How each of the aforementioned categories distinguish the goods or services varies: "If a mark is categorized as either arbitrary/fanciful or suggestive, it is considered to be inherently distinctive and exclusive rights to the mark are determined solely by priority of use. A trademark that is categorized as descriptive is only protectable as a trademark if it has acquired a secondary meaning in the minds of the consuming public. Secondary meaning is also necessary to establish trademark protection for a personal name or a geographic term. Generic terms are never eligible for trademark protection because they refer to a general class of products rather than indicating a unique source. A mark may be generic ab initio and refused registration, or it may become generic over time through use".

As can be observed from the above, King.com's alleged trademark could be seen as legitimate under law, assuming it satisfies all of the requirements. This writer for one would argue that the mark would fall under either a descriptive mark or a generic mark, which leaves the mark under some level of scrutiny should it face litigation. Clearly the term "candy" is not inherently distinctive awarding it clear protection, especially since there are prior instances where the term has been used in conjunction with games. The connection between the mark and the goods or services would have to be assessed by the courts on an individual basis, as there is no set metric to assess this.

So can King.com enforce their trademark, and above all else, should they? This would be yes, at least from a legal stand-point. If an entity does not actively protect their trademarks they will lose them. In the game company's position the enforcement of the marks is the only option. They have already begun to enforce the mark to an extent, at least against other game developers. The mark will undoubtedly be heavily challenged, especially due to its 30-day contest period, and could be revoked as a result.

The discussion around the mark can be argued as being legitimate, and should pose some critique about the laws surrounding trademarks. In the same vein we should not ban all 'generic' terms outright, as they can still easily distinguish goods or services given the right type of goods or services and the right area where they operate. King.com's intentions are legitimate, which is to protect the intellectual property rights they own; however that does not mean they should not be open to criticism as a result. Some of the aforementioned discussion has been riddled with inaccuracies or even outright hyperbole, prompting this writer to give some insight into the matter. Even so, I for one will follow this with curiosity, and enjoy the fact that situations like this bring intellectual priority matters into a more of a public sphere, prompting discussion.

Source: Android Police