By Wiley Cason
In response to the repeal of Federal Net Neutrality rules, Washington State’s governor and attorney general have both argued that state-level regulations may still prevent Internet service providers (ISPs) from discriminating amongst data offered on their networks.
by Christine Minhee
Imagine a monastery for luddites. Outside: brain implants reverse paralysis, gene therapies cure inherited diseases, and self-driving trucks deliver personal quantum computers purchased using payments authorized by face-scanning technologies. Inside: bunioned academics with chips on their shoulders pore over their worn copies of a legal citation manual, lovingly, reverently thumbing through its 560 pages in order to confirm truths like the italicization afforded to “construed in” but not to “construing” (Rule 1.6(c)).
Their holy text is called The Bluebook, and it promises not salvation, but merely, “A Uniform System of Citation.”
The Bluebook has been skewered so many times that it should have its own shish kabob. Above the Law features posts like: Want To Work In-House? Burn Your Bluebook, It’s Sad When The Bluebook Is An Important Part Of Your Day, and Yaw Law Students Support The End Of The Bluebook. UW Law’s own write pieces entitled The Dreaded Bluebook and The Worst System of Citation Except for All the Others. And UW’s Gallagher Library has this to say:
“Think Bluebooking is challenging? So do a lot of other people! There are many different tools out there to help you create Bluebook-formatting citations. But beware–none of these tools are a perfect solution for all of your Bluebook troubles. You will need to double-check your citations to make sure they’re correct even after using one of these tools.”
(Bolded, underlined emphasis is theirs, not mine.) While some students would even call Bluebooking a form of “academic hazing,” the uniform hatred of citation is less intriguing to this author than the Harvard Law Review Association’s stubborn, litigious unwillingness to grant access to the resource in a way that is neither analog nor expensive.
A one-year, digital subscription of The Bluebook is available online for $36. A search for “Bluebook” in the App Store will yield an infuriating swarm of car-buying apps, but a quick Google search reveals The Bluebook’s availability as an iOS-only, $39.99 in-app purchase in an app called Rulebook.
And the only “free,” unaffiliated “Bluebook”—The Indigo Book—was virtually the product of happenstance. When an earlier version of The [real] Bluebook happened to fall into the public domain, an NYU law professor fought to democratize the resource in open-source format, despite The Harvard Law Review Association engaging white-shoe firm Ropes & Gray LLP to fend off the attempt. (Interestingly, the founder of the site that publishes The Indigo Book was also sued for posting the Official Code of Georgia Annotated on his website—an act the State of Georgia described as “terrorism” in its complaint.)
So, why doesn’t the Harvard Law Review publish a free web app and bring The Bluebook outside of the walled, hegemonic garden of academic publishing and into the digital age? Much has been written about copyright claims over The Bluebook, the gist being that Section 102(b) of the Copyright Act states that systems—like a uniform system of citation—cannot be protected by copyright. And according to the Harvard Law Record, a “brief glance at the history of the Internet suggests that in a world where prestige matters, where students and practitioners alike begun their practice with the Bluebook, it is certainly possible to compete with free.”
By Jabu Diagana
On November 29th, 2017, the Supreme Court will hear Carpenter v. United States and decide whether the government violates the Fourth Amendment when it accesses a third party’s record of an individual’s cell phone location without a warrant.
Carpenter was a 2011 case where the defendant was convicted of a series of interstate robberies based on his phone location data, also known as cell-site-location information (CSLI). CSLI is maintained by wireless carriers and is a record of the cell towers our phones connect to every time we transmit calls, texts, emails, or any other digital information. It usually includes the precise geolocation of each tower as well as the day and time the phone tried to connect to it. The government obtained CSLI under the Stored Communications Act (SCA), a 1986 federal statute which provides that a “governmental entity may require a provider of electronic communication service or remote computing service to disclose” records using either a warrant, or, as in Carpenter, using a court order issued “if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”
Stated differently, the real question is to what extent does the SCA allow the government to obtain CSLI without a warrant? Or to put it more bluntly, is the SCA unconstitutional?
The Sixth Circuit holding in Carpenter turned on the “third-party doctrine.”
The third-party doctrine originated in Smith v. Maryland, a 1979 case in which the Supreme Court found that installing and using a pen register to record a phone user’s dialed numbers was not an illegal search and didn’t merit Fourth Amendment protections. According to the Smith court, although the contents of our phone conversations are protected, information about the sender or receiver is not, since they willingly disclose that information to the phone company every time they place a call. Following this logic, the Sixth Circuit first found that the third-party doctrine also authorizes the government to access CSLI as “business records” directly from a cell phone company without a warrant. Additionally, it found that when a person uses their cell phone, they should be aware that their location data is shared with the service provider and should not have any “reasonable expectation of privacy” with respect to that data.
Although Carpenter is about users’ cell locations information, the principle at issue spans over other aspects of our digital privacy, given all the data we now share with third parties through the use of smartphones, wifi hotspots, apps, and cloud-based services. As Justice Sotomayor highlighted in her United States v. Jones concurrence, whatever our current societal expectations of privacy are, our citizenry can “attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.”
Whether Carpenter is affirmed or overruled, the court discourse will likely revolve around the impracticability of the “third-party doctrine” in the digital age. Does sharing with one mean sharing with many? It is tempting to recommend that the court abandons the “third party” doctrine, but that may be over simplistic. If the court choose to modify it, then where should the line be drawn? should there be a difference between information voluntarily conveyed to a third party or stored on the cloud? There is also a time component to this issue. How long is continuous tracking too long? All these questions, a priori theoretical will be fundamental to the future of our privacy.
By Anna McCurley
Every Halloween, some of the most popular costumes come with more than funny hats, swords, or fake blood – they come with copyright implications. Halloween costumes often correspond to the summer’s biggest blockbuster movie, popular cartoon princesses, or what’s going on in politics. This year, the winner of the coveted “most popular costume” prize is Wonder Woman and the two previous years it went to Harley Quinn. Halloween costumes are an opportunity to show humor, political views, fandom, admiration, and creativity. Such expression often entails the use (or misappropriation) of copyright.
However, this post isn’t about the elaborate costumes that exude fandom. This post is about cheerleading uniforms and bananas.
Rasta Imposta makes banana costumes. If you’ve shopped for Halloween costumes anytime in the past five years, you’ve likely seen one. Rasta has been producing banana costumes since 2001. In that time, they have sued four other companies for copyright infringement of their banana costume design. Three of those cases ended in closed settlements, most recently with Kmart Stores. One is still pending.
U.S. copyright law protects art, but not useful articles, and costumes occupy the murky space between the two. Things are even murkier in light of the Supreme Court’s newly-minted test for separating pictorial, graphic, or sculptural (“PGS”) works from associated useful articles under § 101 of the Copyright Act.
Decided in March of this year, Star Athletica v. Varsity Brands does away with the idea that the PGS elements of a costume must be physically removable from its useful aspects (serving as clothes) which the Second Circuit previously employed. The Supreme Court established a two part test: that a useful article (here, a cheerleading uniform) is eligible for copyright protection “only if the feature (1) can be perceived as a two- or three- dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated.” The court held that only the “two-dimensional work of art fixed in the tangible medium of the uniform fabric” was copyrightable. “[R]espondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear.”
The Court focused its separability analysis on the admissibility of the PGS work after it is removed from the useful article. It did not require that, in so removing, a useful article remain behind. This allowance, however, does not allow for nothing to be left behind after separation. “[B]ecause the removed feature may not be a useful article … there necessarily would be some aspects of the original useful article ‘left behind’ if the feature were conceptually removed.” Importantly, the Court disposed of the notion that there was any difference between physically and conceptually separating the PGS work from the useful article.
Applying the Star Athletica test to the banana costumes currently at issue, one must first identify what exactly comprises the PGS element to be removed. Here, the banana costume itself is useful as clothing, but it is also the entire PGS work. For example, the lines down the sides of Rasta Imposta’s costume serve dual functions: as structural seams and as design elements. Removing the banana elements from the costume wouldn’t leave behind much, if anything at all. It doesn’t have to, though. Post Star Athletica, the focus is now on what the PGS work would be independent of the useful article, not on whether the leftovers are still useful.
Here, removing the PGS from the useful article might entail closing the openings which allow the costume to be worn: the arm holes, the face hole, and the gap at the bottom that rests around the wearer’s hips. Closing those gaps would remove the utility from the costume and turn it into a sculpture of sorts. The Court did say that some aspects of the original useful article would need to be “left behind,” but that requirement might not be literal. Here, eliminating a person’s ability to wear the costume serves the same function as “leaving behind” the utilitarian aspects that classified it as clothing in the first place. The question now is “how little can you leave behind?”
That the Supreme Court favors conceptual separation means that more artistic-utilitarian merged works may be protectable under copyright law. If physical separation was the standard, the banana costume would not be protectible because there would be no clothing left without the banana elements. This new standard will likely have meaningful implications for industries like fashion, expanding protection for works that at one point did not qualify.
However, Rasta’s copyright could still fall under the weight of a court challenge on other grounds. After all, bananas come from nature and there are only so many ways a person can wear a banana. If it fails, however, it likely won’t be under the Star Athletica test.
By Alex Hagel
Apple and Samsung are back! A new chapter in the Apple v. Samsung saga is set to begin in May.
A federal judge in California has scheduled a third trial since Apple’s initial suit in 2011. The suit alleges Samsung illegally copied several Apple design patents when designing its own phone. The new trial for the two tech giants follows the Supreme Court’s decision last year, which resulted in a (narrow) victory for Samsung.
This round of Apple v. Samsung involves three Apple design patents related to the front cover of its iPhones. Patent D618,577 covers “a black rectangular front face with rounded corners;” patent D593,087 covers “a rectangular front face with rounded corners and a raised rim;” and patent D604,305 covers “a grid of 16 colorful icons on a black screen.” WJLTA previously wrote about the peculiarities of design patents, and its distinction from the far more common utility patents.
Apple received a $1 billion verdict in 2012 after a jury found Samsung illegally used Apple’s design patents, and awarded Apple the entirety of Samsung’s profits from the sale of the infringing phones. Subsequent appeals affirmed the district court’s decision to award the full value of the phones, but that value was later recalculated to about $399 million.
On appeal to the Supreme Court, Samsung argued Apple was only entitled to the value of the relevant “article of manufacture,” rather than the value of the entire phone. During oral arguments, the parties struggled to articulate how and when an “article of manufacture” should be distinct from the entire product. The United States, as amicus, argued four factors should be considered:
The unanimous opinion refused to adopt a specific test for determining what constitutes an article of manufacture, instead ruling “the term ‘article of manufacture’ is broad enough to encompass both a product sold to a consumer [i.e. an iPhone] as well as a component of that product [i.e. the front casing of an iPhone].”
Which brings us back to the new trial. In her order granting a new trial, the district court judge directed the parties to argue using the above factors articulated by the United States. Samsung will likely argue the front casing is an article of manufacture and thus distinct from the iPhone as a product, because (1) the design claimed in the plaintiff’s patent is limited to the front casing, rather than the entire phone, (2) the prominence of the front design is overshadowed by the capabilities of the iPhone as a “smartphone” (3) the product [a smartphone] is conceptually distinct from the patented “black rectangular front face with rounded corners” and (4) the front cover is separable from the rest of the phone.
This new trial will not likely be the end of the story. If the court accepts Samsung’s argument that the front casing is a distinct “article of manufacture,” any damages the court awards will likely only produce more litigation because there is no clear standard on how to value that “article of manufacture.”
Although valuing an article of manufacture was discussed during oral arguments at the Supreme Court, the justices did not decide the issue, and the district court judge has not offered guidance. The likely candidate, embraced by the government and Samsung at oral arguments, requires companies to use consumer surveys and data to deduce “to what extent people who bought the product did so because of the particular article of manufacture.” In the alternative, the court might adopt a test looking at the relative cost of developing a part and awarding damages in proportion. The court was hesitant to embrace this approach because of the potential for a “eureka!” moment, where an important component of the product is produced in a flash of genius, rather than through extensive research and development. This approach would necessarily value that important component much lower because of the low cost of production.
With this open question hanging over the court, this well-known saga is unlikely to end anytime soon.
Washington Journal of Law, Technology & Arts 