Intellectual Property

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The Constitution tells us that patents can be given to “inventors,” and the Patent Act states that protection is available to “[w]hoever invents or discovers” an invention.  These are not generally controversial propositions, but like so many legal regimes, technology is forcing these analog laws to deal with digital phenomena. The culprits here are artificial intelligence and software capable of inventing new technologies. Can patents be given to digital “inventors,” and if not, does any human have the right to patent such an invention?

Obvious comparisons can be drawn to whether non-humans can be “authors”—as required by the Constitution—for copyright purposes. For instance, can a digital composer of music be given copyright protection for its work? The academic consensus is that technology is not an author (for Constitutional purposes), but the agreement dissolves from there. Some have argued that programmers should be given ownership rights—a reasonable proposition—but this sentiment is far from universal.

With little guidance from copyright law, parties have looked elsewhere for ideas in the patent sphere.  It has been posited that—if a non-human cannot be an inventor—current patent laws require the first person to “discover” the value of the non-human invention to be the inventor.

The Star Trek copyright lawsuit I previously wrote about settled last Friday.  This was not a surprise. Defendant Axanar’s best bet was arguing that its fan film made fair use of the Star Trek works. The court, however, foreclosed that defense a few weeks ago.  This post addresses a few points (out of many) from the opinion ruling against Axanar’s assertion of fair use.  I’m not certain that the judge got the multi-factor analysis incorrect, but I do worry about how some aspects of the opinion will be applied in the future. 

When assessing fair use, courts must review whether the work is commercial or not.  For-profit use weighs against the defense.  Axanar argued that its film was non-commercial because it would be freely downloadable.  The court rebuffed, positing that “indirect commercial benefit” is sufficient to render a use commercial. While there is precedent supporting this proposition, the opinion expanded the idea of indirect commercial benefit a step too far. 

The court held that defendants’ intent to create “other job opportunities” through the Axanar project rendered it commercial and thus, disfavored fair use.  The problem is that almost any author, film producer, etc. hopes that their projects will be successful and…

A copyright lawsuit against Star Trek fan film creator Axanar Productions is going to trial this month. CBS and Paramount alleged infringement after Axanar raised over $1 million to produce a freely downloadable Star Trek movie and a previously released teaser. The case raises a host of interesting issues, which I’ll look at over a couple of posts.

I found this case notable for how it fits into the expansion of copyright protections and the influence of repeat litigants. Copyright has evolved to protect increasingly granular elements of a story (i.e., protecting discrete things in a story, not the entire work). It was once questionable if an isolated character could be protected, but now copyright extends to means of transportation (Batmobile), monsters (Godzilla), and implements of mass murder (Freddy Krueger’s glove). 

This is good for copyright holders. It is easier to prove infringement a copyrighted light saber than it is to show that someone copied the story of a farm boy who learned a mystical religion, got a light saber, found out his dad was Darth Vader, and so on. The Star Trek suit falls into the trend of increasingly granularity; CBS and Paramount assert…

Mike.schuster

Professor Mike Schuster of Oklahoma State University, Spears School of Business, will be guest blogging at BLPB for the next 4 weeks. Prior to joining Oklahoma State’s faculty, Professor Schuster was at attorney at Vinson & Elkins LLP in Houston, Texas. His research is primarily in the intellectual property space, which, as we all know, is quite important to businesses.

Professor Schuster’s most recent academic article, “Invalidity Assertion Entities and Inter Partes Review: Rent Seeking as a Tool to Discourage Patent Trolls” is forthcoming in the Wake Forest Law Review and his SSRN page is available here.

Please join me in welcoming Professor Mike Schuster to BLPB. 

Sadly, I am still in the midst of grading business associations and civil procedure midterms so I cannot finish my substantive post on Wells Fargo yet. WF is the gift that keeps on giving from a teaching perspective, though. Yesterday I showed students some of the litigation that has come out of the debacle to illustrate the difference between a direct and derivative suit (and to reinforce some civil procedure principles too).

Last night I took a break from grading to go to a Meetup called Ask a Start Up Lawyer. I hope to teach a 2-credit skills course on legal issues for startups, small businesses, and entrepreneurs next semester and I have found that going to these sessions and listening to actual entrepreneurs ask their questions helpful. Last night’s meetup was partcularly enlightening because a number of international entrepreneurs here in Miami for a State Department initiative attended. While in the past some of these sessions have focused on funding options and entity selection, last night’s “students” mainly wanted to learn about intellectual property and international protection. Many of them come from countries with no copyright law, for example. Others come from countries where owning shares is a rarity.

One of my two former firms, King & Spalding, is hosting a free interactive web seminar on cybersecurity and M&A on February 25 at 12:30 p.m. Thought the web seminar might be of interest to some of our readers. The description is reproduced below.

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An Interactive Web Seminar

The Opportunities and Pitfalls of Cybersecurity and Data Privacy in Mergers and Acquisitions

February 25, 2016

12:30 PM – 1:30 PM

Over the last several years, company after company has been rocked by cybersecurity incidents. Moreover, obligations relating to cybersecurity and data privacy are rapidly evolving, imposing on corporations a complex and challenging legal and regulatory environment. Cybersecurity and data privacy deficiencies, therefore, might pose potentially significant business, legal, and regulatory risks to an acquiring company. For this reason, cybersecurity and data privacy are becoming integral pre-transaction due diligence items.

This e-Learn will analyze the (1) special cybersecurity and data privacy dangers that come with corporate transactions; (2) strategies to mitigate those dangers; and (3) benefits of incorporating cybersecurity and data privacy into due diligence. The panel will zero in on these issues from the vantage point of practitioners in the deal trenches, and from the perspective of a former computer crime…