Harry Potter and the Fair Use Litigation

There's a lawsuit brewing around Harry Potter intellectual property rights, and this time it's not a rock band suing Jarvis Cocker and members of Radiohead over band-naming rights.
This time the lawsuit centers on a vague but important clause of U.S. Copyright Code known as "fair use:"

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. from 17 USC s.107

In question in the most recent Harry Potter case is a small publisher's attempt at publishing a book called A Harry Potter Lexicon. The book, adapted from a website that has operated since 2000 and was given an award by Potter creator J.K. Rowling in 2004, is a companion to the novels, with maps, essays, a glossary, and other companion materials for readers of the series. The New York Times printed an in-depth look at the lawsuit, available here.

Fair use is the reason why book reviewers can include quotes from sources they are critiquing, the reason teachers can hand out photocopies of sections of a published work to students, and why a student can use a chart from a published study in a research paper for school.

One of the historic problems with fair use is that it requires interpretation on the part of the person using a copyrighted work. Since copyright owners may not want to grant permissions, or may want to charge exorbitant fees, artists may take a gamble and use works without permission. If a suit is brought against the artist, the courts will determine if their use was fair or not; in the mean time, it's better than asking and being rejected.

The defense in the Harry Potter case are likely to argue that their use of Rowlings' ideas constitutes fair use as both work of literary criticism and as a transformative work, uses that are often considered fair.

Attorneys from Stanford Law School are defending this case. The outcome could have a major effect on the way copyright is interpreted in the future. I'll keep my eye on it.

In the mean time, for more information about copyright and fair use check out:

Fair Use, Free Use, and Use by Permission Lee Wilson. New York: Allworth Press, 2005. Available at SFPL.
Creative Commons
U.S. Copyright Office

IP and the Olympic Games

There was a pretty well-attended demonstration outside the Main Library yesterday marking the arrival of the Olympic Torch in San Francisco, the only U.S. stop on the torch relay route.

I won't touch the issues surrounding the protest in this space. But the local presence of such a recognizable emblem got me thinking intellectual property. Is the torch patented? Who owns the rights to the "Olympics" name? The ring insignia?

I decided to commit the time it takes to drink of a cup of coffee this morning to seeking the answers. I searched TESS, the U.S. trademark database. I search the USPTO patent database. I search for international patents through esp@cenet. I came up with nothing.

I eventually found an answer in the United States Code. It would appear that Congress extends special protection to marks associated with the Olympics. (You may have noticed that there is no picture accompanying this post. I'm not taking any chances with Congress!) Here's an excerpt from 36 USC 220506:

(a) Exclusive Right of Corporation.— Except as provided in subsection (d) of this section, the corporation has the exclusive right to use—

(1) the name “United States Olympic Committee”;

(2) the symbol of the International Olympic Committee, consisting of 5 interlocking rings, the symbol of the International Paralympic Committee, consisting of 3 TaiGeuks, or the symbol of the Pan-American Sports Organization, consisting of a torch surrounded by concentric rings;

(3) the emblem of the corporation, consisting of an escutcheon having a blue chief and vertically extending red and white bars on the base with 5 interlocking rings displayed on the chief; and

(4) the words “Olympic”, “Olympiad”, “Citius Altius Fortius”, “Paralympic”, “Paralympiad”, “Pan-American”, “America Espirito Sport Fraternite”, or any combination of those words.

The exemptions in subsection (d) allow use of the word "Olympic" by people who have used it since before 1950 and by people in western Washington (I'm not kidding).

The punishment for infringement is the same as that of a normal trademark (I assume that means it would be decided in court). I wonder, then, why the U.S. Olympic Committee gets special protection. Maybe they're too busy to remember to renew registration?

SF Patent Auction Kind of a Big Deal

A San Francisco inventor's patent for "Global sideband service distributed computing method," (US Patent No. 6,418,642) is going up for auction next month and could potentially cause a big stir.

I'm going to admit from the outset that, technologically speaking, I have no idea what this patent is about. (If you're interested in the technical bits, I suggest you read the patent, which is required by definition to clearly explain the process in such a way that any person with reasonable knowledge in the field could understand it.)

What I do understand is controversy, and as a coworker at SFPL pointed out to me yesterday, this one has the Fark message boards pretty active.

As Reg Developer reports, the patent itself is for a computing process, commonly known as AJAX, by which data requests are managed by a server. The patent suggests that web applications such as Gmail, Google Maps, and Napster, may potentially infringe.

Who knows what comes next? One possibility is that a major company, say Google, will try to buy the patent and go after others who are already using the technology. It's certainly probable that this will end up in court. Companies that are already using this technology may argue that the technology is too obvious and the patent won't be enforceable. Who knows?

The auction takes place at the Ritz Carlton in SF on April 2nd. I'll keep my eyes peeled.

SF Trademark #2 -- Steam Beer

Marks are used to represent goods or services in a certain market. It's no surprise, then, that a company in a port city (San Francisco, of course) would use a maritime figure to represent its product.

Anchor Brewing registered this symbol in 1984, claiming to have used it in commerce since 1971. The name of their most popular product, "Steam Beer," was also registered in the early 80's, though they claim on their website to have used it in commerce for decades:

Anchor Steam derives its unusual name from the 19th century when "steam" seems to have been a nickname for beer brewed on the West Coast of America under primitive conditions and without ice. The brewing methods of those days are a mystery and, although there are many theories, no one can say with certainty why the word "steam" came to be associated with beer. For many decades Anchor alone has used this quaint name for its unique beer. In modern times, "Steam" has become a trademark of Anchor Brewing.

SF Trademark #1 -- Levi's

Before Levi's jeans were an international icon, they were just one part of a product line that mainly consisted of wholesale fabrics. Initially jeans were work clothes for laborers and cowboys; it wasn't until the 1960's that they became, as Britannica puts it, "internationally a characteristic part of clothing for both men and women."

The Levi's trademark shown above, no. 0250265, was registered in 1927 for overalls and blue jeans. Registration of the name and look of the mark continues today, as does the company's association with San Francisco, where its headquarters are located.

Click here for the Britannica article on blue jeans. (Library card required.)
Click here for the full text of the trademark registration.

SF Patent #3 -- The Murphy Bed

Apparently tiny apartments are not a new problem in San Francisco.

William Murphy and his wife moved to San Francisco right around 1900 and found their one-room apartment offered insufficient space for entertaining.

Murphy was granted U.S. Patent number 1518346 in 1919 for his "Folding Bed," marketed as the Murphy Bed beginning in 1925.


Information Source: van Dulken, Stephen. American Inventions: A History of Curious, Extraordinary, & Just Plain Useful Patents. Washington Square; New York University Press, 2004. p95
Available at SFPL.

SF Patent #2 -- Television

For those who thought "Nash Bridges" was San Francisco's primary contribution to television, I present Philo Taylor Farnsworth.

While still a teenager in rural Utah, Farnsworth came up with a method for projecting pictures using electricity but he lacked the resources to develop it. After he graduated high school, he attended Brigham Young University and found the necessary material support to develop his ideas.

He set up a laboratory in San Francisco and, at the age of 21, was granted U.S. Patent number 2168768 for the Farnsworth Television Method, which was introduced to the world as television in 1928.

For more information about Farnsworth, check out Biography Resource Center (library card required). Time Magazine also featured him in the "Time 100."

SF Patent (pending) #1 - Spray-on Pancakes

There are three conditions an invention must meet before the USPTO will grant its inventor a patent. It must be 1) Original, 2) Useful, and 3) Not obivious to a person with average knowledge in a given field.

This sprayable pancake batter has been all over the news lately, including a front page piece in the Chronicle. Sean O'Conner and Nate Steck haven't been awarded a patent yet (read their full application here), but they've began marketing Batter Blaster from their South of Market Office and have sold, according to the Chronicle, over 400,000 cans.

My opinion? Useful -- absolutely. Obvious? I guess not, because nobody's marketed it before. As for originality, though, I don't know. I hear echoes of Cheez Whiz.

Patent Circuit Court to Appear Locally

If you were planning a trip to Washington, D.C. to watch the Patent Court of Appeals in action, you can save your money.

CNET's BLIP blog reported that the Court is taking their act on the road, appearing in San Francisco and San Jose courts and Stanford and Santa Clara law schools in November.

Click here for the official press release.

Steve Perlman on Innovation in the Bay Area (ok, in Silicon Valley)

While high tech inventions may not have quite the romantic appeal of cable car pulleys, it's clear that computer technology is helping keep the spirit of invention alive and well in the Bay Area. Steve Perlman, who so far has 72 patents himself, talks about Bay Area technology innovations today in the San Jose Mercury News.

This is the line that caught my eye:

"There's kind of, if you will, less technology creativity (and) more about how to use technology in a clever way to create a new business model."

Patents can apply to business models: take a look at Business Source Premiere (available through the library) to see what the experts are saying.

Assuming Perlman's observation is accurate, the intellectual property market in the Bay Area is evolving yet again.