Whitney Houston and the Morality of Copyright Term Extensions

The recent untimely death of diva and part time actress (who doesn't love "The Bodyguard"...) Whitney Houston has got me thinking about the recent extension of the Copyright act. (Recent as in 1998 -- but when you have a law that goes back to 1790, almost anything is "recent".) I think that the Act, even flawed as it was, demonstrated a triumph of Moral/Economic IP, as well as tangible evidence that Michael Eisner did not want Mickey to go off copyright on his watch.

Wow, that's random you say. Well not really. Using Michael Jackson and Whitney Houston as two recent examples, we can conclude that Copyright Terms that exist beyond the life of the artist, are in part, social insurance programs designed to care for the offspring or spouses of artists. The most recent extension of the copyright act is "Life + 70 years" for authors (or songwriters) and "120 Years after creation  / 95 Years after publication" for corporate authorship. Leaving aside the arguments about corporate authorship (which is where the "Mickey Mouse Protection Act" comes into play), lets look at the effect of the term for regular authors.

Both Whitney and Micheal had substance abuse issues. Likely, these issues killed them. Both Whitney and Micheal have children who will grow up parent-less in a world which places a significant dollar value on their talent. Their heirs (notably their minor and semi-minor children) should be allowed to collect on the remaining value of the works, that society is willing to pay. This is more true in situations where the artist has died fairly young.

It is impossible to calculate the value of having a world renowned (and rich) artist as your parent. As a society, we have made a collective decision that the works of art are still valuable to us after the untimely passing of their creator. Therefore, easily identifiable heirs should be the recipient of that residual economic value. As it stands, Whitney's heir's have copyright income till 2082. That's a long time. But, Whitney's child is 18. If her mother was a non-substance abusing hedge fund manager, it would be obvious that by the time she was 88 she would have lived a life of privilege.

 If, as some argue, copyright terms should expire upon the death of the author, they as a society, are we prepared to send Micheal Jackson's children to love on the south side of Chicago with their abusive grandfather and enabling grandmother? From a moral rights stand point, the value of Micheal and Whitney's contribution to society in terms of economic output has vastly exceed the amount they were allowed to collect from society in life.

Intellectual Property is not just something that evil record companies use to sue you.  It is a form of deferred pension to those who create lasting works. It is a source of economic security for those left behind, when troubled talent meets an untimely end. IP should extend beyond the life of the artist because....I don't know...the children are the future.

You got a job, now what?

Even with last week's job report steady employment is still difficult to find for a lot of people. One of the demographics having a slightly easier time achieving the employment dream are those young people with hard science and engineering degrees. regardless of if you are going to work for Microsoft or some garage stat-up, you should keep in mind what is being slipped into your employment contract.

A good illustration of the pitfalls of not properly reading your employment contract can be found in Picture Patents, LLC v. Aeropostale, Inc.  (Google Scholar is a god send for cheap Attorneys who hate to use the Westlaw accounts).  While this case is not new (April 2011) it does provide 2 key point I want to make about employment contracts and keeping your rights.  


A bit of back story. Ms. Baker, a student at Columbia, got an job working for IBM. Excellent right! Well, IBM being a huge, 100-year old multinational corporation who builds Jeopardy winning supercomputers in its spare time, is not an entity to let something like an employment contract be a Staples brand boiler plate. The employment contract has all the obvious provisions about not showing up drunk and sexually-embarrassing your co-workers in the breakroom.  In addition it has this doozy of a IP assignment section. The relevant part states: 

4. I hereby assign (emphasis mine) to IBM my entire right, title and interest in any idea, invention, design of a useful article (whether the design is ornamental or otherwise), computer program and related documentation, and other work of authorship (all hereinafter called "Developments"), hereafter made or conceived solely or jointly by me, or created wholly or in part by me, whether or not such Developments are patentable, copyrightable or susceptible to other forms of protection, and [sic] the Developments: (a) relate to the actual or anticipated business or research or development of IBM or its subsidiaries, or (b) are suggested by or result from any task assigned to me or work performed by me for or on behalf of IBM or its subsidiaries....

The above provisions concerning assignment of Developments apply only while I am employed by IBM in an executive, managerial, product or technical planning, technical, research, programming or engineering capacity....

Humm... restrictive. You invent a newer, better algorithm. It belongs to IBM.  You invent a better toaster, IBM is making your toast. You invent a slightly tastier pancake (impossible you say!, pancakes are already at maximum tastiness! Bah!), IBM is slathering Aunt Jemima all over it. An important note here is "hereby assign" this means today, not some point in the future. So when you develop something in the future, it is already assigned (in a temporal paradox no doubt) to IBM.  You are binding future you to assign things, i.e. you don't get to renege later.

I am pretty sure you know what happens next. Ms. Baker comes up with an idea (not important what) that she developed with the resources of IBM, while at IBM. IBM declined to advance the project further. Ms. Baker decided to take the technology on the road, do some more developing and file some patents.  Later, she decides that a whole bunch of people are infringing said patents, and brings suit....and looses.  Why?

Cause those patents belong to IBM.  Yea, she paid all the maintenance fees, all the filing fees and all the attorney time, but BIG BLUE takes the prize. Ms. Baker failed (or Ms. Baker's attorney failed) on two accounts. One, when the IBM's employment agreement asked her to list all currently developed(ing) projects that were outside the scope of the the IP agreement she wrote "None".  While it was possible that at the time of her signing, she had zero conception of the project, it is not likely. More likely, she didn't think the idea was worth putting down on paper at the time.

What's the lesson?  Always divulge (in confidence, so as not to be considered a disclosure under sec 102 et seq. ) all of you concepts. Sure some of them might sound stupid, or half baked, but you never know when you will develop them into the next killer app, only to have Megacorp take all the cash.  This is easily done with something like a spread sheet that gives a basic description that lists the things you are working on and thinking about. The downside to this is that if you are too descriptive, you run the risk of narrowing your room to claim broader inventions.

Two, do not use your corporate resources to pursue personal inventions or discoveries. They hate that. More importantly, using their equipment lends credence to the fact that you were doing it for them, and it belongs to them (while else would a company let you do stuff, if not for their benefit).

The back-up lesson you kids who skipped to the end is to make sure you read your employment contract thoroughly. If you don't understand something, ask a lawyer. If you are working for a place that has this kind of contact, and you develop something on your off time, as your lawyer how to make sure it does not instantly get grabbed by the boss.

Libertarians and IP

[Warning - random post on Legal Theory. This post could be a lot longer, but I have decided to break it into parts so that it is a bit more manageable for myself. ]

I have noticed a general upswing in the amount of Libertarian bloggers (and Neo-Liberal ones too) who have decided to come out on the negative side of general IP rights and protections.  While some of this is merely band-wagoning after the SOPA debacle, I think some of it comes from the general Libertarian concept that the enforcement of property (the tangible type) rights is the only reasonable use of governmental authority.

To avoid mis-quoting anyone, I will generally surmize the concept behind the Libertarnian objection to IP (as I understand it). This is going to be necessarily broad, so if you want to know what your favoriate Ron Paul Voter thinks, I suggest you look here, and here.

In general the Libertarian theory is more easily illustrated by the following theoretical.

Alice writes a piece of music and performs it to her own enjoyment in her yard. Rob, her next door neighbor, without trespassing, records the performance and uploads it to a file sharing site. Jim, a creative advertising executive, downloads the recording and uses it in a Super Bowl commercial. The commercial earns Jim wide acclaim, recognition and untold riches. Alice does not get any money or recognition. 

According to Libertarian theories, this is a perfectly acceptable outcome (if not the preferable one).  The argument underlying why this is O.K. is that Alice has never been deprived of her rights in the use and enjoyment of her property.  All that has been "misappropriated" is Alice's potential future ownership in the profits that Jim would have had to pay her in a regime where the government mediates these sorts of transactions. 

However, the Libertarian argument fails when you consider why you have a regime of Intellectual Property protection in the first place. Now, we could have a huge conversation on the dichotomy of the Moral vs. Economic Theory of Intellectual Property, but that is for another blog post.  Safe to say that the Constitution (Libertarians love the Constitution) spells out a moral theory of Intellectual Property.

   

   Article I, Section 8, Clause 8 of the United States Constitution empowers Congress:

   To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. 

By engaging in the "promotion" of Progress, Congress and the framers have set themselves a moral task that can not be easily superseded by claiming that the economics of "progress" are such that those rights should be limited to that which is tangible. The argument should never be focused on the "economic" rights of the IP holder, they are ancillary to the issue.  The government is charged with "progress";  how we as an economic and political system allow for maximization of progress, is tangential to the original goal. For example, if as a society, we decided that all musicians should be put on government stipend, then the original framers intent could still be met. Arguing that "progress" is met by not "promoting" is a laughable on its face, and clearly not borne out in reality. 

Libertarians run up against the fundamental problem that capitalism, practiced in the U.S. in the early 21st Century, requires that IP be priced in the market place. Destroying the pricing mechanism, without providing an alternative mechanism for "promoting" the arts and science yields only what Ayn Rand called "Moochers".  A society of takers, who, because there is no way to feed themselves from the sweat of their intellectual labors, find themselves shelving the potential of great work, because they live in a society that doesn't value it. That society asks people to create for the pure enjoyment of it, while also having a day job. There is a reason why this system does not work well. In order to re-order a system, people should at least acknowledged why the system was erected in the first place. As GK Chesterton noted, "one should know why a fence has been erected before one tears it down."

Jordan Garner

The Future

If only it were this easy

You will notice in the future that I will be putting forward some pretty random, reckless, speculative legal theorizing.  There is a point to this beyond satisfying my desire to investigate future legal developments that may never occur.  

I have a general theory about the future of Intellectual Property and how society will alter, and nurture the concept. Unfortunately, my overall thesis is a bit broad for this format.  Even more unfortunately, I am pretty sure I couldn’t convince anyone to pay me hash it out in one sitting.  Therefore, I have decided to use this forum to piece the concepts together and flesh out the ideas.  Eventually, if I like where I went, I might publish them all together as an ebook or something similar.

I will try to preface those posts with some sort of headline that tells the uninterested that they are about to be subject to some random dissertation concerning Economic Theory of Patents, Molecular manufacturing, Time Dilation and the Patent Office and why super villains must have great in -house counsel.


Jordan Garner


[Ed. Edited for random grammatical errors]

Start-up Ecosystems

As anyone who has read this blog (all 3 of you) know, I love ( more in the Storgian, as opposed to Erotic sense) infographics. It is an outgrowth of a background in Bioinformatics and a general appreciation of good graphic design. So what? All of this is just a haphazard way to introduce another nice infographic that I found the other day.

While I very much like the presentation found here, I take issue with the lack of attorney representation. Of all the people that Start-up founders love to hate, lawyers and especially IP attorneys, are in contention for the top spot.  This is in part due to a justifiable apprehension of the dreaded "Cease and Deist" letter.  However, I think it is also due to a lack of understanding about IP in general. I once spoke to a founder who told me "I don't want to deal with patents because it is too hard to know what's out there and who owns it".

While this may have been true a decade ago, the internet has vastly lowered the cost of entry into the Patent Searching game. Simple patent searches are key to a Founders due diligence. Anyone who wants to get cash from a venture capital firm should know before hand how to answer the question "does this infringe someone else's IP". It is essential to know the space you are working in, not only to know who your challengers are, but also who your investors might be. A patent search can let you find companies and individuals that are operating in the space.  Armed with this knowledge, you can track down investors who understand your technology and want to be a part of it.


Jordan G. Garner 
jgarner@leasonellis.com













Source: Udemy Blog

Trademark Scams

The internet is full of scams, scammers, hackers and Nigerian Princes who are only inches away from giving you 10% of billions in unclaimed Federal Government cash and Russian Women who won't care if you are an unemployed baby-boomer living in your son's basement with an infectious skin condition. They love you, and all they want is for you to send them a bit of money.

IP is not immune to these fishing lures deployed by various shadowy groups bent on bilking you out of your hard earned money.  Recently, a client of mine received a letter, and invoice, purporting to be the "Register of International Patents and Trademarks (I am loath to link to them, but be forewarned- www.patent-online.org). I am not sure what tipped my client off to the scammy nature of the communication. Was it the fact that the "Office" was located in Slovakia? Or that the Bank transfer was to a P.O. Box in Austria? Or is it the fine print that states that "this is not a registration by a government organization." Why would the "International Patent Office" be a governmental organization, that is just crazy talk.  Maybe it is the fact that the invoice changes on every page?

This is nothing new. The publishing of Trademarks by the USPTO is done so that legitimate concerns by other users of similar marks can be addressed.  Unfortunately this means that sometimes unscrupulous people can try to take advantage by using a bit of public information and an official sounding name.

Well, if you haven't figured it out by now, these guys are a scam.  While you can get an internationally recognized Trademark, you must go through the Madrid Protocol Process provided by the World Intellectual Property Organization (which, surprise, surprise, is a international governmental origination). As I have stated previously, Trademark Rights are the first thing that most Start-ups and small business should focus on. Your branding is your identity, and you should take seriously the protection of that identity. Let the Twitter situations be a learning experience. While it might sound self-serving, you should always conduct your Trademark Matters through a qualified IP attorney (i.e. someone who has done this before and knows what they are doing).  Definitely what you shouldn't do is pay money to Eastern European scammers in the hopes that you will secure your rights on the cheap.

For you own research, I have produced the redacted letter that my client received. The prices and invoices are so wildly inflated, relative to what a trademark filing normally costs, as to be laughable.  If you have recently filed for a Trademark, please do not fall for this. If you have questions about internationally filing Trademarks, then consult your IP attorney. If they are too busy on the golf course, contact me. What ever you do, don't wire 2800.00USD to Bratislava, you won't even get a photo of a nice Russian Girl who loves you in return.


Bogu Tm Bills Confidential 1

Knowledge Black Out due to SOPA

Both Wikipedia and Reddit (sources of countless knowledge and time wasting - not necessarily in that order) are down today in support of efforts to restrict or modify H.R.3261 "Stop Online Piracy Act" and S.968 "PROTECT IP".  As a practitioner of IP, I know first hand the dangers and hardship that IP theft and infringement bring.  Not only do major corporations spend a lot of valuable resources and time developing IP, solo, start-up and small business also have their economic viability tied to protection of their IP.  


That being said, Congresses' attempt to "help" will do more harm than good. What the IP regime needs is a review of what the theory is behind the protection of IP.  Is is a moral right, as the Europeans have sometimes argued, or is it a economic one, which can be traded and modified in the democracy of ideas for a compromise that enhances overall prosperity? Unfortunately, the Acts, as presented appear to be focused on the narrow concerns of the few, without even recognizing the concerns of the many. Both bills should be removed and rethought, crafted with the input of not only the multinational, or "free copyright" campers, but with the knowledge that many small business need the law to be both clear and fair.  What isn't needed in Congress fighting rear guard actions for failing business models. 


If you want to know more, I suggest you check our the EFF and their specific coverage of this issue.