text:
Owning the Intangible/Sports Patents

Introduction
Many people know when popular athletes deal with the law. For example, everyone heard about Tiger Woods and his recent scandal. But, few hear of when the companies that make their equipment are involved in lawsuits, akin to when Riddell Inc sued Schutt Sports. In the sports world, this is common. Lawsuits arise when one company feels that another infringed on their patent of a certain piece of equipment.

Patents would promote innovation in the perfect world. Sadly, the world is not perfect, thus patents often hinder progress. . “A new study challenges the traditional view that patents foster innovation, suggesting instead that they may hinder technological progress, economic activity and societal wealth” (ImpactLab, 2009). Brad Feld (2010), a MIT graduate and founder of Feld Technologies, agrees that patents possibly slow down innovation.

How do patents work? There are three kinds of patents according to the United States Patent Office:

 * Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof; Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant (USPTO 2005).

To receive the patent, the inventor must send a written application to the USPTO for approval. Once that application meets the requirements and all fees are paid, the application undergoes examination. The application is then published pending the result of the examination (USPTO, 2005). Then, the inventor of the patent receives exclusive rights to their work, preventing others from creating and distributing the product. Patents must be renewed throughout the years, but the patent expires after a period of twenty years (USPTO, 2005). Patents cases arise in the sports world dealing with the equipment used.

Companies become worried that someone else is going to use their product, and they won’t get any credit or profit from it. This becomes an issue in sports because manufacturing companies look for lawsuits rather than improve on the equipment that already exists; that way the company does not have to spend money on research and development for a new product. The helmet industry, specifically for American football, has to deal with patent law due to a heightened awareness of concussions, and patenting certain products leads to patent lawsuits. Companies are in a competition to create the best helmet, balancing protection and mobility. In doing so, they patent their designs and sue other companies for infringing on their designs. Not only does this pertain to American football and helmets, but to all sports with equipment used. If it is an object in the sport, it is most likely patented. Although sports have new technologies and equipment to prevent athletes from injuries, patents on the equipment hinders progress towards superior athlete protection and performance.

Lawsuits
The whole nation knows when a popular athlete gets in trouble with the law. But, few know when the companies that create the equipment the athletes use get involved in lawsuits. Multiple cases arise in all sports; the few mentioned here just scratch the surface. Companies are out trying to find a way to gain a monopoly or gain a substantial profit by destroying competition instead of innovating and producing improved sporting equipment, resulting in the hindrance of sports.

Since Tiger Woods was mentioned earlier, why not start with the sport of golf? The case of Callaway Golf Company v. Acushnet Company dealt with a patent on the design of the golf ball. Callaway was able to create a golf ball that could travel far and sustain a lot of damage, “qualities not typically combined in one ball.” (Weiner, 2009). Callaway accused Acushnet for patent infringement when some of Acushnet’s Titleist-brand golf balls performed similar to that of Callaway’s golf balls (Weiner, 2009). Acushnet may have made enough changes and improved the ball in other ways, but since they were in competition with Callaway, Callaway wanted to get them out of the picture. If an innovation on golf balls improved the sport, why not let it be widely used?

Another case arose, but this time in the sport of lacrosse. Warrior Sports Inc. filed a lawsuit against the NCAA because of a patent relating to the size of the stick used in the sport of lacrosse. The NCAA decided to change the regulation size of the lacrosse sticks used in the sport, therefore making the sticks Warrior Sports create illegal. Furthermore, a different company had rights to a patent similar to the new regulation size, meaning that companies like Warrior Sports would violate that patent if they made lacrosse sticks to the specified dimension (Wild, 2009). The NCAA asked that company if they would license other manufacturers to use the patent, but that company did not cooperate (Wild, 2009). That other company was essentially attempting to create a monopoly for lacrosse sticks by not allowing others to use the patent. They hurt the advancement of the sport by forcing the NCAA to make changes in rules again and prevented the athletes from having a broader range of superior equipment. The NCAA made changes to the regulation size of stick because they believed it made the game play of the sport of lacrosse better (Wild, 2009). The longer stick sizes made it difficult for one to get the ball out of the opponent’s stick, so the athletes would hit each other harder, resulting in more injuries. However, the patent obtained by that other company just threw a stick in the gears.

Football is arguably the most popular sport in America, so it can’t be left out. A case between Riddell Inc. and Schutt Sports, two popular manufacturers of American football helmets which are widely used in all levels of competition, ranging from junior leagues all the way to the NFL. Recently, Riddell filed a lawsuit against Schutt claiming that the DNA and Ion helmets created by Schutt infringed on Riddell’s patent dealing with concussion prevention. Schutt lost the case and it hurt them dearly, costing them twenty-nine million dollars (Sachdev, 2010). Schutt Sports had to file for bankruptcy thanks to the cost of the case and the problematic economy.

A representative of Riddell claimed that he “was not aware during the course of the case that the consequences of winning would be so severe against his opponent.” (Sachdev, 2010). How could Riddell not know? Schutt was a major competitor at the time, meaning that Riddell looked for a way to hurt the competition and create a monopoly. Later that year, Riddell brought another lawsuit against Schutt, but it concerned shoulder pads instead. Schutt Sports then claimed, “Riddell is "inundating" it with suits in an effort to drive it out of the market and essentially enjoy a monopoly.” (Sachdev, 2010). The case concerning the shoulder pads “twisted the dagger” in the Schutt company, ultimately forcing Schutt out of the competition. Clearly, Riddell focused on trying to drive their competitor Schutt out of business instead of creating superior equipment for American football.

Companies battle each other in every industry. They will use patents to gain a competitive edge instead of using patents to protect their design, which is clearly a case in the sporting industry. Companies make their patent broad enough to the point where they can sue competitors for producing a product too similar and possibly force their competitor out of business, which grants more power to one company. In the sports world, companies only look to solidify a good position in the industry financially instead of advancing the sport with better equipment or technologies; patents only help them achieve that. Both the industry and the athletes suffer because of such problems. Sometimes that even puts the physical health of the player in danger due to sub-par or outdated equipment.

Concussions
Most concussions happen when an athlete experiences a severe blow to the head, and the severity of symptoms may vary depending on the strength of the hit. Concussions are fairly common in American football because of the big hits. One of the most important issues of player safety in football is concussion prevention, but the number of concussions in the National Football League this year has increased drastically. Controversies over helmet patents hurt the players because the company’s greed comes before the safety of the athletes.

What are some of the symptoms of a concussion? According to a fact sheet put together by the NCAA for student-athletes:

 * You can’t see a concussion, but you might notice some of the symptoms right away. Other symptoms can show up hours or days after the injury. Concussion symptoms include:   Amnesia, Confusion, Headache, Loss of consciousness, balance problems or dizziness, Double or fuzzy vision, Sensitivity to light or noise, Nausea (feeling that you might vomit), Feeling sluggish, foggy or groggy, Feeling unusually irritable, Concentration or memory problems (forgetting game plays, facts, meeting times), Slowed reaction time (NCAA, 2010).

It is dangerous when an athlete does not report that they may have a concussion; many athletes do not for fear of losing playing time. However, concussions are a brain injury and need to be taken seriously.

In the Nation Football League this year, the numbers of concussions have increased drastically from past years. “There has been an average of over 100 reported concussions every season in the NFL …” (Schermick, 2010). Through week six of the seventeen regular week season, nearly fifty concussions have been reported. An NFL graphic during the Sunday Night Football game of week six compared the number concussions through week six, and the fifty concussions at that point surpassed the previous year by about ten.

It is possible that the concussions are not all the fault of the player’s electrifying hits. A new helmet was introduced into the NFL this year which could possibly contribute to concussions. The increased number of concussions can be related to a patent because this new helmet had to be created in a way so it avoided patent infringement. Therefore, replacements for key safety features could have been made, and those replacement parts may not have performed as well as the parts featured in another patent. The possibility of an infringement lawsuit placed a lot of concern on a company, and that forced them to create an inadequate helmet.

It is obvious that new equipment is needed given all of these problems. But, the new equipment needs to focus on player protection rather than avoiding a lawsuit. It is the case that helmet patents are literally hurting the NFL and its players more than ever. Companies could concentrate more on player protection if the possibility of patent infringement did not exist.

Hindering Innovation
Society believes that patents foster innovation, but patents actually do the opposite. Patents affect all sorts of manufacturers, so troubles with patents in one industry can relate to patent trouble in the sports industry. Patents can place a lot of restrictions on a certain product with all of the specifications and claims that can go into it, which then creates difficulties for other companies to make a product of their own in the same industry. Conducted studies have actually shown that the patent slows down progress. Patent litigation has even been called a “Legalized Blood Sport” (Tabb, 2010). Although patents are supposed to foster innovation, there are restrictions and even experiments that prove otherwise.

Companies can and do put as many claims as possible on their patents. All of these claims become restrictions for other companies because they cannot use any part of their patent. Take Riddell’s helmet mentioned in the earlier Riddell Inc. v Schutt Sports case. The patent number for Riddell’s helmet is 6934971 and it has seventy-three claims with specifications about the helmet (Ide, Infusino, Kraemer, Withnall, & Bayne, 2005). Some claims continue building off each other as well. What if a company patents a crucial piece of the invention and there seems to be no other way for competitors to create around it? Or, what if they put so many claims or restriction on it that it becomes difficult for competitors to make their own product without legal issues? Theoretically, that company could drive out competitors that try to create a product in the same industry and enjoy a monopoly over their industry in such cases.

Experiments have been conducted to determine whether patents hurt or help innovation. Andrew W. Torrance, a professor at the University of Kansas School of Law, and Bill Tomlinson, a professor at the University of California, Irvine, conducted on such experiment. They created a game that put users in a patent and also a non-patent environment. “The Patent Game uses an abstracted and cumulative model of potential innovations, a database of potential innovations, an interactive interface that allows users to invent, make, and sell these innovations, and a network over which users may interact with one another to license, assign, infringe, and enforce patents.” (Tomlinson & Torrance, 2009). Tomlinson even stated that, ““In PatentSim, we found that the patent system did not work to spur innovation.” (ImpactLab, 2009).

Wall Street & Technology editor Larry Tabb calls patenting a “Legalized Blood Sport” (2010). That is understandable considering the fact given above, but what are his reasons? He reported on patent issues concerning trading technology vendors: A few trading technology vendors have been using the judicial system to pummel each other and, by extension, the industry. ESpeed, BrokerTec, Trading Technologies, Reuters and Bloomberg are all hip-deep in this mess. Over the past six or seven years, eSpeed has sued virtually all the bond trading platforms (most recently BrokerTec) in regard to its inter-dealer broker fixed income trading capabilities. Reuters is suing Bloomberg over FX intellectual property infringements. And, most notoriously, Trading Technologies is suing eSpeed and others in a scheme to force the U.S. and, by extension, the global financial futures industry to pay Trading Technology 2.5 cents per futures contract in perpetuity. How can this be allowed to happen? (Tabb, 2010). Because of a patent, the trading technology vendor industry won’t be able to advance for some time with all of the lawsuits that need to be sorted out. Tabb considered that as an industry being “held hostage” (Tabb, 2010). It only makes sense that when patents hurt progress in one industry that patents could hurt progress in other industries, including sports.

Many patents are contained within athletics; some apply to the equipment used by players and others to the actual equipment on the field, e.g. goals and field goal posts. Since Tomlinson’s and Torrance’s experiment showed that patents hinder innovation, the sports industry could be suffering due to the patents. Players won’t have the best equipment because companies sue to protect their product instead of creating superior equipment, all of that thanks to the patent. The selection of equipment players have to choose diminishes as well. While one piece of equipment works well for certain athletes, it may not work well for others because each person is different. Take the patent Riddell Inc has on their helmet that was involved in the earlier lawsuit where one of the claims includes specifications about the chinstrap (Ide, Infusino, Kraemer, Withnall, & Bayne, 2005). How could another company really modify the chinstrap without causing patent infringement? With patents in place on products, competitors find it difficult to create a reasonable substitute without facing a lawsuit. Again, that could relate to the fact that a new helmet is used in the National Football League this year and the number of concussions have increased. What if a situation arises similar to that of the one Tabb reported on? The sports world could not afford that because sports can evolve rapidly, especially contact sports since new medical discoveries can provoke the need for new safety equipment. The heightened awareness of concussions means that helmet manufacturers race to create the next best helmet, one that would either diminish the chance of being concussed or eliminate concussions all together. But, if those companies sue each other over a patent of the ideal helmet, that helmet would not come out. Then the companies are losing money from the lawsuit and the lost profit of the helmet in the market, and players still receive concussions. It becomes a lose-lose situation for all involved, all thanks to a patent.

How Patents “Foster” Innovation
Why do people have the false belief that patents foster innovation? Most claims are about protecting the invention, which helps the company financially but does not necessarily promote innovation and economic growth. Others say that better inventions are created because they have to work around the patent to create something new. That is obviously easier said than done. Phillips is a company “focused on improving people’s lives through timely innovations” and a strong supporter of the patent (2010). The company Phillips states that:

 * The logic behind patents is straightforward. If a company or an individual can’t protect inventions from being imitated, it doesn’t make economic sense to invest in the research and development (R&D) necessary to achieve these inventions in the first place. In a world without patents, copycats would quickly imitate the process or product. They could bring the novel product to market at a lower price, because they wouldn’t have spent any money on R&D. The innovative company would lose out for its efforts to innovate. Very often, alternative forms to protect an invention such as trade secrets are unpractical. Just as often, the inventor’s ‘first-mover advantage’ in the market is very limited. Patents are, therefore, one of the essential cornerstones supporting innovation, because they reward successful inventors with protection and enable them to recoup their R&D investments (Phillips, 2010).

That is all about benefiting the company and not promoting progress in the overall field.

Phillips later states that, “Very often, the company or person who has made the invention is not best suited to convert the new technology quickly and efficiently into a successful new product on the market.” (2010). This seems to contradict their earlier statement because the patent system would prevent others from placing the product on the market. Without the patent, the outsider could get that new product into the market sooner which could in turn benefit the economy. The Nation Football League could benefit from a new helmet immediately due to the increase of concussion this year.

If patent law were to change, why would a company spend a large chunk of money if someone could just steal it? With the current patent law, the results of research and development have to be released to the public. Thus if there was no patent, those results would not have to be shared with the public. It would be difficult for other companies to copy something that they know practically nothing about. By the time another company figures out how to copy the product, the original creator would most likely be on top of the industry, meaning that earning money would not be an issue.

Conclusion
With the patent system in place, creating a better helmet now is a challenge. The innovator would have to work around all of the claims and restrictions on all other helmets. That innovator could then share the same fate as that of Schutt Sports. Without the patent, the focus would shift from companies worrying about infringement and having to work around the patents to creating better products. Their money could go towards research and development instead of lawsuits. It is understandable how people see that patents foster innovation because the patent prevents copying. But, companies tend to hide behind patent law and can try to make the patent general. Then that company seeks to destroy their competition by claiming patent infringements on products, which in turn hurts that industry. The selection available to the people would diminish. Without the patent, the focus would be more on superior equipment instead of protecting the product. And the money spent on developing is much less than the overall cost of losing a large lawsuit. Overall, the patent can hurt the economy, no matter what the industry is.

With all of the possible lawsuits within the sports world, it is amazing that advancements are made. Every item used in the sport can fall under patent protection. Patents may actually benefit only one of the sport equipment manufacturing companies. The patents could help them seize what would be a near monopoly over the industry. Riddell Inc v. Schutt Sports is an example of one company working its way to complete control over an industry, which in that particular case related to helmets. These cases can literally hurt the players as well. The number of concussions increased substantially from last year in the NFL. Between the case of Riddell Inc v Schutt Sports and possibly the new helmet used this year, it is clear that patents are to blame. Because of all the concussions and injuries, the players and the game of American football itself receive a tarnished name. It becomes a brutal sport where the players’ intentions are to hurt each other. Without the patent it is possible that a better helmet would already be in use and these injuries would not occur. Patent law issues went beyond football; just about any sport has its own issues with patents.

Although patents are in place to benefit the company, they don’t benefit the economy. Specific studies such as PatentSim have shown that patents don’t foster innovation as well as they were perceived to. While the research does not specifically relate to sports, the ideas of the findings can be applied to all industries. Companies could focus more on the quality of the product rather than worry about facing a lawsuit. New technologies could be produced at a much higher rate. But, as long as the current patent system is in place, industries, like the sports industry for example, will suffer. It turns out that patents hurt the sport industry, not help it.

title: Owning the Intangible/Sports Patents


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User:Rebelsky

Professor at Grinnell College. Working on collection of essays by students on IP law.

 * Owning the Intangible

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: User:Rebelsky


text:
User:Rebelsky/Books/OTI

Possession, Theft, and (Mis)Appropriation of Ideas

 * Owning the Intangible/Introduction

 * Athreya - IP vs. IP: Intellectual Property vs. Indigenous Peoples
 * Owning the Intangible/IP vs. IP

 * Clark - Sports Patents: Hurting Not Helping
 * Owning the Intangible/Sports Patents

 * Counts - Trademarks on Common Words: Potential consequences for generic trademark holders
 * Owning the Intangible/Trademarks on Common Words

 * Dhananjay - CopyTube 2.0: YouTube and Beyond
 * Owning the Intangible/CopyTube 2.0

title: User:Rebelsky/Books/OTI


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User talk:Rebelsky

 Hello Rebelsky, and welcome to Wikiversity! If you need help, feel free to visit my talk page, or contact us and ask questions. After you leave a comment on a talk page, remember to sign and date; it helps everyone follow the threads of the discussion. The signature icon in the edit window makes it simple. All users are expected to abide by our Privacy policy, Civility policy, and the Terms of Use while at Wikiversity.

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Papers
Thanks for uploading and formatting papers like OTI Sharing Music to Wikiversity. Please keep in mind that we have specific licensing requirements for content to be used on Wikiversity. Generally, the original authors must consent to their work being licensed under the CC BY SA 3.0 license. If this is the case, just add a reference on each of those pages to the original source so that we can confirm this. If the authors have not consented, please remove the papers until they do consent. --Draicone (talk) 04:35, 28 November 2010 (UTC)

I've removed the papers temporarily until I can be sure that they meet the Wikiversity standards. (Sorry, academic standards suggest that small quotes are okay, and I hadn't thought about the implications of posting them on Wikiversity.) Rebelsky 14:25, 28 November 2010 (UTC)
 * Thanks. We welcome all learning material, but at the same time we do have to be careful to respect the author's wishes. If you contact the authors, they may be happy to allow us to use it, or even post it themselves. Small quotes are also perfectly okay. --Draicone (talk) 14:34, 28 November 2010 (UTC)

title: User talk:Rebelsky


text:
User:Rebelsky/Books

 * Owning the Intangible

title: User:Rebelsky/Books


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Owning the Intangible/Free Speech and Copyright

Ever since Mickey Mouse became famous in 1928, copyright and trademark rights have protected the cartoon from use by anyone else. Yet, in this modern era, these rules have been broken by a group of renegade cartoonists who call themselves Air Pirates:

 * Their notoriety rested on the two issues of the Air Pirates underground comic that caused the entire group (with the exception of Flenniken) to be sued by Walt Disney Productions for copyright infringement. What prompted the suit was the lead stories in each issue, written and drawn by Dan O'Neill, that depicted Mickey and Minnie Mouse having sex, getting high and smuggling drugs. (Ringgenberg, 1998)

Introduction
For years children have admired Mickey Mouse and all the other characters in Disney movies. These films depicted good morals that all of us could learn from. For example, from Beauty and the Beast (Hahn, 1991), consider the lesson that it does not count what is on the outside, but what is inside your soul.

Mickey Mouse debuted in “Steamboat Willie” at the Colony Theatre in New York City on November 18, 1928. Ever since that day, Mickey has starred in over 120 cartoons. His depiction was not so amazing when it first appeared because the original drawings were simple circles for his head, body, and ears. Over the course of time, Mickey was redrawn so that his body is now more pear-shaped and his pupils look more realistic. As well, Mickey has had an upgrade to his ears so that they too, look more real to the audience. (Disney, 2010)

For many decades, patents, copyrights, and trademarks have protected ideas. It seems, however, as if intellectual property has protected creative concepts from cartoons to mousetraps, but that such concepts start to belong to the whole world. In the case of Walt Disney Productions v. Air Pirates, we can clearly see that the law did not completely protect Disney copyrights, mostly because the first amendment protects the parody of Mickey Mouse that O'Neil and his colleagues devised. Of course, Disney did not like how the Air Pirates were making fun of its characters in “I am Mickey Mouse and I am the American Dream”(Levin, 2003). In fact, this case helps us understand more clearly the limitations of free expression in cartoons.

The Air Pirates case is a classic example of how the first amendment should be used to protect freedom of expression. Even though copyright law protected Disney, the parody overrides that law to some extent, because Disney attempted to limit speech, so that the point becomes even more clear. This was a curious case, but it does have instructive similarities to other cases in the past.

First Amendment
In the Bill of Rights section of the United State Constitution, the first amendment clearly states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”. Ever since this provision came into effect, multiple lawsuits have followed.

In the case Walt Disney Corporation vs. The Air Pirates, the first amendment was meant to be used by the Air Pirates to protect their freedom of expression. Indeed, cartoonists often rely on the first amendment to protect them when they are parodying a play or movie.

Copyright
When an idea is created, people often do not think much what they are going to do with it later, but when corporation achieve a fresh new creation, they immediately copyright or patent it and trademark it so that other people cannot steal their idea. Some people say corporations are copyrighting to such an extent that the practice is becoming ridiculous, even absurd: they look like little babies fighting over their toys.

Government involvement in these kinds of issues started back in the 15th and 16th centuries, when the church and the government tried to regulate printing. The church and government forbade anyone to speak badly of them in a book. If these authorities found out who had gone against their will, they would then immediately punish the offenders harshly and burn all the books they could get their hands on. Such books would then be forbidden, and anyone caught reading such a work would also be punished. Such these earlier times, the context of copyright has progressively changed from exclusive rights granted to the author or creator of an original work to a point now when it seems nearly anything, from sampling music to DNA strands to comic strips, can be copyrighted. Authors in the past were creative on how to approach their mains ideas that would insult the church and the government and not get them caught

Air Pirates
The Air Pirates have revolutionized the context of a whole generation and helped to redefine the precise extent of new creative limits. They have created a new boundary within in other comic artist or creative individuals can make even better parodies. Mickey Mouse has declared a copyright war to everyone that tries to use Mickey Mouse for his or her own benefit. As a result, this case was started in 1970. It is known as Walt Disney Productions v. The Air Pirates and Disney was suing the Air Pirates, because Disney claims that the Air Pirates had copyrighted infringement to Disney's characters (Levin 2004). The case became very heated up ones each side were through to each other evidence of why they were right.

Disney claim that what the Air Pirates where doing unconstitutional, because they own Disney's characters and that they should ask permission, before using characters that do not belong to the Air Pirates. Disney's attorney said that the Air Pirates did not use fair use to take a little sample of Disney's characters, but that the Air Pirates took to much of the fair use to take Disney's characters.

The Air Pirates claim that their work would not replace Disney and that they properly use the Fair Use Act. The Air Pirates were already accused of 38 infringement and their settlement was becoming bigger and bigger every time. As the year went by, the laws were becoming much better, such as the Copyright Act of 1976. This is a very unique law in that it the first time that Congress passes something like this. This law had specific factors for courts to consider in determining fair uses. The first one is that the nature and purpose of the infringing work. The second is that the nature of the copyrighted work. The third is that the amount and substantially of the copies portion in related to the whole. Lastly, it state that the effect of the infringing work upon the potential market for, or value of, the copyrighted work.

In 1978, the courts use the Copyright Act of 1976 to determine if the Air Pirates violated their use of fair use on Disney's characters. Under stick measurement, the courts decided came to an agreement that the Air Pirates did not use the Fair Use Act well and that they over use the power of borrowing Disney's characters. The Air Pirates rejected this claim and appeal for another case, but in 1979, the courts were tired of hearing the same old evidence for the Air Pirates that they stop hearing the Air Pirates appeals. At the end of the 1980, the problem ended with the Air Pirates agreeing by the original 1973 injunction to not draw Disney's characters for public display anymore.

Old Cases
History cannot be altering in any physical way, but we can sure interpret what it said and alter the future for the best of society. As these old cases from the past show more knowledge on how to interpret what the founder father of the United States wrote on the Constitution.

In 1954, Warner Brothers Pictures v. Columbia Broadcasting System, where in a problem where Warner Brother Pictures owned the right to the Maltese Falcon and CBS was using one of the characters and Warner Brother Pictures sue CBS for those characters. The characters that CBS was using were Sam Spade, but Dashrell Hammett had sold it to CBS for a radio show. Warner Brother Pictures did own the right to Maltese Falcon, but it only featured Spade and that where Warner claim ownership of the gumshoe. In an obscure decision on 1954, the U.S. Court of appeals for the ninth Circuit cast doubt on the copyright ability of fictional characters divorced from stories.

In a few years later 1956, Benry v. Loew's, was a case dealing with fair use. The ninth Circuit case had declared that copying a “substantial part” of a prior work, even in parody, would be actionable. This case was overrule by the Air Pirates case in that now we can use some of the copying of a “substantial part” of a prior work is good. This case overrule makes it ok to take “substantial part” of someone work and claim it as our own.

In the most recent years 1994, Campbell v. Acuff-Rose Music, was a sampling case dealing with fair use. The problem started when 2 Live Crew released a parody of the song “Oh, Pretty Woman” in 1989. The owner of that song, Acuff Rose, sued for copyright infringement. When the courts were doing the step-by-steps analysis of the four factors of fair use set by the Copyright Act of 1976. The courts decide that 2 Live Crew had violated the fair use and that they did not incorporate many of their ideas into the song. This case also brought up the question that how come this parody was not protect while other were? This was unfair for 2 Live Crew since there might be some bias motivates behind the courts decision.

Article
In this newspaper article ”Free Speech”, we can see the frustration that Paulo Coelho is having with the illegal downloading of books. Before the author was a writer, he loved the Internet at first, but now that he is a writer, he seems to be battling people who are pirating his book and downloading them illegally. The source was limited to only arguing against downloading books illegally.

In this opinion piece, we can clearly see that the author in “When Copyright Is Wrong” has not favored copyright license law for many years, even when the author of a particular piece is dead. According to the author this law only slow down the process of moving forward to new innovations. The author is a copyright lawyer and she discusses how expanding copyright laws must stop piracy of film, music, or anything else. The discussion in the source is limited to copyright and intellectual property laws.

In this newspaper article “Copyright Neglected”, we see that the new era of technology is causing a lot of game coding piracy problems. All the big companies need to have gatekeepers, so that hackers cannot gain access to their codes and replicate them to their own software. The discussion was limited to gaming and codes stealing.

In this article “Disney’s War Against the Counterculture”, we see the dynamic of how the copyright rights laws do not always protect everyone’s rights. Dan O’Neil a member of an American cartoonist who decides to draw comics of Mickey Mouse depicting him as a bad character. The Disney Corporation was not happy with this infringement and decides to sue. In the end the Supreme Court refused to hear the Air Pirates appeal, and they won by forfeit. The source is limited to a discussion of copyright, first amendment and intellectual property.

According to this newspaper article “Obama Administration Launches Offensive Against IP Pirates”, the Obama Administration will try to reduce the act of digital piracy. People still do this illegal activity. They should find a more strategic way to effectively stop the piracy from happening. The source is limited to digital piracy. The author of the title suggests that the Ad more italic.

In this book The Pirates and the Mouse, we clearly see in depth the case of Walt Disney Corporation vs. Air Pirates. The Air Pirates were underground cartoonists who made fun of Disney's character. When the Disney Corporation found out about this, they sued, but they lost. We see how the first amendment places a key role in this case.


text:
Owning the Intangible/Patenting the Human Genome

Introduction
In the world of genetics, all organisms have strains of amino acid chains, containing endless amounts of coding information. These molecules provide organisms with their body’s “floor plan”. A relatively new field of study, DNA (deoxyribonucleic acid) is becoming more widely known to scientists and researchers. New discoveries concerning DNA are becoming increasingly crucial in medical practice. Therefore, the race to identify gene sequences and patent them has reached intense levels among research scientists and corporations.

However, this competition is not without controversy, for ethical concerns arise with patenting of human genetic material. The case of Henrietta Lacks (a cancer victim in the early 1950’s) exemplifies this controversy as her cells were “taken without her knowledge” by doctors at Johns Hopkins (Skloot, 2010). Author Rebecca Skloot recounts Henrietta’s story: Eventually I tracked down a few magazine articles about her from the seventies. Ebony quoted Henrietta’s husband saying, “All I remember is that she had this disease, and right after she died they called me in the office wanting to get my permission to take a sample of some kind. I decided not to let them.” Jet said the family was angry --- angry that Henrietta’s cells were being sold for twenty-five dollars a vial, and angry that articles had been published about the cells without their knowledge. It said, “Pounding in the back of their heads was a gnawing feeling that science and the press had taken advantage of them.” (Skloot, 2010)

Even without the consent of Henrietta’s family, doctors decided to continue researching her cells, eventually discovering a plethora of helpful anomalies in them. The scientists profit enormously; Henrietta’s estate receives nothing.

The lack of consent from Henrietta’s family should indicate to the doctors that it is not ethical to continue with experimentation. Soren Holm, Professor of Clinical Bioethics, states “informed consent is seen as a necessary and, in some cases, perhaps even sufficient condition for the ethical acceptability of the enrollment in a biomedical research project.” (Holm, 2002) Although Holm is skeptical about this practice, consenting is what makes the experimentation and patenting of human genes ethical. If Henrietta’s husband had consented to the doctors at Johns Hopkins, the disputes Henrietta’s family makes against the medical school would not be warranted.

Genetic material, being a naturally occurring substance, walks a thin line between qualifying and not qualifying as intellectual property. Most would say that genes do not meet the requirements of intellectual property. Despite their lack of contingencies, there are still many benefits in patenting genes that stretch from capitalistic benefits to health benefits. In this case, with inform consent, genes should be allowed patent rights in order to further our nation scientifically and by doing so, benefiting the population immensely.

Genes in the Sphere of Intellectual Property
In 1901, Japanese chemist Dr. Jokichi Takamine filed for the first patent on a biological substance (Goldstein, 2006). This patent describes the “processes of producing a pure, stable, and concentrated form [of] a substance,” which we call adrenalin (Takamine, 1903). Also known as epinephrine, adrenalin is a naturally occurring molecule within living organisms. According to the United States patent law, “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.” (Patents, 1952) According to the definition of a patent, one cannot patent a substance that “already exists in nature” (Goldstein & Golod, 2002), which raises the question: If genes occur naturally in nature, then how can scientists across the globe patent their sequences? A gene itself is obviously not patentable, because there is nothing novel about its existence; it was not genetically modified in order to create a new function for that gene nor was a gene sequence isolated and to that a function attached. Although it may seem that there are no valid reasons why genes should be patented, many scientists believe the opposite.

There are two approaches to sequencing DNA: the first starting with the DNA as a whole and working forward to sequence specific genes within that DNA (the genomic approach), and the second being an attempt at using the messenger RNA (mRNA) and working backwards (the cDNA approach). The cDNA approach is most common amongst scientists, because it more rapidly identifies genetic sequences, and since there are about three billion base pairs in the human genome, speed (and of course accuracy) is everything. There was a lot of uncertainty whether or not the cDNA discoveries were going to be allowed patents, but they are capable of applying for patents based on these discoveries if they discover that specific gene’s use (Healy, 1992). With these two methods put into perspective, scientists can better justify why they should be able to patent genes.

All scientists agree that every human gene is a naturally occurring substance. Scientists, including author David Koepsell (2009), use this fact to explain why patenting human DNA is not possible, for it is not patentable. If one cannot patent other naturally occurring objects in nature, such as non-genetically modified plants, other animals, and water, then there would be reason to believe that genes likewise cannot be patented, but somehow scientists are finding a loophole in the system. However, some argue that an isolated gene does not occur in nature, and can be patented (Goldstein & Golod, 2002). This theory, which has held up in court cases (the most notable court case on this plane is Parke-Davis & Co. vs. H.K. Mulford & Co. of 1912), claims because an isolated gene does not exist alone in nature, that it qualifies as intellectual property. Even though the courts favor on the side of allowing the patent of genes, there are others who still believe that genes do not belong in the realm of intellectual property. Opponents of human genetic patenting would counter-argue the supporters’ claims with the court case Diamond vs. Diehr, which stated that “laws of nature, natural phenomenon and abstract ideas” (Diamond v. Diehr, 1981) are excluded from patentability. Clearly, both opposing sides of this matter are supported by one court case or another, making it hard to decipher what the facts are. Therefore, one must look at the issue through multiple media.

In deciding whether or not genes are intellectual property, court cases are a helpful tool. But court cases sometimes provide too much contradiction, keeping people away from the facts by confusing them. A good start is to look at the plain definition of intellectual property: “property (as an idea, invention, or process) that derives from the work of the mind or intellect” (Merriam-Webster, 2010). It is true that this is only Merriam-Webster’s definition of intellectual property, but it gives a very good perspective on with what is being dealt. Genes are not created by the minds of humans, nor does isolating them make them a human creation. In that case, by this definition, there is not way human genes can be considered as intellectual property. The only possible way to get around this fact, is if genes are intentionally modified. In that regard genes would qualify as intellectual property. Unfortunately for most scientists and researchers this is not the case. Disregarding the court’s decisions on this topic, and looking solely at the definition of intellectual property, one can safely say that genes should not be patentable, for they are naturally occurring in nature and are not derived “from the work of the mind or intellect.”

There are many arguments for both sides of the above-stated discussion: are genes intellectual property? Both sides can cite court cases to support their claim, but now the pressure is on for those who support genetic patenting. The new friend-of-the-court brief from the Department of Justice could change this realm of law drastically. Even though many argue that isolation of genes is enough ground to receive a patent, the United States bureaucracy is being persuaded in the other direction towards not allowing gene patents to take place any longer. It is clear that both the supporters and opponents have strong convictions for why they believe whether genes should be patented or not, so then there has to be good reasons why supporters stand behind this practice so defiantly. Regardless of the capability of scientists being able to patent genes, the uses of this scientific process must be further looked into to understand why this controversy even exists.

Advantages and Disadvantages of Patenting Genes
Much like the debate over whether or not genes are patentable, there is a very two-sided debate on the usefulness of gene patents. Many of the arguments for both sides of this dispute can be used across the scope of patents; they are not just limited to the patenting of genes, but are still very relevant in the genetics debate. Many supporters of genetic patenting would use the following explanation of the relationship between patenter and the general public to bolster their arguments: “By granting time-limited market exclusivity, patents create the potential for inventors to generate high returns on successful innovations. In exchange, the inventor provides a complete description of the invention so that others may build on the technology to create improvements or other breakthrough discoveries” (Willison & MacLeod, 2002). On the other side of the dispute, opponents accuse companies for caring only for the monetary benefit of the patent. Although the previous two statements sum up the arguments fairly well, they are not the only that exist; there are many contingencies that are used to argue either side of this discussion.

Since the patent of adrenalin was made in 1901, many other biological patents have come about and their usefulness has been questioned. There have been a lot of myths of the uselessness of genetic patenting which are in need of being cleared up. One of a few popular myths about human genetic patenting is that when a scientist patents someone’s genes that they are patenting that person. Not only does this idea contradict what is said in the 13th amendment of the United States constitution (banning property right on a person) but the law also requires that the genes be isolated or purified if the gene is to be patented (Noonan, 2006). Another common myth is that genetic testing is better in places where patenting is not allowed. People have a misconception that cheaper equals better. In fact, the world’s leading biotechnology companies exist in places where patents can be made on genes (Rosen, 2006). Therefore, the price of genetic testing cannot be the only sign of how well testing is done. Yet another false disadvantage to genetic patenting is someone’s inability to control their genes once they are taken from their body. This is easily told false by consent forms. If the patient does not want their genes to be studied or researched then they have all the power in the world to say “no” to the doctors wanting their consent (Noonan, 2006). This is not true for every case, because there are always exception, but it is highly unethical for a doctor to continue research without consent of a patient. These three “urban myths” of genetic patenting are not the only ones. There are a lot of misconceptions that exist among this field of science, and only when they are cleared up can people truly appreciate the usefulness of what genetic patenting can do for science and research.

Along with the many false impressions made about genetic patenting, there are also many beneficial uses for this practice. By permitting scientists to patent genes, the US gives companies an incentive to create and move research along in a timely fashion. It is even thought that because of allowing these patents the Human Genome Project finished faster with their work (Willison & MacLeod, 2002). Not only does this practice speed up the process by providing incentives for companies to create, but it also provides companies with profit protection. That is to say, because researching some of these genes is very expensive, companies want to make sure their findings will be protected under the law to avoid losing large quantities of money (Willison & Macleod, 2002). Besides the capitalistic benefits to gene patenting, there is also a dire need for patenting for diagnostic purposes. Because scientists, along with deciphering the amino acid chain sequence, determine the function of the gene they are wanting to patent, diagnoses can be more easily made. Patenting a gene puts certain diseases into medical literature, making diagnoses more easily acceptable to doctors around the country (Karny, 2007). Again, these are only a few of the advantages that appertain to genetic patenting. There is a fountain of advantage to genetic patenting that cannot be overlooked.

Both sides of the issue are backed up by many different theories and statements. The difference between the two sides is that when one tries to argue against the usefulness of patenting DNA, they use incorrect preconceived notions that have only been spread by word of mouth that have no factual base. On the other side of the debate, however, there are many well supported statements as to why genetic patenting is a very useful practice in the world of biotechnology.

The Ethics of Human Genetic Patenting
With all medical affairs, ethics comes into play in one way or another. Anytime a sort of risky surgery may take place, consent is required before surgeons can begin surgery. Yet there are times when actions take place without consent, like in the story of Henrietta Lacks, whose cells were taken and researched after her family denied consent. Even though these tragedies do happen, genetic patenting and research are allowable with the proper consent. In order to fully understand both sides of this issue of ethics, it is important to learn about events that have gone wrong in the past so that learning can take place from prior mistakes. The case of Henrietta Lacks proved itself to be one of the lowest moments in genetic research, for even though Henrietta’s husband denied consent, researchers continued to perform experiments on her cells, and as a result, profited from her cells (Skloot, 2010). It is actions like these that give the general public an unfavorable view of the practices of the biotechnology industry. Other experts, like Soren Holm, would argue that even with consent, this practice is still unethical. The issue that Holm raises states that many people are “consenting to an unknown future” (Holm, 2002). He believes that some issues arise due to the lack of knowledge that is received by medical patients. There is a kind of double standard for doctors in this case, however; doctors cannot perform tests if they already know the outcome already. Therefore, there must be some degree of uncertainty in order for there to justify a research experiment. Holm does raise a valid point, but it is not sufficient enough to completely discredit the ethicality of human genetic research and patenting.

Signing the consent form grants all rights to the researcher. One could think of that form as the point of no return, but in reality, one could still back out after the papers have been signed(at least they should be able). Determining whether or not a scientific experiment is ethical is very simple. If a scientist does what she says she will do, after the patient has consented, then her actions are justified. This raises a good question: how does this type of consent relate to genetic patenting? The first step in a genetic patent involves isolating a certain gene and discovering what function it serves the body. In order to perform this experimentation, one must receive consent from the patient. It is not necessarily the act of patenting the gene for which one must receive consent from a certain patient, because as stated before, no one can own any person. If one has to receive consent to patent DNA of a patient, then there is an assumption that a specific human has very unique DNA. This is hardly the case. Unfortunately, it was the case for Henrietta Lacks, and the proper procedures were not taken by doctors at Johns Hopkins. If scientists had obtained the consent of Henrietta’s family, there would be no problem with the actions they took. Simply put, consent is the only requirement to perform research on human cells.

Conclusion
The world of intellectual property is a very nebulous sphere of law, opinion, fact, and is ever-changing, especially when referring to the patenting of human genetic material. It is very difficult to decipher the true state of isolated genes. Many claim that because they are naturally occurring materials that they cannot be considered intellectual property, making them unable to be patented. Others claim that isolated genes do not occur solitary in nature, thereby making them intellectual property, and able to receive a patent. On another note, an amount of overwhelming evidence supports the usefulness of genetic patents on both the industry of biotechnology and the population as a whole. Along with that, one can agree that patenting genes is usually an ethical process, when, of course, consent is given by the patient to due initial testing of the genetic material. With all of these contentions considered, it can be understood how important the patenting of genes are in the lives of humans. It gives us a knowledge of disease, which can help us diagnose people in time to save their lives. It provides the right kind of incentive for biotechnology companies to move biotechnology forward and improve lives globally. A wealth of knowledge has been gained because of the research scientists have been done on our cells and DNA, research they may not have done without the protection they receive from the government in the form of patents. Many more discoveries are still out there waiting for biologists, chemists, and other scientists around the world, making this crucial protection even more important for the future.


text:
Owning the Intangible/True Ownership

Introduction
When a person buys a movie, software, or videogame do they really own it? An average person would say of course but the company they bought it from might disagree. Numerous incidents have arisen where the question of whether a person has the rights to resell the products they have bought has been questioned. And this question isn’t new, in 1908 a publisher demanded that all copies of the novel, Castaway, had to be resold for a dollar or more. In this case the judge ruled that those who bought the book had the right to sell it for whatever they wished and thus introducing the First Sale Doctrine. (Lee, 2007) This doctrine provides that a person can own and resell something they purchase. But in this new age of technology this doctrine is challenged but in the end the First Sale Doctrine should always preside over all.

In 2008 UMG recording sued a man, Troy Augusto, for copyright infringement in UMG v. Augusto. Augusto sold promotional CDs on eBay under the name Roast Beef Music. He acquired these CDs by purchasing them at used record stores in Los Angeles. The first sale doctrine without a doubt applies to product sold by UMG through standard retail channels. But these promotional products, on the other hand, were distributed free to individuals for various reasons and contain prominent notices that the use of the disc and content is licensed for promotional purposes and may not be resold or transferred. The labels say they retain ownership in the copy. The court held that the CDs were gifts, therefore UMG transferred first sale rights to whoever they gave the CDs too. And thus Augusto was doing nothing wrong. (Hodnicki, 2010)

 * Unlike the use of software, which necessitates a license because software must be copied onto a computer to function, music CDs are not normally subject to licensing. Therefore, the benefits of a license for software do not exist under these facts.Looking to the economic realities of the transaction, UMG's distribution of Promo CDs provides the recipient with many critical rights of ownership, including the right to perpetual possession and the freedom from obligations to UMG. Accordingly, UMG's distribution of Promom CDs to the music industry insiders is properly characterized as a gift or sale, not a license, and title to the CDs transferred to the insiders. Augusto is thus protected by the first sale doctrine. (UMG Recordings v. Augusto, 2008)

Even when the CDs clearly stated they were not allowed to be resold the first sale doctrine still takes precedent.

In this new digital age, the first sale doctrine is constantly being challenged, should it still apply? Undoubtedly yes because no matter how advanced technology gets when a person buys something he or she then assumes ownership of the product and is entitled to do whatever they wish with that product.

Background
Copyright is the right to copy a work of some form. If one resells or gives as a gift a book (or CD or DVD) that one has bought, a new copy has not been made, therefore it is legal under US copyright law. When it comes to tangible merchandise, such as the retailing of goods bearing a trademark, the "first sale" rule serves to immunize a reseller from infringement liability. The reseller has protection under the law as long as the merchandise is not altered. In 1909 the codification (the process of forming a legal code) originally applied to copies that had been sold (hence the "first sale doctrine"), but in the 1976 Act it was made to apply to any "owner" of a lawfully made copy or phonorecord (recorded music) regardless of whether it was first sold. (Copyright Act of 1976, 2010) So, for example, if the copyright owner licenses someone to make a copy, such as by downloading, then that copy may lawfully be sold, lent, traded, or given away.The doctrine of first sale does not include renting and leasing phonorecords and certain types of computer software, although private nonprofit archives and libraries are allowed to lend these items if a notice that the work may be copyrighted is on the copy. (First-sale Doctrine, 2010) The first-sale doctrine as it relates to computer software is an area of legal confusion. Some software publishers claim in their End User License Agreements (EULA) that their software is licensed, not sold, thus the first-sale doctrine does not apply to their works.

 * The Record Rental Amendment of 1984 and the Computer Software Rental Amendments Act of 1990 both amended Section 109 to prevent all owners of software copies or phonorecords from distributing said copies through the acts of rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending unless authorized by the owners of the copyright, with an exemption for non-profit educational institutions and non-profit libraries.The acts specifically excluded: A computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; orA computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.The privileges to sell or otherwise dispose of the possession of any particular copy or phonorecord and to display that copy publicly one image at a time, including through projection, one image at a time where the copy is physically located do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, without acquiring ownership of it. (First-sale Doctrine, 2010).

These issues have been brought to court and dealt with by law.

Case Law
One of the first cases that dealt with the issue of resale happened when Bobbs-Merrill Company sold a copyrighted novel, The Castaway by Hallie Erminie Rives, with the notice, "The price of this book at retail is $1 net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright" printed immediately below the copyright notice. The defendants, R.H. Macy & Co., purchased large lots of books at wholesale and sold copies of the book at retail at the price of 89 cents a copy. The court held first that the copyright statutes protect an owner's right to "multiply and sell" the work on their own terms. The statutory right to sell, however, did not also create a right to limit resale. The court did not hold that a contract or license imposed on the first sale could not create an obligation. In this case, there was no contract between the owner and the original purchaser, and there was not privity of contract between the owner and any third party (BOBBS-MERRILL CO. v. STRAUS, 1908) The Supreme Court established early on that individuals have the right to resale a copyrighted good as long as it is not claimed to be original work.

In 1979 Sony Corp. of America v. Universal City Studios, Inc. (often called "The Betamax Case"), determined that because the VCR was capable of substantial noninfringing uses, copyright owners objecting to infringement could not prevent its sale. The ruling, coupled with the high price of the first few movies on VHS and Betamax tapes ($50 each) created a large market for home video rental. Retailers purchased the expensive tapes and rented them to consumers at an affordable price, while studios earned considerable revenue from volume sales to rental stores. First-sale doctrine excused these merchants from seeking permission from the copyright holders. (SONY CORP. OF AMER. v. UNIVERSAL CITY STUDIOS, INC., 1983) Because of the First-sale Doctrine video stores were able to be created and protected by law because they purchase videos and then have the right to use them as they wish.

In 1997 in Novell v. Network Trade Center a purchaser is an "owner" by way of sale and is entitled to the use and enjoyment of the software with the same rights as exist in the purchase of any other good. These software transactions do not merely constitute the sale of a license to use the software. The shrinkwrap license included with the software is therefore invalid as it pertains to maintaining the title to the software by the copyright owner. Under the first sale doctrine, NTC was able to redistribute the software to end-users without copyright infringement. Transfer of a copyrighted work that is subject to the first sale doctrine extinguishes all distribution rights of the copyright holder upon transfer of title. (First-sale Doctrine, 2010)

The decision in the 1997 Novell v. NTC was upheld in a more recent case the federal district court in California issued a decisions applying the First-sale Doctrine to bundled computer software in Softman v. Adobe (2001), even if the software contains an EULA prohibiting resale. Softman bought a bundled pack of Adobe software and then resold each software program individually. The court ruled that Softman could resell the bundled software, no matter what the EULA stipulates, because Softman had never agreeded to the EULA. The ruling specifically said that software purchases will be treated as sales transactions, rather than explicit license agreements. In other words, the court ruled that California consumers should have the same rights they would enjoy under existing copyright legislation when buying a CD or a book. (SOFTMAN PRODUCTS COMPANY vs ADOBE SYSTEMS INC., 2001) Because Softman did not agree to a licensing agreement for use of the software with Adobe he was legally allowed to resale the product because he was protected by the First-sale Doctrine.

In a case involving software EULAs and the First-sale Doctrine, Davidson & Associates v. Internet Gateway Inc (2004), the first sale ruling of the Softman court was challenged, with the court ruling "The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement." However, the point was disputable as the court found the plaintiff's EULA, which prohibited resale, was binding on the defendants because "The defendants expressly consented to the terms of the EULA and Terms of Use by clicking 'I Agree' and 'Agree.'” (First-sale Doctrine, 2010) By agreeing to a licensing agreement the buyer forfeits their right to use the first sale doctrine.

Counter-arguments
Although the First-sale Doctrine is clear in providing consumers with rights to products some would argue that this is wrong and use certain cases to help their argument. In Vernor v. Autodesk Timothy Vernor made his living from selling items including software on eBay. Vernor had picked up some old copies of AutoCAD from an architect's office sale, complete with their serial numbers, and he put them up on eBay noting that they were not currently installed on any computer. But there's a catch. Autodesk, the software's developer, forced all users to accept an agreement before using AutoCAD. This agreement made clear that AutoCAD was merely licensed, never sold, and that one's license was non-transferable. Further, a licensee could not rent, lease, or sell the software to anyone else; you couldn't even physically transfer the discs out of the Western Hemisphere. Finally, if you upgraded to a new version, the old version had to be destroyed. In its view, US "first sale" protections don't apply to Vernor, because he didn't buy the software from a legitimate "owner." That, in turn, is because the architecture firm had only "licensed" the software, and that license could indeed allow a software company to prevent resale, lending, and even removal from the Western Hemisphere. (Anderson, No, you don't own it: Court upholds EULAs, threatens digital resale, 2010) In this case the court ruled against the First-sale Doctrine saying that it did not apply to the licensing agreement that the consumer agreed to. Another argument that is used against the First-sale Doctrine especially with regards to modern technology is the reselling of mp3 files bought off of iTunes or Amazon. Through the First-sale Doctrine this would be fine. And a company called Bopaboo is operating under this premise. They buy previously owned mp3’s and resell them. But here is where opponents argue against the First-sale Doctrine because Bopaboo has no way of knowing the original origin of the mp3 files. They could be buying and selling copies of mp3’s that were illegally downloaded or shared P2P (person to person).

 * But digital resale shops would pose new challenges. Put simply, the product they offer is simply too good. "Used" versions of songs aren't actually "used" at all; they're perfect copies, as good as the day they traveled through the tubes and onto a user's machine the first time. So, if used copies of digital goods are sold at a lower price, consumers have no reason at all to use higher-priced services like iTunes or Amazon. If used copies are sold at the same price, the store doing the selling is now in direct competition with those other stores, even though it doesn't have to split any profit with labels or creators. (Anderson, "Can I resell my MP3s?": the post-sale life of digital goods, 2008)

Because the resold copies are perfect the same as the day they were originally purchased some feel that this is unfair competition to other mp3 stores and the First-sale Doctrine should not apply because there is no “degradation of the product.” (Anderson, "Can I resell my MP3s?": the post-sale life of digital goods, 2008)

But these arguments are flaccid and irrelevant. In Vernor v. Autodesk the First-sale Doctrine is not being ruled against. The court ruled against Vernor but only because the original owner was forced to accept and agreement to use AutoCAD. “This agreement made clear that AutoCAD was merely licensed, never sold, and that one's license was non-transferable. Further, a licensee could not rent, lease, or sell the software to anyone else; you couldn't even physically transfer the discs out of the Western Hemisphere (!). Finally, if you upgraded to a new version, the old version had to be destroyed.” (Anderson, No, you don't own it: Court upholds EULAs, threatens digital resale, 2010)

Vernor was ruled against because he was not protected by the First-sale Doctrine. “He didn't buy the software from a legitimate ‘owner.’" (Anderson, No, you don't own it: Court upholds EULAs, threatens digital resale, 2010) The product he bought was licensed and not sold therefore making it illegal for Vernor to resell them.

The second argument about reselling mp3’s is worse than the first. The quality and condition a product is in has nothing to do with the First-sale Doctrine. As long as a good is purchased the owner is now protected and can sell the item as they wish. If a jacket can be bought and resold brand new why should music files be any different. Opponents might argue that this example is irrelevant because it is obvious the seller no long has the jacket and with technology today it only takes seconds to make a copy of the song file. But what they fail to realize is that this is the case for anything with regards to technology. A CD or DVD can be ripped and ready to be resold in minutes. But the ease of making duplicates should not diminish the law so it should not exist. People have been able to make copies of things for centuries but that does not mean a buyer should forfeit their rights to their own property because of advancements in technology. Also it is said that reselling of the mp3’s is bad for the industry. ”The carpenter who built your dining table doesn't get a cut when you eventually hawk it on Craiglist, and Best Buy makes no money when you resell one of its computers to a friend” (Anderson, "Can I resell my MP3s?": the post-sale life of digital goods, 2008) But there is also a solution to the problem. Digital resale shops may also offer some benefit to the industry. Because the business model of stores like Bopaboo ("great name," says Bengloff) may be dodgier than stores trafficking in physical goods, the labels have an opportunity to get a piece of the market in exchange for legal security. Bopaboo's decision to seek licenses for its behavior is (pun intended) music to the ears of the music industry. (Anderson, "Can I resell my MP3s?": the post-sale life of digital goods, 2008) Not only should it not matter that the record labels do not receive income for the reselling of songs but now they have a possibility of getting a cut of the profit. This did not happen with the reselling of CDs or records.

Closing
The First-sale Doctrine should clearly apply to all cases of purchasing items. Even in today’s new technological age with mp3’s and software. If a person purchases, not leases, an item the First-sale Doctrine should clearly apply. Just because technology has gotten more advanced does not mean the First-sale Doctrine should no longer apply. In fact the First-sale Doctrine protects buyers from the companies who sell products and assures the buyer that what they bought is now their property to do what they please with. Without the First-sale Doctrine we would have things we take for granted. One of these things is a library. Libraries operate under the premise of the first sale doctrine because they buy or receive books as gifts and then are entitled to do what they wish with them. The same can be said for movie and video game rental stores such as Redbox and Gamestop. What would we do when we wanted to watch an old movie once but did not want to purchase. A world in which libraries and video stores could not exist is a world of which I do not want to be a part of.

title: Owning the Intangible/True Ownership


text:
Owning the Intangible/Originality

Introduction
A lot of people would really like to make money without working very hard. Why invent something new when you can rerelease something old? It seems to be common practice these days to publish new editions of Shakespeare, Cervantes, and what-have-you with critical forewords and other piles of padding that no one reads. By writing a brief introduction and some new material, you too can one day be a successful republisher! A rather sketchy ad promised me quick thousands if I did this. Is this practice legal? Should it be?

Step one is selecting the public domain work you wish to exploit plagiarise republish. It must be in the public domain because otherwise you need permission from whoever holds the copyright, which may involve you coughing up some money. Just tracking the copyright holder down can be difficult enough. A work is in the public domain if the author has specifically left it to the public domain or the copyright has expired. Most public domain content is the latter. The conditions are extremely complicated, so here's a helpful webpage or two for reference. http://copyright.cornell.edu/resources/publicdomain.cfm http://www.publicdomainsherpa.com/calculator.html

Step two is researching the rules and restrictions on what you're doing. A derivative work, according to the U.S. legal code, Title 17, Chapter 1, § 101, is

 * a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may 	be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other 	modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

The only copyrightable part of a derivative work is the parts that are added. This makes sense - I can't make a fancy frame for a photograph and expect to copyright the photograph, for instance. Most of the court cases pertaining to derivative works are focused around the boundary between original content and... not original content. In Bridgeman vs Corel the United States District Court for the Southern District of New York ruled that exact photographs of public domain artwork can't be copyrighted. http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm, http://englishhistory.net/tudor/art.html

One of the most well-known examples of a derivative work is L.H.O.O.Q. by Marcel Duchamp - it's the Mona Lisa, but with a moustache and beard and the titular caption (which, when read aloud quickly, sounds like "she has a hot ass" in French). This is a ubiquitous example of the concept of "transformativeness": the notion that if the changes show the work in a new light, the work is original. For instance, L.H.O.O.Q. was viewed as a satire of the "bourgeouis cult" of France; the meaning of the painting was changed significantly, even if the painting itself wasn't. http://www.toutfait.com/unmaking_the_museum/LHOOQ.html

So to produce a derivative work of something not in the public domain, permission is necessary, and the derivative work can't be copyrighted unless it somehow shows the original in a new light. Project Gutenberg, an organization dedicated to preserving public domain books and making them available over the internet, says

 * When a text is in the public domain, anyone--from you to the world's biggest publisher--can edit it and republish the edited version. When the edits are substantial enough, the edited work is deemed a "new edition", and gets a new copyright, dating from the time the new edition was created.

How substantial must the edits be to qualify as a "new edition"? That is for a court to decide in any particular case. Changing some punctuation or Americanizing British spelling would not qualify a work for a new edition. Theorizing something about 	Shakespeare and rewriting lots of lines in "Hamlet" to emphasize your point would make a new edition. In between those extremes is a grey area, where each new edition would have to be considered on a case-by-case basis." http://www.gutenberg.org/wiki/Gutenberg:Copyright_FAQ

In another case, Golan vs Gonzales, later revisited as Golan vs Holder, it was held that there was a basic problem with removing works from the public domain and forcing retroactive royalties on whoever had been using them. In this case, Uruguay had recently changed its copyright terms to include a number of works that were United States public domain. The end result (after a few appeals and reversals) came the notion that something in the public domain couldn't be taken out by later changes to the law. This is consistent with Eldred vs Ashcroft, where a massive coalition of groups challenged the constitutionality of the Sonny Bono Copyright Term Extension Act on the grounds that copyright had to have a finite limit (re:Constitution), which (they argued) it wouldn't if the duration could be extended potentially indefinitely. The Supreme Court, for better or worse, upheld the SBCTEA, but sensibly didn't put 20 years of recently public-domained content back under copyright.

Note: this principle isn't law. Every now and then some hilarious international misunderstanding causes a copyright desynchronization and much squabbling ensues, with the end result sometimes being a work entering and exiting the public domain.

A legal summary: it's totally legal to take something out of the public domain and reissue it and sell it, but you get no copyright. To claim copyright on a derivative work, it needs to be “transformative”. Non-public domain derivative works either must fall under fair use or be specifically permitted by the author.

Court Cases
What is the border between derivative and original work? I have a lovely collection of court cases and examples in no general format that I believe do a good job of delineating it. First, a series of court cases to attempt to describe it legally, followed by a collection of examples from which I argue < > for what I think should be the case.

In Feist Publications, Inc. v. Rural Telephone Service Co. Feist sued Rural Telephone Service for copying a phonebook. Sensibly, the courts ruled that no, you can't numerically arrange a collection of telephone numbers and copyright it.

In another case, Runge v. Lee, Runge wrote a magazine article on the topic of facial excercises, later incorporated into a book. Lee was employed by her for about nine months, and two years later she ALSO wrote a book on facial exercises. The book contained most of the contents of Runge's. Runge sued, and won. I support the court here – apparently Lee's book contained all of the excercises in Runge's and only one original.

So what is the result of all this information? First, yes it is quite easy to make money off of someone else's genius. (This is hardly a unique thing.) Second, don't expect to copyright anything you outright steal. Third, you can make a living by defacing famous artworks (though it probably isn't original any more.) Fourth, yes, it is entirely legal to sell people republished, freshly-foreworded public domain content. A couple of publishing companies have public domain content as the mainstay of their output.

What about works that aren't in the public domain?
First, a bunch of Harry Potter examples. On the original side, we have Harry Potter itself. I don't think most rational people will dispute this, though there are several court cases which I'll mention in a bit. On the decidedly unoriginal, we have the poorly-translated Chinese knockoff Harry Potter and the “Leopard-Walk-Up-To-Dragon”, which is a page and a half of vaguely Potter-like Engrish followed by the majority of J.R.R Tolkien's The Hobbit with some of the names changed.

Between this, we have fanfiction. A huge amount of the internet is devoted to people writing stories about their favorite characters – Ranma, Buffy, Kirk, you name it. Is your own story original, if it uses someone else's characters? In my opinion, yes it is. The story is at least as important as the characters in it. Is fanfiction legal? As far as I can tell, yes I is. Many large fanfiction sites have been running openly and publicly for over a decade. I have yet to encounter any legal action against them.

This is similar to the unofficial, unauthorized sequel written by a father for his kids, “James Potter and the Hall of Elder's Crossing”. The only difference is that though J.K. Rowling was initially opposed to it she quickly dropped the lawsuit and endorsed it as canon. The difference is twofold: first, he has the author's permission, so it's definitely legal. Second, it was actually sold for money.

Harry Potter in Calcutta is another strange case. The author took Harry Potter and a collection of Bengali literature and combined the two. This is, to me, an excellent and interesting idea with a lot of potential. But copyright intervened and Rowling forced the publisher to stop printing it.

Tanya Grotter is a series of Russian semi-parody semi-clones that borrow only general themes from the books. The eponymous main character is a female student at Tibidokhs School for Behaviorally-Challenged Young Witches and Wizards and rides a flying double bass. The author calls the books a “cultural reply” to Harry Potter, and past the very first the plots aren't even particularly similar.

Still, however, Rowling's lawyers tried to file a cease-and-desist in Russia, but failed. They successfully blocked its importation into the Netherlands and threatened the publisher with more lawsuits. The Dutch court denied the argument that the books were parody

This is silly. The books aren't even “what if Harry Potter was Russian”, which to me is itself a perfectly legitimate premise for an original work. This is a female Russian wizard who shares many similarities with Harry Potter. The book deliberately invokes them with its cover – same font, same general illustrative style, same framing mechanism. But I think this is perfectly reasonable grounds for fair use in the form of parody (though the Dutch court system disagrees.) I think it even qualifies as totally original.

Returning to the example of “definitely unoriginal”, Harry Potter and the Leopard-Walk-Up-To-Dragon, consider if I had taken Eragon and replaced the names with ones from Star Wars, and appropriate instances of dragons and magic with appropriate uses of lightsabers and the Force, and released it as “Star Wars: Fantasy Edition” to comment on perceived similarities between the two. This probably isn't copyrightable. But should I be able to release it to the public? I don't think so. It's so very similar to Eragon, and reads almost the same. Even though, like L.H.O.O.Q., I'm changing the meaning of the work, I believe too much of the original would be retained.

Is Eragon itself original? As pointed out above, it's... extremely similar to Star Wars in a fantasy setting. Changing the setting of something apparently isn't enough for originality, like Harry Potter in Calcutta or Tanya Grotter. Obviously, since I don't have a problem with those I think it is original. But legally, why is this fantasy Star Wars original and not these culture-transplanted Potters? I don't have a good answer to this question, though I'm sure someone does.

Conclusion
There's a large discrepancy between what the courts have said and what I believe should be the extent of copyright. Currently, creators have too much control over derivative works. If I want to write a sequel to Watchmen I should be allowed to. People can read. They can tell the difference between Alan Moore and Peter Dixon. At the very least, the scope of parody should be extended, because too much legitimate creative output is blocked by current copyright.

title: Owning the Intangible/Originality