Patent Attorneys Sued For Copyright Infringement 97
Zordak writes "Patent blogger Dennis Crouch writes on Patently-O of a catch-22 for attorneys. Patent attorneys are required to submit all prior art that they know of to the patent office. Failing to do so is an ethical violation, and can result in a patent being invalidated. But now the Hoboken Publishing Company and the American Institute of Physics are suing a major patent firm for copyright infringement, because they submit articles to the patent office without paying a separate royalty."
Re:Summary is misrepresenting things... (Score:5, Interesting)
Surprisingly, this is very relevant and a major issue for groups which use material created by others. It's much more relevant today with making physical copies (and digital ones) so easily. It strikes directly to the heart of whether copyright is a very literal thing or whether it's a concept.
For example: musical groups - especially amateur ones - to comply with copyright law effectively need to purchase a copy of an arrangement for each member of the group. My group buys a few extra, for guests and new members. We might only have 40 members, but we typically purchase 50 copies. Often we buy a master and a license that lets us make the reproductions (for low volume charts, a production run is not feasible). Sometimes we make minor changes - interpretations involving tempo, pauses, minor musical changes. To keep current we have to manually annotate 50 copies. We can't for example, make a modification and hand it out, or make a second set with markings for stage direction for everyone to have. The question is whether it matters that we can make these teaching tools. There are only 40 of us and we bought a copy for every single person - does it really matter if I give each man an extra copy with our special data overlayed? How about if I deliver it by PDF? Do I have to pay a fee every time a man downloads the pdf - say if he's not savvy and just looks at the music on his computer, re-downloading it into the browser's reader form the website's "members only" area every time he wants to practice. That doesn't appear to be the intent...but it appears to be the law.
This matters for a law firm. If they purchase the right to a copy of the work, then annontate it and send to to everyone - either on paper or digitally - have they made more "copies" for the purpose of copyright. Let's say they pay for a copy for every lawyer and consultant on the case. If a consultant marks up the one he receives, then makes a copy and mails it back to the original lawyer, is that an infringing copy? If the original lawyer bought a copy for everyone, and the consultant makes a copy and sends it back - has a copy been made? (Yes) Is there any value in the copy? Maybe...the recipient already owns one, and has paid for it so is getting another copy (presumably for use in the original context) really infringing?
Re:What About ... (Score:5, Interesting)
Actually, it's not just fair use, the content is not copyrightable in this context, under the merger doctrine.
Copyright only applies to protect one way out of millions of equally-good ways. Shakespeare wrote Romeo and Juliet, but there are millions of other ways to write a story about star-crossed lovers. He is entitled to copyright (well, was entitled) in cases where any of those other ways would work just as well. His copyright doesn't prevent anyone else from performing any function, they just have to express their ideas a different way.
However, in this case, nothing but the actual article will work. Nothing else will make it possible for the copyright office to reliably determine how and whether the prior art relates to the invention that is the subject of the application. A copyright gives you no power to prevent others from accomplishing any useful function. If your work is the only way to perform that function, copyright yields. (You need a patent to own a function rather than a particular expression.)
When only one work will serve a functional purpose, merger doctrine applies and copyright protection is unavailable.
Re:IP daily? Not so much ... (Score:4, Interesting)
This is not a catch-22, it's a cost of doing business. The lawyer needs to purchase the information for the application and failed to do so.
Ah, but what if the other party buys the copyright to the publication the prior art is published in, and refuses to license it at any cost?