Technology Law Source

PETA sues on behalf of selfie monkey

Remember the dispute of copyright ownership over a selfie taken by a macaque in 2011? I wrote about it earlier this year when the owner of the camera that was used to take this shot sued Blurb, Inc., for unauthorized use of copyright.

Well, the monkey has apparently spoken. On Sept. 22, PETA filed a lawsuit against the owner of the camera and Blurb on behalf of the monkey, who PETA says wants to be known as Naruto, to have the monkey declared the owner of the copyright in the photograph.

As the previous post reports, the U.S. Copyright Office has stated that a photograph taken by a monkey (or any non-human) is unprotected intellectual property that may be used without permission. But that is just policy. U.S. law does not specifically state that a non-human cannot own a copyright. The Copyright Act only defines a “copyright owner … [as] the owner of that particular right” (see 17 USC Section 101). PETA argues that, because Naruto took the photo, she owns the copyright.

This suit faces challenges, but brings up a number of interesting legal issues. Can a non-human be declared the owner of property? If the monkey owns the copyright of the image, how does the monkey give permission for others to use it? Is it just monkeys (and how did PETA find Naruto)? What about elephants that paint artwork? Can non-humans infringe copyright?

Another interesting issue is the requirement that a copyright must be registered to bring a lawsuit in the U.S. (I imagine Naruto would have some difficulty submitting the registration application); however, Naruto took the picture in Indonesia. A foreign copyright owner is exempt from registering a copyright in the U.S. prior to bringing a suit; therefore, PETA/Naruto should be able to bring the suit without having a U.S. registered copyright.

There are other issues, such as whether California is the correct jurisdiction to bring the lawsuit and whether PETA is the best representative to argue for Naruto, which may prevent the question of whether a monkey can own copyright from ever being decided — but it might get interesting!

OSHA Nano-Workplace Factsheet

OSHA’s factsheet for working safely nanomaterials in the workplace suggests including the following basics in worker training and instruction:

• Identification of nanomaterials the employer uses and the processes in which they are used;

• Results from any exposure assessments conducted at the work site;

• Identification of engineering and administrative controls and personal protective equipment (PPE) to reduce exposure to nanomaterials;

• The use and limitations of PPE; and

• Emergency measures to take in the event of a nanomaterial spill or release.

OSHA also recommends using its on-site consultation services for employers attempting to address potential exposure to nanomaterials in the workplace and states that “On-site consultation services are separate from enforcement and do not result in penalties or citations.”

Reminder: EPA Comment Period Closing

Just a reminder that the extended comment period for EPA’s proposed rule regarding reporting and recordkeeping requirements for certain nanoscale materials closes August 5, 2015. Readers can find a copy of the proposed rule here:!documentDetail;D=EPA-HQ-OPPT-2010-0572-0001

A tale of two remands (Part I) — how the Federal Circuit is implementing the new standard for appellate review of patent claim construction

Earlier this year, the Supreme Court finally resolved an issue that divided the U.S. Court of Appeals for the Federal Circuit (CAFC) for nearly 20 years. In Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, the Supreme Court unanimously held that a trial court’s underlying factual determinations with respect to extrinsic evidence used in patent claim constructions must be reviewed on appeal under the clearly erroneous standard rather than de novo.1

Before the Supreme Court’s decision in Teva, the CAFC reviewed patent claim constructions de novo, including any allegedly fact-based questions relating to the trial court’s claim construction. As a result, it was quite common for the CAFC to reverse a trial court’s claim construction well after the completion of a lengthy jury trial. The case would be remanded to the trial court (unless the CAFC determined that the error would not have affected the judgment), in some instances leading to an entirely new trial on the merits (and, perhaps, another appeal to the CAFC). After Teva, many hope that CAFC claim construction reversals will be less frequent, particularly when litigants are able to introduce extrinsic evidence such as expert witness testimony into the claim construction process.

The CAFC has now had an opportunity to reconsider on remand not only its decision in Teva, but also Lighting Ballast Control LLC v. Philips Electronics N.A. Corp. which the Supreme Court also remanded to the CAFC for reconsideration in light of Teva. Continue Reading

The focus of the ADA turns to websites in the digital age: Is your site compliant?

This article is excerpted from research conducted by Emily R. Taylor, one of Porter Wright’s talented 2015 summer law clerks. Emily will enter her third year at Vanderbilt University Law School in the fall. 

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in places of public accommodation, including restaurants, movie theaters, schools, day care and recreational facilities, and doctors’ offices, and requires new or remodeled public places, as well as privately owned commercial facilities, to comply with ADA standards. This law, enacted in 1990, does not specifically address website accessibility for the disabled. But since 2006, when Target settled a class action lawsuit1 alleging was inaccessible to the blind in violation of the ADA, the issue of whether the law applies to websites has been a much-discussed topic in the federal courts.

Courts are split on two issues.2 The first is the threshold issue as to whether the ADA applies to websites at all. The second issue relates to the degree in which the ADA applies to websites. The Third, Ninth and Eleventh Circuit courts apply the ADA only to websites that have a physical connection to goods and services available at a physical store or location. But the Second and Seventh Circuit courts apply the ADA more broadly to include websites that lack “some connection to physical space.”3 Despite the split, one thing is for certain; the tide is moving toward ADA compliance for websites.

The Department of Justice (DOJ) has made clear that it interprets the ADA as applicable to websites, and issued an Advanced Notice of Proposed Rulemaking that would amend the language of the ADA to explicitly prohibit discrimination with respect to websites. Additionally, private standards and market signals, such as the Web Content Accessibility Guidelines (WGAC 2.0) and website design consulting services, indicate an expectation that websites will soon need to be ADA compliant. Continue Reading

Seminar shares tips to consider if you think a “patent troll” is targeting you or your company

Probably the most important takeaway from the second installment of Porter Wright’s Technology Seminar Series was this: No single thing defines a so-called patent troll — and if (or when) you get a letter accusing infringement, there’s no uniform way to respond. Instead, stop and take a breath. Then, be tenacious about collecting information about the accuser and assessing those compiled details. Use this assessment to develop a plan that allows you to handle the situation in a way that meets your comfort level regarding risk, cost and desired outcome.

Speakers Jim Liles and Rick Mescher walked attendees through several crucial aspects of analysis and action steps during the June 17 seminar titled “Proactive strategies for combating ‘patent trolls.’ ” Here’s an excerpt:

Common actions of a patent troll

Not all allegations by non-practicing entities (NPEs) or patent assertion entities (PAEs) are meritless. But allegations from entities that participate in any the following common practices are likely suspect. Continue Reading

New gTLD program continues to gain momentum – nearly 6 million new domain registrations to date

The new gTLD program, considered to be one of the most important Internet developments in recent years, continues to gain momentum since ICANN delegated its first new gTLD back in October 2013. ICANN has delegated more than 600 new gTLDs to date. Of those delegated strings, 365 are open to the general public. A little more than 1 million new domains had been purchased at this time last year; now, that number is nearing the 6 million mark. And don’t expect things to slow down. New gTLDs continue to roll out in quick succession, spurring about 20,000 new domain purchases every day.

What’s selling?

During the past several months, the leaderboards have seen a great deal of movement, with each new gTLD jockeying for the top spot as they become available to the public. Though some have remained dominant, such as .xyz and .club, more recently released gTLDs including .网址 (URL or internet site) and .science have made huge strides.

The top 10 gTLDs in terms of number of domain registrations: Continue Reading

U.S. Supreme Court throws a small bone to patent trolls

In one of its only pro-patentee decisions in recent years, the Supreme Court held last week that an accused infringer’s good-faith belief of patent invalidity is not a defense to a claim of inducing infringement. Even though the court reaffirmed that a good-faith belief of non-infringement is a defense to inducement, the court’s decision benefits patent owners, including so-called patent trolls.

A patent grants its owner the right to prevent others from making, using, selling, offering for sale and importing the patented invention in the U.S., as well as the importation into the U.S. of goods manufactured overseas using a patented process.

A direct infringer is someone who engages in one of the prohibited acts (making, using, selling, etc.). There is no requirement that the accused direct infringer was even aware of the patent, let alone knew that they were infringing. Continue Reading

No ifs ands or butts about it: Ohio plaintiffs must prove injuries are “reasonably foreseeable”

Our colleagues on Porter Wright’s product liability team shared an alert about a decision that should be of interest to our manufacturing readers. In Butts v. OMG, Inc., et al., the Sixth Circuit Court of Appeals clarified that a plaintiff’s burden, when bringing a design defect or inadequate warnings claim under the Ohio Products Liability Act, is to prove the injury was reasonably foreseeable to the manufacturer. Read more

End of Cuban embargo could prove costly for unprepared trademark holders

President Barack Obama has called on the U.S. Congress to lift the U.S. embargo on Cuba and normalize trade relations. French President François Hollande recently urged the same of the U.S., saying there is growing interest in doing business with Cuba. When the embargo is lifted, U.S. companies should be prepared to enter the Cuban marketplace. Being prepared means seeking trademark registration.

Cuba is a first-to-file country for trademark protection; in other words, a registration is awarded to the first applicant, even if that applicant has no legitimate claim to the trademark. Currently, an exception to the embargo permits U.S. companies to obtain trademark registrations — as well as submit patent applications — in Cuba. Proactively seeking a trademark registration in Cuba may avoid problems when the embargo is lifted.

An applicant can apply for a Cuban trademark registration using the international Madrid Protocol mechanism if it has an existing U.S. registration. A Cuban trademark application is screened against existing registrations by the Oficina Cubana de la Propiedad Industrial (OCPI). If a registration exists for the mark of the application, the OCPI will reject the application.

Generally, if your brand is well-known in the U.S., it is more likely that a trademark squatter might register your mark in Cuba to demand payment from you in exchange for the trademark. It is more expensive for trademark owners to obtain rights from others rather than to seek early trademark registration in first-to-file countries.

Though it may take time to reach normalized relations with Cuba, companies should consider Cuban trademark registration now so they are better prepared to enter the Cuban market.