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Monday, December 30, 2013

Legal Claims of Copyright Infringement Based on Copying of Scholarly Articles

Effective Use of Copyright?
Lawyers processing applications for patents before the U.S. Patents and Trademark Office (PTO) sometimes copy scientific articles from academic journals to help comply with a duty to disclose "prior art" that bears on the patentability of the claimed inventions.

Makes sense, right? AND, even though the articles in the journals are copyrighted (and, in my opinion, by the wrong people - the academics that performed the research should hold all rights) this kind of use of copyrighted material properly and sanely falls within the 'fair use' doctrine set forth in the U.S. Copyright Act.

BUT --- the publishers of commercial academic journals (of which I am no fan) think NOT  --- AND have taken these patent processors to court for copyright infringement.

Guess who's wining these little publishing dramas?

On second thought, let's NOT guess. Let's find out in this interesting resource article from Lexology in cooperation with ACC (Association of Corporate Counsel) written by Edwin L. Fountain and Jessica D. Bradley:

Can a patent application violate the copyright laws?

Recent decisions from two federal district courts have rebuffed efforts by publishers of scientific journals to claim copyright violations based on the copying of the publishers' articles for purposes of preparing patent applications submitted to the U.S. Patent & Trademark Office ("PTO"). While these decisions confirm that copying and distributing articles in conjunction with preparing patent applications should fall within the "fair use" exception to copyright infringement, the plaintiff publishers have indicated their intentions to seek appellate review of the issue.

Plaintiffs' Allegations

Plaintiffs in the cases are the American Institute of Physics and the publishing houses John Wiley & Sons, Inc. and Blackwell Publishing, Ltd., which produce and distribute scientific journals that contain scholarly articles in several scientific disciplines. (Blackwell Publishing is a subsidiary of John Wiley & Sons.) The defendants are law firms that prosecute patent applications before the PTO as well as foreign patent offices. The law firms downloaded or copied various articles published by the plaintiffs. The firms subsequently submitted copies of those articles to the PTO as evidence of "prior art" in conjunction with applications for patents and distributed copies to their clients, lawyers within the firm working on the applications, and, in some instances, foreign patent attorneys.

In American Institute of Physics and John Wiley & Sons, Inc. v.Schwegman, Lundberg & Woessner, P.A. (D. Minn. Civ. No. 12-528), plaintiffs initially asserted that the law firm engaged in unauthorized copying by submitting copies of the articles to the PTO. The plaintiffs subsequently abandoned that allegation (after the PTO itself intervened in the case on the side of the defendant) and focused their claims on the firm's downloading, storing, internal copying, and distribution of the articles by email. The firms had downloaded 18 articles, most of them from the PTO's own website but others from varied sources. The firm then copied the articles to the firm's document management system, where they were accessible to lawyers in the firm. The publishers asserted that these activities, along with viewing the documents and emailing copies of certain articles to the firm's clients or other attorneys, constituted infringement. On August 30, Judge Richard Kyle of the District of Minnesota entered summary judgment for the defendants, adopting a prior report and recommendation of a magistrate judge.

In two other cases, American Institute of Physics and Blackwell Publishing, Ltd. v. Winstead PC (N.D. Tex. No. 3:12-CV-1230) and John Wiley & Sons, Ltd. and American Institute of Physics v. McDonnell Boehnen Hulbert & Berghoff LLP (N.D. Ill. No. 12 C 1446)—and again, after intervention by the PTO—the plaintiffs similarly amended their complaints to disclaim any allegation of infringement based on submission of copies of copyrighted articles to the PTO, or on retention of file copies of the works submitted to the PTO. Instead, the amended complaints focus on the defendant law firms' unauthorized copying of articles from plaintiffs' journals, including the allegation that the firms charged their clients for the copying and thereby directly profited from its infringement. In Winstead, Judge Barbara Lynn of the Northern District of Texas issued a written decision granting summary judgment for the defendants on December 3. The McDonnell Boehnen case, brought in the Northern District of Illinois, is currently still in the discovery stage.

A fourth case, John Wiley & Sons, Inc. and American Institute of Physics v. Hovey Williams LLP (D. Kan. No. 5:12-cv-4041), was voluntarily dismissed after the defendant took a license from the Copyright Clearance Center.

The Fair Use Defense

The defendants in these cases invoked the fair use doctrine set forth in the U.S. Copyright Act. The Copyright Act provides that copyright infringement occurs when a person copies or distributes a copyrighted work without authorization. The Act also provides, however, that certain uses of copyrighted material are "fair use" and thus do not constitute infringement. The Act lists several examples of fair use, including "criticism, comment, news reporting, teaching[,] or research," and then goes on to set forth four nonexclusive factors for determining whether a particular use of copyrighted material is fair use:
1.    The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2.    The nature of the copyrighted work;
3.    The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4.    The effect of the use upon the potential market for or value of the copyrighted work.

Because a finding that a use is "fair" depends upon an after-the-fact judicial balancing of these and other factors, the Supreme Court has insisted that a fair-use analysis may not "be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1993).

The Defendants' and the PTO's Arguments

Sunday, December 15, 2013

'Print' NOT Going Softly Into the Night!

I've always suspected it never would - In fact, I still believe 'print' will never go away completely - AND quite possibly will even have a little resurgence :)

Perhaps the answer to the reason why is 'blowin in the wind'.

I believe that two men with the name of Dylan - one as a first name and one as a last name - contributed greatly to my thoughts on this issue in tonight's post.

Dylan Thomas, a Welsh poet (1914 - 1953), wrote the following poem from which I fashioned part of my post's title:

Do Not Go Gentle Into That Good Night 

Do not go gentle into that good night, 
Old age should burn and rave at close of day; 
Rage, rage against the dying of the light. 

Though wise men at their end know dark is right, 
Because their words had forked no lightning they 
Do not go gentle into that good night. 

Good men, the last wave by, crying how bright 
Their frail deeds might have danced in a green bay, 
Rage, rage against the dying of the light. 

Wild men who caught and sang the sun in flight, 
And learn, too late, they grieved it on its way, 
Do not go gentle into that good night. 

Grave men, near death, who see with blinding sight 
Blind eyes could blaze like meteors and be gay, 
Rage, rage against the dying of the light. 

And you, my father, there on that sad height, 
Curse, bless, me now with your fierce tears, I pray. 
Do not go gentle into that good night. 
Rage, rage against the dying of the light. 

And Bob Dylan, an American musician, singer-songwriter, artist and writer, sang this song that points out that many deep questions are, indeed, 'blowin in the wind':

Blowin in the Wind

How many roads must a man walk down
Before you call him a man?
How many seas must a white dove sail
Before she sleeps in this sand?
Yes, an' how many times must the cannon balls fly
Before they're forever banned?
The answer, my friend, is blowin' in the wind
The answer is blowin' in the wind
How many years can a mountain exist
Before it is washed to the sea?
Yes, an' how many years can some people exist
Before they're allowed to be free?
Yes, an' how many times must a man turn his head
An' pretend that he just doesn't see?Jo
The answer, my friend, it is blowin' in the wind
An' the answer is blowin' in the wind
How many times must a man look up
Before he can see the sky?
Yes, an' how many ears must one man have
Before he can hear people cry?
Yes, an' how many deaths will it take until he knows
That too many people have died?
The answer, my friend, is blowin' in the wind
The answer is blowin' in the wind

I just love the emotions expressed by these two Dylans.

Now this 'print' publishing resource article by John P. David in The HuffPost:

Is Print Really Dead?

Recently while waiting for a breakfast meeting to start at a café in Miami's Coconut Grove, I overheard an exchange between a tourist a local who was reading the daily paper. "Where can I get a newspaper around here?" asked the visitor. "Nowhere," said the local.
Newsstands may still be squeaking out income in larger metro areas, but I honestly don't know where to buy a daily newspaper in my market. A convenience store, maybe?
Sadly, the days of robust, metro dailies are over. Daily newspapers, which can't compete with specialist publications or the immediate nature of the Internet, are dying a slow death.
But is all hope lost for print? Recent news suggests otherwise.
Last week, the new owners of Newsweek revealed that the famed weekly magazine will return to print after more than a year out of printed circulation. Publishers said the magazine would mainly be supported by subscriber fees, rather than advertising. Clearly they believe that so-called long-form journalism has a place in print. More on that later.
Other publishers are taking a run at print as well. Earlier this year, Meredith Publishing launched a print magazine based on the popular website allrecipes.com. If you don't cook, you may not know that allrecipes.com is one of the dominant recipe sites online (a recent search for chocolate chip cookies, for example, found more than 1,200 recipes). But if the website draws a ton of traffic to an efficient, online venue, why launch a recipe magazine -- asking people to pay for something they can get for free online? In an interview on Bloomberg TV, the CEO of Meredith explained that most people search online for recipes which they already know or are aware of. However, they will read a magazine to get inspiration or to learn about new recipes. A print magazine, with nice pictures and inventive ideas, can still inspire people to do and buy things in ways that the web can't.

Sunday, December 1, 2013

Association Publishers Experimenting With Multiplatform Publishing

Association Publishing
Move over consumer brand magazines! You're not the only type magazines that are utilizing splashy, multiplatform formats; such as responsive design websites, e-newsletters, dedicated tablet and smartphone apps --- Non-profit associations and their plain print newsletters and magazines are moving in AND investing in the resources to expand beyond print to reach their members.

This is all in the name of immediacy and accessibility for the publishers' readers. Today, as we are all learning, the readers come first and they demand to read what they want when they want where they want and how they want.

And publishers who want to grow are spoiling readers to the hilt with on-demand immediacy and accessibility.

Tonight we will look at four case studies of how associations are engaging their members way beyond print and the takeaway lessons and business results of each case .

These case studies are neatly nestled in this article from FOLIO magazine:

Association Media: Case Studies in Multiplatform Publishing

How four associations are engaging their members well beyond print.

Immediacy and accessibility are vital for today’s publisher. And now, multiplatform publishing is no longer a luxury just for consumer brands with flexible liquidity. In fact, there are several non-profit association publishers investing in new product suites that include responsive design websites, e-newsletters and even dedicated tablet apps.
Here, FOLIO: looks at four associations that have expanded beyond print to reach their members on a variety of platforms and channels. And, in turn, have expanded their reach and grown their brands.
The SmithsonianWith 19 museums, a magazine, a tablet edition, a website and events, the Smithsonian has plenty of ways to reach its membership.
ASAEThe American Society of Association Executives launched a suite of new products in 2012—a website redesign, newsletter and dedicated app.
Society for Human Resource Management
SHRM’s media assets celebrate revenue generation as much as content creation.
The Sierra ClubThe organization’s “explore, enjoy, and protect” motto couples well with the non-profit’s push for reader interactivity.