Elizabeth Scripturient (the delinquent, ecumenical (hermionesviolin) wrote,
Elizabeth Scripturient (the delinquent, ecumenical

Intellectual Property (Class #3)

non-literal infringement
- abstraction (find the level of abstraction at which they coexist)
- filtration (take out everything that cannot be protected by copyright)
- comparison

"Pretty Woman" -- Roy Orbison vs. 2 Live Crew
1993, Souter [applying the 4 points of consideration re: copyright infringement] says re: (1) is not just about if it's commercial or not but rather is it TRANSFORMATIVE
- does it merely supersede the prior or does it add something new
Souter says re: (3) that it's N/A because parody must evoke the hole so it must use most of the whole. [I don't think this is always true.]
re: (4), prof commented that sometimes the parody becomes more well-known than the original

German art book includes a page of circus posters shrunk 6 to a page.
This was deemed "transformative." I am dubious.

an earlier case, "Mickey Mouse and the Air Pirates," with Mickey Mouse as a dope smuggler, was deemed not parody but just a ripoff.

As with all, there is a statute of limitations -- in this case, 3 years. But is this from the time of infringement? the time of discovery? is infringement an ongoing injury?

The TA talked for a bit about Free and Open Commons
He talked about how the ancient agora morphed into modern day Main Street
Having learned a bit about the Commons in AP European History or something, my instinct was to quibble that the Commons are really a different thing, but I will concede that the agora turned into our modern marketplace of ideas which is like an intellectual version of the Commons
The goal of IP is to promote science and the arts (clicking to the slide -- a portrait of the writers of the Constitution -- he said, "we see our picture of dead white guys")
incentive: do these things for us and we'll let you profit

indirect liability for infringement
knowingly contributing to (assisting) the infringement -- like driving the getaway car
also: "vicarious infringement" -- which distinction I don't really grasp and which the prof says we shouldn't worry about (also called "dance hall cases"... when you have the ability to control someone else's infringing actions)

Grokster, Souter, 2005
built on the Napster decision which said that merely uploading and downloading files infringes on copyright

2 options for redress:
- damages (monetary compensation)
- injunction (defying an injunction is contempt of court which is a criminal charge)

statutory damages - default amount (hard to prove how much money you lost) of $50K/infringement, tripled for "willful"
precondition: must have registered work with copyright office in order to bring suit
- work must be registered at time of infringement in order to sue for statutory damages

copyright infringement used to to require profit motive in order to be a criminal charge
~15yrs ago: David LaMacchia at MIT: indicted, acquitted (he uploaded lots and lots of files, distributed them for free)

101: new and useful process, machine, manufacture, composition of matter; or any new and useful improvement thereof
103: conditions for patentability: invention must be not-obvious

duration: 20yrs from date of application for patent
(some specialized exceptions for e.g. clinical trials)

still does not protect ideas

rights protected: right to keep others from making/using/selling what you have invented

independent development is no defense

no "fair use" clause

utility, design, and plant patents

"Let's say I find wanting the idea of tossing clay in a plastic pail." -- you can search (USPTO or Google) for pre-existing patents for "pet toilet"
He also showed us the infamous patent (which was canceled the following year).

Chakrabarty case
1st live human-made organism
bacteria, GE, cleaning up oil spills
patent was denied (under the grounds that the law didn't have a provision for patenting living organisms), SCOTUS overturned
"anything under the sun that is made by man"

in practice, "useful" means not affirmatively harmful

novelty incl. new to the patent office -- can't be out in the public for more than a year (private field testing etc. doesn't run the clock)

patent lawyers have a PhD in engineering, biology, chemistry, physics, etc. -- law school is almost an afterthought, get their ticket punched so they can practice law without going to jail

U.S. says first-to-invent rather than first-to-the-patent-office (unlike most the rest of the world) when two people are applying to patent the same thing at the same time.
First-to-file is tied up in larger Patent Reform bill ("the best is the enemy of the good").

pending applications are made public 18 months after filing

student asked question about "harmful"
U.S. can't get patent, hence defense subcontractors (I have possibly been reading too much fanfic that my first thought was "Tony Stark!")
in the past, gambling devices for example were deemed "harmful." Now that bar is invoked mostly around issues of fraud and deception
Tags: harvard: ext.: course: intellectual prop

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