Adler Vermillion & Skocilich, LLP

There is a low-grade but persistent dispute on whether recipes can be protected by copyright law.  Unfortunately, the dispute is mostly just lawyers amusing themselves by arguing the semantics of “recipe” and whether, under one sense of the word or another, recipes may be copyrightable. To that end, I concede the following: to the extent that a recipe is a written set of instructions for preparation of listed ingredients into some foodstuff, a recipe may be copyrightable if it contains enough (that is to say, not much) original stylistic flourish. Copyrightable, that is, as a literary work.

But, this is an answer to a semantic question nobody really cares about. A recipe is not a literary work. What is being avoided is the more important question of whether the ‘recipe’ expressed by a particular instance of a written recipe, the recipe qua recipe, can or should be protected as a culinary work. This requires two asking questions: what is the object of a recipe considered as a culinary work and can that object qualify as an original work of authorship in the copyright sense? (more…)

In Which I Reluctantly Side With Conventional Wisdom.

Fair Use is a nebulous standard. This uncertainty discourages legitimate fair use of copyrighted works. When people can’t make a fair-use determination, they tend to avoid using copyrighted works altogether. Uncertainty stifles speech.

At least, this is the conventional wisdom. But in Copyright’s Asymmetric Uncertainty, Steve Horowitz argues the opposite: uncertainty encourages the use of copyrighted material. Uncertainty promotes speech.

Anchored in Dan Kahneman’s prospect theory, Steve’s article has some enticing ingredients.

Still, I think he flubs the fundamentals of prospect theory. Since the article is well foot-noted, its easy to spot the blunder:

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Prof. William Fisher has created some useful Maps of IP Law (open in Acrobat, not Preview).

I came across Fisher’s maps while researching copyright misuse with my law-and-tech coconspirator coauthor Grainne.  Specifically, we’re looking into online databases that claim copyright to public domain works (there is a criminal fine for this behavior, but its never enforced).

I cracked open Fisher’s Copyright map, followed the relevant branch, and was relieved by the “open questions” leaf.  This nut has yet to be cracked.

Our copyright laws brought into the digital age have turned us all into pirates and thieves—infringers on the rights of creators to make reproductions, to perform and make public displays of their creative works. The law’s conflict with our digital age isn’t just that technology has made it easier to copy and share creative works without permission. In ways that cannot just be avoided, the virtual world has altered our social networks, so that by an accident of digital reproduction, formerly permissible acts with the same meaning and of the same fundamental social nature are instead captured by copyright.

Pinterest is the latest example. The digital copying and public display of images has caused an outbreak of copyright hand-wringing among overwrought legal commentators and volunteer internet hall monitors. Taking what I see as an overly formulaic and abstract view of copyright law, these commentators are declaring that image sharing is infringement, and even questioning Pinterest’s immunity as a service provider host of third party content. To the contrary, I believe that a contextual look at the use of images reveals a transformative (fair use) expression in “pinning” an image.

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Our friend Wayne Ferrebee has authored a well-considered post on the controversial and fundamentally flawed Internet censorship legislation currently before the US Congress. He suggests that rather than blacking out our websites, we ought to take more direct action to throw the bums out.

It is almost certain that no matter the outcome today, this will not be the last time that our legislators, acting on behalf of parochial interests, attempt to mandate a regulatory off-switch for networked speech. But don’t blame them — blame yourselves for electing the idiots! Yes in the short term, I’d rather see this legislation fail. But in the long term, the battle will have to be won on a more fundamental level. Our society as a whole will have to decide that the topic is settled. But even then, I have little faith in our politicians (and our own) ability to keep hands off such a shiny thing as the Internet. Ultimately this issue may not be resolved until the technological cat is so far out of the bag that no regulator, however corruptly motivated, can put it back in again.

In its ongoing crusade against things they don’t understand, Congress has been convinced that the major content providers remain locked in an existential battle with online “pirates” and “parasites” scheming to rob hard working artists of the fruits of their labor. Inflammatory language aside, there certainly is a large amount of copyright infringement going around, but that really is not the question, it is rather, how deeply are we willing to subvert our values of free expression and due process to pursue it.

The latest proposals out of Congress—the House’s “Stop Online Piracy Act” (SOPA) and the Senate’s “PROTECT-IP Act”—direct the weight of the law at websites deemed to play some role in copyright infringement. The SOPA may be the most far-reaching in its assault on “Internet sites dedicated to theft of U.S. property.” In Humpty Dumptian fashion, the law defines these “dedicated” websites so broadly as to likely cover any website that allows sharing of ideas and content, as well as any site that “is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute” copyright infringement or illegal circumvention of copyright protection measures.

The law often draws circles of prohibited conduct around an actual harm to catch actions that may lead to the actual harm, but we are now drawing circles around circles of circles. How do you take deliberate action to avoid taking action to prevent allowing your website to be used by people that may be distributing a copyright protection circumvention technology, product or service?

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The Copyright Act of 1976 allows artists to Reclaim Copyrights after 35 years (starting with works created after January 1, 1978). In 2013, we will start to see the first effects of this provision of the Copyright Act. Its not entirely clear how the transfer will work, or what rights can be reclaimed. Obviously, artists and record companies have differing opinions.

The legal battle will be fought by the creators of the biggest hits of 1978: Village People‘s YMCA, Springsteen’s Darkness on the Edge of Town, Kenny Roger’s The Gambler, Bob Dylan’s Street Legal (meh), and Billy Joel’s 52nd Street, etc.

1978 was also the year the Space Invaders video game was released. Will software developers try to reclaim the rights to their code?

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Samsung Cites “2001: A Space Odyssey” as Prior Art Against iPad Design Patent. Via fosspatents blog.

Apple owns a design patent on the appearance of the iPad, and is attempting to enjoin Samsung from using a similar design for its Galaxy tablet.

For a design patent to be enforceable, it must be for a novel design. Part of Samsung’s defense against Apple’s design patent is that the iPad design is not novel – the design appeared in Stanley Kubrick’s 1968 film “2001: A Space Odyssey.”

Samsung argues:

As with the design claimed by [Apple's patent], the tablet disclosed in the clip has an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table’s surface), and a thin form factor.

Will this work? The definition of “Prior Art” is broad, but not all encompassing. “The scope of the prior art is not the universe of abstract design and artistic creativity, but designs of the same article of manufacture or of articles sufficiently similar that a person of ordinary skill would look to such articles for their designs.” Hupp v. Siroflex of Am. Inc., 122 F.3d 1456 (Fed. Cir. 1997).

I’ve never seen a movie prop cited at prior art for a design patent, but there’s no reason it can’t be. A design patent only covers the ornamental appearance of a product, and the fact that the inner workings of the 2001 movie prop are non-functional shouldn’t affect the design patent analysis.

We will have to wait and see if the judge buys the argument. In the meantime, I’m going to rewatch 2001.

Edit: as Prof. Tushnet points out, Samsung should have looked to StarTrek TNG, where the props look more like ipads than do the props from 2001.