The Federal Circuit recently issued its opinion for the Ultramercial v. Hulu case, further closing the door on patentees for what business methods qualify as being patent eligible under 35 § U.S.C. 101. Using the two-prong test outlined by the Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank International, the Federal Circuit held that Ultramercial’s ‘545 patent did not claim patent-eligible subject matter. (The ‘545 patent covered a method for distributing copyrighted content over the Internet where the consumer receives the content for free in exchange for viewing an advertisement, and the advertiser pays for the content.) While not completely unexpected, the Ultramercial decision is important because it continues to stir up debate as to what software and Internet related methods are still eligible for patent protection. Following the decision, inventors, patent attorneys, and even patent examiners are still unsure of what type of claim limitations are required to overcome the §101 threshold.
Section 101 has enjoyed substantial debate over the last four years. Including the Bilski decision in 2010, the Supreme Court has taken up four subject matter eligibility challenges, “endeavoring to right the ship and return the nation’s patent system to its constitutional moorings.” Alice, 134 S. Ct. at 2357. The Court’s most recent patent-eligible decision, Alice, used a two-prong test to distinguish business method patents that claim abstract ideas from those that claim patent-eligible applications of those concepts. (We covered the Alice decision last summer.) The first prong of the test determines whether the claims at issue are indeed directed to an abstract idea. If they are, the second prong of the test then asks whether the claims do significantly more than simply describe that abstract idea. In other words, the additional features for the second prong’s analysis must be more than “well-understood, routine, conventional activity.” Alice clearly took away some of the patent-eligible grounds that were previously available to applicants. But more importantly, it also led to some confusion among patent practitioners and examiners at the U.S. Patent and Trademark Office (PTO) as to the patent-eligibility of certain business method patents for software and Internet-based patents. (more…)
The Washington Journal of Law, Technology & Arts (LTA Journal) has published its Fall 2014 Issue. The LTA Journal publishes concise legal analysis aimed at practicing attorneys on a quarterly basis.
The issue’s first article, by Managing Submissions Editor Rachael Wallace, is “Framing the Issue: Avoiding a Substantial Similarity Finding in Reproduced Visual Art.” The article discusses copyright infringement in reproduced visual art, explains how attorneys have avoided substantial similarity findings, and provides attorneys with guidance on avoiding a substantial similarity finding in their clients’ works, focusing specifically on photographs.
Articles Editor Stephen Anson wrote the second article, “Hologram Images and the Entertainment Industry: New Legal Territory?” The article discusses the three main intellectual property issues surrounding the holographic reproduction of a dead artist’s likeness: copyright, trademark, and the right of publicity. The article recommends the steps that a living artist’s or deceased artist’s estate can take to plan for the most robust protection.
Former Articles Editor Megan Haslach contributed the third article, “Consignment Catastrophes: Lessons from New York’s Art Gallery Fraud.” The article explores issues surrounding art consignment statutes and argues that New York’s amended consignment statute provides a model that all states should implement in order to provide a fairer balance in the relationship between artists and art dealers.
The issue’s fourth article was written by Brendon Beheshti and is titled “Getting Beyond Abstract Confusion: How the United Kingdom’s Jurisprudence Can Aid in Developing an Analytic Framework for Patent-Eligibility in Light of Alice v. CLS Bank.” The Article advocates consideration of the United Kingdom’s jurisprudence as persuasive authority for implementation of a new framework for analysis of subject matter eligibility of computer-implemented inventions in light of the United States Supreme Court’s ruling in Alice Corp. v. CLS Bank International.
See the full issue here.
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In recent years, law enforcement agencies have been under significant pressure to increase transparency after a host of events have led local communities to lose faith in such agencies’ integrity. Concerns have escalated in recent months, particularly after a white police officer shot and killed Michael Brown, a black, unarmed 18-year old man on August 9, 2014, in Ferguson, Missouri. The circumstances of the shooting are in hot dispute, as witness reports differ as to whether Brown was surrendering before the fatal shots. No video surveillance of the incident is available. In hope of rebuilding its credibility after much criticism from the local community, the Ferguson police department has since added body cameras for its officers. Departments throughout the country are following closely behind.
Police chiefs who have implemented the use of body cameras suggest that there are several benefits and believe that both officers and citizens behave better while being recorded. The Department of Justice recently released a policy report on this issue, stating that “body-worn cameras help police departments ensure events are also captured from an officer’s perspective.” Civil rights advocates maintain that such cameras would prevent police officers from abusing their authority, while law enforcement groups believe that cameras would deter people from falsely accusing officers of abuse. Furthermore, the Police Foundation, an organization committed to law enforcement research, recently completed a study that found that body cameras dramatically lowered complaints of police abuse. The results suggested more than a 50% reduction in the total number of use-of-force incidents, as well as a significant reduction in citizen complaints against police officers. (more…)
Metadata provides a record of a user’s online activity, which includes browsing history, map searches, email activity, and even some account passwords. The NSA can use this information to build a detailed picture of an individual’s life. Opponents of the NSA’s surveillance programs argue that metadata collection programs violate an individual’s constitutional rights. However, some argue that metadata can benefit society and fight human rights violations.
Witness, a human rights group that trains citizens around the world to use video to expose human rights abuse, argues that collecting and preserving metadata can help verify those videos. Citizens and activists in conflict zones document everything on their phones. In Syria, for example, human rights activists have produced over 500,000 videos. Unfortunately, Witness cannot verify those videos without proper metadata, and as a result, the organization cannot use the videos to assist in the prosecution of human rights violations.
Witness is turning to mobile app developers to alleviate the verification problem. Witness currently supports a mobile app in collaboration with the Guardian Project called InformaCam. InformaCam uses a smartphone’s built-in sensors (e.g., wi-fi, Bluetooth, and cell tower information) to create a snapshot of the environment in which an image or video is captured. The app validates the date, time, and location of the image or video. Digital signatures and encryption prevent tampering by others. The app has an opt-in “eyewitness” or “proof” mode that users can select before creating the images or video. After a user creates an image or video, the “eyewitness” mode preserves the metadata, which provides a way to check the file for integrity. (more…)
Taylor Swift recently announced her highly publicized breakup with Spotify, the popular music-streaming platform. Not only has Swift denied Spotify streaming access to her new album, 1989, but she has also removed all her past albums from Spotify’s catalogue as well, leaving a Blank Space on over 19 million Spotify playlists. The reason?
Swift justified her actions by explaining that she doesn’t feel Spotify “fairly compensates the writers, producers, artists and creators of this music.” To that point, Spotify agrees that artists deserve recognition of their hard work. The company claims that it paid out $2 million to Swift in royalties for the past year and projects that Swift, as one of the most popular musicians in the world today, could earn over $6 million from Spotify alone. On the contrary, Scott Borchetta, CEO of Swift’s label Big Machine, claims that Swift earned less than $500,000 from Spotify streams in the U.S. for the past year. (more…)
With download of This American Life’s spinoff podcast “Serial” hitting 5 million downloads this week, an old murder case is being cast in a new light—at least to those uninvolved with the criminal justice system. Podcasts have never been a particularly effective source of journalism, and many have expressed surprise over the popularity of “Serial.” Some have speculated that the murder mystery draws people in the same way fictional television shows do — with endings that leave those listening yearning for more. Though Serial may be good news for the podcast industry and investigative journalism, it may be even better for the criminal justice system.
Serial follows the murder of Hae Min Lee, the timeline and relationships between those involved, and the legal proceedings against her ex-boyfriend Adnan Syed. But unlike many popular crime dramas, Hae Min Lee’s story is real. And while millions of listeners are enthralled by her story and the complicated legal details of Adnan Syed’s conviction, the reality remains that Serial follows what prosecutors, police, or defense attorneys would consider a completely ordinary, perfectly typical criminal case in the United States. Essentially, Serial presents both a disturbing picture of the criminal justice system and an opportunity for the public—those not affiliated with the legal system in a professional capacity—to learn about substantive and procedural obstacles that people face when entered into the criminal justice system. (more…)
By Craig Henson
On October 7, 2014, social media heavyweight Twitter filed a lawsuit against the federal government seeking the right to publicly disclose data related to secret government surveillance of its users. The company filed the complaint in the U.S. District Court for the Northern District of California, naming as defendants U.S. Attorney General Eric Holder, the Department of Justice, the FBI, and FBI director James Comey. In the complaint, Twitter alleged that the government impermissibly infringes on Twitter’s First Amendment rights by prohibiting Twitter from disclosing information about the number and type of surveillance requests and orders received, even if that number is zero.
Section 2709 of the Stored Communications Act (SCA) permits the FBI to issue national security letters (NSLs) that require a wire or electronic communication service provider to supply the government with subscriber information, toll billing records information, or electronic communication transactional records. The SCA prohibits NSL recipients from disclosing that the FBI either sought or obtained the requested information or records. Similarly, the Foreign Intelligence Surveillance Act (FISA) permits the government to obtain a court order authorizing real-time surveillance or disclosure of stored records from an electronic communication service provider. Numerous authorities prohibit a FISA order recipient from disclosing information about that order, including 50 U.S.C. § 1805 of FISA as well as court-imposed nondisclosure requirements in the FISA orders themselves. (more…)
Comic book characters are more famous now (and more valuable) than they have ever been. For example, Marvel Studio’s “Captain America: The Winter Soldier” grossed over $714 million worldwide. When Marvel launched its “Phase 3” platform of movies (extending “Marvel Universe” through 2020), the Internet exploded with social media craze. Just mentioning Marvel Studio’s slate of movies isn’t enough: this infographic shows every announced comic book movie for all major movie studios through 2020. Some of the comic characters in these billion-dollar movie ideas were originally created over seventy-five years ago and for an entirely different medium: comic strips. When these characters were first created, no one had any idea that they would one day gross billions of dollars, causing legal battles to rage for the copyrights of these characters.
One of the most important copyright legal battles has raged for nearly six decades over one of the most iconic characters of all time: Superman. Around 1938, the creators, Joseph Shuster and Jerry Siegel, sold their rights to the Superman storyline to DC Comics for $130.00 and additional, annual “work for hire” payments for supplying material to DC Comics. Once the character became widely popular, the creators tried to get their rights back. While the creators have since passed on, their estates have found a new means to attack the copyrights of the work: the 1976 Copyright Act’s termination provisions. (more…)
By Max Burke
This past Monday, President Obama formally addressed the ongoing dispute over whether the Internet should be “open” and “neutral.” In a written statement and an accompanying video, the President asked the Federal Communications Commission (FCC) to “ implement the strongest possible rules to protect net neutrality.”
In case you haven’t seen or read any technology-related news this past year, here’s a quick primer on what Neil Irwin of The New York Times described as “one of the most important policy disputes that will determine the future of the Internet.” Net neutrality, or open Internet, is the idea that Internet service providers (ISPs) “should treat all Internet traffic equally” and should not be able control what websites users can or can’t access. This is essentially the system we have been living under since the dawn of the Internet. But ISPs, including Comcast and Verizon, want to be able to manage some of that access by collecting fees from certain content providers (e.g. Netflix) “in exchange for special access to Internet users.” As Irwin noted, this type of paid prioritization is essentially the business model of cable television providers (many of whom are also ISPs). And like the “boom in content for cable television customers,” ISPs believe there would be a similar “explosion of creativity on the Internet” if they were able to prioritize websites and applications. (more…)