This Week in Intellectual Property, September 29th

This Week in Intellectual Property, September 29th

Rent Check

Penguin RandomHouse is doing quite well for itself despite the pandemic. Much of that success is based on sales from older titles rather than investing in (and taking risks on) new works.

The Commission on New Technological Uses of Copyrighted Works (CONTU) guidelines haven’t been updated since 1978, but they remain the guiding force for the terms surrounding inter-library lending (ILL) despite lacking the force of law. These outdated rules cost libraries millions above what the market price for such journals should be to the benefit of publishers.

 

News and Commentary

This article from┬áThe Hollywood Reporter recounts the late Justice Ruth Bader Ginsberg’s positions on copyright law, and how her absence will influence future court decisions on the subject.

Brenda Sandburg also recounts the late Justice’s major decisions in the patent field.

The creators of multi-racial emojis are suing Apple for copyright infringement in the latter’s creation of similarly diverse emojis. While the two are undoubtedly similar, Mike Dunford explains how the plaintiff Cub Club Investment is likely only entitled to “thin” copyright protection, which only protects against the most explicit forms of copying.

The Fifth Circuit has ruled against jazz musician Paul Batiste in his copyright infringement suit against Macklemore and Ryan Lewis. Batiste alleged infringement in several of the duo’s hits, but failed to produce evidence that the duo had access to his music or any striking similarities between the works in question. Due to the self-proclaimed “legendary” jazz musician Batiste’s history of misconduct, the unreasonableness of his claims, and a pattern of filing aggressive copyright claims, he was ordered to pay defendants’ attorney’s fees.

In another case of aggressive copyright claims leading to defendants claiming attorney’s fees, Netflix and the makers of the show “Narcos” have prevailed against a copyright infringement claim by the reporter Virginia Vallejo.

Mike Masnick at TechDirt uses the recent example of Twitter joining a new nonprofit, the Crypto Open Patent Alliance, as an example of large companies with a significant number of patents signing onto patent pools. This contradicts the conventional wisdom that patents are essential to innovation and that any loss of exclusivity would be detrimental.

Gerald Barnett discusses the history of “patent thicketing”–the practice of building a number of patents and claims around a single invention–and its current use in the context of universities. The main patent may be innovative, but such thicketing, “collectively, and without intention, as if by an invisible bureaucratic hand…make[s] effective technology transfer impossible for any” university. While the Bayh-Dole Act created perverse incentives among universities to focus on patents as a commercial venture, the specific issue of thicketing is part of a more fundamental problem with the patent system.

 

New Research

A new paper from the National Bureau of Economic Research examines different methods for determining patent quality, coming to the unsatisfying (but nonetheless important) conclusion that patent quality is sensitive to the perspective of the stakeholders and the technology in question, and no consistent, universal measure of quality can be reliably produced.

Another NBER publication finds that during the Great Depression, local financial distress had a negative effect on patenting and innovation. However, these effects were mitigated by a lack of brain drain from affected areas and the reallocation of inventors to firms producing patents with long-run greater impact.

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By |2020-09-29T15:43:04-07:00September 29th, 2020|Blog, Intellectual Property|