Last week, Senator Patrick Leahy (D-VT) and Representative John Conyers Jr. (D-Mich) introduced a new patent reform bill, which incorporates some provisions from previous reform efforts. Several high-tech companies have been pushing for an overhaul of the nation's patent system, and these companies seem confident that the Obama Administration will shepherd the reforms that they are seeking. Currently, the White House website seems to confirm the high-tech industry's beliefs. The new Administration is calling to reform the patent system in order to "reduce uncertainty and wasteful litigation" and to "ensure that our patent laws protect legitimate rights." While tech companies support the validity of the need for such reform, other industries, such as the pharmaceutical industry, oppose various aspects of the latest bill. In addition, some members of Congress have called for the nominations of a new PTO Director and Undersecretary of Commerce before the bill moves any further.
While the bill's sponsors are hopeful that it will generate new jobs and enhance innovation, various studies dispute whether the legislative language will increase jobs in the tech sector, or threaten the existence of certain manufacturing jobs. The bill also contains a number of provisions that have been deemed controversial, including limitations on damages for patent infringement suits.
For more information on the Patent Reform Bill, pleace visit:
http://news.cnet.com/8301-13578_3-10187240-38.html
For the language of the bill, please visit:
http://judiciary.senate.gov/legislation/upload/PatentReformActOf2009-AsIntroduced.pdf
For more information on the White House's Technology Agenda, please visit:
http://www.whitehouse.gov/agenda/technology/
Friday, March 13, 2009
Taxi!
The question presented itself last night in my trademark class, and I've been mulling it over ever since. Can a taxi cab company register the color yellow as a color mark with the U.S. Patent and Trademark Office?
My first instinct is to say no-- while a single color used on goods may acquire trademark rights, colors that are functional are not protectable. The Supreme Court's decision in Qualitex Co. v. Jacobson Products Co., 34 USPQ2d 1161 (1995) sheds further light on how a color mark can acquire distinctiveness and secure protection under U.S. trademark law.
From my perspective, based on Qualitex, the color yellow for taxi cabs is functional: when I am in the middle of a busy city, and I need a cab, I keep an eye out for a yellow car. Because yellow is an easy color to spot in a sea of traffic, given the low number of cars with that color (most people do not choose yellow for their own cars, and I would venture to say on a certain level it is a specialty color that most dealerships do not offer up front-- you likely have to order it) it makes hailing a cab a more efficient process.
Now, I must admit, most of my taxi experience has occurred in Washington, D.C. and New York City. But I have gotten into many taxis from different companies in these cities that were yellow, so many different companies have been using this color for as long as I can remember. While taxi cabs do come in other colors, it is the bright yellow car that catches my eye and causes me to hustle to the corner to wave the car down. The color yellow does have a value, but it does not cause me to think of any specific company in the way pink insulation makes me immediately think of Owens Corning (See In re Owens Corning Fiberglass Corp. 227 USPQ 417 (Fed. Cir. 1985)); or, how a yellow and green tractor makes me think specifically of John Deere.
Even various "taxi-related" websites use yellow-- see the link below:
http://www.worldtaximeter.com/new-york/taxi_companies
In sum, it seems the color yellow for taxi cabs is in fact functional, perhaps via accident of history, but nevertheless, it has a value to both customers and the companies that help us get around town.
For more on the history of the New York Yellow Cab, please visit:
http://www.npr.org/templates/story/story.php?storyId=11804573
For more on popular car colors in North America, please visit:
http://www2.dupont.com/Automotive/en_US/assets/downloads/colorpop2005.pdf
My first instinct is to say no-- while a single color used on goods may acquire trademark rights, colors that are functional are not protectable. The Supreme Court's decision in Qualitex Co. v. Jacobson Products Co., 34 USPQ2d 1161 (1995) sheds further light on how a color mark can acquire distinctiveness and secure protection under U.S. trademark law.
From my perspective, based on Qualitex, the color yellow for taxi cabs is functional: when I am in the middle of a busy city, and I need a cab, I keep an eye out for a yellow car. Because yellow is an easy color to spot in a sea of traffic, given the low number of cars with that color (most people do not choose yellow for their own cars, and I would venture to say on a certain level it is a specialty color that most dealerships do not offer up front-- you likely have to order it) it makes hailing a cab a more efficient process.
Now, I must admit, most of my taxi experience has occurred in Washington, D.C. and New York City. But I have gotten into many taxis from different companies in these cities that were yellow, so many different companies have been using this color for as long as I can remember. While taxi cabs do come in other colors, it is the bright yellow car that catches my eye and causes me to hustle to the corner to wave the car down. The color yellow does have a value, but it does not cause me to think of any specific company in the way pink insulation makes me immediately think of Owens Corning (See In re Owens Corning Fiberglass Corp. 227 USPQ 417 (Fed. Cir. 1985)); or, how a yellow and green tractor makes me think specifically of John Deere.
Even various "taxi-related" websites use yellow-- see the link below:
http://www.worldtaximeter.com/new-york/taxi_companies
In sum, it seems the color yellow for taxi cabs is in fact functional, perhaps via accident of history, but nevertheless, it has a value to both customers and the companies that help us get around town.
For more on the history of the New York Yellow Cab, please visit:
http://www.npr.org/templates/story/story.php?storyId=11804573
For more on popular car colors in North America, please visit:
http://www2.dupont.com/Automotive/en_US/assets/downloads/colorpop2005.pdf
Thursday, March 12, 2009
Does Radio Promote Music or Does Music Promote Radio?
TRUE or FALSE: "Just as Radio Promotes Music, Music Promotes Radio"-- Herbie Hancock
On Tuesday, March 10, 2009, Smashing Pumpkins lead singer Billy Corgan testified before the House Judiciary Committee on H.R. 848, "The Performance Rights Act." Corgan and the other witnesses attempted to shed light on the above quote, as they made their cases as to why a new performance right is needed (or why one is not necessary). The full hearing webcast can be viewed on the Smashing Pumpkins Website at: http://www.smashingpumpkins.com/.
Speaking along with Mitch Bainwol, Chairman of the Recording Industry Association of America ("RIAA"), Corgan testified on behalf of the MusicFirst Coalition, which represents various artists, labels and managers. Both witnesses spoke in favor of H.R. 848, explaining that the Act would end the unfair exemption that broadcasters receive (they currently do not have to pay artists any royalties) for over-the-air broadcasts. Steve Newberry spoke on behalf of the National Association of Broadcasters, and urged Congress to cosinder how the evolution of advanced technologies has undermined the financial position of the four major record labels. He explained that broadcasters have continued to do their job in a highly competitive environment, and touted the benefits of airplay as a promotional tool in the recording industry.
On the one hand: The lack of a performance right for musicians that allows them to profit from the use of their work seems contrary to the original purpose of copyright rights as outlined in the U.S. Constitution. The airwaves constitute the most common forum for the transmission of music, and it seems that allowing musicians to collect royalties would benefit new and emerging artists. Perhaps a sliding scale could be created with regard to the amount of royalties a given artist may collect based on the artist's popularity, the number of times a particular song may be played, and the size of the actual broadcaster. It seems appropriate, at first glance, that a flat exemption be provided to the smallest stations and religious organizations...but small stations may become top 40 stations via the profit advantage, because they will have free access to the most popular songs, while the big guys will be footing the bill.
On the other hand: On the flip side, however, let's not forget that radio stations do not charge their listeners either-- would the imposition of a performance right kill music? Would fewer people listen to the radio? (I know I would if I was forced to pay, Comcast already has me over a barrel for tv service). Why was this argument not raised during the height of radio, during the 50's and 60's when it was mainly being used to promote new records? Aren't these artists tired from their last fight against Napster? I'm curious.
Perhaps a middle ground can be found-- perhaps contracts can be renegotiated where certain songs are paid for-- but be prepared, this will massively change the way radio operates...there is a huge value to playing unusual music, the non-popular songs, which stations will not likely pay for...this may be the unofficial rise of the avant garde approach to radio. Maybe I won't have to listen to Lady GaGa and her "Poker Face" anyomore. Maybe I'll read more.
On Tuesday, March 10, 2009, Smashing Pumpkins lead singer Billy Corgan testified before the House Judiciary Committee on H.R. 848, "The Performance Rights Act." Corgan and the other witnesses attempted to shed light on the above quote, as they made their cases as to why a new performance right is needed (or why one is not necessary). The full hearing webcast can be viewed on the Smashing Pumpkins Website at: http://www.smashingpumpkins.com/.
Speaking along with Mitch Bainwol, Chairman of the Recording Industry Association of America ("RIAA"), Corgan testified on behalf of the MusicFirst Coalition, which represents various artists, labels and managers. Both witnesses spoke in favor of H.R. 848, explaining that the Act would end the unfair exemption that broadcasters receive (they currently do not have to pay artists any royalties) for over-the-air broadcasts. Steve Newberry spoke on behalf of the National Association of Broadcasters, and urged Congress to cosinder how the evolution of advanced technologies has undermined the financial position of the four major record labels. He explained that broadcasters have continued to do their job in a highly competitive environment, and touted the benefits of airplay as a promotional tool in the recording industry.
On the one hand: The lack of a performance right for musicians that allows them to profit from the use of their work seems contrary to the original purpose of copyright rights as outlined in the U.S. Constitution. The airwaves constitute the most common forum for the transmission of music, and it seems that allowing musicians to collect royalties would benefit new and emerging artists. Perhaps a sliding scale could be created with regard to the amount of royalties a given artist may collect based on the artist's popularity, the number of times a particular song may be played, and the size of the actual broadcaster. It seems appropriate, at first glance, that a flat exemption be provided to the smallest stations and religious organizations...but small stations may become top 40 stations via the profit advantage, because they will have free access to the most popular songs, while the big guys will be footing the bill.
On the other hand: On the flip side, however, let's not forget that radio stations do not charge their listeners either-- would the imposition of a performance right kill music? Would fewer people listen to the radio? (I know I would if I was forced to pay, Comcast already has me over a barrel for tv service). Why was this argument not raised during the height of radio, during the 50's and 60's when it was mainly being used to promote new records? Aren't these artists tired from their last fight against Napster? I'm curious.
Perhaps a middle ground can be found-- perhaps contracts can be renegotiated where certain songs are paid for-- but be prepared, this will massively change the way radio operates...there is a huge value to playing unusual music, the non-popular songs, which stations will not likely pay for...this may be the unofficial rise of the avant garde approach to radio. Maybe I won't have to listen to Lady GaGa and her "Poker Face" anyomore. Maybe I'll read more.
Tuesday, March 10, 2009
A National Broadband Strategy
Today, The Federal Communications Commission ("FCC"), The National Telecommunications and Information Administration ("NTIA"), and the Rural Utilities Service ("RUS") held a joint meeting at the Department of Commerce ("DOC") to discuss how they will implement the new broadband grant programs. NTIA, RUS and the FCC are accepting comment from the public on these programs. Specifically, NTIA and RUS are seeking the public's opinion on the percentage of grant funds to be apportioned, the role of the states, eligible grant recipients, grant selection criteria, grant mechanics, broadband mapping, and other categories highlighted in their recently released notice which can be found at:
http://www.ntia.doc.gov/frnotices/2009/FR_BTOP_RFI_090312.pdf
Further public meetings will be held in Washington D.C. on March 16, 19, 23 and 24, 2009. Field hearings will also be held on March 17 and 18, 2009, and the agencies may hold additional meetings as needed.
The FCC is also seeking comment on the creation of a national broadband strategy. A plan for a national broadband strategy has been subject to industry buzz for several years now, with various groups in the telecom sector floating their proposals before the Commission and on Capitol Hill. The FCC is specifically seeking public feedback on Congress' directive in the Food, Conservation and Energy Act of 2008 (2008 Farm Bill) which became public law last June. What I have found most surprising in the push for a broadband plan is the focus on what has been termed the "rural broadband" issue. It is important that a national strategy operate in a way that will connect all underserved and unserved areas, whether rural or urban.
One important aspect of a national plan is an efficient and reliable broadband mapping system, so that we can see what specific areas lack affordable access or rank low on the penetration scale. I've given some thought as to how the private and public sectors can work together to make sure such an undertaking would be successful. Recently, I attended an event at the New America Foundation that announced the release of Google's new "Measurement Lab." Bill Maguire, a member of the audience (and Counsel for Technology Policy for the House Committe on Small Business) suggested tweaking the tool in a way that would allow it to track the location of those logging on, in order to help with creating a national broadband map. While this would raise some privacy concerns, I think the underlying idea is a step in the right direction, and there are some other groups attempting to collect information from the public such as BroadbandCensus.com. Perhaps we can even figure out how folks are using their broadband-- are they primarily students, businesses, et. cet. Getting the right data will be challenging, but hopefully, the Commission will receive some good public input on how to create a comprehensive broadband map.
For more information on BroadbandCensus.com, please visit:
http://broadbandcensus.com/
For more information on Google's Measurement Lab, please visit:
http://measurementlab.org/
http://www.ntia.doc.gov/frnotices/2009/FR_BTOP_RFI_090312.pdf
Further public meetings will be held in Washington D.C. on March 16, 19, 23 and 24, 2009. Field hearings will also be held on March 17 and 18, 2009, and the agencies may hold additional meetings as needed.
The FCC is also seeking comment on the creation of a national broadband strategy. A plan for a national broadband strategy has been subject to industry buzz for several years now, with various groups in the telecom sector floating their proposals before the Commission and on Capitol Hill. The FCC is specifically seeking public feedback on Congress' directive in the Food, Conservation and Energy Act of 2008 (2008 Farm Bill) which became public law last June. What I have found most surprising in the push for a broadband plan is the focus on what has been termed the "rural broadband" issue. It is important that a national strategy operate in a way that will connect all underserved and unserved areas, whether rural or urban.
One important aspect of a national plan is an efficient and reliable broadband mapping system, so that we can see what specific areas lack affordable access or rank low on the penetration scale. I've given some thought as to how the private and public sectors can work together to make sure such an undertaking would be successful. Recently, I attended an event at the New America Foundation that announced the release of Google's new "Measurement Lab." Bill Maguire, a member of the audience (and Counsel for Technology Policy for the House Committe on Small Business) suggested tweaking the tool in a way that would allow it to track the location of those logging on, in order to help with creating a national broadband map. While this would raise some privacy concerns, I think the underlying idea is a step in the right direction, and there are some other groups attempting to collect information from the public such as BroadbandCensus.com. Perhaps we can even figure out how folks are using their broadband-- are they primarily students, businesses, et. cet. Getting the right data will be challenging, but hopefully, the Commission will receive some good public input on how to create a comprehensive broadband map.
For more information on BroadbandCensus.com, please visit:
http://broadbandcensus.com/
For more information on Google's Measurement Lab, please visit:
http://measurementlab.org/
Monday, March 9, 2009
Czech Republic "Hangs Up" on EU Telecom Talks
Talks aimed at changing the European Union's ("EU's") telecommunications rules deteriorated last week when the Czech Republic (which currently holds the rotating presidency) refused to join a compromise in the negotiations. The erosion of the negotiations may prevent an agreement from being reached on the legislative package before the European Parliament elections in June. This package includes:
- a proposal for a unified regulatory body for the entire EU (comprised of national regulators from the 27 member states)
- redistribution plans for spectrum following the analog-digital switch
- rules on mobile number portability
- the potential for enforced "functional separation"
Much of the package was authored by Commissioner Viviane Reding, who has advocated the creation of a single European regulator. Reding's system would likely be similar to the FCC in many respects. Practically, it may function similar to the way the national central banks operate, with national regulators responsible for analyzing their own markets, and a central regulator that would issue final decisions.
While both proponents and opponents of these proposals are on the sidelines, it seems that a more centralized regulator could theoretically benefit EU telecommunications companies (particularly smaller firms) by increasing regulatory certainty and unifying resources. It may assist in the push to further privatize the former government-owned telecom monopolies throughout Europe.
For more on the EU proposals, please visit:
http://www.techworld.com/networking/news/index.cfm?newsid=112282&pagtype=all
Sunday, March 8, 2009
Small Telecoms, Big Apple
I always love having a reason to visit New York City, one of my favorite cities in the world (ok, being raised in NY, I am a bit biased, but we do things better in NY than anywhere else: pizza...better...fashion...better...traffic...best). This past trip, I was able to take time to enjoy Central Park, and my run was the inspiration for my latest Last Mile posting. I was also able to walk past Ground Zero, the World Trade Center site, and it is still simply overwhelming, for lack of a better word. My reason for this particular trek up north: to see a New York University ("NYU") presentation on telecom issues related to the AT&T divestiture.
On Friday, March 6, 2009, I traveled to New York City to attend: Has Divestiture Worked? A 25th Anniversary Assessment of the Breakup of AT&T. The discussion took place at NYU, and was sponsored by the New York Chapter of the Internet Society ("ISOC-NY") and the Open Infrastructure Alliance ("OIA"). Among the panelists were Jonathan Askin, Bruce Kushnick, Dave Burstein and Joe Plotkin, all proponents for enhanced competition in the U.S. telecommunications market. Their biographies can all be found at:
http://25thanniversaryofthebreakupofatt.blogspot.com/
The event produced some interesting data and enabled folks to share their own personal experiences on the AT&T breakup and restructuring. Now, as Burstein pointed out himself, you always have to be careful of where you are getting data from and you have to be aware of how it is being manipulated-- I had some issues with Mark Cooper's findings, but I think Scott Cleland (participating in the audience) was able to jump in and rescue his point. Hopefully, the presentations will soon be made available on the web, and I am eagerly awaiting the release of new competition data from Teletruth, which should happen some time this week. Needless to say, all in the room were in agreement: there needs to be enhanced "competition on a regulated wire" in the U.S. telecommnications market. Moreover, the FCC needs to reshape itself as a transparent agency with increased regulatory certainty. One panelist referred to the Commission's recent activity as "irregulation." Other panelists shared the perspectives of small businesses, small ISPs and the creative community. Overall, the event was timely (right on the heels on the FCC and Telecom Act's 75th Anniversary as well, so cheers all around) and I hope it will encourage the proponents of competitive markets to hone their organizing skills and structure other useful discussions moving forward.
I must be honest: Given the current composition of the U.S. telecommunications market, I am always surprised to hear that there are in fact ISPs still out there (if you are an ISP, please, e-mail me-- I would love to see how many of you still exist). It was refreshing to hear that several small telecom companies are still pushing to provide consumers with personalized service, and I am interested in seeing how these entities will grow over the next few years. In the meantime, Chairman Copps is doing a fine job of steering the Commission away from the course it has been on, and it seems he and his staff are really working to address some of the transparency and other governance issues that many have been critical of these past few years.
On Friday, March 6, 2009, I traveled to New York City to attend: Has Divestiture Worked? A 25th Anniversary Assessment of the Breakup of AT&T. The discussion took place at NYU, and was sponsored by the New York Chapter of the Internet Society ("ISOC-NY") and the Open Infrastructure Alliance ("OIA"). Among the panelists were Jonathan Askin, Bruce Kushnick, Dave Burstein and Joe Plotkin, all proponents for enhanced competition in the U.S. telecommunications market. Their biographies can all be found at:
http://25thanniversaryofthebreakupofatt.blogspot.com/
The event produced some interesting data and enabled folks to share their own personal experiences on the AT&T breakup and restructuring. Now, as Burstein pointed out himself, you always have to be careful of where you are getting data from and you have to be aware of how it is being manipulated-- I had some issues with Mark Cooper's findings, but I think Scott Cleland (participating in the audience) was able to jump in and rescue his point. Hopefully, the presentations will soon be made available on the web, and I am eagerly awaiting the release of new competition data from Teletruth, which should happen some time this week. Needless to say, all in the room were in agreement: there needs to be enhanced "competition on a regulated wire" in the U.S. telecommnications market. Moreover, the FCC needs to reshape itself as a transparent agency with increased regulatory certainty. One panelist referred to the Commission's recent activity as "irregulation." Other panelists shared the perspectives of small businesses, small ISPs and the creative community. Overall, the event was timely (right on the heels on the FCC and Telecom Act's 75th Anniversary as well, so cheers all around) and I hope it will encourage the proponents of competitive markets to hone their organizing skills and structure other useful discussions moving forward.
I must be honest: Given the current composition of the U.S. telecommunications market, I am always surprised to hear that there are in fact ISPs still out there (if you are an ISP, please, e-mail me-- I would love to see how many of you still exist). It was refreshing to hear that several small telecom companies are still pushing to provide consumers with personalized service, and I am interested in seeing how these entities will grow over the next few years. In the meantime, Chairman Copps is doing a fine job of steering the Commission away from the course it has been on, and it seems he and his staff are really working to address some of the transparency and other governance issues that many have been critical of these past few years.
Wednesday, March 4, 2009
Checkmate: Has Copyright Law Met its Match?
Question: Are chess moves subject to copyright law? Should they be?
Earlier this month, a German chess site, "Chess Base" was broadcasting the first four games of a match between World Cup candidates Veselin Topalov and Gata Kamsky. The site was required to cease broaddcasting because it lacked permission from the Bulgarian Chess Federation (BCF). A friend forwarded me the article, which can be found at:
http://www.wccc2009.com/en/news&article_id=41.html
The action begs the question: can a chess move receive copyright protection? I must admit, I am no expert when it comes to the mechanics of chess, but I would first want to gain a better grasp on what category of copyrightable subject matter "chess moves" would fall under in Section 102 of the Copyright Act. Since there are a limited number of moves (I suspect) wouldn't chess be reduced to something as formulaic as a mathematical equation, and wouldn't its factual essence prevent copyright protection?
There is another layer here: the fact that the moves in question were a part of a broadcast (an internet broadcast, to be precise)...perhaps we can more accurately compare chess moves to a musical composition, where certain groupings produce a more desireable result...but back to the broadcast itself...much like a book published on chess moves (literary work), the broadcast may be able to receive protection which would not extend to the underlying ideas, concepts, principles illustrated (Section 102 (b)). However, the notion that chess players could profit from their moves makes chess even more intriguing to me...what would Bobby Fischer think?
Earlier this month, a German chess site, "Chess Base" was broadcasting the first four games of a match between World Cup candidates Veselin Topalov and Gata Kamsky. The site was required to cease broaddcasting because it lacked permission from the Bulgarian Chess Federation (BCF). A friend forwarded me the article, which can be found at:
http://www.wccc2009.com/en/news&article_id=41.html
The action begs the question: can a chess move receive copyright protection? I must admit, I am no expert when it comes to the mechanics of chess, but I would first want to gain a better grasp on what category of copyrightable subject matter "chess moves" would fall under in Section 102 of the Copyright Act. Since there are a limited number of moves (I suspect) wouldn't chess be reduced to something as formulaic as a mathematical equation, and wouldn't its factual essence prevent copyright protection?
There is another layer here: the fact that the moves in question were a part of a broadcast (an internet broadcast, to be precise)...perhaps we can more accurately compare chess moves to a musical composition, where certain groupings produce a more desireable result...but back to the broadcast itself...much like a book published on chess moves (literary work), the broadcast may be able to receive protection which would not extend to the underlying ideas, concepts, principles illustrated (Section 102 (b)). However, the notion that chess players could profit from their moves makes chess even more intriguing to me...what would Bobby Fischer think?
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