It’s worth questioning the limits and boundaries of patent protection, because copying good ideas seems to be a universal business practice. After all, how are you supposed to beat out the competition if you can’t even implement their good ideas for yourself? You expect them to do the same when you put forward an innovation, so it makes sense from a business standpoint. But when is using someone else’s idea actually stealing? Where is the line drawn in the sand?
According to Greg Reilly of the Illinois Institute of Technology’s Chicago-Kent College of Law, United States patent laws don’t allow you to outright use someone else’s design. Instead, the laws are written to basically ensure you “design around” it.
“It’s an incredibly fine line,” Reilly said. “You can be infringing on a patent without even knowing.”
In other words, it doesn’t matter if you meant to use someone else’s trade secrets. If you don’t know what the blueprint is but inadvertently copy it anyway after trying to replicate the patent’s success in your own product, then you’re just as guilty of theft. This is especially true in the automotive industry because new vehicles developed by different manufacturers are more or less put on the market with features so similar they might as well be the same.
Versata Software Inc. is a software developer working out of Texas. Years ago the company supplied Ford with programs for a new line of vehicles, but eventually Ford ended the contract. Versata sued Ford in 2015 for “somehow” developing a program that perfectly mirrored the functionality of the program it had once supplied to the auto giant. But even in 2019 the case continues to drag and drag, with an expected trial date sometime in November (assuming a settlement isn’t reached, which it almost certainly won’t be).
Versata isn’t the only one after Ford for stealing trade secrets. Three Massachusetts Institute of Technology (MIT) professors launched a lawsuit just this year after Ford allegedly ripped off their dual-port and direct-injection tech in an upcoming line of vehicles.
One of the biggest problems for companies — especially small ones — is that it’s nearly impossible to know whether or not one of your new technologies was inadvertently pilfered from another company. It may seem absurd, but think about it: not only is the population exploding, and the number of companies along with it, but the wealth of human knowledge is growing exponentially year by year. That’s in part because many researchers and scientists are working on the same stuff.
If we don’t change our patent laws soon, or at least help companies find a way to know whether or not they’ve committed theft prior to an expensive or long-lasting lawsuit, then resources will continue to be squandered when they could have instead been used to continue research and make life better for all of us. Shouldn’t knowledge be free?
Ed Sheeran is once again in legal trouble as his trial date has been set for Setepmber 11th, 2019 regarding whether or not his hit song “Thinking Out Loud” infringes on the Marvin Gaye hit “Let’s Get It On.” Ed Townsend famously co-wrote the song and his estate claim that Sheeran’s is a blatant copy. The burden will be on Sheeran to prove that the songs are not similar enough to warrant copyright infringement.
This situation is not unfamiliar to Sheeran who has found himself in trouble with copyright laws before. He was formerly sued by a trio of songwriters for his song “Photograph” which was eerily similar to their song “Amazing.” Sheeran, who writes songs for other artists, was also named in a suit in conjunction with Faith Hill and Tim McGraw whose song “The Rest of Our Lives” was alleged to be a copy of Australian country star Jasmine Rae’s “When I Found You.” The matter was settled in 2018.
We know from other previous lawsuits that the heirs of Marvin Gaye are very prone to litigation as they successfully filed a copyright infringement lawsuit against Pharrell Williams and Robin Thicke over their song “Blurred Lines” which sounded a lot like “Got To Give It Up.” The state won $5 million dollars and to give the estate 50% of all future royalties.
Musicology experts will testify on whether or not that “Thinking Out Loud” and “Let’s Get It On” are similar. However, it did not help that Sheeran did perform a mashup of these two songs. While the trial date has been set, there is still a chance that these two may settle out of court. Take a listen to the two song and decide for yourself if there’s copyright infringement.
THINKING OUT LOUD
LETS GET IT ON
Truvada, also known as PrEP, is an HIV prevention drug that has caused a lot of controversy. The patent for this groundbreaking dug is held by Gilead Scientists. Recently Corey Johnson, speaker of the New York City Council, who is also HIV+, called for the National Institute of Health to break the patent that allows Gilead Scientist to exclusively manufacture and market the drug. The drug when taken consistently reduces the risk of HIV infection by nearly 100 percent.
There has been a movement called PrEP4All #BreakThePatent which encourages the government to invoke the Bayh-Dole Act or the Trademark Law Amendments Act. The Act states that a patent can be broken if the government believes that the action is for the greater good of the public. Corey Johnson is now the highest-ranking U.S. Official to join the movement.
“As an HIV+ elected official, I have a responsibility to the activists who came before me who I believe literally saved my life, to those we have lost to the AIDS crisis, and to those who come after me to do everything in my power to end this epidemic once and for all. The cost of PrEP in our country reveals something deeply rotten about our healthcare system, and the NIH needs to march in and break the patent immediately. This is life or death and there is no time to waste.”
HIV/AIDS activists believe that the current price of Truvada prevents many people from being able to purchase it. However, Gilead released a statement that through their patient assistance program, many patients can get Truvada for as little as $5. Generic Truvada is available in other countries where the price is roughly $25 per month. Since Gilead has exclusive rights to sell it in The United States, currently one year’s supply is $20,000 or $1,700 a month.
In a statement by Johnson, only 8% of the 1.1 million Americans who need PrEP are taking it. In big cities like New York and Miami, Florida this drug is taken mostly by homosexual and bisexual men which means women who are married to HIV+ spouses are not being protected.
Not all of us have the respect for intellectual property we should, and that’s in part because it’s something many of us simply don’t understand. Most of us have seen the litany of copyright or reproduction warning on VHS tapes, DVDs, and Blu-rays. They threaten huge fines and potential jail time for those who make illegal copies of protected works. That’s because the art itself is copyrighted. Intellectual property, though, is less tangible creative work, but it falls under the far-reaching copyright umbrella.
“The Pirate Bay” is a website that provides would-be copyright or IP thieves with an online index of music, movies, ebooks, and software, from which to dutifully plunder. In addition to the files themselves, users have the option to use torrenting software to share these files online. The website is routinely taken down by authorities in whichever country currently houses its servers, but it always manages to stay alive.
Most notably, shows like Game of Thrones and The Walking Dead are among the most pirated, potentially costing HBO and AMC, respectively, millions of dollars in damages. The Pirate Bay’s founders were eventually tried and found guilty for assisting in the infringement of copyright law worldwide. They were sentenced to a short prison term after the Swedish trial, but the website has continued to thrive. The website, and those who use it, are all in violation of the law. But does it matter?
From a moral perspective, it’s up to the individual. From a legal perspective, it only matters if you’re one of those who are “seeding” the content available for download on the website. These are the individuals who have the most to lose from copyright law, not because they’re the only ones in violation, but because there are far fewer of them. They take enough precautions that they’re more difficult to trace. One season finale of Game of Thrones was downloaded a billion times. Think you can put all those people in prison? Good luck!
The Copyright Alert System (or CAS) was implemented as a measure to combat piracy in 2013. It was meant as more of an “educational” program to limit piracy rather than a system for implementing penalty. Unfortunately CAS is so difficult to trigger that the six-step process is something few people have likely experienced in full, and it’s still more of an inconvenience than anything else.
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.
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.
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 (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.
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?
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).