The courts have been busy on intellectual property matters of late — not just Over There, but Over Here (and Over Yonder, too).
- First, there's a two-part, two-decision, two-jurisdiction dance (in 13:8 time) concerning piracy and attempts to screw copyright holders in the name of "information access." By Google specifically, and "the internet means everything expressible digitally must be free" advocates in general.
Part 1 is simple and directly concerns Google. Google has a long history of posting verbatim, unredacted takedown requests to Chilling Effects (now known as Lumen), which semiassiduous pirates (among others) then search to find interesting material for piracy (or, for takedowns related to defamation and/or invasion of privacy, blackmail/extortion/direct shaming). After all, if the URL is quoted in the takedown request — as is required by the takedown rules, whether for copyright, for trademark, or for other rights — the notice substitutes for a Google search result that is being challenged, doesn't it? Apparently, the German courts have caught on that Google is merely using the takedown request itself as both a shaming device (to deter takedown notices) and, more to the point here, an ersatz search result. Amusingly — to those of us with grim senses of humor — the injunction notice (PDF image file) does precisely what it demands Google do: It fully redacts the identifying information so that it is not itself an ersatz search result. The IPKat has a useful, plain-English summary… as far as it goes.
But that just leads to Part 2, which also goes to ersatz piracy: Link-and-search sites that claim not to have any infringing material, just the links/metadata to find it elsewhere. The Court of Justice of the European Union didn't like this dance any better than did the Oberlandesgericht München from Part 1. I recommend the IPKat's useful, plain-English summary over the CJEU's infelicitous translated opinion, but the result is the same: "Link sites" induce copyright infringement and are therefore blockable (notwithstanding GS Media' notice concepts) under core European and Berne Convention doctrines. And the links offered in this sausage are with malice aforethought and an acute appreciation for the well-hoisted petard.
- In Design Basics, LLC v. Lexington Homes, Inc., No. 16–3817 (7th Cir. 06 Jun 2017), Judge Hamilton attempts yet again to grapple with "the difficulty in finding protected creative expression in a crowded field, in this case, architectural design of single-family homes… [while] administering intellectual property law to discourage so-called intellectual property 'trolls' while protecting genuine creativity" (slip op. at 1). Judge Hamilton is not entirely successful, but that's not his fault at all: It is, if anything, the fault of the parties, their lawyers, and to a lesser extent the poor writing in the Copyright Act itself.
The case actually turns on the fundamental distinction between copyright and patent law. In copyright law, there is no "copying" without actual access to the source work; put another way, "independent conception" is a complete defense. In patent law, however, the patent application itself is as a matter of law universally known, so "independent conception" is not a defense. But the court did not stop there, because it took the opportunity to smack down transferee misuse of enforcement actions as a "revenue model." Perhaps what this Design Basics matter (as Judge Hamilton's opinion notes, in the last decade Design Basics has been plaintiff in over 100 copyright-infringement actions) demonstrates more than anything else — particularly when read together with the Sherlock Holmes matters — is that if you're a troll, you need to stay away from the Seventh Circuit because the judges will turn you to stone. Gleefully.
The policy-level matter that "troll" litigation exposes is one that the various affected industries, the various legislatures, and indeed damned near everyone else have evaded even mentioning: Transfer of ownership (not just rights) from those whose personal efforts led to "Progress in the useful Arts and sciences" to those whose personal efforts consist solely of exploiting that "Progress" for financial advantage, usually via a portfolio of similar increments of "Progress" originating from multiple creators. This is a problem across both copyright and patent law. It is also a problem with treating intellectual works as "mere" property, with the underlying assumption that they are therefore freely alienable because all property "must" be. I point this out precisely because applying fourteenth-century notions of the immutable characteristics of tangible property seems to be putting the cart before the breeding rights to the horse.
Over Yonder is going to have to wait for a better copy of the opinion...