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Cyber Criminals and Digital Justice: Making a Criminal Case from the Electronic Crime Scene

By Andrew Brett Carrabis, J.D., M.B.A. *

  Every 3.5 seconds, a new threat is unleashed by cyber criminals into the online world of the internet.  Cyber criminals can range from middle schoolers who vandalize websites to international terrorists who target a country’s defense infrastructure.  A cybercrime is a crime that requires a computer system to complete the crime (e-mail scams) or a crime where the computer system is the target of the crime (hacking into a corporation’s database).  An attraction for cyber criminals is the smaller chance of getting caught or punished compared to traditional crimes such as burglary or murder.  An estimate of only one in seven cyber crimes are reported to authorities.  In 2007, the Internet Crime Complaint Center reported 206,884 online cyber crime complaints for an estimated loss of $67 billion for United States corporations.  Continue reading »

It’s All in the Expression: Judge says, “Disturbia” Not Substantially Similar to “Rear Window”

By Tierryicah Mitchell *

On Tuesday, September 21, 2010, New York District Court Judge Laura T. Swain ruled that Steven Spielberg’s “Disturbia” did not infringe Sheldon Abend Revocable  Trust’s (“the Trust”) copyright in the short story “Rear Window.”   On May 28, 2009, pursuant to a joint stipulation, the Trust’s claims concerning the substantial similarity between “Disturbia” and the film version of “Rear Window” were dismissed.

Continue reading »

Eliminating the First Sale Doctrine for Software Resellers in the Ninth Circuit

By Joseph W. Norman *

In September, the Ninth Circuit strengthened the protection of software vendors in Vernor v. Autodesk Inc., holding software customers are licensees of their copy rather than owners, so long as the software vendor reserves title to sold copies in sales agreements.

The shifting tide in favor of software vendors is based on the Ninth Circuit’s development of a new test regarding the first sale doctrine.  Under this doctrine, once a vendor or manufacturer of a copyrighted work has sold a copy of that work, the first purchaser may sell that copy without the permission or authority of the copyright holder.  Some limits apply to the doctrine, though, such as the first sale must be made in the United States and the right of first sale does not apply to anybody holding a copy by lease, loan, license, or any other non-ownership position. Continue reading »

Selling Oneself Out: The Problem of Selling a Personal Name Trademark

By Luke MacDowall *

One of the most influential thinkers of the twentieth century, Jacques Lacan, argued that the taking of a name marked a human being’s entrance into the Symbolic order (the world of language) that distinguishes human beings from other beings in the world. In this way, our names form an integral part of our existence. Aside from this ontological importance, personal names can anchor one’s economic identity as well. Personal name trademarks have helped build some of the most recognizable and important businesses on the planet; it’s the Ralph Lauren’s and Armani’s of the world that illustrate just how a name can transform into a commercial power. However, an interesting problem can arise when a personal name trademark owner wants to sell the rights to his or her trademark, as it can unintentionally limit the owner’s ability to continue using her name in future business endeavors. This post seeks to uncover this problem and highlight some ways to avoid running into it. Continue reading »

When Negotiations Go Sour: The Conflict between Fox and Cablevision and its Impact on the Consumer and Online Piracy

By Vlad Vidaeff *

A wise man once said, “with great power comes great responsibility.”  The impact that the internet has had on our society is undoubtedly powerful.  However, with all of the incredible benefits that the internet has provided, it has also created a convenient and efficient forum for piracy in a variety of areas.  One of those areas is the showing of sporting events such as the World Cup, the World Series, and NFL football on unauthorized websites.  The proliferation of pirated video feeds in the past couple years has led to a whirlwind of efforts on the part of sports leagues to eliminate this trend.  For example, Dan Masonson, a spokesman for the NFL, stated that the league removed more than 2,800 unauthorized streams last year.  The unauthorized streaming of sporting events was a significant issue in the recent dispute between Fox and Cablevision regarding broadcast fees. Continue reading »

Are Tax Strategies Patentable Subject Matter After Bilski? The Answer is Unclear.

By Joseph W. Norman *

Any analysis of the Supreme Court’s 2010 decision Bilski v. Kappos (herein after Bilski) must begin with a look at the treatment of business methods under section 101 of the Patent Code prior to Bilski.

Prior to the Federal Circuit’s 1998 decision in State Street Bank v. Signature Financial Services the issue of whether a business method is patentable subject matter had never been directly addressed.  In State Street, the Federal Circuit set out the test for the patentability of a business method.  The court concluded a transformation that produces a “useful, concrete, and tangible result” is eligible subject matter because it passes the test for utility.  The net of this test is that a “process” whether mental or non-mental may be patent-eligible if it produces a useful, concrete, and tangible result.  State Street’s significance lies in the fact that for the first time, business methods were declared patent-eligible. Continue reading »

To avoid “substantial damages,” Fox News sues to make one thing clear: It did NOT endorse a Democrat.

By Rob Abb *

The election is over. The results are in. The winners are headed to D.C. and the losers are looking for jobs.  However, there is still some unfinished business between a certain cable news network and the Secretary of State in Missouri.

Back on September 15, 2010, Fox News Network, LLC (FNC) and Christopher Wallace filed a complaint against Robin Carnahan for Senate, Inc., in the Western District of Missouri.  FNC alleged, among other things, copyright infringement.  What could the Carnahan for Senate campaign have done to upset the “fair and balanced” executives over at FNC?

Apparently Carnahan’s Senate campaign started running this ad on television (the ad is still online as of now).  The complaint alleges that this 30-second attack ad uses footage from a 2006 interview between FNC journalist Chris Wallace and Carnahan’s opponent, Roy Blunt (R-MO). The Carnahan campaign selected only questions and comments from Wallace without showing any of Blunt’s responses.  For example, Wallace says at one point “you have to show you’re the party of reform” and then the clip shows highlights (or perhaps lowlights) of Blunts political career and describes his financial connection to disgraced lobbyist Jack Abramoff.

According to TPM, this may be the first time a media company has actually taken a political campaign to court on a fair use copyright claim.  According to FNC, they filed the lawsuit because they “cannot allow it to appear as though Chris Wallace is endorsing any candidate.”  For example, the ad finishes with Wallace saying “But some question whether you are the man to do that,” which could be used to infer that Wallace and FNC question whether he is the man to clean up and reform Washington.  Though it is certainly possible that viewers could interpret the ad in such a manner, according to Ben Sheffner, an attorney who specializes in copyright issues, “reputational damage is just not a cognizable copyright interest.” Continue reading »

Just Patent It: Nike Goes "Back to the Future" with Self-Lacing Shoes

By Tiffany Rene Johnson *

Take one of the largest sneaker companies in the world, add Michael J. Fox time traveling to 2015, sprinkle in a bit of absurd technology, and you end up with sneakers that lace themselves.  In 1989, Back to the Future II introduced high-top, power lacing Nike sneakers, along with hover boards and flat screen televisions that doubled as window shades.  But this sort of technology is rarely injected into a plot generically; inventions of the silver screen are hopelessly inundated with corporate logos.  Product placement in a movie about the future can be a powerful marketing mechanism that, among other things, sends a signal about the company’s longevity and ability to innovate. 

Source: Patent Publication No. WO/2009/134858

Source: Patent Publication No. WO/2009/134858

Nike, however, has taken this strategy one step further.  Not only is it in the process of developing the futuristic technology to allow sneakers to actually self-lace, it is also relying on its own product placement of the Nike logo in 1989’s Back to the Future II to market the shoes today,  long before they hit the factory floor.

On April 29, 2009, Nike filed an international patent application for an “automatic lacing system.”  The application describes the mechanism as a set of straps, connected to a motor and spool that tighten on top of the foot, in addition to a “clinching system” that tightens around the ankle.  The lacing system would be powered by either an internal, rechargeable battery, or by disposable batteries.  When The World Intellectual Property Organization (WIPO) published the application in November 2009, the technology blogosphere – which undoubtedly has some overlap with Marty McFly lovers – went into a frenzy.  The prospect of the imaginative technology depicted in a movie becoming a reality by the year 2015 was described by one blogger as a “time-warping paradox so perfectly mimicking those in the Back to the Future movies that the world might possibly end.”  This sentiment seems to be a fairly accurate representation of how potential collectors feel about the shoes, but what is unclear is whether the technology for the power laces is patentable or, better yet, patent-worthyContinue reading »

The Rise of Attention Management on the Web: Can Paul Allen's Patents Be Enforced?

By Joseph W. Norman *

In the late 1990s, the spread of information via the World Wide Web was similar to the Age of Enlightenment for western culture.  As information became increasingly available on the Web, more users looked to it for their needs.  Adoption of the Internet, though gradual at first, has become a daily necessity for people in the developed world. 

Paul Allen could be considered part of the School of Athens of the Internet age .  Allen, most famous for his involvement in Microsoft, created and owns many of the patents for common fixtures of the Internet experience.  Interval Licensing LLC, Allen’s Silicon Valley laboratory, developed the technology behind many attention management tools in common usage, such as pop-up stock quotes, related reading suggestions, and videos in the screen’s peripheral.  With the advent of social media and interactive news websites, managing attention is a lucrative web business.  Web users have become accustomed to interacting with attention management programs, so much so that the absence of such programs might drastically change the web and people’s interaction with it. Continue reading »

Forget the Obama's Stimulus. Forget the Bush Tax Cuts. Increased Funding for the USPTO Could Fix Our Broken Economy.

By Rob Abb *

While the Obama administration’s Stimulus package and the expiring Bush tax cuts dominate the news, Congress recently and quietly passed a very important bill with bipartisan support.  In August, President Obama signed into law P.L. 111-224, increasing funding for the United States Patent and Trademark Office (USPTO).  Specifically, the bill authorized the USPTO to keep and spend $129 million extra in fees that it is projected to collect in the 2010 Fiscal Year.

The USPTO is now projecting Continue reading »