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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.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

USPTO Trademarks Expo Under Way

The United States Patent and Trademark Office is hosting a Trademark Expo in which they're celebrating the role trademarks play in American commerce and culture. You can read all about it here.
My interest is more in the picture. It's not every day that you see the Under Secretary for Intellectual Property and Director of the U.S. Patent and Trademark Office Jon Dudas sandwiched between Poppin' Fresh and an anthropomorphic Hershey's Kiss.

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.

The Guitar Hero Patent Scandal

Reuters (and a couple dozen other news sources) reports here that Gibson Guitar is suing Activision, claiming that Activision's popular Guitar Hero video game infringes Gibson's 1999 patent number 5990405 for "System and Method for Generating and Controlling a Simulated Music Concert."

See Gibson's patent here.

See the Guitar Hero patent here.

This is a good illustration of how patents are enforced. The USPTO does not take any action to enforce patents once they are granted. It's up to a patent holder to pursue perceived infringement through courts, like Gibson is doing right now.

Also, if you take a look at the patents, you can see that infringement isn't always cut and dry. Do you think Gibson has a good case?

IP in the News

BBC News printed a feature today about a counterfeit Ferrari made in Thailand.