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Intellectual Property

Yo Ho Ho and a Bottle of RAM – Pirates Take a Bite Out of Small Firm Innovation

WASHINGTON, July 22, 2010 – The House Committee on Small Business met Wednesday to discuss the growing problem of intellectual property infringement.



WASHINGTON, July 22, 2010 – The House Committee on Small Business met Wednesday to discuss the growing problem of intellectual property infringement.

“More than 18 million Americans work in industries with an intellectual property focus. … Collectively, these and other industries make U.S. intellectual property worth $5.5 trillion,” said Committee Chairwoman Nydia Velazquez, D-N.Y.

Copyright infringement, piracy and counterfeiting have taken larger and larger chunks out of intellectual property ownership every year, she said.

Rick Carnes, president of the Songwriters Guild of America, testified that “for every one song purchased online, 20 are stolen.”

The software and related services sector employs almost 2 million people in the U.S. … [and] software exports contribute a $37 billion surplus to our nation’s balance of trade,” said Robert Holleyman, president and CEO of the Business Software Alliance.

Protecting intellectual property is “rooted in the Constitution,” said Holleyman, adding that there was about $51 billion worth of stolen software installed on PCs globally last year.

Holleyman said counterfeiters and intellectual property pirates go to countries where IP laws are lax. From his understanding, there are fewer than 20 people in the Chinese government working on intellectual property, he said.

Carnes said content-specific platforms like the iPod and iPad helped piracy because it makes it easy for a user to legally purchase content, but that people need to know that just because they find something on the internet doesn’t mean downloading it is legal.

Education and enforcement are the keys to solving the growing problem of IP theft, said Holleyman.

Steven Friedman, president of Tampa, Fla.-based T3 Technologies, told lawmakers how intellectual property law abruptly almost put his technology firm out of business. He said large firms are fortunate enough to have cadres of lawyers, but small firms often “eliminate innovation ideas in their plans because of the mere threat of such paperwork and lawsuits. He testified on behalf of the Computer and Communications Industry Association.

“We are encouraged by the Obama Administration’s release of a Joint Strategic Plan on IP enforcement,” Holleyman said. “We urge the U.S. government to execute on this plan and to provide the responsible agencies with sufficient resources to do so.”

The new plan’s suggestions include increasingly stringent trade agreements, increased state and local level involvement, and ensuring that government activity – including contractors – does not use illegal software and hardware.

Peter Carnes, CEO of Traffax of Silver Spring, Md., testified on behalf of the Association for Competitive Technology. He said piracy has affected Traffax because of the sluggishness of the U.S. Patent and Trademark Office. He said it takes 40 months on average for the PTO to grant a patent, and that’s a problem.

During the time between when a patent is published – and consequently the competition can read and see it – and when a patent is granted, there is nothing to stop competitors from making minor changes to the design and selling the product without fear because a patent has not been awarded yet.

Peter Carnes said it’s extremely risky for many small technology businesses because they often do not have furniture, buildings or other physical capital that a bank or investor could repossess. They only have intellectual property.

Peter Carnes suggested that the PTO be given more resources to decrease this delay, sign more stringent trade agreements and expand the Small Business Administration’s loan program for intellectual property.

William Mansfield of the Motor and Equipment Manufacturers Association said while luxury goods and movies and music may be the first things that consumers consider when thinking about IP infringement, it’s a big program for the motor manufacturing industry. Counterfeit goods cost that industry $3 billion in the United States and $12 billion globally in lost sales, he said.


Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights



Screenshot of Gigi Sohn from Public Knowledge's 20th anniversary event

February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.

Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.

Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.

The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.

The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.

In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.

Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.

“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.

Congress didn’t have a clue on digital rights

What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.

Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.

Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.

Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.

During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.

Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.

Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.

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Intellectual Property

U.S. and EU Privacy and Intellectual Property Landscape Complicate Data Use Requirements



Photo of Lee Tiedrich in February 2020 from the Regulatory Review on Twitter

February 7, 2021 – Differences in the intellectual property and privacy landscape between Europe and the United States account are among the forces complicating the regulatory landscape around commercial data, partners at Covington’s Second Annual Technology Forum said on January 27.

Further, because intellectual property laws do not provide robust protection for databases, organizations are increasingly relying on contracts that define rights and restrictions to protect their data.

When learning how to best to handle data, companies need to know what sources it is coming from, said Lee Tiedrich, a partner at Covington. Knowing the type of data is quite important, he said, since data comes in many forms. For example, open or proprietary data should be handled differently than user contributions and scraped data that comes off of public websites.

Differences between U.S. and European intellectual property laws also factor into database protection. Clients need to know how to source data properly because they want to protect their rights to their data and reduce their liability risks, Tiedrich said.

There is no sui generis database protection in the U.S., a term which means databases do not have strong legal protections. This is not unusual as intellectual property laws in the U.S. typically do not provide protection for databases, said Tiedrich.

From a EU legal perspective, there may be some form of IP protection in data but that does not eliminate privacy requirements applying to that data, said Freddie Argent, a partner at Covington.  

The panelists also discussed key terms of contracts for data licensors. Data licensors need to employ best practices, have standardized terms, and apply consistency across deals, said Adrian Perry, partner at Covington. Terms of service and privacy policies require clarity with the licensee acknowledging and accepting it, Perry added.

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In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright



Photo of Tom Goldstein from the Peabody Award used with permission

October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.

The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.

The company has sued Google for more than $9 billion in damages.

Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.

Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.

He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.

“Google had the right to do this,” said Goldstein.

Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.

Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.

“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.

“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.

Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.

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