From the U.S. Supreme Court: Lee v. Tam

In the second GDHS class this morning we discussed another free speech case, Lee v. Tam. The case also touches on the copyright clause of the U.S. Supreme Court. While the free speech clause protects the ability of people to say disparaging things, these cannot be copyrighted since that would suggest that the national government approves of it.

- Here's the transcript.
- Here's the audio.
- Here's detail from ScotusBlog.

Here is the question presented to the court:

Issue: Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.

For background,

- Here is the Lanham Act
- Here is background on U.S. Trademark Law.

And here's a bit from ScotusBlog on the controversy in the case.

The debate over trademark rights and free speech has a long history. We shouldn’t forget it now, when trademark registration has become a First Amendment flashpoint. Trademark protection can promote expression, but it can also chill speech and debate. The dual nature of trademark means that sometimes limiting trademark rights – for example, by declining to register disparaging marks – actually advances First Amendment goals by curtailing private control over contested vocabulary and imagery.

In early trademark cases, courts understood that trademark claims were a form of commercial appropriation of language. Judges were accordingly skeptical about allowing private businesses to assert exclusive rights to words or phrases. Limiting expansive trademark claims was a way of keeping language in the public domain. As one court explained in 1883, the English language is “the common property of mankind,” belonging to all of us in “equal share.” Since those early days, doubts about the social benefit of robust trademark protection have faded. But the debate over who should “own” trademarked words and symbols, and to what degree, remains as relevant as ever.

In Lee v. Tam, the Supreme Court will consider a request by Simon Tam, an activist and the founder of an Asian rock band, to register his band’s name, “THE SLANTS,” as a federally protected trademark. The dispute in this case centers on a relatively obscure provision of the federal trademark statute, which denies registration to marks that “may disparage” individuals, institutions, beliefs or national symbols. Tam contends that his band’s name challenges stigmatizing stereotypes, but the U.S. Patent and Trademark Office denied registration after finding THE SLANTS disparaging to people of Asian ancestry. To Tam, the result is unconstitutional viewpoint discrimination and suppression of speech – all the more harmful and arbitrary because of his record of political activism and advocacy on behalf of Asian-American groups.

For more on viewpoint discrimination, click here.

Viewpoint discrimination is the term the Supreme Court has used to identify government laws, rules, or decisions that favor or disfavor one or more opinions on a particular controversy. For example, a government official who permitted ‘‘pro-life’’ proponents to speak on government property but banned ‘‘pro-choice’’ proponents because of their views would be engaged in ‘‘viewpoint discrimination.’’ Courts may also describe this constitutional requirement by saying that government laws and decisions must be ‘‘viewpoint neutral.’’ In recent decades, viewpoint discrimination has been distinguished from content or subject matter discrimination, which involves government regulation of an entire topic or subject, such as abortion, war, or sexual speech, either by punishing those who use this kind of speech (such as obscenity) or by completely excluding the subject from discussion on particular government property or in public forums.

From the Washington Post: How Donald Trump came up with ‘Make America Great Again’

They turned out to be four very powerful words.

Here's a look at how the phrase came about.

- Click here for the article.

It happened on Nov. 7, 2012, the day after Mitt Romney lost what had been presumed to be a winnable race against President Obama. Republicans were spiraling into an identity crisis, one that had some wondering whether a GOP president would ever sit in the Oval Office again.

But on the 26th floor of a golden Manhattan tower that bears his name, Trump was coming to the conclusion that his own moment was at hand.

And in typical fashion, the first thing he thought about was how to brand it.
One after another, phrases popped into his head. “We Will Make America Great.” That one did not have the right ring. Then, “Make America Great.” But that sounded like a slight to the country.

And then, it hit him: “Make America Great Again.”

“I said, ‘That is so good.’ I wrote it down,” Trump recalled in an interview. “I went to my lawyers. I have a lot of lawyers in-house. We have many lawyers. I have got guys that handle this stuff. I said, ‘See if you can have this registered and trademarked.’ ”

Five days later, Trump signed an application with the U.S. Patent and Trademark Office, in which he asked for exclusive rights to use “Make America Great Again” for “political action committee services, namely, promoting public awareness of political issues and fundraising in the field of politics.” He enclosed a $325 registration fee.

His was a vision that ran against the conventional wisdom of the time — in fact, it was “much the opposite,” Trump said.

To save itself, the Republican establishment was convinced, the GOP would have to sand off its edges, become kinder and more inclusive. “Make America Great Again” was divisive and backward-looking. It made no nod to diversity or civility or progress.
It sounded like a death wish.

But Trump had seen something different in the country, and in the daily lives of its struggling citizens.

“I felt that jobs were hurting,” he said. “I looked at the many types of illness our country had, and whether it’s at the border, whether it’s security, whether it’s law and order or lack of law and order. Then, of course, you get to trade, and I said to myself, ‘What would be good?’ I was sitting at my desk, where I am right now, and I said, ‘Make America Great Again.’ ”

From ScotusBlog: Google’s book-copying project survives challenge

The court had to define what the phrase "fair use" means. A majority on the court agreed that it applied to Google's book copying project. The case is Authors Guild v Google.

- Click here for background on the case.

And click here for Campbell v Acuff-Rose Music, Inc, the precedence for it - it involves a rap group's use of "Oh Pretty Woman."

Here is the commentary from ScotusBlog:

- Click here for the post.

A massive book-copying project by Google, giving its customers a chance to search the texts of more than twenty million volumes, survived a broad copyright challenge in the Supreme Court on Monday. With no noted dissents, the Justices voted to leave intact lower courts’ conclusion that what Google is doing with the project amounts to legal “fair use,” even of the volumes protected by exclusive rights.

Justice Elena Kagan, without explaining why, did not take part in the Court’s consideration of an appeal by the Authors Guild, a professional society of writers, joined by three authors whose books were copied: Jim Bouton, Joseph Goulden, and Betty Miles. The case is Authors Guild v. Google, Inc.

The challengers, in their appeal, argued that the lower court decisions awarding Google a summary victory deviated sharply from the traditional view that one who copies a protected creative work can only claim the legal defense of “fair use” if the copying satisfies the four factors that Congress spelled out in federal law.

What happened in this case, the challengers argued, was that lower courts permitted Google to rely upon its claim of “fair use” by inventing a new legal concept — that is, so long as the one who makes copies “transforms” the work into another, culturally useful mode, then it is legal. That, the guild and the authors asserted, “empowers judges to approve any re-use of copyrighted works that those judges deem socially beneficial.”

For more on the subject:

- What is Fair Use?
- U.S. Copyright Office Fair Use Index.

From the Washington Post: Supreme Court rules human genes may not be patented

Just released:

The Supreme Court ruled unanimously Thursday that human genes cannot be patented, a decision that could shape the future of medical and genetic research and have profound effects on pharmaceuticals and agriculture.

The ruling was a split decision for Myriad Genetics Inc., which holds patents on genes that have been linked to breast and ovarian cancer.

Justice Clarence Thomas, writing for the court, said merely isolating those specific genes -- called BRCA1 and BRCA2 — was not worthy of a patent.

“Myriad found the location of the BRCA1 and BRCA2 genes, but that discovery, by itself, does not render the BRCA genes . . . patent eligible,” Thomas wrote.

On the other hand, Thomas wrote, Myriad’s creation of a synthetic form of DNA — called cDNA -- based on its discovery does deserve patent protection.

“The lab technician creates something new when cDNA is made,” Thomas wrote.

Patent trolls back on the public agenda

I can't quite say why, but the patent trolls are back on the public agenda. This American Life has run a couple stories on the issue and reports of someone claiming to have patented the "podcast" and sued podcasters for patent infringment have circulated. Perhaps thats what done it.

Wikipedia offers the following definition of a patent troll: 

Patent troll is a pejorative term used for a person or company that enforces its patents against one or more alleged infringers in a manner considered unduly aggressive or opportunistic, often with no intention to manufacture or market the product. A related, less pejorative expression is non-practicing entity (NPE) which describes a patent owner who does not manufacture or use the patented invention.

The Electronic Frontier Foundation offers the following:

A patent troll uses patents as legal weapons, instead of actually creating any new products or coming up with new ideas. Instead, trolls are in the business of litigation (or even just threatening litigation). They often buy up patents cheaply from companies down on their luck who are looking to monetize what resources they have left, such as patents. Unfortunately, the Patent Office has a habit of issuing patents for ideas that are neither new nor revolutionary, and these patents can be very broad, covering everyday or commonsense types of computing – things that should never have been patented in the first place. Armed with these overbroad and vague patents, the troll will then send out threatening letters to those they argue infringe their patent(s). These letters threaten legal action unless the alleged infringer agrees to pay a licensing fee, which can often range to the tens of thousands or even hundreds of thousands of dollars.

Media reports define patent trolling as a form of extortion which inhibit innovation, which contradicts the intent of the patent clause of the U.S. Constitution. Lawsuits filed by patent trolls are clogging the courts.

Congress attempted to address this issue in 2011 with the America Invents Act, (co-wriiten by Texas Rep Lamar Smith) but critics argue that provisions of the law may have contributed to the increase in lawsuits. Rather than address the current problem with additional legislation - which can be problematic in the current contentious legislative environment - President Obama has opted to use executive orders instead. The NYT outlines the proposals:

On Tuesday, President Obama took direct aim at the companies and their practices, announcing several executive orders “to protect innovators from frivolous litigation” by patent trolls.

Mr. Obama ordered the Patent and Trademark Office to require companies to be more specific about exactly what their patent covers and how it is being infringed. The administration also told the patent office to tighten scrutiny of overly broad patent claims and said it would aim to curb patent-infringement lawsuits against consumers and small-business owners who are simply using off-the-shelf technology.

A major criticism right now is that they are granting patents to obvious and superficial ideas, and not necessarily actual products. Some software companies express concerns about the proposals however. Here is an editorial suggesting that judges already have the power to limit the number of lawsuits filed by patent trolls by increasing the costs of litigation. So there's a dispute over the best way to address this issue.

2305 students are about to pour through the Constitution and we will note that one of the delegated powers is the patent clause - which tend to be topical. Click here for past blog posts related to it.

It might be worth investigating the history of the Patent and Trademark Office.  And here is a history of the U.S. Patent system.

Bowman v. Monsanto Co.

The Supreme Court ruled 9-0 that a farmer who bought "Roundup Ready" seeds from Monsanto could not use newly grown seeds for replanting. They had to purchase new seeds every year, the patent was not "exhausted" when the seeds were originally sold. The case is Bowman v. Monsanto Co., and is yet another patent case decided by the court.

From ScotusBlog's opinion recap:

As the case came to the Court, the parties agree that ordinarily it violates a patent to make or use the patented invention without the owner’s consent (often granted in the form of a license).  The parties also agree on the major doctrinal exception, the doctrine of “exhaustion,” which holds that a patent holder’s rights in a particular patented object are largely “exhausted” by an authorized sale of that object: the purchaser has a free right to use and resell the purchased copy of the invention.

Bowman argues that the right to “use” the seed that he purchased necessarily included the right to plant the seed and its progeny – that is, after all, the natural use of seed.  The Court rejected the argument out of hand.  “If the purchaser of [the sold] article could make and sell endless copies, the patent would effectively protect the invention for just a single sale.”

The Court presumably was influenced by the severe consequences for Monsanto (and others like it).  The briefs of Monsanto and its amici had emphasized the high up-front costs of developing genetically engineered products like the Roundup Ready seed.  The Court commented:

Were the matter otherwise, Monsanto’s patent would provide scant benefit.  After inventing the Roundup Ready trait, Monsanto would, to be sure, receive its reward for the first seeds it sells.  But in short order, other seed companies could reproduce the product and market it to growers, thus depriving Monsanto of its monopoly.

Can human genes be patented?

The Supreme Court considered this question this week in Association for Molecular Pathology v. Myriad Genetics.

From NPR:

Myriad Genetics, a Utah biotechnology company, discovered and isolated two genes — BRCA 1 and BRCA 2 — that are highly associated with hereditary breast and ovarian cancer. Myriad patented its discovery, giving it a 20-year monopoly over use of the genes for research, diagnostics and treatment. A group of researchers, medical groups and patients sued, challenging the patent as invalid.


There is no way to overstate the importance of this case to the future of science and medicine. In the view of Myriad and its supporters in the biotech and pharmaceutical industries, patents are the keys to making these medical discoveries possible. Their opponents, including leading medical groups and Nobel Prize-winning scientists, contend that Myriad's patent improperly puts a lock on research and medical diagnostic testing.

The U.S. patent system, authorized in the Constitution, gives temporary economic incentives to inventors to advance science. The general rules of the patent system have been established in statutes and Supreme Court case law for over 150 years. You can't patent a product of nature or a law of nature. It doesn't matter that the task was difficult or costly. Nature is immune to patents. So, even though it may have taken Einstein a long time to figure out that E=mc2, he couldn't have patented that law of nature. 

From Atlantic Cities: Innovation and the Wealth of Cities

Here's something for our look this week at local governments in 2306. It's an analysis about the relationship between the wealth of a city and the degre of innovation that happens there. Presumably the degree of innovation that happens in a city is directly related to the policies established in local areas that promote them. This provides support for a point we keep making about cities within the federal system. They are economic entities primarily.

Atlantic Cities looks at a recent study by the Brookings Institution - a notable think tank - that looks at patent activity in different metropolitan areas and notes their economic benefits:

Patents, as legal records of novel and useful ideas, help drive regional innovation and economic growth. GDP per worker (a measure of productivity) was $16,000 higher in metropolitan areas that developed more patents between 2007 and 2011—such as San Jose; Houston; Los Angeles; Rochester, New York; Raleigh, North Carolina; and Austin, Texas—than the average metropolitan area, compared to places with few patents—like El Paso, Texas; Youngstown, Ohio; Charleston, South Carolina; and Fresno, California.

The following charts points out the nature of the patents made in different areas. No surprise abut hat Houston focuses on:

Will SOPA break the internet?

This builds off posts far below, but might an exhuberant proposal to protect copyright holders online ruin the internet? People on the left and the right seem to be rallying against the proposal.

Copyright and the Amen Break

One of the delegated powers listed in the U.S. Constitution concerns copyrights and patents. The digital age, since it makes copying so easy (as if you did not know that already my dear students), has renewed attention to copyright issues. Some argue that that this attention has been overly-zealous and may well stifle the creative process. Artists tend to borrow heavily from one another.

In this spirit, I found this great video detailing the creation and use of the "amen break" which was a six second drum break in a song recorded in 1969 which has become a staple of hip-hop, rap and drum and bass songs, as well as commercials. You've heard the beat repeatedly. It's a neat story.

  

Are Patent Laws Stifling Innovation?

Some thoughts from Andrew Sullivan: Should some ideas be easy to borrow?

Golan v. Holder

This applies to 2301 and 2302. The Supreme Court is called to determine the nature of the constitution's copyright clause.

On Wednesday the Supreme Court heard arguments on Golan v. Holder, a case involving copyright protection and specifically asking (according to Scotusblog) "Can Congress restore copyright protection to a work whose copyright protection had previously expired and was therefore in the public domain?" The case involves the consequences of a 1998 law extending copyright protection - which Congress can do under the delagated powers of the Constitution.

Artists tend to be protective of the ownership of their work - naturally enough - but how long is too long? An opinion piece in the NYT argues that excessive use of copyright can stifle the creative process. Innovation sometimes builds off the work of others.

From Good Is: Watch Your Mouth: Can You Patent a Sandwich?

As we discuss the delegated powers, questions persist about the extent of the patent clause. Is private ownership going too far?

How ought we interpret the Constitution's patent clause.

From The Hill, debate over "H.R. 1249, a bill that would mark the first major overhaul of U.S. patent laws in several decades."

At issue is whether changing the U.S. system from a "first-to-invent" system to a "first-inventor-to-file" system violates Article 1, Section 8, Clause 8 of the Constitution. That clause grants Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Supporters of the bill, called the America Invents Act, argue that moving to a "first-inventor-to-file" system is in line with the Constitution and also has the benefit of moving the U.S. closer to the "first-to-file" system that most of the rest of the world uses.

"The bill's inclusion of a move to a first-inventor-to-file system is absolutely consistent with the Constitution's requirement that patents be awarded to the inventor," House Judiciary Committee Chairman Lamar Smith (R-Texas) argued.

But several Republicans and Democrats objected, arguing that the proposed change would put in place a new requirement that inventors file for their patents first in order to be awarded rights that they should already have under the Constitution by having invented a novel product or process.
Recent controversy has kicked up over the patent process, especially the recent tendency of patent trolls to purchase patents and hunt around for anyone who might  - even loosely - be violating it.

Thoughts about the bill:

- The America Invents Act (HR 1249) – A Bad Law That Will Change Your Life.
- Rep Conyers Speaks Out Against HR 1249.
- House Debate on Constitutionality of H.R. 1249 – America Invents (NOT) Act.

Patent Trolls

The Constitution - as we all should know by now - allows Congress to pass laws providing patent and copyright protection. People have exclusive ownership of these items for a limited time. The intent is to encourage people to invent products with the assumption that they will be driven by the promise of making money off them. 

Recent attention has been paid to a new breed of litigant - a patent troll - who acquire patents and then hunt around and try to find people they think might be violating it. There are questions about whether this practice might actually inhibit innovation, which can defeat the entire purpose of the patent clause.

- Patent Troll on Steroids: How America’s Patent System May Hurt Innovation.

- When Patents Attack.

The Patent Office

From the NYT, a story describing the patent office (an executive agency - one of the first) and efforts to modernize it.
- Wikipedia.
- USPTO.

Speaking of Innovation

While we are speaking of design innovation, here's a new wrinkle on manufacturing. NASA has apparently played a key role in spurring 3D printing technology, among many other technologies. One of the roles the federal government has played over its history has been to pump funding into the development of technology that has yet to prove itself in the marketplace yet. Here's the latest example. Could 3D manufacturing make factories obsolete?

Can Fashion Designs be Patented?

In both 2301 and 2302 we touched on Article I of the Constitution and the delegated power Congress has:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
This authorizes Congress to pass Patent Laws, which it first did in 1790 when it created the Patent Office. The power is based on the idea that allowing people monopoly control over their ideas and the products of those ideas encourages innovation. That this control is time-limited allows the idea to enter into the public domain and spur additional innovation. But not everything can be patented.

NPR reports on a controversy involving fashion designers and their efforts to obtain the right to patent their designs. Design has historically been considered a craft and not subject to patents. Designers wouldlike to have the ability to profit from their creations -- they are commonly, easily, and often copied.

Patent lawyers certainly would be interested in gaining the opportunity to ply their trade tracking down copycats. While listening to the story, it occurred to me that if designs were patented it would be crucial how the term "design" was defined. Imagine creating an ensemble off the cuff one morning and while walking in a public place you were informed that what you were wearing violated a designers patent rights. Could you argue that you had a right to wear what you wished and that this right superseded the designer's patent rights? There is no right to fashion in the Constitution -- you'd probably have to argue self-expression, but that involves a loose interpretation of the free speech clause.

This might not be a proper example, but limits on who could wear what are not novel in history.

Cruel and Unusual Punishment, and Patents

Those are the subjects of two Supreme Court cases we covered in 2302 today:

- Supreme Court Ruling May Transform Tech Industry
- Supreme Court To Hear Arguments On Life Sentences For Juveniles