The Ninth Circuit’s First Time Interpretation on Family Movie Act Exemption

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About the author: Irene Rajagopal is an international business and copyright lawyer with  legal experience in U.S. and China. Irene is the founder of PAPER Law Office and licensed to practice law in Washington State. Irene helps clients to complete the copyright registration at U.S. Copyright Office and review the licensing agreements. Her office is located in Bellevue, Washington State. She can be reached at irene@irenerajlaw.com. Please feel free to click here to visit the website of PAPER Law Office PLLC (http://www.paperlawoffice.com). 

by Irene Rajagopal, PAPER Law Office PLLC

The Ninth Circuit Court of Appeals made its first interpretation on the legal authorization of filtering process under the Family Movie Act of 2005 (“FMA”), as an affirmative defense to copyright infringement claims in Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017), where the Ninth Circuit Court decided in favor of the Studios to grant an injunctive relief.

FMA's  Statutory Language 

FMA provides an exception of copyright infringement on the filtering process or the technologies of such filtering process of household movie viewing.  

The statute provides, in relevant part:

Notwithstanding the provisions of section 106, then following are not infringements of copyright:
[...] the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology.

17 U.S.C. § 110(11).

Background

In Disney Enterprises, Inc. v. VidAngel, Inc, the defendant-appellant VidAngel spent “millions of dollars” buying the DVDs or blue-ray discs of the new released movies, most of these movies are not available at online streaming platforms yet. VidAngel labels each physical copy of the discs with a unique barcode, rip the content into “intermediate copies” by removing the technological protection measures, and add tags to the digital content for filtering purpose. VidAngel’s customers buy a certain copy of DVD or blue-ray disc online and select at least one objectionable content. Then customers can view the movies through digital platforms when VidAngel filters the objectionable content and streams the movies to customers.

There is a tricky part. Customers, after viewing the movies, can sell back the DVD or blue-ray discs to VidAngel for the original purchase price less $1 for standard definition per night or $2 for HD per night. The most customers have never required for  the delivery of the discs, but rather just they viewed the movies and sold back the legal ownership of the DVD to VidAngel. VidAngel kept the possession of such discs from beginning to end. The plaintiffs-appellees called this “buy-sellback” as “a sham”.[1]

FMA Defense

When the studios (Disney, Twentieth Century Fox Film, Warner Brother Entertainment) brought the copyright infringement claim and the claim of circumvention of access control measures, one of VidAngel’s defenses is that its operation is in compliance with the exception under the FMA.

To defend claims of reproduction right claim and public performance claim, VidAngel argues its filtering process complies with FMA exemption.

  • The creation of the “intermediate copies” is exempted for reproduction right claim, because FMA permits a filtered stream “from an authorized copy”, and VidAngel’s filtering processes begins from an authorized copy.
  • FMA is a complete defense to the public performance claim, because the transmission is not public as VidAngel filters the content tailored for each customer and stream the content to such customer. At the moment of the streaming, such customer was the legal owner of the underlined DVD or blue-ray discs.

The Ninth Circuit Court rejects VidAngel’s arguments:

First, as suggested by the statutory heading “Limitations on exclusive rights: Exemption of certain performances and displays”, FMA provides an exemption to “compliant filtered performances, rather than the processes that make such performances possible”.[2] In addition, there is text limitation on the exemption, reading as “no fixed copy of the altered version of the motion picture is created by such computer program or other technology”. [3] The exemption shall not expand to the reproduction right, therefore making an unauthorized copy shall not be legalized by virtue of FMA. In this case, VidAngel created digital, altered copies before the filtering and streaming.

Second, the key phrases in the statute is filtering “from an authorized copy”. The Ninth Circuit Court held that the most natural reading of the statutory language is that, “the filtered performance or transmission itself must be ‘from’ an authorized copy of the motion picture.” [4] It shall not be read as a process that begins with an authorized copy.

Finally, the Ninth Circuit Court held that VidAngel’s interpretation will create a giant loophole in the copyright law:

“…[V]irtually all piracy of movies originates in some way from a legitimate copy. If the mere purchase of an authorized copy alone precluded infringement liability under the FMA, the statute would severely erode the commercial value of the public performance right in the digital context, permitting, for example, unlicensed streams which filter out only a movie's credits. See 4 Patry on Copyright § 14:2 (2017).” [5]

Disruptive Technologies on Existing Business Models?

The economics behind this case is the major studios' business model to release movie through "windows" in sequence of movie theaters, sale or rental of physical DVD or blue-ray discs, sale of digital downloads, on-demand for short-term online viewing, subscription of online viewing. 

VidAngel provides online filtering services that causes disruption of the orderly "windowing" business model, where the licensees paid huge amount to obtain the license in certain window. The Ninth Circuit therefore held there is "irreparable harm".

On the other hand, there may still be a question, whether a narrow and technical interpretation of the FMA will in fact make the online filtering services impossible, even if an online service provider does not create a "sell-buyback" options. 

 

[1] See Plaintiffs-Appellees’s answer, page 8.

[2] See Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 858 (9th Cir. 2017).

[3] See Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 857 (9th Cir. 2017).

[4] See Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 858 (9th Cir. 2017)

[5] See Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 859 (9th Cir. 2017)

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder. 

West Bund in Shanghai

Photo by ChamilleWhite/iStock / Getty Images
Photo by ChamilleWhite/iStock / Getty Images

About the author: Irene Rajagopal is an international copyright lawyer with  legal experience in U.S. and China. Irene is the founder of PAPER Law Office and licensed to practice law in Washington State. Irene helps clients to complete the copyright registration at U.S. Copyright Office and review the licensing agreements. Her office is located in Bellevue, Washington State. She can be reached at irene@irenerajlaw.com. Please feel free to click here to visit the website of PAPER Law Office PLLC (http://www.paperlawoffice.com). 

by Irene Rajagopal, copyright attorney at PAPER Law Office PLLC

If you are enthusiastic about art and you happen to visit Shanghai, you don't want to miss a hidden gem -- "West Bund". Located along side Huang Pu River, West Bund hosts art museums, fine art galleries, theaters, media companies and even financial institutions. 

My friend took me to West Bund one summer afternoon. We walked along the riverside and amazed by the serene river view. 

In YUZ Museum, I enjoyed two contemporary art shows -- one from a Chinese artist Qin Yifeng and one from a Los Angeles-based artist Math Bass. 

There are numerous art shows and exhibitions all year long in West Bund area. 

West Bund is still in the process of development. According to its official website, West Bund might become the "Left Bank" of Shanghai:

Shanghai West Bund is an ambitious development project that seeks to bring domestic and foreign leaders together in the fields of culture, art, media, fashion, design, and innovative finance to create a unique, world-class waterfront on par with the Left Bank in Paris and the South Bank in London. The undertaking, following the principle of "Leadership in Planning, Culture, and Industry," began in 2012 with two core projects designed to transform the area into an international cultural and financial center: "West Bund Culture Corridor" and "West Bund Media Port."

If you are an art collector, West Bund might be a first stop to get yourself familiar with the landscape of China's art market. 

For more information about West Bund, please visit their official website (www.westbund.com). 

 

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder. 

Just Say Hello

(Banff, by Irene Rajagopal, July 2017)


About the author: Irene Rajagopal is an international copyright lawyer with  legal experience in U.S. and China. Irene is the founder of PAPER Law Office and licensed to practice law in Washington State. Irene helps clients to complete the copyright registration at U.S. Copyright Office and review the licensing agreements. Her office is located in Bellevue, Washington State. She can be reached at irene@irenerajlaw.com. Please feel free to click here to visit the website of PAPER Law Office PLLC (http://www.paperlawoffice.com). 

by Irene Rajagopal, copyright attorney at PAPER Law Office PLLC

Hi Readers,

My family and I went a road trip to Banff National Park last week. The colors and lines of rockies were amazing. I did a few sketches and share with you here.

What are you doing in summer? Keep cool.

Best,

Irene

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder. 

"Scènes à Faire" in Shakespearian Screenplays

(Summer in Seattle is gorgeous! I spent time on plein air paintings and enjoyed the beauty of nature. Above is one of my recent pastel paintings.)


About the author: Irene Rajagopal is an international copyright lawyer with  legal experience in U.S. and China. Irene is the founder of PAPER Law Office and licensed to practice law in Washington State. Irene helps clients to complete the copyright registration at U.S. Copyright Office and review the licensing agreements. Her office is located in Bellevue, Washington State. She can be reached at irene@irenerajlaw.com. Please feel free to click here to visit the website of PAPER Law Office PLLC (http://www.paperlawoffice.com). 

by Irene Rajagopal, copyright attorney at PAPER Law Office PLLC

To make a great film you need three things – the script, the script and the script.”

                     -- Alfred Hitchcock[1]

Screenplays are the souls of movies, formed by plots, themes, dialogues, mood, settings, pace, characters, events. Copyright infringement claims may happen when two screenplays look so similar. 

If two screenplays share a common theme, say, a drama about William Shakespeare, will a court support a copyright infringement claim? The Ninth Circuit Court decision in Heusey v. Emmerich may give you some clues -- the details that flow naturally from an idea will not be protected. 

In Heusey v. Emmerich, the plaintiff Kenneth Heusey, an independent screen writer, wrote a screenplay titled “Not Without Justice”, based on historical events of William Shakespeare in the Queen Elizabethan era. After reading the plaintiff’s screenplay, a production company Centropolis offered to buy the rights from the plaintiff, but two parties could not reach a price. The production company Centropolis then bought another screenplay titled “Soul of the Age” and developed a 2011 film “Anonymous”. The plaintiff Kenneth Heusey brought a lawsuit.

Both screenplays, “Not Without Justice” and “Soul of the Age” (the screenplay of “Anonymous”), share a common concept: Shakespeare was a masquerader of the masterpieces -- he did not pen those famous lines, but just accidently took the credit during a political fight between Essex and King James of Scotland for the succession of heirless Queen Elizabeth’s throne.

When deciding the similarity of two works, it is not enough to ask a lay person to look and feel the overall feeling of the works. Instead, the Ninth Circuit adopts two-part test -- an extrinsic test and an intrinsic test. A court will conduct an extrinsic test as a matter of law and a lay person will decide the similarity of expression in an intrinsic test. For purpose of an extrinsic test, a court must filter out any “unprotectable elements”, [2] and compare the "protectable elements" in the plaintiff's work and the defendant's work. This means when two pieces of works look similar overall, if the similarity is based on the unprotectable elements, for example, historical facts, the court shall filter out these elements and exam what remains. 

In Heusey v. Emmerich,  the district court relied on the “scènes à faire doctrine”. The scènes à faire doctrine “applies to any detail or expression that flows naturally from an idea, regardless of its significance to the work itself”. [3]  These details and expression are not protected under copyright law, so another author could use the same or similar details and expressions. For example, if the theme of a screenplay is about the startup companies in Silicon Valley, characters like engineers are “scènes à faire”.  

The mood and settings of two screenplays, despite the similarity, are “scènes à faire”. The district court held that the moods (wars, political struggles, conspiracies, betrayals, revenge, and love affairs) are “common among Shakespearian works…as well as works in general set in the Elizabethan era”. Accordingly, “the moods flowing from these stories are examples of both unprotectable scènes à faire and merger”.[4]

The district court further found the settings such as the Queen’s palace, the Tower of London, Essex House, and the Globe Theatre, “naturally flow from premises involving Queen Elizabeth and Shakespeare”, so they “cannot support a finding of substantial similarity”.[5]

The district court also compared the plots, themes, dialogues, characters, sequence of events. Since both screenplays are historical based, the district court filtered out the historical facts and scènes à faire, and demand a heightened standard for the similarity in historical characters. It led to a conclusion that “two works are not substantially similar as a matter of law”. [6]

The Ninth Circuit affirmed the district court’s decision to dismiss the copyright infringement claim with the same reasoning.

As we can see, copyright protection on screenplays has its boundaries -- the historical events, facts, and those details naturally flow out of the idea are not protectable. Maybe that's why the public can enjoy so many movies and dramas about Shakespeare. 

[1] See “30 Quotes about Screenwriting from A-List Directors & Actors”, available at https://screenplayscripts.com/quotes-about-screenwriting/

[2] See Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir. 1994), quoted by Heusey v. Emmerich, CV 14-06810-AB (EX), 2015 WL 12765115, at *3 (C.D. Cal. Apr. 9, 2015), aff'd sub nom. KENNETH HEUSEY, Plaintiff-Appellant, v. ROLAND EMMERICH; et al., Defendants-Appellees., 15-55975, 2017 WL 2839176 (9th Cir. July 3, 2017)

[3] See Murray Hill Publ'ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 319 (6th Cir. 2004), quoted by Heusey v. Emmerich, CV 14-06810-AB (EX), 2015 WL 12765115, at *4 (C.D. Cal. Apr. 9, 2015), aff'd sub nom. KENNETH HEUSEY, Plaintiff-Appellant, v. ROLAND EMMERICH; et al., Defendants-Appellees., 15-55975, 2017 WL 2839176 (9th Cir. July 3, 2017)

[4] See Id. at *8.

[5] See Id. at *8.

[6] See Id. at *10.

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder. 

A Summary Judgment: Infringement of Fabric Design

by Irene Rajagopal, attorney at PAPER Law Office PLLC

The Ninth Circuit Court of Appeal recently confirmed that a summary judgment on the infringement of fabric design, which means the in some rare situations, the district court may have discretion on the inference of copying without a jury trial.  

In Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 992 (9th Cir. 2017), the Ninth Circuit affirmed the Central District Court’s decision on the copyright infringement. Unicolors, a Los Angeles based fabric designer, brought a copyright claim again Urban Outfitters, Inc. and Century 21 Department Stores, LLC (“Urban Outfitters”).

Unicolors created the fabric design at issue (“Subject Design”) from an original art design created by an art studio in New York, from whom Unicolors obtained the license to use the original design and create derivative works. Unicolors completed the copyright registration of such derivative works -- the Subject Design.

Urban Outfitters maintains a collection of thousands of fabric swatches in its studio. Its designers use those swatches to design apparels, including the dress alleged to copy Unicolor's Subject Design. 

The district court found that the Subject Design and Urban Outfitters’ design are overwhelmingly identical. “Looking at two designs as a whole, the arrangement, shapes and details of all the floral or feather motifs are almost exactly the same. The colors are different, and only the Subject Design has white parts outlined in a different color, but otherwise the arrangement, shape, and details of all the floral or feather motifs appear to be almost exactly the same.

The Ninth Circuit agreed with the district court that the designs are “overwhelmingly identical that precludes the possibility of independent creation”. Although usually the Ninth Circuit adopts two-part analysis to establish the inference of copying -- the extrinsic test and the intrinsic test, the Ninth Circuit confirmed that a summary judgment is appropriate in some rare situations when competing works are overwhelmingly identical.  

By distinguishing L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 852 (9th Cir. 2012),  another fashion design's copyright case where the Ninth Circuit Court favored the jury trial, the Ninth Circuit clarified that it is still possible to allow a summary judgment: 

Where the extrinsic similarity is so strong that the works are near duplicates save for superficial differences, the court may properly conclude that no reasonable jury could find that the works are not substantially similar in their overall concept and feel. In such a case, the court need not delve into a complex subjective analysis of the works to assess substantial similarity and does not risk supplanting the jury's subjective interpretation with its own. See Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 987 (9th Cir. 2017)

When deciding the issue of Urban Outfitters’ willfulness, the Ninth Circuit rejected Urban Outfitters’ argument that it was impossible for Urban to define and locate the copyright status of the fabric swatch. The Circuit Court held that Urban’s refusing “as a matter of policy to even investigate or attempt to determine” the copyright constituted the reckless or willful blindness to fabric designer’s copyright. The Circuit Court made it clear that,

[A] finding of willful infringement does not require a showing of actual knowledge; a showing of recklessness or willful blindness is sufficient. See e.g., Wash. Shoe Co., 704 F.3d at 674. See Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 992 (9th Cir. 2017)

From this case we can see that, while the courts tend to avoid making any subject determination on the similarity of the works, when such similarity becomes "overwhelmingly identical", the courts will go ahead and give a summary judgment on the copyright infringement without wasting the judicial resources to entertain a jury trial.

 

About the author: Irene Rajagopal is an international copyright and business attorney. Her office is located in Bellevue, Washington State. She can be reached at irene@irenerajlaw.com. Please feel free to click here to visit the website of PAPER Law Office PLLC (http://www.paperlawoffice.com). 

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder. 

Common Law Agency Principles Apply to DMCA Safe Harbor Analysis

By Irene Rajagopal, attorney at PAPER Law Office

In Mavrix Photographs, LLC v. LiveJournal, Inc.,14-56596, 2017 WL, the Ninth Circuit Court of Appeal held that common law agency principles shall apply to the analysis of whether the social media platform shall be liable for the acts of its volunteer moderators, for the purpose of DMCA safe harbor for information residing on systems or networks at the direction of users.

LiveJournal is a social media platform allowing users to create and run thematic “communities”. One of the most popular LiveJounal communities was Oh No They Didn’t (“ONTD”), where users submit posts containing photographs, videos, links and gossip about celebrities’ lives. ONTD attracted 52 million page views per months in 2010. To exercise more control over ONTD for purpose of generating more advertisement revenues, LiveJounal hired a then active moderator to serve as the full time “primary leader” of ONTD.

Mavrix, a celebrity photography company, sued LiveJounal for the alleged copyright infringement on the basis of twenty Mavrix photographs posted on ONTD.

DMCA safe harbor under Section 512 (c) was used by LiveJournal as its affirmative defense (“A service provider shall not be liable ... for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider…”)

The Ninth Circuit Court of Appeal held that to eligible at the threshold for the Section 512(c) safe harbor, “LiveJournal must show that the photographs were posted at the direction of the user”. Mavrix Photographs, LLC v. LiveJournal, Inc., 14-56596, 2017 WL 1289967, at *1 (9th Cir. Apr. 7, 2017) The critical inquiry is about who posted the photos online, rather than who submitted the photos to the online service providers. In this case, the volunteer moderator screened and reviewed the photographs, but the moderator cannot recall if he has posted the alleged photographs. 

First, the Ninth Circuit Court of Appeal guided to determine if the moderator is an agent of LiveJounal so that the moderator's acts could be attributed to the owner of the social media platform. When applying the common law agency principles, the Ninth Circuit Court of Appeal emphasized that “whether an agency relationship exists also depends on the level of control a principal exerts over the agent”. The Ninth Circuit Court of Appeal concluded that there are genuine issues of material fact as to whether the moderators are LiveJounal agents.

The Ninth Circuit Court of Appeal further provided the guidance to determine whether the post were at the direction of the user, if there is a finding that the moderators are the agents of LiveJounal.

Posts are at the direction of the user if the service provider played no role in posting them on its site or if the service provider carried out activities that were “narrowly directed” towards enhancing the accessibility of the posts. See UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F.Supp.2d 1081, 1092 (C.D. Cal. 2008); 

See Mavrix Photographs, LLC v. LiveJournal, Inc., 14-56596, 2017 WL 1289967, at *7 (9th Cir. Apr. 7, 2017)

The Ninth Circuit Court of Appeal noted that § 512(m) of the DMCA provides that no liability will arise from “a service provider monitoring its service or affirmatively seeking facts indicating infringing activity.” See Mavrix Photographs, LLC v. LiveJournal, Inc., 14-56596, 2017 WL 1289967, at *7 (9th Cir. Apr. 7, 2017).

Reversing and remanding the case back to the district court, the Ninth Circuit Court of Appeal further provided guidances to determine two remaining elements of Section 512(c) safe harbors: (1) the online service provider shall lack both actual and red flag knowledge of the infringement; (2) the online service provider shall not financially benefit from infringement that it had the right and ability to control.

In short, when an online service provider monitors, screens and posts the submission from the users, rather than staying in a passive role, the analysis of DMCA Safe Harbor can be facts specific.

This decision represents the Ninth Circuit Court of Appeal's position on the interpretation of the DMCA as

a balance between the interests of “copyright holders in benefitting from their labor; ... entrepreneurs in having the latitude to invent new technologies without fear of being held liable if their innovations are used by others in unintended infringing ways; and those of the public in having access [to] both....” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1037 (9th Cir. 2013).
 

Mavrix Photographs, LLC v. LiveJournal, Inc., 853 F.3d 1020 (9th Cir. 2017)

In such a balance, entrepreneurs will not be given a free pass of copyright infringement. Instead the safe harbors are subject to terms and conditions. 

 

About the author: Irene Rajagopal is an international copyright and business attorney. Her office is located in Bellevue, Washington State. She can be reached at irene@irenerajlaw.com. Please feel free to click here to visit the website of PAPER Law Office PLLC. 

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder. 

Shanghai Municipal Government Launched A New Economic Policy

By Irene Rajagopal, Attorney at PAPER Law Office

Shanghai is aimed to upgrade its economic system and attract more foreign investment. Shanghai Municipal Government launched a new economic policy yesterday, a blueprint to create a fair and open business environment.

The policy titled “Opinions of the Municipal Government on Further Expanding the Opening and Upgrading of the New Economic System” ([2017] No. 26, 《市政府关于进一步扩大开放加快构建开放型经济新体制的若干意见》)(http://www.shanghai.gov.cn/nw2/nw2314/nw2319/nw41893/u21aw1225657.html)  sets forth the guidelines on three aspects: (1) Further opening the market; (2) Creating the fair competition; (3) Attracting foreign direct investment.

Here are some highlights:

  • Certain restricted industries, accounting, construction architecture, rating services, will be open to foreign investors. Shanghai government will also loose the restrictions on foreign investments in banking, securities investment funds, insurance, insurance brokers. 
  • Shanghai government encourages foreign investment in information technologies, intelligent manufacturing equipments, new materials, environment technologies. 
  • Foreign companies may participate in the city's infrastructure constructions.
  • The bidding process of the government procurements will be open to both domestic and foreign investment companies.
  • Attract foreign talents and employees. A straightforward work permit system will be launched.
  • Foreign investors, who invest 1 million dollars and operate the direct investment for three years, are eligible to apply for permanent resident cards.
  •  Foreign companies' intellectual property rights will enjoy more protections. Shanghai government will strictly protect the IP rights, establish the IP credibility management system, handle the IP infringement complaints efficiently.

 

About the author: Irene Rajagopal is an international copyright and business attorney. Her office is located in Bellevue, Washington State. She can be reached at irene@irenerajlaw.com 

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder. 

Netflix Stepping into China Market

 

by Irene Rajagopal, attorney at PAPER Law Office

Netflix's share jumped 5.8% today (April 25, 2017) followed by the company's announcement of its licensing deal with iQIYI, a subsidy of Baidu. The details of the licensing deal is not available. According to Barron's report, Netflix's content will be streaming on iQIYI's platform, which has 500 million subscribers. Netflix has been trying to access China market over the years. It's original House of Card was streamed over Sohu, another Internet platform. 

However, the media and data-storage laws in China will remain in play. Online streaming is subject to similar regulations as TV broadcasting. 

At the outset, this deal may benefit Netflix to set foot in the huge China market, but it is still unclear how much Netflix content can be eventually distributed to China audience. 

About the author: Irene Rajagopal is an international copyright and business attorney. Her office is located in Bellevue, Washington State. She can be reached at irene@irenerajlaw.com 

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder. 

A Landmark Case for Industrial Design

by Irene Rajagopal, attorney at PAPER Law Office

(An Image from the Court's decision.)

(An Image from the Court's decision.)

Can the fashion design of colors, lines, chevrons be protected by copyright laws to prevent copycats? The answer is yes, if the artistic feature of the design can be separated from the useful article and can exist independently as a protectable pictorial, graphic, or sculptural work.

U.S. Supreme Court's 6-2 decision in Star Athletica, LLC v. Varsity Brands, Inc., No. 15-866, 2017 WL 1066261, decided on March 22, 2017,  may become a landmark case for fashion and industrial design. The Court clarified the test to separately identify artistic elements from useful articles.  Therefore, if the artistic elements in a useful articles can pass the test, such artistic elements are eligible for copyright protection.

1. The Court's Holding

Here is the holding from the case:

"[A]n artistic feature of the design of a useful article is eligible for copyright protection if the feature (1)can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imaginedseparately from the useful article".

2. Case Analysis

In Star Athletica, LLC v. Varsity Brands, Inc., Varsity Brands designs and sells cheerleadering uniforms. They have obtained over 200 copyright registration of their designs, which combinations, positionings, andarrangements of elements” that include 'chevrons . . . ,lines, curves, stripes, angles, diagonals, inverted [chevrons], coloring, and shapes'". Star Athletica also sells cheerleading uniforms. Varsity Brand sued for the copyright infringement of the design.

Section 101 Copyright Act offers the copyright protection on the artistic elements of useful articles, as a pictorial, graphic or sculptural work, only if such features "can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article".

There are two requirements to meet: (1)  separate identification; and (2) independent-existence.  The challenging part is the latter one -- to decide whether the artistic elements can independently exist. The Court ruled that:" ...[T]he feature must be able to exist as its own pictorial, graphic, or sculptural work as defined in §101 once it isimagined apart from the useful article."  The Court concluded that; "a feature of the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial,graphic, or sculptural work either on its own or when fixed in some other tangible medium."

In this case, the majority hold that the artistic elements, the design on the cheerleading uniforms, not the design of the cheerleading uniforms itself, can be separated and independently exist on a two dimension medium, like a canvas. 

3. Impact on Industrial Design

The distinction between the artistic elements and the industrial design is usually unclear. This landmark case helps to clarify the judicial standard on the copyright protection on the artistic elements in the design, and will impact the fashion design. 

Prior to this case, the industrial design usually seek for protection through trade dress or design patent. Fashion industry, at its fast pace, is vulnerable for copycats. The copyright protection in its nature fit for the fashion industry, because copyright protection does not require any lengthy pre-approval from the authorities like patent. However, before this case,  the copyright protection did not do much favor for fashion design, because the copyright law protects artistic expression as "pictorial, graphic or sculptural work", but not the useful article. As the Court noted, "The line between art and industrial design, however, is often difficult to draw."  

This case will definitely clarify the copyright protection standard for fashion design and other industrial design. High street fashion brands should be  more cautious for getting "inspiration" from other brands' design.

There is an important caveat in this case. The copyright protection of such feature is not unlimited. The Court clarified that the copyright protection only afford the Varsity Brands Inc. to "prohibit the reproduction of the surface design", not prohibit "any person from manufacturing a cheerleading uniform of identical shape, cut and dimensions". 

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder. 

PAPER Law Blog is Launched

Hi my dear readers,

Today is World Book and Copyright Day. It is a good timing to launch this copyright law blog!

This blog is dedicated to copyright and media law blog. As you may have observed, there are a couple of old blog posts that were previously published in my law firm's blog. However, I have decided to create this new blog to only focus on copyrights.

Copyright laws are complicated. This law blog will trace the latest copyright cases and trends/news in media industry, both in the United States and worldwide.

I am Irene Rajagopal, an attorney based in Great Seattle area working on copyright protection, acquisition of copyrights, licensing, publishing, and copyright commercialization. I have a passion to boost the creativity and humanity in the digital age. 

Enjoy reading and please feel free to contact me at irene@irenerajlaw.com. 

Best regards,

Irene Rajagopal

Attorney, PAPER Law Office PLLC

 

 

US-China Cross Border Media Licensing

by Irene Rajagopal, attorney at PAPER Law Office PLLC

(This blog post is initially published on February 26, 2016)

The ecosystem of media industry is similar with any other industry -- products (creative works) are manufactured in factories (production companies or studios), distributed by wholesaler to retailer (media companies), and eventually reach to end consumers (audience). 

The pipeline in the media industry's ecosystem is the licensing of copyrighted creative works from upper stream to lower stream. This blog post is written based on my cross-border experience and research in media industries. It will discuss about the trends in both US and China, and give the readers some practical tips in cross border media licensing.

1. Trends in US Media Licensing

In the United States, media technologies reshape the landscape of whole television industry. About a decade ago, traditional television companies had lucrative business from double sources of revenue: the payments from advertisement companies in exchange for the commercial time slots and the retransmission fee from the cable network or satellite TV in exchange for the distribution of TV channels. However, Internet media platform, like Netflex and Amazon, are attracting more and more users from TV screen.This is bad news for the television companies, because less audience means less revenue from both ads and the retransmission fees.

As a result, traditional television networks use copyright lawsuits to block away the new competitors. One famous case was Aereo case. The plaintiffs, the television companies (ABC, CBS), sued an Internet company (Aereo) who transmitted the free over-the-air TV signal to Internet users for a low monthly fee. The plaintiffs claimed that the unauthorized transmission infringed the public performance rights of the copyrighted television programs. The defendant, in alliance with west-coast advocates of technologies, argued that overprotection of the copyright will create a barrier for the new player in the media industry and will hinder the development of the communication technologies, and eventually impair the public interest to obtain information. The case had caused controversy in the society and split decisions among the circuit courts. It is a case on the hot spot of transition of traditional media to new media and a test on how to balance the competing interests of copyright and new technologies. The U.S. Supreme Court’s majority opinion supported the plaintiff’s position. However, the U.S. copyright law is far from settled. The trend in U.S. media industry is the fluid interpretation of copyright law in court decisions and even the judges are struggling with the understanding of new media technologies.

2. Trends in China Media Industry

In China, public policies can highly affect the market situation of media industry. Recent trends happen in the areas of film and sports industries.

There is a rapidly growth in China's film industry. The box office revenue reached to 6.7 billion U.S. dollars in 2015 according to Bloomberg's report. Behind the strong market performance, a draft of Film Industry Development Law (《电影产业促进法》) promises to give tax incentive to movie companies, and encourages the capital in China to outflow to oversea film production and distribution. The private equity funds are active in film production and distribution.

A new public policy in sports industry issued by the Secretary of State (《国务院关于加快体育产业发展促进体育消费的若干意见》) has created similar excitement in the market. The government explicitly encourages the foreign and local private capital to participate in sports business. The sports media rights are no longer controlled by a handful television companies but open for public bidding. Just a few months ago, China Super League, which is China’s major soccer league, sold its five year (2016-2020) media rights to China Sports Media, a company backed by a dominant equity fund in media industry, for approximate 1.2 billion U.S. dollars. This price was 20 times more than the same media rights in 2015.

3 Media Rights Licensing in US

a. US Copyright Act of 1976

Licensing of media products is full of legal works. So it is necessary to make a brief introduction of copyright law. A copyright provides its owner with a bundle of exclusive rights in a protected work for the copyright's duration. 

Under 17 U.S.C. 106, there are six types of exclusive rights:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Each of these rights can be assigned or licensed separately.  Therefore, it is critical to identify which exclusive rights are going to be licensed. 

b. Due Diligence

The first step of media rights licensing is due diligence and rights clearance.

First, to identify all the owners of the copyright. We shall pay attention to work-for-hire issue. If an independent contractor is hired by a client to take wedding photos, the copyright of these photos is belong to the independent contractor, not the client who pays the money for the photos, unless there is an written assignment agreement that the independent contractor assigns the copyright to the client. Therefore, closely review of all the related legal documents is a major part of due diligence work.

Second, to identify what kind of licenses are required. For example, to stream a Beatles song over Apple music store may require both the license from the original music composer and the license from the album company (or any copyright owner of the song records). 

Third, to identify other rights in the works. Here is an example of pre-existing work. If a China media company wants to broadcast a Hollywood movie, and this movie was adapted from a New York Times bestseller book. The China media company not only needs to buy a license from the movie studio, but also probably needs a license from the author of that book.

The due diligence work will further review if the creative work depicts a trademark or has used the likeness of a living person’s voice or image. Trademark and celebrity rights, another kinds of IP rights, may involve in a media licensing.

The due diligence will clear the picture of the licensing before two parties sit down to negotiate the details of the transaction. 

c. Major Provisions in Licensing Agreement

A licensing agreement will define the scope of the license, including the duration, the licensed territory, which exclusive rights to be licensed, and whether new works can be created. The agreement will also define the type of media platform.

The territory is an important provision. Licensors will usually require licensees to promise that the use of the licensed work will not reach beyond the licensed territory. In many Internet licensing agreements, a licensee is required to place anti-spill technologies. The business model of content distribution is to license a country by a country, a region by a region, so that the content owner can generate license fees from different areas of the world. 

4. Media Rights Licensing in China

When a U.S. media company accesses to China market and attempts to license out a US movie or television programs in China, the US company shall be ready to shift the gear and bear at least the following two points in the mind.

Firstly, China’s copyright law is different from U.S. Copyright Act. (Or maybe we should say U.S. Copyright Act is quite different from the rest of the world.) At a fundamental level, U.S. Copyright Act treats copyrights as economic rights that can be traded for economic value, while China copyright law treats copyright as both personal rights and economical rights. Moral rights, a typical form of personal rights, are noneconomical interest for the authors to control the use of the creative works, including the attribution right, which is the right to be identified as the author; and integrity right, which is the right to control the modification. In China, every author can enjoy the moral rights. On the contrary, the moral rights under U.S. law is only available for visual artists in a limited way. You may ask why only for visual artists? Well, this odd law was actually a compromise   this country made to meet the bare requirements of  Berne Convention, an international copyright treaty. 

The categorization of exclusive rights under China copyright law differs from the counterpart under U.S. Copyright Act. There are 17 types of exclusive rights of copyright in China. When a cross border licensing is structured under China law, the terminologies of licensed rights shall be drafted in line with these 17 types of exclusive rights. For example, the “public performance right” under U.S. law may be defined as "distribution rights" or "broadcasting rights" in China. 

Secondly, a US media company needs to accept the reality that the media industry in China is heavily regulated. First Amendment is the foundation of US media industry, where the government is refrained from direct or indirect regulation over the content or the manner of speech. But the censorship in China creates complex governmental approvals and permits, that any movies or television programs cannot be distributed without pre-approval. The media platform, either a traditional TV channel or an Internet company who stream any video, shall get special permits. Yes, it could be astonishing. But it is the reality.

Therefore, when dealing a cross border licensing, understanding of both sides of laws will avoid lots of bumpers down to the road.

5. Takeaway

Below are a few tips of cross border media licensing:

  • Understand and tailor the media products to the local market. 
  • Do good due diligence work.
  • Understand the local laws and regulations.
  • Don’t use US standard licensing agreement in an international transaction without any modification.

For any further questions, please contact Irene Rajagopal. Email: irene@irenerajlaw.com

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder. 

Oracle vs. Google: How Copyright Law is Tuned to Protect Computer Softwares

by Irene Rajagopal, attorney at PAPER Law Office PLLC

(this blog post was initially posed on August 12, 2015)

Copyright law is an increasingly important tool for software protection. As an iron rule, copyright law only protects expressions, rather than ideas contained in the expressions. In the context of computer software, the distinction between an expression and an idea is, however, often blurred. 

A recent case Oracle v. Google requires the U.S. court to give a decision on which components of computer software may be eligible for the copyright protection as an “expression”, although computer software is functional in nature. Federal Circuit Court of Appeal decided that, “the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection”.[1] Therefore, Google has infringed Oracle’s copyright of Java API packages. On June 29, 2015, the U.S. Supreme Court denied the petition for certiorari in Oracle v. Google.

There are two parts of alleged infringing acts by Google, copying the declaring codes and copying the structure, sequence and organization (“SSO”) of Java API. While it was easy for the court to decide “literarily” copying of the declaring code, the court struggled with non-literarily copying of Java API’s SSO. Such struggle is not uncommon when courts try to decide how much legal protection on the computer programs under Copyright Act.

Should SSO be copyrightable? Oracle v. Google is an example how the courts draw a pragmatic line on the sliding scale of idea/expression to determine whether the SSO is idea or expression of idea.

1. BACKGROUND: WHY SOFTWARE NEEDS COPYRIGHT PROTECTION

Software companies may seek for legal protections on computer programs under trade secret, patent and copyright law. To obtain trade secret protection, most software companies kept source codes, algorithms and data structures in secrecy, and only released binary version of the program.[2] Their license agreements usually include a provision prohibiting users from any reverse engineering.[3] However, it is difficult to keep secrecy of some visible elements like user interface. Further, open source companies like Oracle already disclosed their source codes to public, so trade secret law could no longer protect their software like Java API.

Since a computer program by nature is functional[4], patent protection appears to fit better to protect software in the first place. However, there are considerable hurdles for patent protections.

First, the courts are cautious to grant patent protection on software. It is an established rule that the “algorithm” of software is non-patentable abstract idea, unless there is “some other inventive concept in its application”.[5] Courts followed this rule in Diehr and Bilski. In CLS Bank v. Alice Corp, the key issue is whether a computer-implemented settlement scheme is patentable. The U.S. Supreme Court affirmed the Federal Circuit’s decision and emphasized that, “simply implementing a mathematical principle on a physical machine, namely a computer, is not a patentable application of that principle.”[6]

The U.S. Supreme Court reasoned that,

“…the court must distinguish between patents that claim the building blocks of human ingenuity and those that integrate the building blocks into something more, thereby transforming them into a patent-eligible invention. The former would risk disproportionately tying up the use of the underlying ideas, and are therefore ineligible for patent protection. The latter pose no comparable risk of pre-emption, and therefore remain eligible for the monopoly granted under federal patent laws.”[7]

Alice’s computerized method claims for settlement of risk did not represent “significantly more” than abstract idea and therefore were invalid for patent protection.

The second hurdle for seeking patent protection on software is that, patent examination attorneys find challenging to decide whether software claim meets the requirement of obviousness and novelty, because there is lack of sophisticated database of prior art in software industry.[8]

The third setback of patent protection on software is that small software companies or individual programmers do not have resources to check the issued patents, which puts them in high risks to create software. Patent regime is possible to discourage the creation by vast programmers.[9]

Lastly, patent application is expensive and time consuming. In reality, big companies may file patent application for system software like Windows. Small companies either cannot afford the patent application or maintenance, or consider not worthy spending three to five years to apply patent for software that will only be sold in the market for two years. 

Copyright law services the main legal ground of software protection. Current Copyright Act implied the protection over computer programs.[10] The court therefore needs to determine what kinds of elements are protectable —- source code, interface, modular structure, data structure and/or function of the program.

2. COPYRIGHT PROTECTION ON COMPUTER SOFTWARE

The process of creating software could somehow be analog with creation of a novel. To create a computer program, the software team needs to complete five steps: “(1) defining the purpose and function of the program; (2) designing the data structure; (3) designing the modular structure; 4) designing the user interface; and 5) coding the program design from parts two, three, and four into source code.”[11] It is indisputable that source codes are copyright protectable. The question usually arise whether the structure, sequence and organization shall be protected.

Courts rely on idea/expression dichotomy to make such decision. Copyright protection extent to expression of an idea, but not the underlying idea itself.[12] The statute does not clearly define “expression” or “idea”. Rather, the idea/expression distinction is “really a policy-based distinction about which elements of a work should be subject to copyright holder’s exclusive rights and which elements should be free for others”[13]. A computer program is composed of related procedures to operate together, and SSO is the way to relate procedures together for a desired result.[14] Therefore, SSOs are in between the general idea (the purpose or the function of the program) and the expression (codes). If copyright protection is limited to codes, the intellectual investments will not be effectively protected, because other programmers could easily modifies the code based on the architecture of the copyrighted software. In such a sliding scale of idea/expression dichotomy, a pragmatic line has to be drawn.

(1) Whelan Associates, Inc. v. Jaslow Dental Lab., Inc. (1986)

Whelan case was decided by the Third Circuit. The plaintiff was hired to develop a custom computer program on IBM Series One computer. The dental laboratory later use BASIC language to develop similar software derived fro the similar structure of the first IMB software. Circuit judge Becker held that copyright protection of computer programs may extend beyond programs' literal code to their structure, sequence, and organization.[15]Judge reasoned the conclusion by referring to compilation and derivative works. “Although the Code does not use the terms ‘sequence,’ ‘order’ or ‘structure,’ it is clear from the definition of compilations and derivative works, and the protection afforded them, that Congress was aware of the fact that the sequencing and ordering of materials could be copyrighted.”[16]

(2) Computer Associates International v. Altai (1992)

The Second Circuit developed “Abstraction, Filtration, Comparison” test to decide the allegation of non- literary elements. The judgment stated that, “[d]rawing the line between idea and expression is a tricky business.”[17] In the first step of abstraction, the court examines for the substantial similarity from code to the ultimate function of the program.[18] In the second step of filtration, the court filters out the “idea” or non-protectable expressions from public domain, and leaves out the core expression.[19] In the third step of comparison, the court “focuses on whether the defendant copied any aspect of this protected expression, as well as an assessment of the copied portion's relative importance with respect to the plaintiff's overall program”.[20]

Under this three-step test, a court has to “consider all of the ideas which may underlie a computer program, and to ascertain the point at which they become sufficiently delineated to warrant copyright protection”.[21]

(3) Lotus Development Corp. v. Borland International (1996)

In Lotus case, the plaintiff claimed for copyright protection on a computer menu command hierarchy. The defendant used such computer memo command hierarchy to make two programs compatible. The court held the computer memo command hierarchy is “uncopyrightable ‘method of operation’”[22], which refers “the means by which a person operates something, whether it be a car, a food processor, or a computer”,[23] and shall not be “limited to abstractions”.[24] The First Circuit did to consider the owner’s choice among many ways to build such hierarchy, and held such hierarchy is still “functions as a method for operating the computer and as such is uncopyrightable”[25]. The majority therefore ruled in favor of the defendant. The Supreme Court granted certiorari in this case, but it deadlocked 4-4 and therefore affirmed the First Circuit but produced no precedential opinion.[26]

In the concurring opinion, Circuit Judge Boudin mentioned that, “applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit”.[27] It’s a hard decision for the court on how much they are willing to accommodate the needs to protect software.

(4) Oracle v. Google (2014)

The Federal Circuit Court of Appeal ruled that the source code and object code, as the literal elements of a computer, “are consistently held protected by a copyright on the program”.[28] In contrast, whether the non-literal components of a computer program (the program's sequence, structure, and organization, as well as the program's user interface) are protected depends on “whether, on the particular facts of each case, the component in question qualifies as an expression of an idea, or an idea itself”.[29]

To decide the copyrightability of SSO, the Federal Circuit Court declined to follow Lotuscase, which rejected the copyright protection over software’s command hierarchy. The Federal Circuit court further rejected Google’s argument that the SSO is “method of system” that shall be precluded from copyright subject. The court noted that,

“a set of commands to instruct a computer to carry out desired operation may contain expression that is eligible for copyright protection”.[30]

The Federal Circuit Court of Appeal discussed about merger doctrine. Merger doctrine means if an expression of an idea does not have other choice, the idea will merger into the expression. In this case, the Federal Circuit Court held that Google has the choices of expression, and therefore the merger doctrine shall not apply (“The unique arrangement of computer program expression does not merge with the process so long as alternate expressions are available”).[31]

The Federal Circuit Court of Appeal ruled that: “components of a computer program that can be characterized as a ‘method of operation’ may nevertheless be copyrightable.”[32] The court understands the main purpose of the SSO of Java API is to make sure the compatibility of the software with third party softwares. The court nevertheless held such SSO is copyrightable, because “copyrightability is focused on the choices available to a plaintiff at the time a computer program is created,…Once a plaintiff creates a copyrightable work, a defendant's desire to achieve total compatibility is a commercial and competitive objective which does not enter into the issue of whether particular ideas and expressions have merged.”[33]

3. COMMENTARY

The court was willing to trim the basic copyright principles for software protection, since patent and trade secret law may not be enough for software industry. In the cases of software, the court tried hard to find the “gold nuggets” of expression in the software,[34] and justify that SSOs are creative and original so SSOs shall deserve copyright protection, even though in many ways SSOs are functioned as “operation of method” as excluded from copyright subject under 17 U.S.C. 102(b).

The line drawn by the court on the sliding scale of idea/expression dichotomy is practical too. While such line lies close to high level of idea, more non-literary elements could pass the test and become protectable. However, some industrial expert was concerned on judicial overprotection on API.[35]

In information age, software industry is lack of concentration. Individual programmers, even teenagers are writing codes of software while they do not have resource to check the issued patents. To give incentive for these people, patent shall be restrictively granted. If bending copyright law principles is a cost for avoiding expanding patent protection, such cost might be justifiable.

 

[1] See Oracle America, Inc. v. Google Inc. Court of Appeal for the Federal Circuit, May 9, 2014. at 5.

[2]Martin Campbell-Kelly, Not All Bad: An Historical Perspective on Software Patents, 11 Mich. Telecomm. & Tech. L. Rev. 191, 226 (2005)

[3] Ibid.

[4] Stephe M. McJohn, “Copyright”, Example and Explanation, Wolters Kluwer, 3rd edition, at 128

[5] See Parker v. Flook at 594, 98 S.Ct. 2522.

[6] Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. 2347, 2349 (U.S. 2014)

[7] Ibid.

[8] Martin Campbell-Kelly, Not All Bad: An Historical Perspective on Software Patents, 11 Mich. Telecomm. & Tech. L. Rev. 191, 242-243 (2005)

[9] Ibid.

[10] Stephe M. McJohn, “Copyright”, Example and Explanation, Wolters Kluwer, 3rd edition, at 128

[11] George N. Grammas, The Test for Proving Copyright Infringement of Computer Software: "Structure, Sequence, and Organization' and "Look and Feel' Cases, 14 Wm. Mitchell L. Rev. 105, 123-24 (1988)

[12] Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1347 (Fed. Cir. 2014)

[13] Stephe M. McJohn, “Copyright”, Example and Explanation, Wolters Kluwer, 3rd edition, at 98.

[14] George N. Grammas, The Test for Proving Copyright Infringement of Computer Software: "Structure, Sequence, and Organization' and "Look and Feel' Cases, 14 Wm. Mitchell L. Rev. 105, 123-24 (1988)

[15]Whelan Associates, Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986)

[16]Whelan Associates, Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1239 (3d Cir. 1986)

[17] Computer Associates Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 704 (2d Cir. 1992)

[18]Computer Associates Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 707 (2d Cir. 1992)

[19]Computer Associates Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 707 (2d Cir. 1992)

[20]Computer Associates Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 710 (2d Cir. 1992)

[21]Richard Armstrong Beutel, Software Engineering Practices and the Idea/expression Dichotomy: Can Structured Design Methodologies Define the Scope of Software Copyright?, 32 Jurimetrics J. 1, 22 (1991)

[22]  Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 815 (1st Cir. 1995) aff'd, 516 U.S. 233, 116 S. Ct. 804, 133 L. Ed. 2d 610 (1996)

[23] Ibid.

[24] Ibid.

[25] Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 818 (1st Cir. 1995) aff'd, 516 U.S. 233, 116 S. Ct. 804, 133 L. Ed. 2d 610 (1996)

[26] Lotus Dev. Corp. v. Borland Int'l, 516 U.S. 233 (U.S. 1996)

[27] Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 820 (1st Cir. 1995) aff'd, 516 U.S. 233, 116 S. Ct. 804, 133 L. Ed. 2d 610 (1996)

[28] Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1347 (Fed. Cir. 2014)

[29] Ibid.

[30] Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1347 (Fed. Cir. 2014)

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] See Altai.

[35] See https://www.eff.org/cases/oracle-v-google

Disclaimer and Copyright Notice: This blog post does not constitute any kind of legal advice. The author and PAPER Law Office PLLC will not guarantee the accuracy of the content. Please consult with your lawyer for any legal questions. The copyright of this blog post is exclusively owned by PAPER Law Office PLLC. Please do not reproduce or publish whole or part of this post without advance written consent from the right holder.