Under 17 U.S.C.A. Section 105, copyright is unavailable for works of the U.S.  government or its employees. Jill’s excellent post last week highlighted the fact that state agencies and the states themselves don’t necessarily share the policy.  Instead state ” [l]egislatures may also be tempted to impose statutory restrictions on information in order to raise revenues from new sources or to accomplish other purposes,” notes Robert Gellman in a 1995 Syracuse Law Review. 45 SYRLR 999.

Could it be enough to defray the cost of the Diamond Jubilee? Hard to say.

Copyright for government works in the the UK and in several  members of her Commowealth, vests in Her Majesty the Queen under what’s called,  Crown Copyright.  See, for example,  R.S.C. 1985, c. C-42, s. 12 and McKeown: Fox on Canadian Law of Copyright and Industrial Designs (FoxCopyright 18).

This 2005 article from the International Journal of Law and Technology by Dr. Stephen Saxby cites to a 1995 Green Paper (pdf) which calculated 95-96 revenue came to £199,318,500.  The Telegraph estimates much more than that for the Jubilee.

This is also interesting because the United States is a signatory to the Berne Convention.  Signatories must extend the same protection to foreign material that they would extend had the same work been created domestically (this summary elides a great deal of detail and nuance).  This raises the specter that a country which extends copyright protection to its own government works would have to similarly extend protection to American government works, even though the U.S. government extends no protection domestically.  For a discussion of that scenario, see footnote 49 in 48 STJIL 185.

Other Research References

To see the British law on Crown Copyrights, try the search crown /2 copyright in UK-ST. I found 32 results.

The Berne Convention on Westlaw.  The relevant database is IEL (International Economic Law Documents) and the relevant search is ti(“berne convention”), and the results show both the original agreement and subsequent amendments.

Finally, 2002 SYLTJ 1 gives a brief description how easy it would be to register an American government document with the Canadian Copyright office.

A few weeks ago, while listening to public radio’s “On the Media” program, I heard an interesting interview with Carl Malamud, of Public.Resource.Org. Mr. Malamud was discussing public standards created by private or industry organizations that have been incorporated by reference into the Code of Federal Regulations and other administrative codes. The conversation focused on the general unavailability of these standards to the public, and how you often must purchase the standards from the entity who drafted the particular standards, which can get expensive. Mr. Malamud’s argument is that if language is incorporated by reference into the administrative code, and enforceable as law, it should be publicly available, as it is no longer private property.

Mr. Malamud mentioned the 2002 Veeck case (49 F.Supp.2d 885), where a Texas web-developer purchased the Model Building Code (incorporated by reference into the Texas Building Code) and placed it online. That case went up to the 5th Circuit.  See 293 F.3d 791. The 5th Circuit found that while the Model Building Code might have had copyright protection as a Model Code,  it was no longer copyrightable once it was incorporated into the Texas Code.  This decision was specific to the Texas Building Code situation though, and does not necessarily extend to law incorporated into the Code of Federal Regulations. The Veeck decision has seen some serious criticism.  William Patry calls the decision “deeply flawed” and concludes:

Given the increasing tendency of government to adopt ready-made codes developed by private industry, there will likely be more such cases. So long as the public is not denied access (thereby eliminating any due process concerns), it will benefit from the lower costs made possible by private development. Copyright in such works should be upheld. Rules developed in the 19th century no longer fit the increased budgetary pressures on government and the wide dissemination made possible by the Internet. Private companies play a significant role in creating and disseminating a wide variety of materials used by government with the consent of those governments. Those creative efforts are deserving of protection, absent compelling evidence that the public is being denied access by virtue of the copyright. The desire of competitors to free-ride on the efforts of others has no bearing on whether access is, in fact, already present.

2 Patry on Copyright § 4:84  

But, a fair number of Veeck’s 283 citing references continue to cite ‘broad policy considerations’ as reason for why standards should fall outside the copyright protection.  See for example, Pamula Samuelson’s,  Questioning Copyrights in Standards, 48 B.C. L. Rev. 193. 

Mr. Malamud’s organization has purchased a number of copyrighted standards that he intends to publish online to force the issue in regards to the CFR. PublicResource’s CodeCity is here.

ADDITIONAL RESEARCH REFERENCES

WestlawNext search in secondary sources:

veeck & private or industry standards incorporated by reference into regulation

Relevant results inlcude:

Lawrence A. Cunningham, Private Standards in Public Law: Copyright, Lawmaking and the Case of Accounting, 104 Mich. L. Rev. 291 (2005)

Katie M. Colendich, Who Owns “The Law”? The Effect on Copyrights When Privately-Authored Works Are Adopted or Enacted by Reference into Law, 78 Wash. L. Rev. 589 (2003)

Shubha Ghosh, Copyright as Privatization: The Case of Model Codes, 78 Tul. L. Rev. 653 (2004)

Earlier this week, I read a very interesting story about Nokia’s  patent application for tattoos inserted under the skin that alerts a user when their cell phone rings, or has a new message or text or if their battery is low.  US PAT APP 20120062371, HAPTIC COMMUNICATION.  The abstract section of the patent application states,

“In accordance with an example embodiment of the present invention, an apparatus comprises: a material attachable to skin, the material capable of detecting a magnetic field and transferring a perceivable stimulus to the skin, wherein the perceivable stimulus relates to the magnetic field.”

Remarkably, “cyborg” appears less frequently in the case law (54 times) than  “ferromagnetic”   (83 times) – as in “ferromagnetic tattoo ink”.

RESEARCH REFERENCES

Westlaw Database: US Patent Applications (US-PAT-APP)

Query: DA(3/2012) & NOKIA & TATTOO

Sample Prior Art Approach:

The US Class code is 340/407.1 (Tactual indication).  The IPC is G08 6/00 (Tactile signalling systems). Using Stedman’s Medical Dictionary (STEDMANS), we found alternative terms for skin (query: ti(skin)): epidermis and corium (dermis). SYN: cutis.

Westlaw Database: US Utility Patents (US-UTIL)

Query: 340/407.1 G08-6/00 & TI,AB(TATTOO SKIN EPIDERMIS CORIUM DERMIS CUTIS)

KeyCite

I am monitoring this patent application with a KeyCite Alert. Once you pull up the patent application, you can set up a KeyCite Alert by clicking on the link on the left side “Monitor with KeyCite Alert” and the set up wizard will take you through the steps to set it up.

In 2010, Eric Goldman noted copyright claims against political campaigns appear to be on the rise.  He cites (among others):

• Sen. John McCain: See for example, 2008 WL 3849451 or try search (copyright /3 infring!) & TI(mccain /3 john) in federal court filings.

• Robin Carnahan: See 2010 WL 3805284 for complaint and for links to related pleadings.

• Charlie Crist in 2010.  See Gov. Crist’s answer at 2011 WL 2622081 and Mr. Byrn’s complaint at 2010 WL 2833809)

• Sharron Angle in 2010.  See Righthaven’s complaint at 2010 WL 3690541 and Sharron Anlge’s answer at 2010 WL 3968913.

• In 2008,  Sarah Palin caught heat from the band Heart over her use of their song “Barracuda.”  Although it didn’t result in litigation, it did generate a fair amount of press coverage, and even some legal scholarship.  To see examples, try “Sarah Palin” /p barracuda in News or All State and Federal Materials on WestlawNext:

There are, of course, a host of more recent examples.  The Westlaw welcome page has the link to a complaint filed against Newt Gingrich and his presidential campaign by Rude Music, Inc., a company owned by one of the musicians from the band Survivor, alleging that Gingrich’s campaign infringed on the copyright of the classic song “Eye of the Tiger” by using it at his campaign events.  (For the complaint, see 2012 WL 264219).  NBC asked Mitt Romney’s campaign to remove an anti-Gingrich ad featuring Tom Brokaw’s reporting.

I ran the following search on WestlawNext in All State and Federal materials:

Search:  recording song music copyright infring! /s politic! /5 campaign conference event

This search returns over 550 documents, including 75 cases and over 90 trial court docs.

Unfortunately, there’s no perfect search to capture filings of this sort.  If you’re interested in tracking newly-filed campaign-related copyright cases, you might simply run nature-of-suit code for copyright (820) and review results for candidate names.  However, we did review Federal Election Committee’s Campaign Finance data for commonalities among campaign and committee names to come up with the following search.

NOS(820) & PTN(CAMPAIGN DEMOCRATIC DFL REPUBLICAN GOP RE-ELECT! ELECT ELECTION CANDIDA! CHANGE PAC PAF (POLITICAL +3 FUND ACTION) (#FOR +2 GOVERNOR PRESIDENT SENATOR SENATE HOUSE REPRESENT! CONGRESS) VOTE! DFL GOB)

The Search seems to work best on WestlawNext where it delivers 90 results in Federal District Courts.  Use the Filing Date filter on the left to limit results to recent dockets:

Political campaigns of the past have yielded an interesting variety of legal issues surrounding the use of music in the campaign.  Based on the early start we’re seeing with the Rude Music v. Gingrich 2012 case, this promises to be no exception.

It’s a big day in the copyright world.  Golan v. Holder was decided today by the Supreme Court.  See 2012 WL 125436.  Supreme Court oral arguments are at 2011 WL 4593952.  Find the “Petitions, Briefs, and Filings” links on either document for related court documents.

In addition, today is SOPA resistance day.  Several internet companies are protesting two anti-piracy bills by going dark:

The two bills are the “Stop Online Piracy Act” (HR 3261) and the “PROTECT IP Act” (S. 968) .  Westlaw/WestlawNext find citations to the bill documents are 2011 Cong US S 968 and 2011 Cong US HR 3261.

The President’s recent statement in response to “We the People Petitions on SOPA and Online Piracy” might generally summarize the opposition to these bills:

While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.

2012 wL 114502

Despite waning support for these bills, Nate Anderson of Ars Technica reported that November’s Congressional hearings were stacked ‘hugely’ in favor of those advocating adoption. The transcripts are interesting to read.  On Westlaw, try a query for, SOPA,  in the USPOLTRANS database.

The Supreme Court is back to business Monday, January 9th. The court will hear 3 cases Perry v. Perez/Perry v. Davis, Kappos v. Hyatt and Sacket v. E.P.A. This post’s research covers Kappos.  Perry and Sacket posts are forthcoming.

Kappos v. Hyatt: Overview

In Hyatt v. Kappos, the Federal Circuit held that when a patent applicant files suit under 35 U.S.C. § 145, the only limitation on the admissibility of evidence for issues raised before the Patent Office are the Federal Rules of Evidence and the Federal Rules of Civil Procedure. The citation to the Federal Circuit opinion is 625 F.3d 1320.

In this case the Director of the PTO argued that an applicant in a § 145 action can only present new evidence to the District Court if the evidence could not reasonably have been provided to the Patent Office. The Federal Circuit rejected this argument citing Butterworth v. Hoe (112 U.S. 50), “It is not a technical appeal from the patent-office, like that authorized in section 4911, confined to the case as made in the record of that office, but is prepared and heard upon all competent evidence adduced, and upon the whole merits.”

The Director also argued that allowing applicants to introduce new evidence would conflict with the doctrine that parties may not raise issues in the district court that were not raised before the Patent Office. The Federal Circuit rejected this argument as well and clarified that an applicant cannot raise new issues but can provide new evidence as to issues raised before the Patent Office.

The Federal Circuit identified two different standards of review for the District Court in a §145 action. The First applies in situations where the applicant does not introduce new evidence. In this instance, the court reviews the case on the administrative record and must apply the APA’s substantial evidence standard to the Patent Office findings of fact. Second, when the applicant does introduce new evidence, the district court is not limited to the administrative record, instead the court must make de novo findings of fact that relate to the new evidence.

Ronald Mann’s overview at SCOTUSblog notes…

The arguments of the parties are squarely drawn.  Although the parties argue at length about the state of the law at the time when the various predecessors to Section 145 were adopted and amended (the statute dates to 1839), the central debate really pits the language of the statute against considerations of institutional design.

We nevertheless spent some time finding the old statutes. The Federal Circuit opinion looks at the legislative history of 35 U.S.C.A. § 145 and discusses § 4915 of the Revised Statutes at length.  Section 4915 and other 145 predecessors can be found in the US-STATLRG database.   For example, we found 44 Stat. 1335 by searching for,  patent and da(1927).  Searching clues can be found under the Historical and Statutory Notes at 35 USCA 145.

The Supreme Court has granted certiorari and hears oral arguments on Monday, January 9th. The Petition for Writ of Cert can be found at 2011 WL 1336431.

To read the briefs filed in this case run this search in the SCT-BRIEF database: ti(kappos & hyatt) or, find the link for filings links at the case from the Federal Circuit opinion.

The transcript will be available soon after the oral argument, to access that you can go to the Transcripts of the U.S. Supreme Court Oral Arguments database (SCT-ORALARG) and enter Kappos in one party name box and Hyatt in the other party name box. We’ll also update this post when the citation becomes available. [Update: Oral Arguments Transcript is here: 2012 WL 38640]

If you would like to be alerted when the Supreme Court’s decision comes out, set up a WestClip with this as your query: ti(kappos & hyatt) in the SCT database. The steps for setting up a WestClip are available here: Westlaw Quick Reference Guide: Using Westclip (pdf).

Dennis Crouch recently noted that more U.S. utility patents were issued in 2011 than in any other year. We emulated his  research by using the following queries:

On Thomson Innovation: PY=([year]) NOT KI=(S?) NOT PN=(usre*);

On Westlaw: da([year]) and u.s. in US-UTIL

The Thomson Innovation search eliminates design patents by excluding Kind Codes, “S.”  It eliminates  Reissues by excluding publication numbers beginning with, “USRE.”   Westlaw has separate collections for Design and Utility patents (US-Design, US-Util).  Our results:

* We used Thomson Innovation’s US Class filter to acquire these results.

Thomson Innovation displays a maximum of 60K patents.  The Patent Office hasn’t issued fewer than 60K patents in a single year for quite some time. In 1950, there were 42,851 granted utility patents (Top US class was 346/033R or “Combined with external recording operating means”).  In 1900, there were 28,657 granted utility patents. (Top U.S. class was 431/110 or “Supported above upwardly facing fuel discharger”).  For this post, we did not do the work of breaking the  search into several parts in order to generate fewer than 60K results.  So, analysis for Top US class might vary with a more nuanced search.

An impressive collection of  America Invents Act resources (free and paid-for) is being collected at a LinkedIn Group sponsored by Thomson Reuters.  They include BitLaw’s red-lined version of Title 35, a Husch Blackwell slide presentation, LegalEdCenter CLEs, and many others.  Several of these resources – and access to the LinkedIn group – can also be found at Thomson Reuter’s new America Invents site.

A recent story out on the AP wire highlights the newest phenomenon in trademark filings: the rush to trademark all things Occupy.

In recent weeks, the U.S. Patent and Trademark Office has received a spate of applications from enterprising merchandisers, lawyers and others seeking to win exclusive commercial rights to such phrases as “We are the 99 percent,” “Occupy” and “Occupy DC 2012.”

Organizers of the protest centered in Manhattan’s Zuccotti Park went so far as to file for a trademark of “Occupy Wall Street” after several other applications connected to the demonstrations were filed with the U.S. Patent and Trademark Office.

Wylie Stecklow, a lawyer representing the protesters, said the Oct. 24 filing was done to prevent profiteering from a movement many say is a protest of corporate greed.

“I would like to ensure that this isn’t coopted for commercial purposes,” Stecklow said. “The trademark can be used for noncommercial purposes.”

Stecklow’s application was one of three filed with the U.S. PTO seeking to trademark either “Occupy Wall Street” or “Occupy Wall St.”

2011 WLNR 22941622

All of these filings are available in the TRADEMARKSCAN – All (ALL-TM) database.  A search for all filings for Occupy to date this year yields 10 documents.

You can also limit your search to US filings.  In FED-TM, try

tm(!occupy! !ninety-nine-percent! !99%! !wall-street! !1%! !one-percent!)

Note that with this search, we’re using root expanders at the beginning of each term — wouldn’t want to miss the application for de-occupy.  View your result list as a sortable table and export the data to an Excel file .  This  should allow you to analyze the data.  Here, for example is a pie chart of the 2011 ‘Occupy’ marks organized by international class:

Click to Enlarge

For purposes of this research, however, what’s more interesting is who might be filing these applications and when they’ve been filed.  According to an article from American University Washington College of Law’s Intellectual Property Brief, some second-comers might be 1-percenters.

Fer-Eng Investments appears to be a shell corporation with the only officer named as “The Ferraro-Eng Family Trust.” The names provided on the address refer to Vincent Ferraro and Wee Nah Eng. Interestingly enough, Ferraro, a Stanford Business School grad, is the former Vice-President of Worldwide Marketing for Hewlett-Packard, where he met his wife Wee Nah Eng. Ferraro now serves as the Vice President and Chief Marketing Officer of Global Marketing for Eastman Kodak, and also appears to hold several consulting positions. Now, I don’t know what type of compensation Ferraro receives, but based on his title, position, and impressive (publicly accessible) Linkedin resume, I would be willing to give anyone 10:1 odds that the Ferraro-Eng household is bringing in enough to meet the $380K a year threshold for the “top 1%.”

Coincidentally, there have also been 52 filings for “tea party” in ALLTM.

On this day, in 1998, PL 105-304 became effective.  That makes the Digital Millenium Copyright Act (DMCA) about the same age as blogs, 3 years older than Grokster, 6 years older than Facebook, 7 years older than YouTube, and 8 years older than Twitter.  The DMCA provides – among other things – immunity to Online Service Providers (OSPs) who meet certain conditions outlinded under 512(c) of the Copyright Act.  OSPs who respond expeditiously to statutory take-down notices fall within the safe harbor.  So, when Judge Stanton determined YouTube met these burdens, he granted YouTube’s summary judgment motion inViacom’s billion-dollar lawsuit (718 F.Supp.2d 514).

Now, however, two pending bills effectively provide content owners with an end-run around these safe harbors by creating an ”expedited process for cracking down on rogue Internet sites by targeting the domain names associated with those sites through injunctive relief ” S. REP. 112-39.  Stemming massive piracy from abroad is clearly a stated-target (er, pretext?) of these bills.  So is jobs. Search protect-ip and china jobs in USPOLTRANS.   But,  the Electronic Frontier Foundation called the Stop Online Priracy Act (2011 CONG US HR 3261 - WL link) and the PROTECT-IP Act (2011 CONG US S 968 - WL link), “the worst piece of IP legislation we’ve seen in the last decade…”

Research References

BLOGSOD: Your RSS feed, if you still use one, might serve the purpose of finding straight talk on a hot button issue like this one.  Even so, I  like the Blogs on Demand service where I might run simple full-text searches and alerts.  Simply try, sopa, for example in the BLOGSOD database.

CR: Consumer groups are launching letter-writing campaigns.  Wondering whether your member of Congress stands for or against the legislation? It can be hard to tell.  But, additional co-sponsors are read into the Congressional Record.  Try this in the Congressional Record:

CO-SPONSOR /10 H.R.-3261 S-968 /s [your member of Congress here]