Blueprint of a gear train.

 Robert J. Yarbrough
Patent Attorney

 Patents - Inventions - Trademarks 

Newsletter Issue 79 - September 2015

In this issue:

Copyrights and non-humans
Copyright fair use
Patent injunctions

Ask Dr. Copyright ...Dr. Copyright logo

Dear Doc:

I heard that there is almost never a final step in the onward march of copyright law. What, exactly, does that mean?

Dazed and Confuzed

Dear D&C:

It means that, as the late, great Yogi Berra (may he forever whisper in the Almighty's ear) said, "It ain't over 'till it's over!"

For instance, you may remember that the Doc wrote about the monkey who took a "selfie" and how the Copyright Office then made a rule that only humans could be authors and have copyrights. Well, in addition to offending self-respecting monkeys everywhere, as well as painting elephants and poetic pigeons, this ruling seems to have offended the good humans at the People for the Ethical Treatment of Animals (PETA). Filing as "Next Friends", PETA has set in motion a federal lawsuit by Naruto (that's what the monkey says his name is) against the fellow who lost, and later recovered the camera, and who then found the monkey selfies and sold them. PETA says that Naruto, even though a non-human, should have property rights and that PETA should be allowed to "administer and protect" those rights so that any profits may be used "solely for the benefit of Naruto, his family, and his community, including the preservation of their habitat...".

Now the "Doc" is no monkey expert, but having read the Copyright Statute (17 USC 101 et seq.) he can find no definition of "author" that says "only humans". In the onward march of equal rights for all, provided that the courts will allow standing and exercise jurisdiction (not a small provided), we may yet see a parade of copyright-holding creatures. The Doc looks forward to defending the rights of a veritable circus parade of orating orangutans, poetic pigeons, yodeling yaks, cinematic simians, painting pandas, sculpting salamanders, and lyrical llamas.

On another update, a federal judge in Los Angeles ruled last week that the song "Happy Birthday to You" is not validly protected by copyright. The story is long (it took the judge 43 pages to say that) but it seems that the music copyright expired long ago, and the words were published without a valid copyright notice, which was fatal under the 1909 Copyright Act (but not anymore since the law was changed in 1976.) What does this mean? First, the Doc thinks that Warner, the copyright owner, may appeal since it rakes in $2 million a year from the song. The law may change, yet again. Second, until they do, you may expect a remarkable reduction in the number of cheesy happy birthday song substitutes sung by restaurant wait-staff all over the world!

Have another question about intellectual property rights? Want an answer that will certainly be correct today, but maybe not so much once the courts and Congress change the law next week? Ask the attorneys at LW&H - they will give you the straight scoop.

Until next month...

The Doc

Let's Go Crazy and Support "Fair Use"image of gavel

In 2007, Stephanie Lenz posted a cute 29-second YouTube video of her 13-month-old son dancing and giggling to the music of Prince's "Let's Go Crazy". Four seconds into the video Lenz asks her baby "what do you think of the music?" And the baby bobbles up and down holding his push toy. Then, big bad Universal Music Publishing Company spoiled all the fun and sent a takedown notice to YouTube, asserting, "We have a good-faith belief that [Lenz's video] is not authorized by the copyright owner, its agent, or the law" to play Prince's music.  

In other words, Lenz was an infringer. Lenz was outraged and filed a counter-notice, which Universal Music successfully resisted on technical grounds. Lentz obtained counsel and filed yet a second counter-notice, asserting that her video constituted "fair use."  You may recall from our previous posts that "fair use" under the U.S. Copyright Act, permits limited use of copyrighted works for purposes of "criticism, comment, news reporting, teaching, scholarship, or research."  In response to the second counter-notice, YouTube restored Lenz's video. 

Her outrage undiminished, Lenz joined forces with the Electronic Frontier Foundation (EFF) and sued Universal Music alleging damages for misrepresentation under 512 (f) of the US Copyright Act. The parties eventually filed cross motions for summary judgment on the misrepresentation claim, the court denied both motions, and the parties appealed to the United States Circuit Court of Appeals (Ninth Circuit). 

Now, eight years later, the baby no longer a baby, the Ninth Circuit rewarded Lenz by holding that Universal music - - or anybody sending a takedown notice - - is required to consider fair use in its assessment of whether the offending video is an infringement. The Ninth Circuit wrote: [A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use."  In the words of the EFF:

"The big takeaway of [the] opinion is, yes, that copyright holders must consider fair use before sending a takedown notice. But just as important is the basis of that conclusion: again today we have a federal court making it clear that fair use is not just a carve-out of the copyright system but a right on the same level of those described in the rest of the statute."

While this may not sound like a big deal, the Ninth Circuit's opinion has important implications for digital media and freedom of expression. Digital media providers such as YouTube receive thousands of takedown notices many of which leave us scratching our heads over whether the offending work was really infringing. See these five notable takedowns that fall in that category.

But don't leave this post believing that Lentz walked away with a windfall or that Universal music and other copyright owners have been chastened by the Ninth Circuit's decision despite the EFF's praise of the opinion. Probably not. 

First, the court held that Lentz was only entitled to nominal damages. The Ninth Circuit left it to the lower court to determine whether her court costs and pro bono fees are recoverable.

Second, copyright owners are now required to consider fair use but whether they do so will be judged on a subjective basis, meaning that "a jury must determine whether [the copyright owner's] actions were sufficient to form a subjective good faith belief about the video's fair use or lack thereof." Subjective good or bad faith must be proven from from the point of view of the copyright owner whether or not those acts are objectively reasonable.  A difficult burden, indeed!

Need help with a takedown notice? LWH lawyers can help and they will consider fair use.

When will a Federal court order a patent infringer to stop infringing?Apple logo

Apple and Samsung have been fighting for years over copying by Samsung of patented features of Apple's iPhone and iPad.  The features at issue in a recent
Apple v Samsung case
before the Federal Circuit Court were swipe-to-unlock, telephone number recognition, and spelling correction.  A jury found that Samsung actively copied these features and infringed the patents and awarded Apple $119 million in damages for the infringement.

Apple then asked the trial court to issue an injunction (court order) directing Samsung to stop infringing.   Apple did not ask that Samsung stop selling phones and tablet computers, only that Samsung remove the infringing features from its phones and tablets.  Prior to 2006, such a request almost certainly would have been granted; however, in that year the Supreme Court decided eBay v MercExchange.  In eBay, the Supreme Court determined that a patent owner is entitled to a court order stopping infringement only if the patent owner can show 'irreparable injury' from the infringement, among other things. 

The trial court found that the features at issue were important to Apple's high-risk development and launch of the iPhone and the iPad, but nonetheless denied Apple's request.  The trial court concluded that Apple did not show 'irreparable injury' because Apple did not show that the patented features were the sole cause of Apple's loss of sales to Samsung.  The Federal Circuit Court reversed, holding that showing that a single feature is the sole reason that someone buys a smartphone or tablet computer is impossible where the smartphone or tablet may have hundreds of thousands of features.  The Federal Circuit said that the patent owner need only demonstrate the infringing feature 'impacts customer's purchasing decisions' and that Apple demonstrated through surveys and other evidence that customers did base purchasing decisions on the patented features.    The two-judge majority remanded to the trial court to issue the injunction, over a spirited dissent.

We have not seen the last of this case.

Robert J. Yarbrough was awarded an 'AV' (highest possible) rating by the Martindale 
			Hubbel attorney rating agency.