Intellectual Property: Important Enough for the California Bar Exam

Ip’s What’s Up would like to thank its readers for their patience during the last two months.  Ipper goldenrail was MIA, preparing for the California Bar Exam, which was conducted last week.  While studying for this exam, she began to wonder something:  Why isn’t Intellectual Property a subject tested on the California Bar Exam?

Bar Exams in General

For those who are unfamiliar with the process in the United States, students who have completed law school must pass a state bar exam before they are allowed to practice law in that jurisdiction.  (One exception is Wisconsin, which automatically admits graduates of Wisconsin law schools to the Wisconsin Bar.)  Each state bar creates its own exam, with the exception of the one day multiple-choice portion, which is the same nationally.  The multiple choice section covers the basic subjects: property, torts, criminal law, contracts, constitutional law and evidence.  These and other subjects chosen by the state bar are tested in written portions of the exam.

The Bar Exam in California

In California, the other included subjects are: civil procedure, professional responsibility, community property, wills and trusts, business associations (corporations, partnerships and agency), and remedies.  Presumably, the Bar has chosen these subjects because they are areas with which all attorneys will at some point come in contact.  Notice that intellectual property is not included here.  It should be.  Intellectual property is important enough in this jurisdiction that all attorneys should have at least a cursory familiarity with it.

IP is Extremely Important in California

This is California.  Home to Hollywood, to a very large portion of the United States music industry.  Home to Silicon Valley and a constant myriad of start-ups.  Home to wineries and commercial farms.  Home to a number of research and development universities, and home to forward-thinking organizations working on intellectual property reform.  Patents, trademarks and copyright, they are a vital part of everything that makes California California.

Just like the subjects included on the Bar Exam, intellectual property is an area with which nearly every attorney will need to work at some point in their careers.  For corporate attorneys, the usefulness is clear.  The most valuable asset in many companies is the company’s IP portfolio.  It’s easy to see how this is especially true in Hollywood, the music industry and Silicon Valley.  IP assets are also important for the wineries and farms, the trademarks and trade dress that identify the products and secret processes used in the production.  (Not to mention the fun little geographical indication issues that arise because many California wineries insisting on calling their sparkling wine “California Champagne,” much to the chagrin of the rest of the world.)
[Image: Sign in San Francisco]

For other practice areas, the usefulness of basic knowledge of intellectual property might not seem so clear.  But, it is useful.  Criminal attorneys need to know about IP.  Whether defending or prosecuting a criminal infringement case, the attorney needs to know something about the crime at issue.  Family law and probate attorneys need to know about IP.  Copyrights and patents are personal assets that can be included in divorce divisions or passed down at death.  How can an attorney advise their client regarding the disposition of these assets if the attorney doesn’t understand the assets’ limited life-time or how the client can receive value from the assets?

Ease of Adding IP to the Exam

The way in which intellectual property touches so many other areas is not just the reason why to include the subject, it is also a benefit that would help the Bar examiners include the subject on the exam.  Because intellectual property is so interrelated to many other areas of the law, it would be easy for the Bar examiners to create cross-over questions, mixing intellectual property aspects into questions about other subjects.

Are there some attorneys who will never encounter an intellectual property issue?  Yes, just as there are some attorneys who will never need to deal with business associations or never file a case in civil court.  However, that does not lessen the importance of the subject.  Intellectual property touches on too many aspects of life, especially in California, for attorneys to not understand the basics.

Video Stays, Video Goes – YouTube and Infringing Videos

“How come some YouTube videos that use copyrighted songs get to stay online and some get taken down?”  It is a question this Ipper has heard often lately.  Good question, and one that was recently answered by YouTube’s Chief Counsel, Zahavah Levine, at last month’s Supernova in San Francisco.

Standard Procedure for Infringing Works

Those familiar with the DMCA (Digital Millennium Copyright Act) know that there are provisions in the copyright law that allow safe harbors to third-party websites on which users may place infringing content.  (17 USC § 512.)  these safe harbors protect the website from liability for users’ infringement.  To qualify a safe harbor, websites must have a notice and take down procedure.  Simplified, notice and take down works like this:  Rightsholders provide notice to the website that the site contains material infringing their copyright and the website takes down the infringing material.  The user who posted the material can send a counter notice to the website explaining that the material does not infringe and the website should not have removed the material.  The website then replaces the material.

YouTube’s Extra Twist

In addition to having a standard notice and take down procedure as required for the Copyright Act’s safe harbors, YouTube also has another notice-type system that gives rightsholders more control over their copyrighted works and YouTube users the ability to post more works, or UGC (user generated content).

Rightsholders who are concerned that their works might be infringed in videos uploaded to YouTube may submit their works to YouTube for inclusion in a special library.  YouTube uses technology to scan each video uploaded to the site and check the video for matches between content in the video and content in YouTube’s special library.

Once a match is made, YouTube follows the directions given to it by the rightsholder.  The rightsholders have a number of options regarding what YouTube should do when it discovers uploaded content that matches a copyrighted work in the special library.  Rightsholders can opt for actions such as having the videos removed, receiving royalty payments or advertising revenue from the advertisements run next to the uploaded video, and having links to places where a viewer can purchase authorized copies of the copyrighted material used in the video.  [This is why the “Forever” wedding dance video was able to become viral and make Chris Brown lots of money, instead of simply being removed for infringement. More on the wedding dance video here.]

After than, a notice is sent to the video uploader notifying the uploader of the match that was made.  The uploader is offered an opportunity to dispute the action taken.  For example, the uploader might claim fair use or having a license to use the copyrighted material.  YouTube informs the rightsholder about the dispute and gives the rightsholder the opportunity to review the video.  From there, the rightsholder can choose to follow the regular DMCA notice and takedown procedure.

Criminal Copyright Infringement, Charitable

Michael Geist brought to the Ippers’ attention a story about a record store owner in Ottawa, David Nolan, who pled guilty to copyright infringement for holding unauthorized copies of albums.  As the Ottawa Citizen reports, Nolan specializes in rare and hard to find recordings and many of the albums confiscated by the Royal Canadian Mounted Police were in fact not infringing.  The deal reached between Nolan and the Canadian government sets the number of infringing copies at 100.

The general tone of the comments on the Ottawa Citizen and Michael Geist’s blog is one of disdain for this type of copyright enforcement, disapproval for police resources being wasted on searching through a large record store for a handful of potentially infringing copies.

This Ipper, however, was struck more by something else.  The punishment in the deal between Nolan and the government is that Nolan must make a $1000 donation to the charity of his choice within three months.  Compare this to the amounts paid in the US for civil copyright infringement – the $1.92million judgment against Jammie Thomas or the $675,000 judgment in the Tenenbaum case.  Or even compare the $1000 charitable donation punishment to the punishments outlined for criminal copyright infringement in the US – up to a year in prison or a fine up to $5000 for infringing works for the purpose of commercial advantage.  (17 USC § 506 and 18 USC § 2319.)  The penalty is higher if the infringement involves reproduction or distribution.

The mounted police raiding a record shop to find a few infringing items might still make people uneasy, but this Ipper thinks as far as punishments for copyright infringement, this deal is the best she’s seen.  And, as one commenter on the Ottawa Citizen wrote, Nolan can always choose the EFF as his charity.

Nina Paley’s Numbers: CC Licensing for Profit

Some of our readers may remember a post about a year ago about a cartoonist named Nina Paley and her copyright difficulties.

A short recap: Nina produced a film based on the Indian tale Ramayana intertwined with Annette Hanshaw’s jazz music. Although the sound recordings Nina used were in the public domain, the copyrights on the underlying musical compositions were not. Nina did not get permission to use the tunes and thus infringed the copyrights. Her settlement with the various rightsholders had a step setup, the more she sold, the more she had to pay to the rightsholders. Deciding that releasing her movie in the traditional way wouldn’t make her any money because most of the money would go to the rightsholders, Nina decided to release her film under a Creative Commons Attribution ShareAlike license.

The Wall Street Journal recently ran an article describing the profits Nina has made in the nine months since releasing her film, Sita Sings the Blues, under CC-BY-SA. The short article lists each source of revenue for Nina’s $55,000 total. It generally appears to be saying that CC licensing can work for smaller, professional artists, like Nina Paley, as well as the big guys that are always talked about, such as Nine Inch Nails.

There are a few more pieces of information, which the article does not cover, that give a better view of how successful CC licensing has been for Nina.

In the presentation on which the WJS is reporting, Nina reports that it cost her $80,000 to make the film, $200,000 if you include her cost of living during this time. Compared to the $55,000 she’s taken in so far, it seems like the CC licensing really isn’t working that well for her. However, when Nina approached independent distributors prior to releasing the film, she was told she would probably make only $10-$25,000, $50,000 absolute tops ‘in her wildest dreams.’ Now, comparing what she has made so far to what the distributors expected her to make total, she is doing pretty well.

A better tally of how she has done would include how the Sita copyright issue and subsequent CC licensing have increased Nina’s income from her other works by increasing her visibility; how much she makes from speaking engagements (which she says are her most lucrative work); and how much more she would have paid out under her settlement agreement had she released the film in a more traditional manner. Since all of these things only add to what she has already made, it’s clear that releasing Sita under a Creative Commons license was a good choice for Nina.

For more information on all the different ways Nina is capitalizing on CC-licensed Sita Sings the Blues, see: http://blog.ninapaley.com/category/sita-sings-the-blues/.

Better than Sliced Bread – Google Scholar Enters Our Lives

For those who haven’t seen it yet, Google recently launched Google Scholar.  This is huge for a number of reasons.

Google Scholar is a research search tool designed specifically for scholarly research, including legal research.  Although it does not offer everything that the giant, expensive, legal search providers have, it looks like it has a lot of very useful tools.  Check out the “How Cited” links (example), the reporter pagation in the left hand margin (example), and, for your jurisdiction specific searches, the advanced search options.

In addition to being a very useful legal tool, Google Scholar is worth attention here because it involves a number of intellectual property issues.  In the United States, case law is part of the public domain.  The inclusion of court opinions therefore poses no IP problems. However, Google Scholar also includes access to journal articles, books and such copyrighted materials.

Google Scholar seems to balance the access to these materials and protection of the copyright in a few different ways.  For some documents, Google Scholar provides a link to an outside paid service such as HeinOnline, JSTOR and even Lexis and Westlaw (links are to examples.)  These services provide you a snippet of the item and offer you ways to view the entire document.  Local libraries may provide free access to some of these databases and Google Scholar has a mechanism to help users find libraries with access.  Basically, in these cases, Google has skirted the potential copyright issues by linking to already existing services.  These services have already worked out the copyright licensing logistics for their resources.  Google just points the users to the resources and the service takes it from there.

For full text articles are also available from non-paid sites.  It appears that in these cases the articles are already available online from journal sites, publishers, and university sites (links are to examples).  Google again just points the users to the article.  In many cases, these links are to pdfs, so the user may not realize what site is providing the materials.  Some sites may not like this, or may have other reasons for desiring that their material not be included in the Google Scholar searches.  Google offers them the option of having their materials removed.

The biggest area of copyright contention in which Google Scholar seems to be involved is with regards to materials not accessible via any third party site, either paid or free.  These materials, when available, are available through Google Books.  While Google is still working through the copyright muck there, Google Scholar has done a good job of utilizing resources that are already available.

Google Scholar may be a new competitor for some of the expensive, traditional, legal research tools, but at its core it is really just a focused version of what Google does best, search.  Luckily for all the users out there, most of the copyright issues surrounding searching and linking have already been worked out.

Small Businesses Need to Know about IP: An Example

Last week there was a really big football game on tv.  American football.  A match between two long-standing rivals, but with an extra twist this year.  The good team’s traitor star-player left and through some manipulative maneuvering, made his way to the evil team.  It was the first time the traitor had ever faced his old team.  It was a brutal game.  The Ippers, one of whom you can tell was quite invested in this match-up, had to venture out into the land of local pubs in order to watch the game.  (It was only available on cable here.)  While out at the pub, they encountered a little trademark issue.

The bartender was sampling the wares of a local gentleman who produces and sells body oils.  She explained he’s a regular customer and often comes in to share new additions to the product line.  The gentleman carried two large, black zippered cases filled with vials.  The vials were filled with liquids of different colors, each with a white label identifying the scent inside. 

While the bartender was busy sniffing various bottles, the gentleman handed out a yellow flyer with information about his oils.  The company’s clever and catchy name was displayed in large type across the top, followed by “Body Oils for men and women.”  At the bottom, the prices, ranging from $5.00 to $35.00 depending on the size of the bottles.  In the middle was a list of the hundred-some scents he offered.

Some of the scent names on the list were merely descriptive: Red Rasberry [sic], Coco Mango, Kiwi Strawberry.  Others were suggestive, Golden Goddess, T-Shirt and Panties, Walk Like She Taken.  And then, there were the problem ones.  Two different kinds of problems.  First, well-known brands of perfume and cologne: Juicy Couture, Dolce & Gabbana, Cool Water.  Then, names of famous people who probably have nothing to do with this gentleman’s products: Barack Obama and Michelle Obama.  And the names of plenty of people who have their own perfume and cologne products that bear their names.

This gentleman is a prime example of someone who needs intellectual property help.  Not only has he opened himself up to a huge amount of liability for trademark infringement, passing off and potentially right of publicity, the gentleman also has plenty of his own intellectual property to protect.  He has his own company name, many very creative names on his scents and possibly the scents themselves.  [Protection of scents is highly debated in the world of IP, see IP Review for a more in-depth discussion of this.]

Unfortunately, there are a lot of people out there who don’t recognize the rights they might have or the rights others do have.  They do not know that attorneys are there to help them with these types of issues, and they won’t find out.  When they do meet with an attorney, it’ll be one representing those big companies whose trademarks are being infringed.  Hopefully, it’s only in the form of a cease and desist letter.

 

goldenrail would like to thank Cathy Gellis for her assistance with this post.

Cover Tunes, More Fun and Safer!

Cover songs can be really fun, especially when they’re done in such a different way than the original that you notice something new about the music.  The groups Vitamin String Quartet and Apocalyptica are famous for these types of covers, redoing heavy metal and pop music in orchestra styles.

Lately, this Ipper has discovered a different type of cover music in a similar vain.  A lone viola player covering currently popular hip hop tunes.  Oddly enough, that’s a combination that delights this particular listener.  However, this cover artist does things a little differently than the ones mentioned above.  Instead of just adapting the tunes for the viola and playing them, he plays along with the actual hip hop songs.  This is either more costly or more dangerous.

It is more costly if the artist has the permission and necessary licenses to release tracks where he plays along with the original songs.  It is more dangerous if he does not have permission.  This has to do with the different rights in a sound recording of a song as compared with the underlying composition itself.

The underlying composition, the only thing used by groups like Apocalyptica, has one copyright.  That’s it, one.  The copyright in the music itself.  That copyright might be shared by multiple writers, but that doesn’t matter.  To use the music, a person only needs to contact the song’s publisher and make an arrangement to use the work.

But to use the whole entire recording of a song requires a lot more work and a lot more money.  The recording involves a lot more people with rights.  It’s no longer just the publisher.  It’s also the performing artist, the producer, the record label and possibly other publishers depending on who has contributed to the final version of the song that gets released.  Basically, it’s a big, costly, mess.  And that’s if the user gets permission!

Of course, if the user doesn’t get permission, he doesn’t have to deal with that whole mess.  Instead, he is liable to all those people for infringing their different rights, copyrights, mechanical rights, performance rights.  If the user did a cover of only the musical composition itself, without permission, then he is only liable to the publisher.  Either way, the user is better off just covering the tune and not playing along with the original recording. 

(And one humble opinion here is that his music would actually be much better if it were just him and the viola, without the background noise of the original works.)

 

goldenrail would like to thank Justen Barks for his assistance with this post. a favorite of the viola tunes.

Photo credit: Blinged out Viola cc-by-sa goldenrail used Pegs of a viola cc-by-sa by Lemondedo, available at http://commons.wikimedia.org/wiki/File:Pegs_of_viola.JPG