This afternoon the USC IP & Tech clinic filed a public comment on behalf of the Application Developers Alliance (ADA) regarding the proposed information collect on Patent Assertion Entities (PAEs). In the public comment, the Clinic supports the Federal Trade Commission’s (FTC) initiative to collect this information and encourages the FTC to utilize its statutory authority to ameliorate the harmful information imbalance in the current patent system. From the Comment [pdf]:
PAEs are victimizing countless ADA members through a variety of unfair, deceptive,
anticompetitive, and frustratingly opaque business practices. PAE holdup has become so common that PAEs now represent the principal threat to the continued growth and success of the app economy. But while app developers and many others have repeatedly been the targets of these business practices, which they believe to be widespread, there is no way to expose or examine them on a systemic basis. An FTC investigation, made pursuant to its § 6(b) authority, is the best and perhaps only way to obtain empirical data about PAE activity across the entire patent ecosystem.
Today the Application Developers Alliance (ADA) announced that it will be partnering with the USC Intellectual Property and Technology Clinic and other law schools nationwide to form the Law School Patent Troll Defense Network.
From the announcement:
The Law School Patent Troll Defense Network (trolldefensenetwork.org) is a consortium of law school clinics that will provide free legal representation to small app developers and other entrepreneurs that have been threatened or sued by patent trolls. Clinics participating in the Network may also represent the Alliance in major patent cases affecting developers and the app community.
Today the USC IP & Tech Clinic filed a brief on behalf of the Application Developers Alliance asking the Supreme Court to grant certiorari in the case of WildTangent v. Ultramercial. This is a case about whether a claim on using advertising as a substitute for currency, combined with eleven conventional steps and preformed on the internet via a “facilitator” can be eligible for patent protection. The Federal Circuit said yes. In the brief we argue that with this ill-advised decision, the Federal Circuit has immeasurably worsened critical flaws in the patent system that are already deeply affecting application developers. From the brief [pdf]:
“With this decision, the Federal Circuit has worsened critical flaws in the patent system that deeply affect application developers. Unlike other innovators, app developers work exclusively with software, and most are small businesses with little capital. As overly broad software patents have proliferated in recent years, non-practicing patent assertion entities have launched a wave of litigation and intimidation that has made it extremely difficult for many app developers to operate. The Federal Circuit’s decision in this case exacerbates these problems by adding to its deep internal divisions over the proper threshold for patent eligibility. Furthermore, by announcing an overly permissive standard for eligibility, the Federal Circuit has immeasurably worsened the patent litigation crisis for app developers and small innovators everywhere.”
UPDATE: Stamped brief here.
On August 5, 2013, Professor Jack Lerner returned to HuffpostLive to further discuss the ongoing NSA controversy. Professor Lerner and other guests (including USC’s own Professor Daria Roithmayr) assessed the recent Reuters report that showed that the NSA had been providing law enforcement information to the DEA, and then concealing the source of the leads obtained in this matter.
On July 9th, 2013, Professor Jack Lerner and Summer 2013 Clinic Interns, Michael Frank, Michelle Lee, and Diana Wade presented “What the NSA Surveillance Revelations Mean for the Ethics of Cloud Computing ” to the State Bar of California’s Cyberspace Law Committee. The presentation outlined the advantages and disadvantages of cloud computing for attorneys, as well as the different legal vectors by which the government can obtain electronic communications. The presentation further highlighted possible complications to the duties of competency and confidentiality and proposed steps attorneys should take when deciding whether to adopt a cloud computing service for their law firm. We concluded by discussing the requirement of due diligence when adopting cloud services in light of government surveillance activity and duties confidentiality.
On Monday April 22, 2013, the USC Intellectual Property and Technology Law Clinic gave a presentation to over 100 documentary filmmakers as part of the International Documentary Association‘s Doc U educational series on the exemption to the Digital Millennium Copyright Act (“DMCA”) that the clinic and Donaldson + Callif helped win for documentary filmmakers in 2012.
The DMCA was enacted in 1998 and, among other things, made breaking technological locks that protect copyright material–like the encryption on DVDs–a crime. This became a problem for documentary filmmakers because while fair use gives them the right to use material, more and more of it is locked up by the DMCA. So the IPTLC helped obtain an exemption for documentary filmmakers in 2010 and again in 2012 that allows them to take from DVD’s and online sources for the purposes of commentary and criticism. Unfortunately, the exemption is so long and complicated that even lawyers find it dauntingly complex.
Clinical interns Katharine Trendacosta and Garrett Lee, along with Professor Jack Lerner, created a seven-step analysis that allows documentary filmmakers to use the exemption and obtain videos for use in their films for purposes of criticism and commentary without having to hire a lawyer. To start off the seminar, Dean Cheley of Donaldson + Callif gave a primer on fair use for documentary filmmakers.
We had a lot of fun at this event, which took place at the Cinefamily Theater. Photos here and here. In case you missed it, the presentation was filmed for IDA’s Doc U series and will be posted online for viewing in the near future. Stay tuned!
On April 25, the IPTLC, together with the USC Entertainment Law Society, presented a screening of the documentary Accidental Icon: The Real Gidget Story. The Clinic worked on various copyright issues during the making of this film. Click the image below for the full size poster detailing the event.
Today, the USC Intellectual Property and Technology Law Clinic filed an amicus curiae brief in the Eleventh Circuit in the case Cambridge University Press, et al v. Mark Becker, et al. The brief was filed on behalf of American Association of University Professors, International Communication Association, Modernist Studies Association, Society for Cinema and Media Studies, and Professors Peter Decherney and Tsitsi Jaji of University of Pennsylvania.
In the district court case (Cambridge University Press v. Becker), several publishers brought dozens of copyright infringement claims against Georgia State University (GSU). The publishers argue that GSU’s professors are infringing on their copyright when professors post excerpts of copyrighted materials on electronic course reserves–websites that allow professors to interact with, and distribute materials, to students enrolled in their courses. The court held that, in the majority of the instances, the professors’ use of electronic course reserves did not infringe on the plaintiff’s copyrights and that many of the uses constitute fair use.
The publishers appealed the district court’s decision to the United States Court of Appeals for the Eleventh Circuit. On behalf of four national organizations and two professors–together representing over 48,500 professors, scholars, and media professionals–the Clinic filed a brief as amicus curiae asking the Court of Appeals to acknowledge that fair use protects key pedagogical activities. These activities, such as using copyrighted materials for criticism and commentary, are critically important to the educational mission because they add new meaning to the original works and grow our collective knowledge. The great weight of case law supports that such uses are quintessentially transformative and highly likely to be fair use.
A copy of the brief can be found here.
Today, the USC Intellectual Property and Technology Clinic submitted a reply comment to the Copyright Office on the issue of orphan works and mass digitization on behalf of the International Documentary Association, Film Independent, the National Alliance For Media Arts and Culture, Kartemquin Educational Films, Inc., Glen Pitre, and the Tallgrass Film Association. The reply comment emphasizes the need for a comprehensive orphan works solution across all types of works and elaborates on the provisions necessary to adequately protect the interest of all rightsholders, enable potential users to bring critical historical and cultural works to light for the first time, and limit the creation of new orphan works in the future.
We thank the Copyright Office for providing us the opportunity to express our position on this issue and we respectfully urge the Office to continue moving forward on this important issue.
The comment can be downloaded at http://iptlc.usc.edu/wp-content/uploads/2013/03/Orphan-Works-Reply-Comment-IDA-et-al.pdf
In October of 2012, the U.S. Copyright Office issued a Notice of Inquiry regarding Orphan Works and Mass Digitization. In response to this inquiry, the USC Intellectual Property and Technology Clinic filed a comment on behalf of the International Documentary Association, Kartemquin Educational Films, and the Independent Filmmaker Project, along with other organizations and individuals in the independent and documentary filmmaking industry.
An orphan work is a work protected by copyright for which the rightsholder cannot be identified or located. When filmmakers wish to license this material to use in their films, they will be unable to contact the rightsholder to obtain permission. Without authorization from the rightsholder, filmmakers are deterred from using such materials because there is a risk that the rightsholder will resurface once use has commenced and may take legal action against the filmmaker for copyright infringement.
The comment articulates the need for orphan works reform to allow independent and documentary filmmakers to draw upon the rich cultural and historical content that is becoming more readily accessible due in part to the growing ubiquity of digital technologies. We urge the Copyright Office to explore solutions to the orphan works problem that will enable filmmakers to make responsible and valuable uses of orphan works.
The comment can be downloaded at http://mylaw2.usc.edu/users/jlerner/orphan_works_comment.pdf