News and Commentary
In Inside Sources, I make the case that substantive patent reform should be part of the recovery agenda. This includes not only tightening patent eligibility and protecting the IPR process, but focusing on ways that foreign firms can abuse the U.S. patent system to the determine of domestic ones.
In copyright law, even the silliest facts and disputes give rise to serious legal questions. Fan fiction has always existed in a legal netherworld, and this New York Times article highlights a legal between two authors of Wolf-Kink erotica who use the same tropes and general themes from a broader collection of fan fiction. The use of the DMCA takedown system for sites that sell the books, like Amazon, has been a tool for suppressing competition in an industry that reuses and repurposes material.
Four publishers, Hachette Book Group, HarperCollins, Wiley, and Penguin Random House, have sued the Internet Archive for copyright infringement after the creation of the National Emergency Library.
In another example of the customizable features of Fortnite surviving a legal challenge, a Maryland District Court has dismissed a case against Epic Games by Jaylen Brantley and Jared Nickens for infringing on the rights to the “Running Man” dance. The court found that the trademark and other claims were preempted by copyright, and dismissed the case with prejudice.
Termination rights allow the creators of a copyrighted work to reclaim ownership if they sold it to another entity, e.g. a record studio. While it’s a useful tool to bring the balance of power in the artist’s favor, this post on TechDirt from Cathy Gellis examines the difficult hurdles that artists must go through to reclaim their works from larger firms to which they had assigned the rights.
At the Disruptive Competition Project, Matt Schruers discusses the recent controversy over a copyright claim against President Trump’s tweet, how it reveals the way copyright can be abused for political aims, and the relationship to the most recent round of DMCA hearings and the Section 230 debate.
Attorney Judith Bachman has a warning for businesses posting content online: beware of copyright trolls.
Dennis Crouch has a good roundup of the recent IP-related petitions currently before the Supreme Court.
Under the America Invents Act, any person (other than the patentee) may petition for inter partes review, but the government does not count as a “person.” However, due to the quasi-public nature of Federal Reserve banks, they are allowed to petition for IPR as confirmed by the denial of en banc rehearing in Bozeman Financial v. Federal Reserve by the Federal Circuit.
In a recent example of why ContentID isn’t magic and produces significant collateral damage to those with non-infringing material, after the Guinness Book of World Records uploaded a video of the world record for fastest Super Mario Bros. speed run, the record-holder (Kosmic) and countless other speedrunners’ videos have been taken down by the ContentID system.
New Research
Charles Duan of the R Street Institute has an excellent article about the relationship between patents and national security. Even when patents do spur innovation, they can have the effect of limiting innovation in the short-term by restricting competition via patent enforcement. In addition to the obvious costs of reduced competition when technology advances at breakneck pace, he points out the risks posed by “monocultures” in cybersecurity that occur when software patents exist. Such monocultures in software, just as in nature, make larger software systems more vulnerable if a bug is found.
While patents can have the effect of reducing competition, patenting by competing firms can also be a sign of increased innovation through competition. A new NBER study examining competition laws showed that stricter competition laws led to an increase in self-generated patents by firms, with those patents being more impactful and exploratory.
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