Archive for the 'Intellectual Property' CategoryPage 2 of 13

Plagiarism-Who Owns the Rights to Written Material

The 2016 primary presidential campaign is over. In the midst of this, a controversy has arisen in the Republican National Convention speech given by Melania Trump, wife of Republican nominee Donald Trump. The source of controversy is that parts of the speech delivered by the First Lady hopeful were directly pulled from a Michelle Obama Speech given years back at the Democratic National Convention. Many people have been going directly after Melania for plagiarism.

Even school kids should know better than to do such a thing. Of course, how can you blame her when she wasn’t even the one to write the speech? Immediately after this news broke out, the speechwriter responsible for the script apologized and offered her resignation. There are legal implications to this incident, such as who has control over the finished product, or whether such “rights” to these written materials have been transferred over to someone else?

Copyright Law

Plagiarism is more or less an academic term that translates to copyright infringement in the legal context. Any written work, published or not, is guided by copyright law. Copyright law gives copyright protection to the author of the work, or if the author is willing, they can transfer this right to a third party. Even taking snippets of this work can be viewed as copyright infringement. If a lay audience can associate the copied portion from the original text, then there is copyright infringement.

However, as ideas are not protected under copyright law, a concept or theme is fair game. Let’s say, for example, that someone doesn’t want to per se copy the story in the Ian Fleming James Bond novel but would still like to implement the idea of a character that exhibits such traits as James Bond (being suave, lady’s man, having an over-the-top villain to deal with). This is okay. Anyone can use such concepts. However, you can’t directly copy the story itself.

Melania has spoken words that come straight from the Michelle Obama speech. As to whether there is a copyright to the original speech, this is possible but unlikely as copyright requires for the work to be creative. A generic speech letter might not warrant copyright protection. Of course, even if there is a copyright to the speech, it would be the scriptwriter who is the author and not Michelle Obama herself. Melania Trump

One way such writers can ensure protection of their work is through registration of the work with the Copyright Office. However, works do not have to be registered for it to get copyright protection. Copyright registration is essentially an announcement to the world that you have a copyright over this piece, and it is a clear indicator that the work is under legal protection.

The Melania scenario is a rather straightforward one. Regardless of who the copyright holder of the script is, there is blatant copying here. There is no need to decide if there has been copying, because there has been de facto copying. The only issue is whether the copying warrants a copying infringement lawsuit, and if the script meets the requirements of a copyright, then this very well could be the case. It is best that authors register their work and to make sure the speech is as unique as possible. Generic speeches are generally not protected.

Politicians and Ghost Writers

Politicians have a duty to provide honest information to the public. As mentioned before, copyright does not give protection to ideology. If President Obama expresses a certain viewpoint on domestic policy, this does not prevent another to come forth and present the same viewpoint. Ideas warrant no protection under intellectual property laws. And furthermore, an oral statement by itself, no matter how original or creative, does not warrant copyright protection.

Under copyright law, the work has to be “fixed,” meaning that it is available in some tangible form, before it can be given any form of protection. An oral statement by itself is not protected. An oral statement that comes from a script is. Politicians would be wise to choose their staff wisely and to make sure that every member of their staff is aware of intellectual property rights, especially so if they plan on making a public announcement that is based off a script.

As for ghost writers, they can have copyright protection over their work as well. Ghost writers are those writers who actually write the work but the credit is given to someone else. It is said that even Shakespeare himself had a ghost writer who was responsible for putting together his plays. Ghost writers may receive copyright protection over their work because even though the work is accredited to someone else, it is they who authored the work.

Of course, they can always transfer their rights to a third party, in other words, the person listed as the author. You can transfer rights by way of a license or through an assignment. The difference being that a license is usually a nonexclusive and temporary transfer of rights whereas to assign a right is to permanently give up all ownership rights to the work. Depending on the circumstances, one might be better than the other.

Ghost writers are usually left in the dark because when licenses are not set between the involved parties, publishers intervene and stake a claim to the work. For example, let’s say that I write a book but I let someone else take credit for it. However, a publishing company such as Penguin Classic might come in and offer a deal to the person who is listed as the author. This is bad news for me because the publishing company will try to obtain rights to the work.

In general, it is the publishers that end up with ownership over the work. The author (or rather the person listed as author) will either permanently transfer all rights to the publisher or will have some license agreement in place in which the author will receive royalties but ownership rights will be held by publisher. In any event, this leaves the ghost writer in the dust. Ghost writers, if they care enough for the work, should take extra measures to ensure that there is a license agreement with the third party that will ensure that the rights to the work stay with them.

Ultimately, there are no clear-cut answer to issues such as this. Copyright governs works like these and it is primarily through licenses and contracts where we can hope to establish ground rules with regards to ownership. Tighter restrictions will prevent incidents such as that brought on by the Trump campaign from occurring, but that was just a blunder that should never have happened.

Pokémon Go and the Dangers That Come With It

It looks like Pokémon is back at it again. Pokémon Go, the latest product in the Pokémon franchise, has caught on like wildfire. This new app, developed by Niantic, brings a fresh perspective to gaming. Available on both iOS and Android devices, this mobile game allows players to catch Pokémon but must do so in real time. With GPS capability, the app pinpoints where Pokémon can be found and the player then must make the effort to actually go to these locations.

Once there, the player can then attempt to catch the Pokémon. These Pokémon can be found in various locations, from your backyard to public venues and even in government facilities such as courthouses. As this game takes the world by storm, the dangers of this form of gaming have become more apparent. Just as texting and driving has been such a big problem, the same issue could arise with this new app.

Potential Hazards

The Pokemon app demands that the player explore the outdoors if they want to catch Pokemon. Irrespective of this game, mobile devices can be dangerous. Texting and driving has been one of the leading causes of death in the past few years. Pedestrians too have put themselves in risk of danger by crossing the street carelessly while being preoccupied with their smart devices.

Surely, this Pokémon app could pose similar dangers. The game has been out for less than two weeks and there are already news reports of such accidents. One victim reported that he was “wandering aimlessly looking for Pokémon” when a car clipped him. As the game picks up speed, similar reports will undoubtedly come in. Now the question becomes, what can be done about this? Pokemon Go 2

To address this issue, let’s look back at some of the solutions that were reached when it came to driving and texting. For one, California imposed a law that would fine people who were driving and texting. Without a doubt, this has had deterrent effects. Looking at the accident reports as a whole, the numbers have waned due to this law. Can a law be enacted mandating that gamers not cross the street while playing Go?

Now this sounds silly but there have to be some measures that can be taken. Obviously the same aforementioned law applies here because the Go is a mobile game and as such, is on a mobile device. Ultimately, the question becomes what measures can be taken to prevent such incidents from happening and who should be held responsible for them?

Comparative Negligence

The gamer should obviously be held responsible for being careless and negligent. Of course, the degree of blame should also depend on who the gamer is and in particular, how old they may be.

If a 12-year-old has carelessly walked into the street, then they might not have known any better. Now, if it was a fully grown adult doing the same, then this could change things. Comparative negligence, which is the standard of fault in California, adjusts the degree of fault for all the parties involved, depending on the circumstances of the case. This standard applies primarily to personal injury lawsuits. For example, if the gamer is crossing the street when he should have stopped, then the driver who hits this person will not be entirely at fault for the accident.

The point being, if more states adopted this comparative negligence approach, it would make life a whole lot easier for both parties involved in the accident. It also provides a deterrent. The gamer so preoccupied with catching his Pokémon will stop and think because now he knows under this framework, he would potentially have to pay for his own injuries if he isn’t careful. At the same time, the driver will have a defense, which is that the Pokémon devotee was being rather careless.


Now this comparative negligence approach is not universal in that it does not apply to all incidents. It applies mainly to personal injury lawsuits. For example, what would happen if the player finds himself in someone else’s private property and the property owner decides to take matters into his own hands? How should this be resolved? Obviously not through the comparative negligence standard.

Each state has its own particular set of laws with regards to gun control and what trespass dictates. These sets of laws will help guide the well-being of people. For now, we will just have to wait and see what our legislators will do in response to this new groundbreaking form of entertainment. This only feels like the beginning. With virtual reality and this “augmented” reality taking shape, who knows which direction we’ll be headed from both a lifestyle perspective as well as a legal one. For now, enjoy and make sure you catch as many lovable Pokémon as you can. Safety first though.

Other Legal Considerations

As mentioned, Pokémon Go is sending ripples through the legal space. Besides personal injury, other areas of the legal field that are facing questions due to the Go are in privacy and intellectual property. In terms of privacy, it is a question of how to protect individual privacy. Go collects account information, location data, and other such data collected through web beacons and cookies.

There are also certain privacy issues at play here. How far can Niantic go in acquiring such data and what can they use this data for other than the game itself? There are intellectual property issues as well. Does catching a Pokémon make that Pokémon your personal intellectual property? This is a bit absurd but it is questions like this that have been coming up. In the meantime, we are left to ponder how this new gadget is changing the legal landscape.

Pokѐmon Go Privacy Problems: The Legalities of Mobile App Data Collection

Pokémon Go is the most popular mobile game in U.S. history. In the 24 hours after its release last week, it surpassed the daily active users numbers of every other mobile game that has ever existed—attracting nearly 21 million active users at once.  As a user myself, I can say that when the servers of the game are working properly, it’s a heck of a good time.

The game was created by Niantic and the Pokémon Company and allows users to roam the streets catching Pokémon in an augmented reality version of the real world. So successful is the game that Nintendo’s minority share in the game has boosted their market value by $11 billion in the week or so since it hit the market.

The game is free to play but features a number of available microtransactions—digital offerings within the app itself—to bring in money. However, like many mobile games, this is not the only source of revenue.  The app also collects personal information from its users, which it then strips of identifying information and sells to would-be advertisers.

In the last few days, this data collection has drawn the concern of not only users, but also U.S. Senator Al Franken. He has gone on record with serious concerns about the overreach of the privacy policy of the app—especially considering how many children it counts as users. The whole kerfuffle began in response to a blog post revealing that among the permissions you granted Niantic by creating an account was—for iPhone users using a Gmail to sign in—full access to your Google account.

The Pokѐmon Privacy Policy

The concerns, now known to be slightly alarmist, suggested that the permissions gave Niantic read/write permission for your emails, access to your Google Drive, and even the ability to pilfer your Google Wallet. This came as a heck of a shock to users, because, although the Pokѐmon Go Privacy Policy is available online, there was no indication such access was being granted when users made an account.

Since the initial accusations a few days ago, it has been established that Niantic did indeed get full access to your Google Account, however it was not quite the insidious plot that was initially insinuated. Pokemon Go

Niantic issued a statement that the overreach in permission was a mistake and the access had never been taken advantage of—an assertion that Google has verified.  What’s more, while the permissions did give Niantic potential access to a substantial amount of biographical information such as your email address and phone number, they did not have access to any emails, Google Drive, or Google Wallet.  Niantic patched the access out of the app days after the concerns were raised.

However, don’t let these developments completely send your privacy concerns over Pokѐmon Go blasting off again. If you have not yet updated the app, do so in order to patch out the access to your Google account.  What’s more, it is important to stay informed about exactly how much information you agree to share by making an account or clicking “yes” to those Terms & Conditions.  Pokѐmon Go is still collecting a staggering amount of information on you for later sale.

By using the app, you are accepting that Pokѐmon Go will collect data from you and use it in accordance with their posted privacy policy.  As it stands, they collect your Internet Protocol (IP) address, browser type, operating system, the web page you visited before going on Pokѐmon Go, anything you click on or go to while using Pokѐmon Go, how long you stay on pages you go to, search terms, and more.  Also, because Pokѐmon Go uses GPS tracking to determine where you are and thus which Pokѐmon are around you, the app collects where you go, where you left from, how long you take to get somewhere, and how long you stay at any given location.

Once this data is collected Niantic, per their privacy policy, strips identifying information from the data and pools it together to sell to advertising companies.  If the company or Pokѐmon Go is ever purchased, all this information is part of what will be purchased.

This probably seems like an incredible amount of information for strangers to know about you—and it is. Unfortunately, the only way to avoid this data collection (as with many apps) is stop using Pokѐmon Go.  What’s more, the practice is both common and perfectly legal when done carefully.

Mobile App Overreach: An Ongoing Problem

The Federal Trade Commission requires that mobile apps clearly disclose their privacy policies and what sort of information they collect. They also require that businesses give users an option to decline collection—although that can just mean letting them choose not to use an app.  Failure to do any of these things, or to comply with your own privacy policy, can give rise to an FTC charge of deceptive practices.

For example, Runkeeper is a jogging app that has recently been in hot water for tracking your location—when the app is not active. This information is then sent to advertisers.  In 2012, a social media app called Path got in trouble for taking its users’ entire address book without their knowledge.  They settled an FTC charge, paying $800,000.

Apps that seek overreaching permissions, a perfectly legal practice, unless state law says differently, when properly disclosed, are also common. In 2015, it came to light that quite a few third-party flashlight apps were asking for a lot more permissions on your smartphone than they needed.

Many of the apps has the ability to read phone status and identity, view Wi-Fi connections, modify system settings, obtain full network access, and determine your precise location via your phone’s GPS, among other permissions. This was quite an ask for an app that is primarily for finding your keys when they fall under your car seat.

It’s not surprising that people were sensitive to potential privacy issues with Pokѐmon Go given the history mobile apps have with overreaching permissions and privacy law violations. A huge portion of apps include data gathering of some kind as part of how they make their money—especially free to use apps.

Even if you trust a business with this information, that same information makes them a target for hackers. The sheer popularity of Pokѐmon Go, combined with its ability to track your location, means that it is going to be capable of nearly unprecedented data collection.  While Niantic has a solid privacy policy and has complied with FTC privacy regulations, it still can be a privacy risk given how much information is going to pass through its hands.  Don’t let this stop you from catching them all—just remember to know what you’re getting into with Pokѐmon Go and any app you use.

Net Neutrality Is Society’s Net Gain

Just last week, the Federal Appeals Court voted 2-1 to uphold the FCC’s strict new net neutrality rules in the face of a challenge from several internet service providers (ISPs) unhappy with the changes proposed.

The new FCC policy , a 183-page behemoth published in February 2015, changes the classification of ISPs to that of a public utility such as telephone services.  It also sets forth five rules that ISPs must abide by:

  1. ISPs “may not block access to legal content, applications, services, or nonharmful devices.” In other words, ISPs can’t block access of any legal user to any legal website.
  2. ISPs can’t throttle, or slow down, the delivery of any legal internet traffic.
  3. ISPs can’t make a company pay to give its data packets priority delivery or prioritize the delivery of data from their own services.
  4. ISPs can’t adopt practices which would harm consumers or people providing services on the internet.
  5. ISPs must offer transparent specifics on how they run their broadband networks.

The policy also provides for an exception for reasonable management of a broadband network. ISPs are allowed to prioritize data so as to keep things running smoothly, but cannot use this for their own commercial advantage.

Getting to this point has been a hotly contested battle. The FCC initially proposed much weaker regulations.  However, the combination of a call from President Obama for stronger rules, 4 million comments filed with the FCC, and protesters who went so far as to sit in the FCC Chairman’s driveway and demand a stronger policy, all came together to convince the FCC to pass the current policy.

Taken together, these rules are a new way of enforcing an old concept, net neutrality. The FCC has not had means of enforcing such rules until this most recent policy was published.

What is Net Neutrality?

Net neutrality is the concept that internet providers should treat all data on the internet equally—regardless of source.  All information passing through broadband networks and backbone networks should be given equal priority to the extent possible without effecting function.

For instance, text on a website can have data packets arrive in any order while video and audio must arrive in a specific order and in a timely fashion to function—net neutrality doesn’t require companies to ignore the concerns of functionality. Sorry About That

What net neutrality does is prevent blocking of content, throttling content (intentionally slowing down some content or speeds up others), and paid prioritization where some services are stuck in a “slow lane” because they do not pay a special fee. Essentially, it keeps ISPs in the business of charging users for internet connection as opposed to charging edge providers for users while the people buying internet service from them suffer.

The phrase net neutrality was first introduced in 2003 by law professor Tim Wu. Since it has had a name, it has been the subject of hot debate in the courts of both law and public opinion.

The Federal Appeals Court Ruling

The most recent rules, upheld by the Federal Appeals Court, treat both fixed and mobile ISPs as telecommunication services. This was a large part of why the Appeals Court finally upheld the FCC’s policy.  The court felt that the internet was so integral to day-to-day society that the change in classification was proper. The court’s dissenting judge, Judge Stephen Williams, argued that even though the FCC could legally reclassify broadband companies as telecommunications carriers there wasn’t enough evidence presented that society’s approach to internet had changed enough to warrant the change.

ISPs such as AT&T have seen a thorough trouncing in this case. The court accepted the rules put forth by the FCC exactly as written and then spent the remainder or their 115-page majority opinion rejecting every argument (and there were a lot of them—calling the rule overreaching and arbitrary) raised against the new net neutrality rules by both AT&T, parties who actively sought to join the case to throw more firepower at the issue, and outside parties who filed briefs seeking to be heard on the issue.

While the decision is a win for net neutrality, it will almost certainly be appealed. AT&T’s counsel was quoted saying “We have always expected this issue to be decided by the Supreme Court, and we look forward to participating in that appeal,”

How Does this Decision Effect the Average Consumer?

The FCC’s policy ensures you will not have to pay for internet that essentially only allows access to part of the internet. There is even a potential that, without these policies, consumers would end up buying internet website bundles in the same way you buy channels on cable TV—a practice that already exists in some African countries without net neutrality provisions.

Opponents of net neutrality argue that many consumers only visit a few websites, and would be happy to pay less for access to just these sites. This is the idea behind the bundled deals offered in countries such as Ghana—providing access to just a very few websites such as Facebook.  They also argue that it prevents people who wish to pay more from purchasing “fast lane” connections.  They say that some websites, especially popular streaming websites, take much more bandwidth than the average website and are thus taking advantage of ISPs.  Cable companies also bemoan the possibility of chilled investment in their networks.

What net neutrality actually does is prevent ISPs from limiting access to the internet, providing preferential treatment to internet services they provide or services that are willing to be strong-armed through bandwidth throttling into giving them a cut of their profits (as Netflix was forced to do not so long ago).  You already pay for a certain amount of bandwidth and this decision will not change that.  It just means that you will have the same access to the entirety of the internet—the premise that has allowed the internet to grow from its inception as a tiny communication network used by universities and the government into a global tool of free information and change.

A world without net neutrality certainly would benefit ISPs—allowing them to make money by slicing up the internet into packages and by creating artificial scarcity of broadband through “fast lane” internet sold to edge providers like Netflix.  In order to create a “fast lane,” providers would artificially place all other data in the slow lane.  Net neutrality prevents this, and in doing so maintains the social benefit of a free internet.  What’s more, it prevents ISPs from choking small business—unable to afford artificial premiums—out of the market.

Frankly, net neutrality is not about making huge changes to the internet—it’s about stopping them. Without the low barrier to entry provided by the internet, many of today’s biggest companies, such as Google, could never have existed.  The ruling of the Federal Appeals Court is a victory for both the consumer, and for innovation.

This ruling isn’t final; we can expect these rules to be before the Supreme Court before we’ll know whether they’re here to stay. However, this is the first step towards keeping the internet in the form we’ve all come to know and love.

3D Printing Pharmaceuticals: The Changing Legal Landscape

3D printing, perhaps more than any other invention since the internet,has the potential to completely change the face of business.  It could change how things are made and how they are bought.  3D printing has already shaken the medical profession to its core by opening up the potential for 3D printing prosthetics and even human tissue.  A few months back, the Food and Drug Administration (FDA) approved the first 3D printed drug—Spritam.

The drug is created by layering incredibly thin sheets of powdered medication using an aqueous fluid—resulting in a pill that dissolves extremely easily.  Beyond how easily it dissolves, however, the drug is currently no more efficient than a drug produced by normal mean.  The creator of the process, AppreciaPharmaceudicals, speculates that someday the process could allow for drugs customized to the person who takes them.

As 3D printing becomes more available to the public—3D printers are already available for less than $400—the implications of printing drugs become even greater.  Instead of giving prescriptions, doctors might simply 3D print your medication at their hospitals 3D printer.  They may even give you algorithms to allow you to print your pharmaceuticals in the comfort of your own home.

The Usual Suspects: Common Legal Issues with 3D Printing

This raises some clear legal issues, such as regulating the 3D printing of drugs and protecting the intellectual property of pharmaceutical companies.

Beyond restricting the sale of materials necessary to print drugs, it becomes awfully hard to regulate the quality of a drug when the patient is printing it at home with purchased materials—or even if it’s being printed at hospitals across the country.  The FDA will need to regulate not only when somebody print a drug, but also how they and be printed, on what kind of 3D printers, and more.  If private citizens are allowed to 3D print pharmaceuticals, there will obviously also need to be regulations that prevent 3D printers from printing drugs just any old time.  The potential headaches for the FDA are countless.

3D printing also has manufacturers fearing for their intellectual property rights.  Many have likened the availability of 3D printers to the digitization of music and fear the potential of a Napster for physical products.  One leaked design could undercut an entire physical product line by allowing anybody with the internet and a 3D printer to download the design and print the product for the cost of the materials.  This sort of infringement of intellectual property, much like music pirating today, would be extremely hard to trace and cut easily reach a scale that could put a manufacturer out of business. 3D Printing

There is not really a system in place to handle infringing designs posted online.  The safe harbor policies outlined in the Digital Millennium Copyright Act (DMCA) provides a well-known and important (albeit often criticized for its misuse) tool for quickly and cheaply having material which infringes copyright taken off of a website.  The DMCA has already been used to try and take down a 3D printing design at least once already—a design allowing the user to print a physical version of an optical illusion known as the Penrose Triangle.  It has also been discussed in a take down request from HBO over a 3D printing design of a phone charger based on the “Iron Throne” from their television show “Game of Thrones.”

Unfortunately, copyright is not really a good fit for 3D printing designs.  Copyright provides no or very little protection to useful articles.  The CAD files for a 3D printing design would likely fall under this umbrella in most cases.  This means that the designs may be limited to weak copyright protection or patent protection—losing the protection of the DMCA take down.  There is no similar system in place to deal with take downs of designs that might infringe a patent.  This would leave a pharmaceutical company with little recourse if an infringing design of a drug they spent years developing hit the web then spread like wildfire.

Intellectual property and regulation are legal issues which flow fairly logically from the sort of technological leap 3D printing represents.  However, an issue that a layperson might not expect is the potential issues that 3D printing could create for product liability.

Whose Product is It Anyway?

Products liability is an area of law dealing with a party trying to recover for damages caused by a defective product.  Such a claim can generally be brought by a purchaser of the product, somebody who uses the product, or a bystander injured by the product.

A product is considered defective in three situations: where the product is unsafe by design, where the manufacture of the product is defective, or where the product does not have sufficient warnings about its use.

These types of suits can be brought against the defective product’s designer, distributor, or manufacturer.  However, once 3D printing becomes readily available, who exactly is going to be the manufacturer?

Considering the risk inherent in creating pharmaceuticals, very small mistakes in design could have drastic consequences, this is an issue that is going to leave those injured by 3D printed pharmaceuticals scratching their head.  It may well be that whoever 3D prints medication is the manufacturer.  If this is the case we may never see hospitals 3D printing their own medication, despite potential saved costs and convenience, out of fear of the liability they may open themselves up to.

Law Catching Up to Science

3D printing will change the world—full stop.  As 3D printing becomes cheaper and more accessible, 3D printers have the potential to become as much a fixture in the home as a refrigerator.  As this happens, the technology around how 3D printers work will also likely see drastic strides.

Law has historically lagged behind technology; decades after its invention we still haven’t found perfect solutions for matching law to a world where the internet exists.  3D printing will test our courts once again.  The potential for advancement in medical science through inventions such as Spritam is tremendous, but so too are the legal challenges that such advancements bring with them.