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Intellectual Property

Slogans About Data Portability on Tech Platforms Don’t Capture Intellectual Property and Interoperability Issues

David Jelke

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Photo of Jason Furman, professor at Harvard Kennedy School, by the University of Michigan's Ford School used with permission

May 22, 2020 — Experts on the issue of data portability are unsure where to draw the line regarding the degree to which big tech platforms like Facebook should be forced to make their products and services data portable, according to a Technology Policy Institute webinar Thursday.

Data portability refers to the ability to move data from one data cloud system to another so that the data is still useable. It is not to be confused with data interoperability, which only means that two given cloud systems can communicate with each other.

Experts played devil’s advocate on Thursday’s webinar to identify real issues with a pure-portability data environment. Michael Katz, professor emeritus at the University of California at Berkeley, posed the hypothetical of transferring “advanced 3-D videos.”

If an innovative social media company allowed for you to share 3-D videos with friends, Katz, reasoned, should it then be forced to share its intellectual property with competing platforms in the name of data portability?

Catherine Tucker, a distinguished professor at MIT Sloan, highlighted the difference between the interoperability of physical equipment, such as pipes and faxing machines, and the interoperability of technology. She brought up the example of Snapchat, which is predicated on sending messages that are meant to be short-lived.

“What does it mean to have those fleeting convos interoperable?” she asked.

Jason Furman, professor of economics at Harvard Kennedy School, brought attention to highly successful uses of interoperability, such as email, where a dizzying number of domains participate. Just because you still use AOL doesn’t mean you should get penalized by not being able to message someone who uses Gmail, he said.

Furman suggested that interoperability in electronic messaging should resemble the email model as closely as possible. “There are all sorts of ways where you channel your innovation,” he said.

Current technologies were thrown under the microscope and analyzed through the lens of this framework. Bijan Madhani, Facebook’s privacy and public policy manager, brought up Zoom as an example.

What does it mean to be able to transfer the data of a video call in Zoom — including the identities of a webcast’s participants, who do not provide explicit consent — to one’s Facebook account, Madhani asked.

David Jelke was a Reporter for Broadband Breakfast. He graduated from Dartmouth College with a degree in neuroscience. Growing up in Miami, he learned to speak Spanish during a study abroad semester in Peru. He is now teaching himself French on his iPhone.

Copyright

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

Derek Shumway

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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

Derek Shumway

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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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Copyright

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

Jericho Casper

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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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