Category: Intellectual Property

8

The Wright Brothers and the Patent System

240px-Kitty_hawk_grossI just finished David McCullough’s new book on the Wright Brothers.  While McCullough is a wonderful storyteller, he does tend to paint a rosy picture of his biographical subjects.  John Adams, in particular, came off much better than he looks if you read the accounts of his contemporaries.

I think that the same is true in this book.  The narrative ends in 1909 with the Wright Brothers winning acclaim around the world.  There is an Epilogue that describes what happened afterwards, but what that leaves out is the fact that the Wrights (and then only Orville after Wilbur died in 1912) spent the next several years engaged in patent litigation.  From the secondary literature on that part of the story, one gets the impression that the Wrights were prickly about asserting their originality in achieving flight and were not that open to collaboration.  This helps explain why the United States fell behind Europe in aeronautics, which the government addressed in 1917 by creating (or coercing) a patent pool for airplanes.  It’s a cautionary tale for patents and their relationship to innovation.

1

A Negative Right of Publicity?

I was batting around the following issue with a student today.  Suppose that a celebrity makes a positive statement about a product or is seen publicly using that product.  The product manufacturer, horrified by any association with this person, issues a statement saying that they are not associated with the celebrity.

Would the celebrity have a right of publicity claim under these circumstances?  One could argue that the corporate statement is an unauthorized use of the celebrity’s name and image for commercial gain.  In this example, though, you would have a negative or reverse endorsement of the brand.  The firm would say that their brand is defined in part by not being somebody.

Presumably, a firm has some First Amendment interest (and a Lanham Act interest) in disassociating itself from unwanted people or actions.  What limits, if any, are there on these interests?

6

Net Neutrality

Today the FCC voted to classify the Internet as a public utility and enforce net neutrality.  Kudos to Tim Wu (disclosure–I’ve known Tim for a long time).  Rarely has an academic had such a significant impact on public policy.  Congress may tinker with the regulatory framework in the coming years, but I suspect that the principle of net neutrality will remain a part of that framework.

0

UCLA Law Review Vol. 62, Issue 2

Volume 62, Issue 2 (February 2015)
Articles

Judging Opportunity Lost: Assessing the Viability of Race-Based Affirmative Action After Fisher v. University of Texas Mario L. Barnes, Erwin Chemerinsky & Angela Onwuachi-Willig 272
Enforcing Rights Nancy Leong & Aaron Belzer 306
Milliken, Meredith, and Metropolitan Segregation Myron Orfield 364

 

Comments

David’s Sling: How to Give Copyright Owners a Practical Way to Pursue Small Claims Jeffrey Bils 464
Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences Jordan Cunnings 510

Meet the New Boss…

One of the most persistent self-images of Silicon Valley internet giants is a role as liberators, emancipators, “disintermediators” who’d finally free the creative class from the grips of oligopolistic music labels or duopolistic cable moguls. I chart the rise and fall of the plausibility of that narrative in Chapter 3 of my book. Cory Doctorow strikes another blow at it today:

[T]he competition for Youtube has all but vanished, meaning that they are now essential to any indie artist’s promotion strategy. And now that Youtube doesn’t have to compete with other services for access to artists’ materials, they have stopped offering attractive terms to indies — instead, they’ve become an arm of the big labels, who get to dictate the terms on which their indie competitors will have to do business.

Ah, but don’t worry–antitrust experts assure us that competition is just around the corner, any day now. Some nimble entrepreneur in a garage has the 1 to 3 million servers now deployed by Google, can miraculously access past data on organizing videos, and is just about to get all the current uploaders and viewers to switch to it. The folklore of digital capitalism is a dreamy affair.

The Black Box Society: Interviews

My book, The Black Box Society, is finally out! In addition to the interview Lawrence Joseph conducted in the fall, I’ve been fortunate to complete some radio and magazine interviews on the book. They include:

New Books in Law

Stanford Center for Internet & Society: Hearsay Culture

Canadian Broadcasting Corporation: The Spark

Texas Public Radio: The Source

WNYC: Brian Lehrer Show.

Fleishman-Hillard’s True.

I hope to be back to posting soon, on some of the constitutional and politico-economic themes in the book.

9

UCLA Law Review Vol. 62, Issue 1

Volume 62, Issue 1 (January 2015)
Articles

Intellectual Property Law Solutions to Tax Avoidance Andrew Blair-Stanek 2
Cooperative Federalism and Marijuana Regulation Erwin Chemerinsky, Jolene Forman, Allen Hopper & Sam Kamin 74
Offshoring the Army: Migrant Workers and the U.S. Military Darryl Li 124

 

Comments

Inmates’ Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine With Implicit Bias to Eviscerate Inmate Civil Rights Tasha Hill 176
Proportional Voting Through the Elections Clause: Protecting Voting Rights Post-Shelby County Conner Johnston 236

 

 

 

0

A Patent Collective Rights Organization

There was an article in the Washington Post the other day discussing a plan by the founder of Priceline.com to create a collective rights organization for patents.  His contention was that patents in the United States are too hard too license, which leads to many innovations going unused and encourages patent troll litigation.

I hope his project succeeds, but I doubt that it will.  Unlike a successful CRO such as ASCAP, the complexity of running one for patents is exponentially greater.  Patents cover a vast range of subject matter and the value of many patents is hard to ascertain.  Songs, by contrast, are very similar to each other and can be administered through a reasonably predictable rate schedule.  One could imagine a CRO that focuses on a specific type of patent, but even that seems hard.

I’m not sure that we have too many unlicensed patents.  We just have too many patents, though the Supreme Court’s decision in Alice Corp. has significantly limited software patents.

0

3D Printing Helps Yale Student Create Beer Bottle Pipe Organ?

Apparently, a Yale student has used 3D printing to create a beer bottle keyboard. Blowing across the top of a bottle to create sounds it not new. This student created a keyboard “of 12 beer bottles, which are set up in 2 rows, one consisting of 7 bottles and the other 5.” But when tried the get compressed air to make the same sound as a human mouth, the outcome failed. He needed a way to mimic a mouth. He “took several pictures of himself blowing air into the bottles. He then used SolidWorks to model the opening for each ‘mouthpiece’. Once modeled he used an Stratasys Objet 30Pro 3D printer to print out 12 of these nozzle attachments. The problem was solved!” Cool idea, difficult problem, yet now able to solve on your own: this 3D moment is fun example of the way the technology is opening up more creation and shifting the ability not only to design a solution but make one at a local or individual level.

I wonder how many cool new things will emerge in six to twelve months from now after all 3D printers for the holidays gifts are opened and played with. We’ll see. Whether these inventors will also file more patents on things like this students mouthpiece will also be interesting. For now, I’m happy to see fun, odd stuff being created.

2

Yahoo! and YouTube

Mozilla switched to using Yahoo! for its search engine, and so I noticed something about how it shows YouTube results; something that may upset YouTube aka Google. When I was writing about lightsabers and 3D printing, I wanted to embed a clip from Return of the Jedi. The search on Yahoo! showed me a potential clip. I hit play to confirm that. It was good for my needs. I looked for the embed code, and it wasn’t there. There was a share button up top, but for the full page and codes, I had to go to the YouTube page. Now that is what happens when one embeds a YouTube video. But I wonder whether YouTube posters will be upset (or maybe even YouTube/Google) to find that a rival search engine maybe undercutting them. For example, it seems, I stress seems as I ran only one test, that a YouTube video that has an ad before a video lacks that ad when on Yahoo! Banner ads seem to be present on both, but they differ. I am guessing Google gets to serve those and maybe they vary depending on where the video is served. That would make sense given the targeting should vary depending on where the video is shown. Still if Yahoo! is taking content and showing it on its site, perhaps making money that way too (or at least keeping it from the Goog), will we see a replay of the early Internet cases on framing, diversion, etc., but with Google as the plaintiff? If so, is that an ironic moment where some folks will be saying Google just got Googled (i.e., I am thinking certain industries see being “Googled” as something other than being searched for; hey that may show that the whole genericisim question is less of an issue.).