Category: Intellectual Property

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“What is Technology?”

I wanted to flag this new paper by my colleague Emily Morris.  Here is the Abstract:

Patent protection is limited to “technology,” but technology is so difficult to define that the Supreme Court has taken up the issue several times in the last several years. The Supreme Court’s recent decisions in Bilski, Prometheus, and Myriad have left patentable subject matter doctrine just as confused as ever, however. What is patentable technology?

The answer turns out to have nothing to do with the various pragmatic rationales that courts commonly cite. Rather, the patent system has defined patentable technology according to much simpler criteria – artifice and action. Artifice is the quality of being created by humans, not by nature. Action is the quality of behaving or operating in some active way. Together, artifice plus action explain and, perhaps more importantly, unify the law on patentable subject matter. By focusing on artifice plus action as the primary criteria defining patentable technology, the patent system can provide clearer guidelines than it has been able to achieve thus far.

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WNET v. Aereo

This is an exceptionally busy year for Intellectual property cases at the Supreme Court, and I thought I would talk about one that is especially interesting.

Aereo is a service that lets people in New York City to watch broadcast TV for a monthly fee.  There is a brief delay (ten seconds) in the signal if you want to watch a show live. Or you can just record  programming through a DVR service provided by Aereo. Aereo does not pay the networks for this programming, and they claim that this violates the Copyright Act (17 U.S.C. Sec. 101(2))

The Act says that copyrighted content may not be transmitted “to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

A divided Second Circuit panel held that Aereo’s transmissions do not violate the section just quoted. The pane’s rationale was that Aereo is transmitting content only to a particular homes, not to the public. Why? Because each subscriber is assigned a specific (albeit tiny) antenna at Aereo’s facility. Thus, each transmission is to a single person or family. Footnote 16 of the opinion explains:

“The methodology Congress proscribed for distinguishing between public and private transmissions is the size of the potential audience, and by that methodology, the feed from Aereo’s antennas is a private transmission because it results in a performance viewable by only one user.”

With respect, I think the Second Circuit got this wrong.  It seems to me the plain language of the statute does contemplate a situation where many individuals are getting transmissions of the same event “in separate places and at the same time or at different times.” And it seems odd to say, as Judge Chin notes in his dissent, that  if Aereo transmits the Super Bowl live this Sunday to a million people, that this is not a public performance–it’s a million private performances.

IP law often stumbles over the problem that what is permissible for one person to do (share a CD or forward a video) may be impermissible when it is done for hundreds of thousands.  The analogies just don’t make sense. And in this case, the Supreme Court should reverse and hold for the networks.

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3D Printing Train Continues, Interview on TakePart Live tonight

I will be on TakePart Livetonight at 9 p.m. Pacific/11 Central/12 Eastern, to talk about 3D printing and all the fun it brings. I will be joined by a 3D printer entrepreneur who runs Deezmaker, a comic, and of course the hosts Jacob Soboroff and Cara Santa Maria. I was on the show last fall to talk about privacy and data hoarding. The hosts and crew are HuffPo veterans and a blast. The show is part of Pivot TV, which is available on DirectTV and Dish as well as some cable carriers. Looking forward to great night.

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Public Domain? We ain’t got no Public Domain. We don’t need no Public Domain! I don’t have to show you any stinkin’ Public Domain!

With apologies to B. Traven and John Huston, I note that Duke’s Center for the Public Domain has a nice post about what might have been in the public domain. In my paper The Life and Death of Copyright, I go over how a few authors rallied with American interests to extend copyright term. I also show that no matter which of the main theories one looks to for IP, none supports copyright after death. None.

In other words, folks who usually disagree about all sorts of nuances in copyright, (It’s labor! It’s the personhood! It’s utilitarian!) converge on, or at least have no good support for copyright after death. Paul Heald’s work shows that the dreaded under-production myth is just that, a myth. Aram Sinnreich’s The Piracy Crusade just came out and gets into the problems with locking up work. I’ve just started it, but his run through history, sociology, and more looks to be a great addition to the literature in this space.

So it’s a new year. Old fights are with us. New ones will come. The sun also rises. Time for naked lunch.

(Note: Burroughs claimed the phrase, Naked Lunch, meant a “frozen moment when everyone sees what is on the end of every fork.” or the truth albeit ugly).

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Tech Literacy: One more of my end of year, bookmarked to share posts

A few weeks back Juliet Walters wrote an op-ed called the The Code Life. I had read the Eggers excerpt of The Circle and thought it was odd; odd because having worked at Google and been in the Valley, his portrayal was not that creepy. It was just corporate America. Office Space alone captures the be all you can as part of a team which may not value you (cue Lorde to contrast and for irony). Walters goes further. She has tried coding as a way to understand and take some control over her life. She used Code Academy to learn coding and found

Yes, programming is challenging, frustrating and often tedious. But it offers satisfactions that are not unlike those of writing. The elegant loops of logic, the attention to detail, the mission of getting the maximum amount of impact from the fewest possible lines, the feeling of making something engaging from a few wispy, abstract ideas — these challenges were familiar to me as a critic. By my third month, I had internalized a new logic, a different way of looking at information. By the time summer came around, I was learning about good web design by constructing web applications, taking them from simple prototypes to something sophisticated enough to test with users. And by the end of the course, I knew the basic structure of computer operating systems.

For me, even reading computer science papers and theory has given me a better, deeper appreciation for the tech world, how it works, and policy debates (both worthwhile and frivolous). And I was happy to read Walters re-calibrated her life:

The biggest surprise has been the recovery of the feeling that my mind is once again my own. The “always-on” agenda of mobile technology, now visible to me in the very design of the devices, could not manipulate me as easily. Where my devices were interrupting my work or my life in these ways, I’ve had an easier time filtering and controlling them.

It’s also become more obvious to me how to use social media to enrich my life, not unravel it. For one, I don’t waste time trying to “catch up” on a Twitter or Facebook feed, any more than I would waste time ringing the doorbell of every person in my neighborhood every day.

With understanding comes more reasoned responses to technology and how it fits into our life. When Walters write she sympathizes with Eggers and Franzen (another tech critic) but rejected their tribalism and embrace of “techno-illiteracy.” Her example is a call for STEM without being explicit. I hope to add some Code Academy to my learning list this year. I don’t always get to such goals, but Walters, a humanities type, like me, found a world I like too. Coding may not set us free, but it may open the door to new freedoms. Tech literacy should at least help stop the real threat of those who misuse technology by allowing us to offer other options and to call B.S. on tech utopianism, and thus counter the downside of technology more than we suspect.

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We Will All Be Jaime Sommers – 3D printing ears

Thanks to 3D printing and advances in material sciences, questions I had a few years ago about what data is sent, how we are regulated, and of course illusive ownership are hitting home for biomedical, implanted devices. I wrote about some of these issues in a short piece about the implications of a post-human world. I thought about implanted medical devices and the idea that we are becoming appliances with all the contracts and data issues we see online moving to the body.

On the one hand, I love some of the outcomes of this engineering. For example, what if we all could be the Bionic Woman? Michael McAlpine of Princeton may be making it so that anyone could have a bionic ear, and he wants to improve us even more. He is engineering:

a synthetic ear made with a 3-D bioprinter, is a realization of that vision. The complex biomechanical structure was fabricated by depositing live cells and conductive silver in layers. It started as an exploration of material properties, but commercial applications started to appear rapidly. He discovered that cochlear implants, a leading treatment for those with some hearing impairment, are made by hand in a slow and laborious process with costs to match.

His work draws on the way hearing works. The interface sends “the electronic signal right into your medula and brings us one step closer to a world where we can learn kung fu by plugging into a computer.” That idea is fantastic (as in fantasy) but his main point, “It will just be considered normal that you have electronics embedded in your body, … You won’t think its weird that a door will just open up as you walk towards it. We will become cyborgs and it will be seen as just a normal thing” connects to my piece.

So on the other hand, as these changes move forward, we will have to consider what is control over health and other data that may come from within us. Security and hacking will take on new dimensions. I also think that class will play a role. If devices and surgery are expensive but “natural” will only the rich get to have them? Will the poor be stuck sneaking steroids will the privileged pay for dexterity enhancement?

I don’t think dystopia is ahead. I think these questions are the right and fun ones to consider and manage. Again the New Year looks good.

P.S. Jamie Boyle’s Shamans, Software, and Spleens is ever more relevant, as we move into the next technology era.

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Bring Out Your Brands, More Brand Scholarship

If you’re looking for some perspectives on brands, maybe some reading for holiday trips or early conferences, the first part of the Brand New World Symposium is up at the UC Davis Law Review site. The Review is publishing, I believe, almost all the presenters’ work, which is a testament to the group that came together for the event. My piece will be in part two; more on that later. Part I kicks off with Mario Biagioli, Anupam Chander, and Madhavi Sunder’s introduction. It continues with work by law, i-school, design, business, anthropology, history of science, history of art & architecture, and Chinese studies professors from around the world. I am thrilled to see this work in print. The multi-disciplinary perspectives and depth make me even more excited for the next part of my brand work.

In addition, my friend, Paul Duguid, who has a piece in the symposium, also has a piece in Enterprise and Society called Information in the Mark and the Marketplace: A Multivocal Account (pay wall however). He digs into information theory and trademarks (a subject with which I have been playing), history of union marks, issues around producers as in mark holders versus the people involved with the actual production of goods, and much much more. The material about the politics and race issues with early marks systems and the application of Bhaktin to marks made this work a fun, insightful read. Paul has been a favorite sounding board and source for my work. This article adds to that respect and gratitude.

So into the New Year with more on brands to come.

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Digital Death – What Happens to Your Digital Stuff

What happens to your to your email and other digital content after you die? That question continues to pop up. Back in 2008, I wondered about the issue in a paper called Property, Persona, and Preservation. I noticed a sort of cloud effect. Once we moved email to the web, we were distanced from our creations. For those interested in the theories behind my argument, read the whole paper. But if you want to skip to the policy and application material, skip to part III starting at page 111.

In fact, while I was at Google, Google and a few other email providers started to come up with ways to let heirs access content and to let creators of content signal whether they wanted that work to be shared with heirs. Those solutions tracked some ideas I offered. I am not sure whether the paper was part of their reading but was happy to see the changes. Nonetheless as Pew shows, how we preserve, protect, and control that work will continue to be a problem. The Pew report notes that states and the Uniform Law Commission are starting to come up with laws to address digital estate issues. I will write a follow up to this post, but for now, I offer that any solution should allow Service Providers the ability to set defaults and users to alter them. In short, if someone wants to have an email account for things he or she would rather not have known, the user should be able to click a setting that says “This email account will self-destruct upon the provision of a death certificate.” Now we might want to let an executor verify these wishes and so on rather than relying on Service Provider’s insight or discretion. Still a clear signal about what one wants can be built into how we preserve or destroy our digital history.

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NSA, Its Seal, and the First Amendment

Speech, Citizenry, and the Market in real life. It seems the NSA has invoked a public law to prevent someone from making parody NSA T-shirts. The shirt displayed the seal and the words “THE NSA, The only part of the government that actually listens.” The NSA was not amused. The first site to offer the shirts stopped offering the shirts after a letter from the NSA (apparently they were able to talk about that one for now). The NSA wrote to one online outlet, “The NSA seal is protected by Public Law 86-36, which states that it is not permitted for “…any person to use the initials ‘NSA,’ the words ‘National Security Agency’ and the NSA seal without first acquiring written permission from the Director of NSA.” The company, Liberty Maniacs, has sued under the First Amendment. That case may be near settlement.

In the Liberty Maniacs case, the obvious parody should suffice. If not, I suggest that the NSA is public figure entity and so mocking it by using its name and logo (just like we use a person’s name and face) should be protected under that reasoning as well. That said, I would think that under Alvarez, most special laws regarding seals, the Olympics, and so on will need some extra explanation to stay in place.

The video below is from Cafe Press which also offers the shirts and mugs.