Category: Intellectual Property


Board Games and Intellectual Property

120px-Monopoly_game_logo.svgI just finished teaching from The Knockoff Economy in my Law and Technology Seminar.  The book, as I’m sure many of you know. describes thriving creative fields where copyrights and patents are either unavailable or play no meaningful role.  Examples include:  (1) fashion, (2) cooking; (3) team sports; (4) databases; (5) tattoos; (6) hairstyles; (7) fonts; and (8) magic tricks.

One industry that the book does does not discuss but that does fit this paradigm involves board games.  The rules of a board game are not copyrightable, and getting a patent on a game nowadays is almost impossible.  The name of game can be trademarked and aspects of the game’s appearance might qualify as trade dress, but that is all that the inventor or owner of the game can rely upon.

The board game business, though, seems to be doing just fine.  Entry barriers are low, of course, which helps explain why a relatively open system can work.  There must be something else to this though.  Why are classic games like Monopoly, Scrabble, Clue, and Risk able to survive?  In other words, why do brand names or trade dress seem so crucial for games?


Great Interview with Rod Serling Before Twilight Zone Aired

The video below is well worth the 21 minutes. Serling goes into sponsors as censors, consumerism, the potential for great television, and much more. He had experience with trying to engage race issues on T.V. and finding that his story was gutted. He talks about precensorship – themes writers avoid. He explains the way the system converges to make that so. There is a great story about Lassie having puppies and some crazy controversy about that being a sex show. Want associational harm? A line was cut about gas chambers from Judgment at Nuremberg because a sponsor that sold gas stoves for kitchens did not want that connection. As I recall another story was set in the British navy and so asked for tea. A sponsor sold coffee. The compromise. A tray of unspecified drinks was served.

Behold a man. Smart. Dedicated. Passionate. Turned to science fiction from drama. The reason? To avoid that place he created, The Twilight Zone.


Federal Circuit Split

We are doing a CLE event this week at my law school on the Supreme Court’s IP docket, and a question that I have after reviewing some of the major upcoming cases (most notably CLS Bank and Akamaiis why is there such a deep divide within the Federal Circuit on so many patent cases?  With respect to the Supreme Court or an ordinary circuit court, the answer can be traced back to the polarization of our politics.

I’m not sure, though, that this can explains the fractured state of the Federal Circuit.  I don’t think that there is a political valence to patent law (for example, Republicans want to read them broadly and Democrats want to read them narrowly, or vice versa).  Nor do I perceive a substantial difference among patents scholars that is comparable to the disagreement between, say. originalists and non-originalists in constitutional law.  But something must be behind the sharp exchanges that we see in some of the en banc Federal Circuit opinions.  I’d be curious if patent practitioners have any thoughts on this.


“What is Technology?”

I wanted to flag this new paper by my colleague Emily Morris.  Here is the Abstract:

Patent protection is limited to “technology,” but technology is so difficult to define that the Supreme Court has taken up the issue several times in the last several years. The Supreme Court’s recent decisions in Bilski, Prometheus, and Myriad have left patentable subject matter doctrine just as confused as ever, however. What is patentable technology?

The answer turns out to have nothing to do with the various pragmatic rationales that courts commonly cite. Rather, the patent system has defined patentable technology according to much simpler criteria – artifice and action. Artifice is the quality of being created by humans, not by nature. Action is the quality of behaving or operating in some active way. Together, artifice plus action explain and, perhaps more importantly, unify the law on patentable subject matter. By focusing on artifice plus action as the primary criteria defining patentable technology, the patent system can provide clearer guidelines than it has been able to achieve thus far.


WNET v. Aereo

This is an exceptionally busy year for Intellectual property cases at the Supreme Court, and I thought I would talk about one that is especially interesting.

Aereo is a service that lets people in New York City to watch broadcast TV for a monthly fee.  There is a brief delay (ten seconds) in the signal if you want to watch a show live. Or you can just record  programming through a DVR service provided by Aereo. Aereo does not pay the networks for this programming, and they claim that this violates the Copyright Act (17 U.S.C. Sec. 101(2))

The Act says that copyrighted content may not be transmitted “to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

A divided Second Circuit panel held that Aereo’s transmissions do not violate the section just quoted. The pane’s rationale was that Aereo is transmitting content only to a particular homes, not to the public. Why? Because each subscriber is assigned a specific (albeit tiny) antenna at Aereo’s facility. Thus, each transmission is to a single person or family. Footnote 16 of the opinion explains:

“The methodology Congress proscribed for distinguishing between public and private transmissions is the size of the potential audience, and by that methodology, the feed from Aereo’s antennas is a private transmission because it results in a performance viewable by only one user.”

With respect, I think the Second Circuit got this wrong.  It seems to me the plain language of the statute does contemplate a situation where many individuals are getting transmissions of the same event “in separate places and at the same time or at different times.” And it seems odd to say, as Judge Chin notes in his dissent, that  if Aereo transmits the Super Bowl live this Sunday to a million people, that this is not a public performance–it’s a million private performances.

IP law often stumbles over the problem that what is permissible for one person to do (share a CD or forward a video) may be impermissible when it is done for hundreds of thousands.  The analogies just don’t make sense. And in this case, the Supreme Court should reverse and hold for the networks.


3D Printing Train Continues, Interview on TakePart Live tonight

I will be on TakePart Livetonight at 9 p.m. Pacific/11 Central/12 Eastern, to talk about 3D printing and all the fun it brings. I will be joined by a 3D printer entrepreneur who runs Deezmaker, a comic, and of course the hosts Jacob Soboroff and Cara Santa Maria. I was on the show last fall to talk about privacy and data hoarding. The hosts and crew are HuffPo veterans and a blast. The show is part of Pivot TV, which is available on DirectTV and Dish as well as some cable carriers. Looking forward to great night.


Public Domain? We ain’t got no Public Domain. We don’t need no Public Domain! I don’t have to show you any stinkin’ Public Domain!

With apologies to B. Traven and John Huston, I note that Duke’s Center for the Public Domain has a nice post about what might have been in the public domain. In my paper The Life and Death of Copyright, I go over how a few authors rallied with American interests to extend copyright term. I also show that no matter which of the main theories one looks to for IP, none supports copyright after death. None.

In other words, folks who usually disagree about all sorts of nuances in copyright, (It’s labor! It’s the personhood! It’s utilitarian!) converge on, or at least have no good support for copyright after death. Paul Heald’s work shows that the dreaded under-production myth is just that, a myth. Aram Sinnreich’s The Piracy Crusade just came out and gets into the problems with locking up work. I’ve just started it, but his run through history, sociology, and more looks to be a great addition to the literature in this space.

So it’s a new year. Old fights are with us. New ones will come. The sun also rises. Time for naked lunch.

(Note: Burroughs claimed the phrase, Naked Lunch, meant a “frozen moment when everyone sees what is on the end of every fork.” or the truth albeit ugly).


Tech Literacy: One more of my end of year, bookmarked to share posts

A few weeks back Juliet Walters wrote an op-ed called the The Code Life. I had read the Eggers excerpt of The Circle and thought it was odd; odd because having worked at Google and been in the Valley, his portrayal was not that creepy. It was just corporate America. Office Space alone captures the be all you can as part of a team which may not value you (cue Lorde to contrast and for irony). Walters goes further. She has tried coding as a way to understand and take some control over her life. She used Code Academy to learn coding and found

Yes, programming is challenging, frustrating and often tedious. But it offers satisfactions that are not unlike those of writing. The elegant loops of logic, the attention to detail, the mission of getting the maximum amount of impact from the fewest possible lines, the feeling of making something engaging from a few wispy, abstract ideas — these challenges were familiar to me as a critic. By my third month, I had internalized a new logic, a different way of looking at information. By the time summer came around, I was learning about good web design by constructing web applications, taking them from simple prototypes to something sophisticated enough to test with users. And by the end of the course, I knew the basic structure of computer operating systems.

For me, even reading computer science papers and theory has given me a better, deeper appreciation for the tech world, how it works, and policy debates (both worthwhile and frivolous). And I was happy to read Walters re-calibrated her life:

The biggest surprise has been the recovery of the feeling that my mind is once again my own. The “always-on” agenda of mobile technology, now visible to me in the very design of the devices, could not manipulate me as easily. Where my devices were interrupting my work or my life in these ways, I’ve had an easier time filtering and controlling them.

It’s also become more obvious to me how to use social media to enrich my life, not unravel it. For one, I don’t waste time trying to “catch up” on a Twitter or Facebook feed, any more than I would waste time ringing the doorbell of every person in my neighborhood every day.

With understanding comes more reasoned responses to technology and how it fits into our life. When Walters write she sympathizes with Eggers and Franzen (another tech critic) but rejected their tribalism and embrace of “techno-illiteracy.” Her example is a call for STEM without being explicit. I hope to add some Code Academy to my learning list this year. I don’t always get to such goals, but Walters, a humanities type, like me, found a world I like too. Coding may not set us free, but it may open the door to new freedoms. Tech literacy should at least help stop the real threat of those who misuse technology by allowing us to offer other options and to call B.S. on tech utopianism, and thus counter the downside of technology more than we suspect.