Who said being famous was easy? Artists have always had to protect their work no matter the size of their following. But fame certainly carries a particular weight to it when it comes to the sheer number of thefts and lawsuits. Rock band Led Zeppelin has been on both ends of copyright cases, having fought against dozens of claims that their songs were ripped off all while making dozens of claims that their own songs had been ripped off by someone else.
A 2014 lawsuit alleged that Zeppelin’s popular song “Stairway to Heaven” too closely resembled another song called “Taurus,” which was performed by the rock band Spirit.
Like most copyright infringement cases, it was long and arduous for both sides. Journalist Michael Skidmore, who was a co-trustee to the Randy Craige Wolfe Trust, filed the lawsuit on the trust’s behalf. The trust was named after Randy California, who was a member of Spirit. He died in 1997, which means he couldn’t exactly build the case himself.
Skidmore’s case fell apart (the first time) in 2016 when a jury decided that “Stairway to Heaven” violated no copyright protections. But after an impartial panel decided that Judge Gary Klausner had failed to give the jury for that trial accurate instruction before they came to a verdict, the case was allowed a second trial in 2018. Oh well. Naturally, Zeppelin appealed the panel’s decisions, requesting that a super-sized panel hear the case instead.
The appeal was finally heard in 2019 by the super-sized 11-judge panel. They came to a 73-page decision. Judge Margaret McKeown wrote, “The trial and appeal process has been a long climb up the Stairway to Heaven.”
Skidmore’s attorney Francis Malofiy, who operates from a cloak and dagger law firm called Francis Alexander LLC, tried to play recordings from both songs for the jury during the first trial, but his request was denied by Judge Gary Klausner based on old copyright laws. “Taurus” was recorded when the Copyright Act of 1909 was still in effect, which only protected sheet music. The sound of the music didn’t become protected intellectual property (IP) until 1972.
In other words, the songs might actually sound alike — but that didn’t matter.
The 9th Circuit Court of Appeals described overturning the original court’s decision: “Although we are cautious in overruling precedent — as we should be — the constellation of problems and inconsistencies in the application of the inverse ratio rule prompts us to abrogate the rule.”
The inverse ratio rule was only applicable because of the accused party’s access to the other party’s music. It lowers the standard of proof required by the jury, but Judge Klausner forgot to mention these facts to the jury.
The 9th Circuit Court overturned the inverse ratio rule, handing Zeppelin the final victory: “By rejecting inverse ratio rule, we are not suggesting that access cannot serve as circumstantial evidence of actual copying in all cases,” the court said. “Access, however, in no way can prove substantial similarity.”
Compare the songs for yourself:
You already know that violating copyright protection is illegal. But do you know exactly what that means? Do you know exactly where the line is drawn between copyrighted materials and what is considered “fair use” of those materials? Fair use is the assumption that even copyrighted materials can be reproduced in some fashion within reason. For example, one writer might quote word for word another writer’s work for a number of reasons, including teaching, researching, or critiquing.
One 1994 Supreme Court copyright case — Campbell v. Acuff-Rose Music, Inc. — established that certain forms of artistic criticism can be considered fair use as well. What might one consider artistic criticism? Parody!
The case arose when a rap music group called “2 Live Crew” wrote a song called “Pretty Woman.” The name might sound familiar. It was a blatant parody of Roy Orbison’s hit “Oh, Pretty Woman.” In fact, it so flagrantly parodied the source material that 2 Live Crew’s manager actually requested a license to Orbison’s song to avoid copyright infringement litigation down the road.
The license was firmly denied.
2 Live Crew decided to move ahead with licensing and releasing the parody anyway, which resulted in the inevitable suit — after the rap group sold hundreds of thousands of copies of the song, of course.
One year after the parody was released, the company having the authority to grant or deny the rap group a license — Acuff-Rose — slammed 2 Live Crew’s record company with a copyright infringement lawsuit. 2 Live Crew’s record company was named “Luke Skyywalker Records,” and we’re not even going to attempt to unpack the irony.
Part of the conundrum put before the District Court wasn’t necessarily whether or not parody could be considered fair use, but whether or not commercially successful parody could be considered fair use.
You might parody someone else’s art, but should you profit from the parodied version? The District Court’s eventual answer was that, yes, you legally could. But what followed was a convoluted legal mess. The Court of Appeals decided to reverse the District Court’s decision, ruling that the parody was an “unfair use” because it pilfered the “heart” of the original song. (And the commercial success of the parody probably had something to do with it, too.)
The matter was therefore bounced to the United States Supreme Court, which reversed the appeal to uphold the original ruling. Long story short, if you want to make money off of someone else’s work, the easiest way to get away with it is by parodying the source material!
Check out the parodied version:
Intellectual property (or IP) is property that a person or organization “owns” intangibly. You have the patent or trademark rights to a work of art you made. A book, computer program, or TV show all constitute potential IP. The World Intellectual Property Organization (or WIPO) exists to protect a person or organization’s IP. Part of WIPO’s mission statement includes promoting the creation of intellectual properties all over the world.
But it could be argued that WIPO is corrupt — and has been for a long time.
Francis Gurry currently serves as Director-General of WIPO, having taken the office in 2008. Shockingly, Gurry has been implicated in a number of scandals but has somehow managed to consolidate and keep his power in that office for 12 years.
When a whistleblower blew the lid on his activities wide open, Gurry stole DNA to catch the employee. Gurry has been accused of providing money to North Korea and Iran, and threatening those who would dare publish WIPO documents that provide insight into the wide array of WIPO’s corrupt activities.
That’s what happened when blogger Gene Quinn chose to post one WIPO employee’s “Report of Misconduct.” Edward Kwakwa, a lawyer working for WIPO, threatened to press criminal charges after Quinn published.
Quinn deleted the post.
Perhaps he should be more embarrassed than the corrupt figures who work at and on behalf of WIPO: Quinn also works as a patent lawyer, and should be extremely cognizant of the many protections afforded to whistleblowers.
A press release stated: “Quinn has chosen not to fight this, taking down his post and the associated documents, noting that while he believes in the First Amendment, he’s currently recovering from hip replacement surgery and is in no condition to take on this sort of fight at the moment. …At least two other reporters and bloggers who claim to have a copy of the report similarly refuse to post it, noting it’s not worth the legal fight.”
Gurry is known for his extreme opinions on copyright, perhaps making him a bad man for the job in the first place. He believes the Internet in general should be patented; in other words, those who wish to surf the web should have to pay for the pleasure. Reports also allege that he would prefer to end fair use regulations.
The platforms put into place by WIPO are just as bad as its leader. The Uniform Domain Name Dispute Resolution Procedure provides legal owners of an IP with the right to absorb web domains that allegedly infringe on that IP. If someone doesn’t have the financial resources to fight back, that basically means a big company could steal the competition’s domain without so much as a fight.
Maybe we should have known better than to install someone like Gurry into the position of Director-General for an organization built to protect IP?
Most of us still don’t even know what blockchain is or what it does. But the technology is still advancing and growing, and that means we have to ask questions about its potential — including the possibility that it will greatly impact other industries. Intellectual property law governs how we protect intangible properties like art or information. Because those properties are almost always digitized, it can be difficult to protect them from hackers or pirates.
IP law is often broken down into four distinct categories, each with its own set of protections. These include copyrights, patents, trademarks, and trade secrets.
Anyone who has ever turned on a VHS tape or DVD has seen the preemptive warning about the legal penalties for illegally duplicating or stealing the content within. They are rarely implemented anymore, but those are copyright protections. Even books and music are protected by similar laws.
Blockchain is basically just a string of digital information. Each “block” on the chain stores important — and better secured — information about a transaction, like dollar amounts and parties involved. Most importantly, each block is different, with its own unique code. Blocks along a blockchain can be viewed publicly, but because there are potentially millions and millions of them, they become nearly impossible for would-be hackers to manipulate in order to steal the relevant information. In that way it becomes much more secure.
That’s why the technology is so important to the realm of IP law. It’s a means of defending information that needs the most protection.
J.D. Houvener works for Bold Patents Chicago and is an expert in this type of legal concern. He said, “Patents can be offered for significant and novel improvements on existing technology, as well as for different methods of achieving the same functional result. In regards to blockchain, this means that different organizational systems for the encrypted ledger, and different ways of displaying the same data may be eligible for patenting.”
These aspects of blockchain and IP law will allow new or growing companies to more successfully create and new, recognizable brand. This allows a lot of growth area in the relevant markets, especially with new startups in places like Silicon Valley, which could lead some companies to realize a great deal of profit.
It’s not uncommon to misinterpret or misunderstand what terms like “blockchain” or “IP law” really mean. Not sure what we’re talking about? No problem. You should contact an intellectual property or patent law attorney to talk about your next steps regardless of whether you plan to begin or new company or continue growing an old one using new technologies or patents.
Trump’s biggest gripe with China is that the competitive country doesn’t give it’s fair share when involving itself in the political and economic processes of the rest of the world — it’s why the Trump administration began a devastating trade war that put the world economy at risk. That war has shown few benefits, if any. But that might be changing: China recently proposed a new set of protections for intellectual property.
These new IP protections could accomplish two things: First, they could appease the Trump administration and help put an end to the trade war. Second, they could influence IP laws around the world.
Beijing made the announcement last Sunday, but failed to provide enough details for us to draw any detailed conclusions. According to China, the goal of the new guidelines is to increase intellectual property protections and increase enforcement of IP law. More importantly, those who break the newly proposed laws would be subject to punishments much more severe than before.
The Trump administration has made its opinion on Chinese IP theft abundantly clear. According to Trump officials, these thefts (allegedly made in large part by the Chinese government) have diminished United States GDP by billions of dollars. On top of that, the officials assert that Chinese thefts have resulted in the loss of thousands of jobs for U.S. workers.
Chinese officials have always rigorously contradicted these accusations, instead asserting that the alleged thefts never occurred — and that any trade secrets handled were the result of negotiations already made between the two countries.
Chief Asia Market Strategist Stephen Innes for AxiTrader said, “China is definitely offering up some pretty attractive olive branches. [China knows] if they don’t make structural concessions, Trump will likely levy more tariffs.” Innes also says that Trump simply wants “something to beat his chest about.”
This is not the first time China has promised significant change, which is why some are reluctant to take the news with anything other than a giant grain of salt. Those paying attention know how long it could take for the proposed changes to be enacted into law. In December 2018, the Chinese government implemented another round of legislation to protect foreign intellectual properties, but the changes won’t take place until sometime next year.
And some analysts say that all of these changes are much more likely superficial because they wouldn’t work for China’s government. They’re talking about the aforementioned structural changes that should reduce China’s role in its own economy — something that seems impossible.
The biggest takeaway is this: China is obviously ready to play ball with the Trump administration, and both sides want a swift end to trade-related hostilities.
No one can deny the importance of Donald Dunner to the field of patent law. He died Wednesday (10/16/2019) at the age of 88. The man was the dean of the D.C. patent appellate BAR, and worked at Finnegan, Henderson, Farabow, Garrett & Dunner. Dunner was dedicated to IP law, and enthusiastic about protecting the interests of his many high-profile clients.
Paul Michel, who once worked as a chief judge for the United States Court of Appeals for the Federal Circuit, described Dunner as “a giant, a colossus in the field of patent law with no equal.”
Michel joked that Dunner was “the leader of every organization in the entire patent universe.”
It’s not difficult to see why Michel had such kind words to say. Dunner argued a record-breaking 175 appeals to the appellate court system. He authored work on Federal Circuit practice. He worked for the Carter administration to build the Federal Circuit court system for patent appeal. He testified to Congress before it was created.
Dunner worked for the Bar Association of the District of Columbia (specializing in IP) from 1964 to 1965. He worked for the American Intellectual Property Law Association from 1979 to 1980.
Dunner was well known for being fair and just in his decision-making. He had a reputation for such actions in court. Gene Quinn reported his death as a direct blow to IP law because “Dunner always had a grace and elegance that set him apart. He was a friend to judges and politicians, as well as a mentor to countless attorneys.”
One of his appellate partners, James Barney, wrote: “For more than four decades, Don was a mentor, a teacher, and an inspiration to many of us who sought to learn his craft of appellate advocacy.”
He continued, “He was never satisfied with a first draft, a second, or a third. In fact, drafting briefs for Don could be downright daunting. But along the way, he imparted wisdom to those eager to learn, he explained the nuts and bolts of appellate advocacy, and made us all proud to be part of the process. Don was everything I ever aspired to be as a lawyer — and still do.”
We live in a world where many of us continue to believe that legal advocates are only truly out for themselves, but Dunner was a man who made his world about showing others the good impacts that law can have.
Dunner was a Brooklyn, New York native. He studied chemical engineering at Purdue University before enlisting in the United States Army. When he got out, he decided to study law at Georgetown University. The rest is history.
Even a Democratic senator recently begged President Trump to keep pressure on China to prevent the rival country from pilfering intellectual property from the United States. Currently there are few legal barriers to prevent China from successfully stealing from United States developers. This is especially true amidst the trade war that Trump started.
Delaware Senator Chris Coons told CNBC: “My hope is that the president, having gotten us to this point, won’t back down just for some commitment to buy a couple of shiploads of soybeans — but that we will get something that is enforceable around IP theft.”
The United States and China continue to increase tariffs while both suffer the economic consequences — delayed though they may be. Many people don’t seem to realize that the full weight of this trade war may not be felt for months or years.
Negotiations are ongoing, but few are optimistic that any reasonable solution to the trade war will result from these talks. That said, Chinese firms recently purchased a large amount of soybean product — which was seen as a step in the right direction considering the country had already suspended farm-related purchases from the United States.
Even though a few compromises have been made, Senator Coons wants to make sure Trump is placing pressure to prevent IP theft, which is a subject that has gotten in the way of progress.
Vice President Pence told CNBC that the United States suffers at least a $500 million windfall annually because of this kind of theft. Then again, Pence has been known for spouting nonsense before (like throwing out the idea that the United States shouldn’t really worry about our part in the climate change fight when countries like China and India are doing little to nothing — a false “fact” which is actually the exact opposite of the truth).
Pence said, “For too long one administration after another, Republican and Democrat administrations, were willing to accept extraordinary disadvantages to American workers and American jobs in the name of trade with China.”
Coons agreed. He said, “The vice president has it right. This is essentially about China’s mercantilism. The way they have stolen vast amounts of technology. The president is right to make this the center point of the rising and sustained trade conflict.”
It’s one thing to make these talking points, and quite another to provide actual examples. No one’s saying it hasn’t happened or doesn’t happen on a regular basis, but the political powers-that-be need to start providing adequate and specific examples of these thefts before deciding on a plan of action.
Machine-learning advancements have led to new coding mechanisms by artificial intelligence, some of which are resulting in brand new patents and inventions. A team based out of the University of Surrey proposed the “first” applications for patents that arose from inventions conceived by artificial intelligence programs. The inventions themselves aren’t as flashy as the implications they might hold for the future: a light and a beverage container.
Futurist Baker McKenzie predicted last year that inventions conceived by artificial intelligence will skyrocket in the near future, which could potentially lead to a big disruption in the area of patent law.
What could AI-based inventions change about patent law?
Baker said, “The patent system was designed to incentivize innovation by granting exclusive rights to inventors for a limited time in exchange for their inventions. But it was encoded into law when there were no computers.”
This potentially puts legislators in a tough spot — especially here in the United States, where new laws are notoriously slow to roll out, if they do at all.
The process is much different (and much faster) in the United Kingdom.
Leo Kelion of the BBC said of the issue, “The UK’s Patents Act of 1977 currently requires an inventor to be a person, but the Intellectual Property Office is aware of the issue.”
According to Kelion, a spokesman said, “The government believes AI technology could increase the UK’s GDP by 10% in the next decade, and the IPO is focused on responding to the challenges that come with this growth.”
Depending on who you ask, ten percent might be a low-ball estimate. Other futurists believe that the technological singularity — that moment when machine intelligence actually ascends past our own — will occur sometime in the next ten to twenty-five years. When that happens, the potential output of new knowledge will be staggering, and it would be difficult for humans to keep up at all.
Think about what computers are already achieving, albeit in a limited fashion. According to Professor of Law Ryan Abbott, “These days, you commonly have AIs writing books and taking pictures but if you don’t have a traditional author, you cannot get copyright protection in the US.”
That could be great for traditional authors (and inventors) because it means the ability of AI to make a big dent in profits could be limited — for the time being, anyway. First, there’s a simple question that needs to be answered: do we even want to provide AI applications with the ability to copyright computer-based works and inventions? One thing is for certain: right now we’re not doing enough to study the possibilities that would result from either course of action.
There was a recent copyright infringement lawsuit against Marvel filed by Horizon Comics. Their lawsuit claims there was a too much of a similarity in the poster of the popular movie Iron Man 3 from Marvel and Horizon’s Radix comic book cover. Both feature the titular hero kneeling in almost the exact same posture (see picture below).
Marvel Entertainment was sued by Horizon Comics Production back in April 2016 when the third movie of the Iron Man series released. However, on Monday, July 15th, Marvel emerged as the standout winner in the lawsuit.
In their lawsuit, Horizon claimed that as many as six Marvel employees knew about the drawing of Caliban and the entire Radix series. They also claimed that two of the employees also had a working relationship with the creators of Radix, and it is their influence that brought about the Iron Man 3 poster into motion. But, according to J. Paul Oetken, the US district judge of New York, none of the six individuals had seen the sketch of Caliban or were involved in the design of the Iron Man 3 poster when it came out, hence ruling the case in favor of Marvel Entertainment.
J. Paul Oetken also wrote in his statement that Horizon Comics Production was not able to demonstrate any image that was strikingly similar to the Iron Man 3 poster. Although there were noteworthy similarities, they were not enough to judge the case in favor of Horizon. He also added that Horizon did not provide any proof of copying. On the other hand, Marvel came up with several pieces of evidence that proved the poster was an independent creation.
The judge in his ruling also wrote that Robert Downey Jr. featured in the photoshoot for the poster design of the movie. The photos clearly show the different postures and poses of Robert Downey Jr. crouching and kneeling from which one of those images was chosen for the poster. Since Horizon was unable to produce any distinct evidence as a rebuttal to Marvel, the court was not persuaded by their appeal to consider the similarities that exist in both the images. The news was a long time coming, especially after Horizon failed to deliver their shreds of evidence against Marvel’s business for allegedly copying the poster.
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?