Posts By Herminia Fleming

When Is A Product Not Protected By Copyright Law

Copyright law epitomizes the very idea of dispute, primarily because it is applied in so many situations that seem absurd. Believe it or not, the song “happy birthday” was held under copyright for a long time, and could not be used commercially without the royalty requirement kicking in–until a judge ruled against the copyright protection for that song. That leads to a good question: when is a product, service, or artist’s work not protected under traditional copyright law?

Freedom of Expression. If Americans are obsessed with anything above all else, it’s our Constitution’s Bill of Rights. We have the First Amendment right to freedom of speech, under which falls our freedom of expression. Copyright law draws a line between expression of concepts or ideas, and the very nature of those concepts or ideas.

For example, the law protects the title Harry Potter from those who would wish to steal its characters. But another author could steal the plot and narrative almost entirely, expressing both in his or her own words and using different characters. That’s why lawsuits from one artist against another for stealing plot are so difficult to win.

Expiration Dates. Ah, but nothing lasts forever–not even copyright. You’ve probably heard of the public domain, which is a collection of works, the copyrights of which have long since expired. Expiration is dependent on the type of copyright. When most authors die, the copyright under which their work falls usually expires after 70 years have elapsed.

Fair Use. We enjoy other freedoms, which is why satirical shows like Family Guy or South Park are so successful. They use themes and ideas and even exact names from other shows we love, or rip apart various organizations and institutions to expose hypocrisy. They’re allowed to do that because criticism falls into the category of fair use. Other topics that fall into this category are education, research, and commentary. That’s why we can also teach Harry Potter in a college course without first obtaining the rights.

According to the Copyright Act, protections are not included for a number of works, including ideas, procedures, systems or processes, principles, or discoveries. It doesn’t matter how well you elaborate your work, you can’t copyright facts once publication occurs. You can only keep them to yourself beforehand.

Groupon Patent Dispute Ends With $57 Million Settlement

IBM has a patented e-commerce technology which the company believes Groupon stole and used without permission. It launched a massive lawsuit against Groupon through a Delaware court in 2016, asking for a whopping $167 million to cover damages. The reasoning? IBM said that its technology was important to developing the Internet and could be licensed out to other companies. The tech was never licensed to Groupon.

Part of the case was dependent on a couple of IBM patents important to an Internet building block called Prodigy which was built and developed in the 80s. IBM has licensed the relevant tech to companies like Alphabet, Amazon, LinkedIn, and Twitter. The revenue IBM takes from licensing this patent amounts to a shocking $1.2 billion. Of course, none of that came from Groupon. Because Groupon used the technology without paying up, IBM’s bottom line was damaged. The $1.2 billion figure could have been higher.

Groupon’s lawyers purported that there was never any evidence of wrongdoing, and requested that a judge dismiss the case. It didn’t happen.

The case was ultimately decided when a jury agreed with IBM. Groupon was told to pay an estimated $83 million to cover IBM’s loss.

Of course, that wasn’t all. During the settlement process, Groupon and IBM made a deal to license technology over an extended period of time. IBM’s general manager used the circumstances as an opportunity to promote the growth of IBM’s intellectual property licensing, and why not? IBM won.

Groupon probably wasn’t happy with the eventual agreement, but the company is certainly pretending it is. Its vice president of global communication, Bill Roberts, acknowledged that the agreement will help ensure that Groupon can continue to provide a wealth of products and services to the consumers who want or need them.

Over recent years, the number of IP disputes have continued to increase. In 2001, there were 1557 cases reported. That number skyrocketed to a high of 3074 in 2017. With intellectual property becoming more important, the number of cases will likely continue to go up.

Nintendo Is Playing A Legal Game Now

The Internet is forever.

As with most things, the Internet is digital. Digital is virtually everything in our world these days, from the worldwide web to computers to smartphones to music and movie files, to entertainment, to appliances – even to fast food restaurants (see kiosks and short-order robots).

Nintendo of all companies should have an understanding of this. The Japanese video-game developing firm most known for its game consoles and the Donkey Kong game franchise is learning the hard lesson that its games are digital and thus are subject to being used and duplicated in ways they may not have expected. Now that it knows, the company has filed lawsuits against the operators of a couple of websites that somehow got hold of ROM (read-only memory) files of popular Nintendo games and has offered up more than 50 million downloads to 17 million monthly visitors.

Nintendo’s action has already suspended the operation of the two websites, which are claimed by Nintendo to have gained unauthorized access to the TOM files contained inside game cartridges, duplicated them and offered them to people through their websites, which users could then upload to their computer or mobile device and play Nintendo games through what is called n emulator program. This allows people to play Donkey Kong, for example on their smartphone or tablet and skirt around having to pay for a cartridge or uploading something from an app store.

These websites are being accused of piracy as part of claims of copyright and trademark infringement, as it is believed that these pirated files are being offered free of charge to any visitor to the sites. This does make one wonder that if Nintendo wins the lawsuits how the company will be compensated other than forcing the shutdown of the websites and ordering the pirated files to be expunged.

There is another question about how long this piracy has been going on in that 60 million downloads have been executed, and the two websites have had monthly visitors combined totaling more than 15 million. Has the damage already been done that it’s irreversible? How much potential loss to Nintendo might this be?

One thing is for sure, it is cases like this that may tend to bring about discussion as to whether video game companies should work together to develop a sharing platform similar to what is done for music and movies – something called a “freemium” service such as Pandora or Spotify for music, but similar to video games so companies can mitigate the need for piracy and make a little money while offering samples of their titles for the more mobile society where I currently. Needless to say, intellectual-property experts and observers will be watching this case unfold very carefully to see how the industry transforms and adjusts after a sizable threat to its bottom line such as piracy websites.

The United States Postal Service Owes $3.5 Million Over Statue Of Liberty Snafoo

The United States Postal Service (USPS) was ordered by Judge Eric Bruggnik of the U.S. Court of Federal Claims to pay Robert Davidson $3.5 million in damages for copyright infringement.

Back in 2010, USPS released a new “Forever” stamp that featured Lady Liberty. Unfortunately, the Statue of Liberty in the image was not the one found in New York but from the replica statue at the New York, New York hotel in Las Vegas, Nevada. The Post Office didn’t realize the mix up until several months later, but due to the fact that they were a best seller continued to print the stamps well into 2014 – selling a total of 4.9 billion stamps.

The sculptor Robert Davidson of the replica Statue Liberty argued that the replica is different enough from the famous NYC landmark that it should be classified as an original art piece. “At the time of this replica statues’ unveiling many observers thought the replica was fresh-faced, sultry and sexier than the original”, the suit said. And since the stamp featured the replica’s face Judge Bruggnik agreed.

“The portion used was entirely of what we consider to have been the original work contributed by Mr. Davidson,” the judge wrote. “The government’s only real defense is that its use did not particularly harm plaintiff’s business as an industrial sculptor. That may be true, but we also note that it certainly did not benefit him. The Postal Service offered neither public attribution nor apology.”

The Postal Service even when fully aware of the error continued to promote and sell the stamps. A USPS Spokesperson was reported saying on CNN back in 2011, “We really like the image and are thrilled that people have noticed in a sense. It’s something that people really like. If you ask people in Vegas, they’re saying, ‘Hey that’s great. That’s wonderful.’ It’s definitely injected some excitement into our stamp program.” A USPS Spokesperson also told The Washington Post in 2013 that the office would have chosen the image anyway even if they were aware of the error when first published. It’s a sad day for Odessa, Texas.

When Protecting Your Intellectual Property Goes Wrong

Creating art is difficult. Art is your baby and when you see other people attempting to recreate or steal your art, it hurts. Such was the case for French Artist Orlan. Back in 2013, Orlan filed a claim of intellectual property infringement against pop-singer Lady Gaga. Orlan claims that Gaga drew inspiration from two of her characters from previous art videos and used them in her Born This Way music video.

In the end, the court did not rule in Orlan’s favor. French law states that artistic ideas are not allowed to be copyrighted but does offer some protection of key concepts and innovations. Orlan claims that Gaga used her imagery to ride off her coattails – a term in French called “parasitisme”. The court ruled that the artists occupy different spaces and there is no confusion between Orlan and Lady Gaga (when Lady Gaga was asked about Orlan she replied, “Who’s Orlan?”). The court also stated that Lady Gaga did not benefit in any way from a casual association with Orlan. Orlan also failed to provide any evidence that Gaga sought to take advantage of Orlan’s creations.

Orlan filed an appeal and subsequently lost. Orlan is now obligated to pay the legal fees for Lady Gaga and her management company Universal Music Group. She must pay $12,000 to Lady Gaga and $6000 to Universal Music Group totally $18,000. This outcome is highly disappointing. Here is a great article that compares the imagery between the two artists: https://www.theatlantic.com/entertainment/archive/2013/06/meet-visual-artist-who-says-lady-gaga-stole-her-look/314215/

What do you think? Do you think the courts in France ruled correctly?

Hey Knock-Offs! Knock It Off!

English Brand Burberry Files Multi-Million Dollar Lawsuit Against American Retail Giant Target For Claiming Counterfeiting and Trademark Infringement

It isn’t the first and won’t be the last that the Brits and Americans get into an ugly battle. While this might not be on the same level as the Revolutionary War, this legal battle without a doubt is tumultuous.

On Wednesday, May 2nd, in a New York federal court, Burberry filed a lawsuit against Target for selling “blatant reproductions” of Burberry’s iconic check trademark for over a year and have “repeated, willful, and egregious misappropriation of Burberry’s famous and iconic check trademarks.”

Target was given a cease and desist letter by Burberry noting that is had exclusive rights over the checkered pattern. But this did not stop Target from releasing many products with the pattern including eyewear, luggage, and water bottles. Fast forward a bit and Target just released the scarves pictured above, which drove Burberry to file their lawsuit stating,

“the fact that Target continued its unlawful conduct by selling the infringing scarves within months of receiving Burberry’s cease-and-desist letter … demonstrates Target’s intent to continue selling infringing merchandise without regard for Burberry’s intellectual property rights.”

Burberry claims that Target’s scarves are of an inferior quality to that of their own brand adn will ultimately cause confusion amongst customers and customers will likely be misled to buy unauthorized Burberry products. Burberry also claims that since Target has a reputation of collaborating with fashion designers, it’s not difficult to confuse consumers that these are Burberry products.

For more information the case is Burberry Limited (UK) et al v. Target Corporation et al, 1:2018-cv-03946 (SDNY).

A Revolution In Retail – The Patenting Of The Magnetic Stripe Card

It is no exaggeration to say that the magnetic stripe card transformed the world of retail (and financial services). The inventor of the technology, Ron Klein applied for a patent on the technology way back in 1966 – and today he is frankly amazed that the technology has been around for so long.

However, when he invented the technology in the mid 1960’s the concerns that he was addressing were slightly different from the concerns of today’s world. Yes, fraud was an issue, in those days clerks were handed a book of cards that were linked to fraudulent transactions. They had to manually check to see if the card presented by the customer had not been used for any of these transactions. This slowed the checkout time considerably and led to enormous customer frustration.

Klein wanted to automate the system so that salespeople could simply key in a number and get a result – but he thought further than that – what would happen if a computer could read the card itself?

He had tried a number of ways to get the magnetic strip to adhere to the card – but all eventually led to the degradation of the strip – which then became unreadable. He eventually took a variety of glues and other adhesives home with him one evening to continue work. He explained the problem to his wife who had been ironing that day – she suggested ironing the strip onto the plastic card – and this worked perfectly, the heat from the iron was just enough to form a perfect bond between the plastic and the magnetic strip.

Klein patented the idea in 1969. But another company, IBM was working on a different angle. The designers at IBM did not even bother to patent the magnetic strip idea – they wanted to capture the market for the computers and readers of the strips – and the idea paid off handsomely. An engineer for IBM when interviewed in 1990 said that for every dollar that IBM had invested in the strip technology the idea of supplying the background technology of computers and readers had returned $1,500.

The magnetic stripe technology transformed financial services and the retail experience in the United States and later elsewhere in the world. Consumers could quickly and easily make purchases and just as easily fall into debt. By 2016 consumer loans and other credit debt stood at $3.5 trillion.

What Happens To Your Patent When Your Business Dissolves?

If you own a medical malpractice business and have a patent, you are probably wondering what happens to your business patent after your company is dissolved. After all, your patent is an important part of what you do. If you lose your patent, you might not be able to stay in the same line of business and your entire future could be ruined. Read on to learn about what happens to your patent when your company dissolves.

The patent creator usually assigns the patent to a company. When a business dissolves, the assets of the company are going to be distributed. If your company already had the patent prior to the company being dissolved, then the patent goes back to the original creator.

If you created the patent and registered it and the company was yours, then you will still own it. The patent always stays with the creator always. A simple way to look at it is that a patent is assigned to a person, not a business. The person can then assign their patent to a company or corporation. This turns the patent into an asset of the company. However, if the company dissolves the patent just reverts back to the person who assigned the patent.

Things can get complicated when a company dissolves and there are so many legal matters that have to be attended to. Things can be difficult to sort out which is why you are going to need legal help when your company is being dissolved. You are going to want to make sure that everything works out the way it is supposed to and that you are able to dissolve the company in the right way.

The patent is likely to be a big company asset so it is important that the patent gets taken care of the right way. When you dissolve a company you are going to be going through a difficult process. It is important to make sure that the patent issues are taken care of. When it comes to the patent, you can’t have any ambiguity. You must get the patent back to the proper person once the business is being dissolved.

Remember that time Nintendo Paid $30 Million for Patent Infringement?

You know what they say: you’re not really a company worth any money until someone is trying to sue you. Then again, it can be a stark reminder of how much more bigger companies stand to lose when they make a mistake or don’t look at the details. Maybe they should say that you’re not really a company until you’re too big to prevent mistakes that number way beyond what any one person could count. Is that what happened to Nintendo, though? No patent infringement case is simple–if they were, they probably wouldn’t end up in court.

When it comes to intellectual property, the court is where we go to determine precedent. These are complicated issues with murky, sometimes impossible-to-follow laws, and so it’s up to the judicial system to figure out the difference between right and wrong. In June of 2011, Tomita Technologies International, Inc. filed a claim against Nintendo because it believed the giant had stolen a patent for part of its 3D technology: “Stereoscopic image picking up and display system based upon optical axes cross-point information”, to be exact. Is that an accurate technical description of advanced 3D technology, or was someone on drugs? You decide.

The technology in question was novel because it didn’t require the use of 3D glasses to experience the effect–you know, the kind you find at 3D movies. Although the case description didn’t provide any background on how exactly Nintendo infringed upon Tomita’s creative tech, it doesn’t take a mad scientist to figure it out. Before Seijiro Tomita–a 30 year veteran of Sony until he parted ways with the company in 2002–applied for and was licensed with the patent in question, he showcased the technology in question to the good folks at Nintendo. Subsequent to this demonstration, Nintendo requested a sample.

When Tomita asked for a licensing agreement, that was that. Communication was cut off for nearly a decade.

The court sided with Tomita after both sides presented their arguments. Tomita believes Nintendo knowingly and willfully stole his patent, and Nintendo couldn’t do much to dissuade the judge that it hadn’t. Most damning of all was the fact that four Nintendo developers who were present at Tomita’s original tech demonstration were an integral part of Nintendo’s production of the 3DS handheld. That didn’t look so good.

Tomita’s legal representation wasn’t asking for much, all things considered, if the patent was knowingly and willfully stolen. They wanted just $9.80 of each 3DS that has been sold, and the systems can cost the consumer hundreds.

It’s important to keep an open mind, though. With all the technical details of each case, it can be hard to sort out the truth unless you’re experienced in the field. Even then, it can be rough. Nintendo says that such demonstrations of 3D tech were common when Tomita made his. Who can say if anything really was stolen?

Do Car Companies File Patents?

Most of us don’t keep too watchful an eye on the policies of various car companies around the globe, and so many of us might not know the answer to the question of whether or not automakers are in the patent filing business. The short answer is yes, of course they do! Just like any other company, they want their technology to be the very best in the industry, and so they need to protect their property.

In the four year span from 2012 to 2016, the biggest automakers filed a combined 5,000 mobility patents. Most of these were focused on patents involving green or alternative fuel. Electric vehicles and the batteries that help power them are two technologies to watch carefully.

Ford is one car company that isn’t waiting for the future to swallow its profits. The automaker has filed a patent for an autonomous police car that can autonomously issue tickets and even pursue offenders if necessary.

Even though the typical car company will file a large number of patents, the emergence of new industry paradigms is evident. Google, Facebook, and Apple are all big players in the artificial intelligence industry, and that means the gargantuan companies are all filing patents of their own in order to protect the secrets behind their autonomous driving software’s integration with the hardware: cars. These companies have filed hundreds of patents in a relatively short period of time.

In Germany, the opposite seems to be true. The country’s biggest car manufacturers are focused on autonomous driving patents and filing fewer patents for technology involving electric cars. That said, over half of the world’s autonomous driving tech patents come from Germany. These patents were mostly filed by car makers Bosch, Audi, and Continental.

This divergence from the global norm might give Germany an edge when autonomous vehicles become mainstream, but no one really knows for sure. After all, the filing of a patent does not equate to the application of the new technology on which the patent is based. Sometimes, an idea just doesn’t work out!