Copyright and the Building Code

The Chronicle reported this weekend that a Sebastopol man named Carl Malamud has taken the California Building Code and made it available at his website for free. California licenses the building code from the International Code Council, a nonprofit that creates, updates, and sells uniform codes (covering generally construction-related subjects like plumbing and electricity) to local and state governments worldwide. Unlike other codes, which are developed by people working on behalf of the government, the building codes and other allied codes are licensed; ICC retains copyright ownership of the codes.

This means that California can't put the building code online with the rest of the Code of Regulations. People are responsible for abiding by the building code, however, so they must either buy a copy from the ICC or come in to the library and use the copy that the state provides, gratis, to every California State Documents Depository library.

Some of the claims in the article are misleading; despite the cost to purchase the Building Code and a few other licensed codes, the vast majority of codes and regulations at the local, state, and Federal level are available for free online, and everything else can be found in many libraries. Even the handsome version of the U.S. Code that we have here in the library, which is bound and annotated, costs a couple of zeroes short of the quoted $6 million.

It's anyone's guess as to whether or not ICC will sue Malamud and, if they did, who would win. It's clear that Malamud is not respecting ICC's claim of copyright ownership for the code, but perhaps his argument that the code is law and law must be free would win favor in the courts. Perhaps California can renegotiate with ICC to include online access to the Building Code, or perhaps the state could create its own code rather than licensing from ICC. What do you think? Please leave comments.

Lehman Brothers patent didn't seem to work

You'll have to forgive me if I'm speculating a bit here, but, as a patent librarian, I can't pass up such a good opportunity to illustrate a really important point for fledgling inventors.

If you pay much attention to the news, you may have noticed that major investment banks are dropping like flies. A major contributor to the economic problem has been "toxic debt," meaning, in this case, billions of dollars in mortgages that people have been unable to pay.

What you see above and to the right is the front page of a patent owned by Lehman Brothers, one of the first banks to go under, for an "Automated Loan Evaluation System." (I found this on Peter Zura's 271 Patent Blog)

Now, I have no way of knowing if anyone at Lehman Brothers actually used this system, or if it contributed to their taking on mortgages that customers were unable to pay back. Chances are, this had very little to do with the financial crisis that's the U.S. is facing right now. But still, this is like finding amidst a shipwreck a patent called "Process for Safely Navigating the Sea" or something like that.

A significant portion of the patenting process is evaluating an invention's potential to make money. It can be easy to assume, as many people do, that, in order to be patented, an invention would have to have some intrinsic value. And it's true that, in order to meet the utility requirement, an invention must be "useful." However, it's generally not very difficult to meet that requirement. As David Pressman says in Patent it Yourself (of which we've recently gotten a new edition, by the way), "It's hard for me to think of an invention that couldn't be used for some purpose."

Even a patented invention can be a commercial disaster. In fact, the rule of thumb among inventors in the know is that fewer than 10% of patents ever turn a profit for their owners. This figure is always used to illustrate the importance of doing market research before investing much money into getting something patented. It's a bummer to think that an inventor could be discouraged to pursue bringing an invention to the market by the low success rate, but it's a much bigger bummer to think about someone investing their life savings in a product that won't generate any money.

The lesson to be learned here isn't to give up on inventing because the margin for success is too narrow. Rather, before pursuing a new invention, maybe stop by the Business, Science, and Technology Desk on the fourth floor of the Main Library to do a little market research. Don't let your patent quest be a financial disaster.

Harry Potter and the Fair Use Litigation, Redux

The New York Times reported this week that the Harry Potter Lexicon, a companion book to the hugely popular Harry Potter series and an adaptation of a popular fan-run website, is substantially similar to the original books and can therefore not be published.

Back in April, I wrote about the lawsuit in this blog entry, but allow me to recap here for new readers. Essentially, the story goes like this: Steven Vander Ark, a fan of Rowling's work, created a popular website called the Harry Potter Lexicon, in which fans contributed facts about the characters, settings, plots, etc., of the Harry Potter novels. The end result was a fairly comprehensive guide to the series. Rowling herself actually praised the site. However, when Vander Ark adapted the site to create a book, Rowling (and Warner Bros., who produces the Potter movies) sued the publisher of the book to block the Lexicon's publication. A Federal judge in New York ruled on Monday in favor of Rowling and Warner Bros., blocking the publication of the book and awarding the plaintiffs $6,750 in damages.

The problem, as the judge saw it, was that the new work was just too similar to the original work to be considered a transformative use of that work, meaning that, rather than using Rowling's work as a jumping-off point for an original work, Vander Ark simply took her ideas and rearranged them.

Literary companions are generally considered to be perfectly acceptable, but it would seem that there were a couple of factors working against the Lexicon. First, Vander Ark apparently (the book isn't published, so I'm going by the judge's reading of it) didn't add a significant amount of new material to Rowling's work, but rather just put it into a different order. According to the Associated Press story about the ruling, the judge does not wish to discourage the creation of reference books to help readers of the Harry Potter series; there just wasn't enough new material in the Lexicon. Second, while Rowling applauded the non-commercial website version of the Lexicon, the book would have likely been somewhat commercially successful; fair use arguments often hinge upon using material for educational or non-commercial uses. Rowling had apparently discussed collaborating with Vander Ark to create a Harry Potter encyclopedia, but had decided to create her own instead. Considering all of this, it isn't surprising to me that she filed suit.

What is surprising is Vander Ark's persistent fanaticism about all things Potter. The Times reports that he is carrying on with plans to publish a Potter-themed travel memoir, and that he cried during his testimony because he feared he had incurred the wrath of the Harry Potter community. He reportedly has no hard feelings towards Rowling.

IP in the News: GOP taking some heat over copyright

While I was looking for some information to update my previous post about the Presidential candidates' positions on intellectual property, I came across this story on Wired News.

It appears that the GOP has received a cease-and-desist notice from rock band Heart's management after playing the song "Barracuda" publicly at the Republican National Convention on Thursday, allegedly without permission. The band posted this note about the incident on their website.

According to the Wired piece, this incident follows a couple of objections to the McCain campaign's use of music for advertisements -- Jackson Brown has filed suit alleging infringement in the use of one of his songs in a campaign commercial, and YouTube removed a campaign video featuring a Frankie Valli song at the request of Warner Brothers.

Food, or rather drink, for thought

I'd say the staff in the Government Information Center represents a pretty fair sample of San Franciscans as a whole, and, as such, we have among our ranks several restaurant enthusiasts. That explains how an interesting intellectual property quandary came to my attention recently.

Here's the scene: there's a hot new restaurant in town, and much of the buzz surrounding the restaurant emanates from a renown bartender who has come up with some edgy cocktails to complement the restaurant's largely experimental menu. The fledgling restaurant seems to be getting a boost from people who want to taste this bartender's signature drinks.

Now, judging by the portrayal of the restaurant business based on what I've seen on TV dramas (admittedly not the most reliable source of information, but what am I, some kind of librarian?), the kitchen of a hot dining establishment is a pretty high-stress place. It wouldn't be surprising, then, to learn that said bartender has parted ways with the restaurant.

And now for the intellectual property question: can the restaurant keep serving the cocktails?

In this blog, I've already discussed at length the difficulties surrounding intellectual property and foodstuffs. The same would probably go for drinks. It's tricky to satisfy the non-obviousness requirement for a patent when the invention is a combination of known ingredients. To qualify for a patent, the result would have to be surprising to a person with reasonable skill in that area. That would mean that the combination of ingredients would have to be be surprising to, say, a bartender. And by surprising, I don't think that "wow, this tastes like chocolate" or "I'm really surprised that this actually tastes good" would qualify. If you mix vodka, cranberry juice, amaretto and lime and it suddenly turns into breakfast cereal, maybe. But probably not.

How about copyright? The drink itself wouldn't qualify (it's not a literary, dramatic, or artistic work). The drink description, as written on the menu, is certainly under the purview of copyright. That wouldn't mean that the restaurant couldn't continue to make the drink, but, if the bartender owned the copyright to the description, they'd have to change it. But, since the bartender would have created the description in the course of her normal work duties, the employer (the restaurant) would have a pretty strong claim that it was a work made for hire, meaning the employer would own the copyright anyway.

There doesn't seem to be much recourse for a jilted bartender leaving a restaurant. The best way to retain control over a drink recipe would probably be to keep it to yourself. Hey, it's worked for Coca Cola for a long time.

I should note that all of this is speculation. Nobody around the office has actually heard of any bartenders or restaurant owners getting into a scuffle over improper use of a drink (which is different from people getting into scuffles over improper behavior after a few drinks).

There is, however, a lesson to be learned here. The next time someone offers you one of their "patented [insert drink name here]," you can say something like "You know, I find it highly unlikely that your cocktail, regardless of how unique and tasty it is, satisfies the non-obvious subject matter requirement adopted by the USPTO as set out in Title 35, Section 103 of US Code." You'll be the life of the party!

Getting closer to "Indiana Jones and the Inventor's Notebook of Destiny?"

It's about time that something came along to replace the Nutty Professor image of the inventor in popular culture.

This fall, Greg Kinnear will portray inventor Robert Kearns in "Flash of Genius." It looks like the movie is going to focus on the little-guy-versus-mega-corporation angle, so I doubt there will be much inventing in it.

Kearns' story is pretty interesting. In 1967, he patented several devices that make up intermittent windshield wipers, which have become more or less a standard feature on new cars. He shopped his invention to the Big Three and, though they never reached a licensing agreement, the wipers eventually began to appear on new cars. Kearns sued Ford and Chrysler for infringement and was awarded over $20 million in damages in the two cases. The New York Times ran a nice obituary when he passed away in 2005, available here.