via Slashdot. The U.S. Supreme Court - about which we have often been critical on this blog - came through in a big way today. The Circuit Court - which is notorious for its lax standards in determining whether a patent is valid - had the test it uses for "obviousness" overruled.

"Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress," Justice Anthony Kennedy wrote for the court.

A brief account can be found here. Note that the companies arguing against the Circuit court are the ones that innovate; those arguing with the Circuit court are those that don't. This alone should say something about the state of patent law. Hopefully the ruling will cut down on the vast number of frivolous and/or blackmail patent lawsuits. The article doesn't mention this, but the ruling was unanimous, which is good news as well.

There was also a useful but unrelated ruling cutting down on the use of lawsuits on exports.

The Supreme Court Blog has an interesting post examining the fact that the Court has been scrutinizing patent law much more in recent years.

Faster please.

[Via Lawrence Solum who is often on the lookout for new legal articles dealing with intellectual property law and philosophy.]

Viva Moffat has written an interesting paper on the problems resulting from overlapping intellectual property protections -

"The interactions between the three federal schemes of intellectual property protection – copyright, patent, and trademark – have often been overlooked. This article addresses some of the issues raised by the overlaps between these areas of law and concludes that the availability of more than one form of protection for certain creative or inventive works creates problems in many circumstances; that those problems have not been considered fully by policymakers or courts; and that overlapping protection interferes with the benefits meant to flow to the public."

The 9th Circuit gets it right this time.

Here is the simplistic explanation of the important aspect of this decision:

1. The Digital Millennium Copyright Act (DMCA) protects "Internet Service Providers" (including most blogging websites)from liability for various material posted by third parties. For instance, if a third-party commenter were to post a defamatory comment on this site, neither myself, nor the site's operators would be legally liable for the other person's comment, since we wouldn't be considered the authors of it. It prevents our liability for 'republication' of the third-party comment, even though it appears on this site.

2. However, the DMCA does not extend its liability protections to intellectual property (IP) claims. For instance, if somebody alleges that a thrid-party posted a copyrighted video to this site, we would still be legally obligated to take it down - provided that we were given notice and the video posting doesn't otherwise comport with fair use.

Why did the DMCA carve out an explicit exception for IP in its liability protections? The usual reasons - Big media lobbied Congress to include that provision in order to protect its turf. There is no such thing as an organized political lobby for those who might be libeled in the future. (As a result of the IP exception under the DMCA, the development of the Internet still has been unfortunately slowed...but that is obviously a much bigger debate and discussion for other posts on this site and elsewhere.)

So the vital question then becomes: What is 'intellectual property' for purposes of interpreting the DMCA? Some states have a mutant form of IP protection called the 'right of publicity'. They also have other laws under the rubric of 'unfair competition' or 'trade secret' laws that also serve as a mutant (and broader) form of IP protections. Then there are also state 'common law' forms of copyright and trademark protections that you may read about from time to time.

So in other words, state concepts of IP are often defined far more broadly than federal forms of IP. If you were to accept the broader state notions of IP, and then allow those notions to dictate the meaning of the DMCA, that would mean that the DMCA offers less and less liability protections to Internet Service Providers. States would eventually be able to define "IP" so broadly that the DMCA would effectively become a meaningless hollow shell - offering no real protections for anybody.

Fortunately, the 9th Circuit saw through the nonsense, and said that the DMCA still offers liability protections for all forms of state IP claims. The only exceptions to the protection for websites under the DMCA will be for IP that is recognized under federal law.

Well done 9th Circuit! There is still plenty wrong with federal IP and the DMCA, but at least they have seen fit to minimize the damage in this particular instance.

via Jeroen Swinkels - Colbert on copyright

If that fart doll that you wanted to buy happens to be more expensive this year, you can thank the 7th Circuit Court of Appeals based on its decision today in JCW Investments Inc. v. Novelty Inc. (Note how the court is careful enough to include the ® trademark sign in its decision when it refers to "Pull My Finger Fred". Do they do the same if they mention the Academy Award Oscars® in a decision?):

Meet Pull My Finger® Fred. He is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fred is a plush doll and when one squeezes Fred's extended finger on his right hand, he farts. He also makes somewhat crude, somewhat funny statements about the bodily noises he emits, such as “Did somebody step on a duck?” or “Silent but deadly.”

Fartman could be Fred's twin. Fartman, also a plush doll, is a white, middle-aged, overweight man with black hair and a receding hairline, sitting in an armchair wearing a white tank top and blue pants. Fartman (as his name suggests) also farts when one squeezes his extended finger; he too cracks jokes about the bodily function. Two of Fartman's seven jokes are the same as two of the 10 spoken by Fred. Needless to say, Tekky Toys, which manufactures Fred, was not happy when Novelty, Inc., began producing Fartman, nor about Novelty's production of a farting Santa doll sold under the name Pull-My- Finger Santa.

Tekky sued for copyright infringement, trademark infringement, and unfair competition and eventually won on all claims. The district court awarded $116,000 based on lost profits resulting from the copyright infringement, $125,000 in lost profits attributable to trademark infringement, and $50,000 in punitive damages based on state unfair competition law. The district court then awarded Tekky $575,099.82 in attorneys' fees. On appeal, Novelty offers a number of arguments for why it should not be held liable for copyright infringement, argues that Illinois's punitive damages remedy for unfair competition is preempted by federal law, and contends that the attorneys' fees awarded by the district court should have been capped according to Tekky's contingent-fee arrangement with its attorneys. For the reasons set forth below, we affirm.

Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative…

[Hat-tip: Decision of the Day Blog]

If copyright only extends to actual "fixed" works and not ideas, then it seems to me that copyright should not extend to the concept of characters. A character is no more than an idea once you divorce it from the underlying fixed text. That is in fact one of the primary falsehoods in copyright law - any derivative work that does not contain an actual clone of the fixed underlying work is merely borrowing from an idea, not the protected fixed work itself. Ideas can admittedly have varying degrees of abstraction, and a fictional character is certainly less abstract than many other forms of ideas - but that does not change the fact that it is still just an idea. All literary ideas remain ideas until they are written down (or "fixed" as the law would say). Once it is written, the idea remains an idea. The copyright should only extend to the concrete writing itself. The entire concept of "derivative" works destroys the fundamental compromise behind copyright philosophy.

Unfortunately, the courts have never recognized this obvious falsehood. If X creates a suave spy named "James Bond", then all future authors are prevented from using a suave spy character named James Bond, even if they never actually copy from the previous works that Bond has appeared in. They may even be prevented from creating a spy character with a different name, but still happens to dress sharp and enjoy vodka martinis that are "shaken, not stirred" (since many would naturally identify such traits with the Bond character),

So what happens when the courts blur the distinction between ideas and fixed works? You get ridiculous lawsuits like this one - where Carol Burnett sues somebody for drawing an animated character wearing a blue bonnet, bucket and mop. Maybe even depicting janitors tugging on their ears is now off-limits.

John has a post about a new "wiki" oriented system that the patent system is planning on a trial basis to get public input into patent applications. John has done quite a bit of work tracking down what is going on - there will probably be more later when the system goes into operation, encouraging us to participate.

Let me play devil's advocate here, and explain why I'm not at all convinced this is a good idea. Getting rid of obvious patents, and patents for which there is prior use would be a good thing to do. No doubt the patent office is pretty poor at its job (see this post for one of many egregious examples). No doubt there is a lot of expertise outside the patent office that if it could be tapped into would help eliminate some of the obvious and redundant ones.

But: the U.S. Patent Office shows 417,508 applications in 2005.

*Is it realistic for that many patents to get public scrutiny?

*Do we want Linus Torvalds spending all of his time scrutinizing patent applications to see what is obvious and redundant - or writing great software?

The actual system is (at least initially) intended to be a voluntary system in which applicants can opt for public scrutiny. That would serve to keep the applications to be scrutinized within bounds. Realistically, if this is to make sense then patents that undergo this scrutiny have to have some higher legal standing than those that do not. It is obvious why the large software companies who are pushing the idea would favor this - however beneficent their motives, can we doubt that they are different than the rest of us? We all want patents for ourselves, but not the other guy. So initially, the system just seems a way of getting superior status for the large companies that choose to participate. Of course if it works, then everyone will want in - and now we are back to 417,508 applications. Worse - if we get all the patents going through the system, most of them won't get any scrutiny at all - but of course when it goes to court the claim will be that the patents were available for scrutiny and nobody said anything at the time, so, however ridiculous the claims, they must be recognized.

What do you think? Good system or bad?

Columbia Law School hosts a great website that attempts to catalogue and analyze every major published court case involving music copyright infringement claims.

The site is put together brilliantly - cross-referencing song titles involved in the cases, and (in some cases) providing audio files of the disputed works in question. Anyone who wishes to educate themselves about this subject should definitely consider bookmarking this site.