Tag Archives: law

More thoughts on virtual property rights and advertising

In response to my earlier post on Google’s move to start replacing billboard advertising in Street View, @jasonjkee asked, “Didn’t this issue arise when Times Square billboard ads were replaced in 1st Spiderman movie?”

It’s related, but I think it can be distinguished from this situation.

First of all, you can read a summary of the case on the Trademark Blog. In Spiderman, Sony created digital renderings of Times Square — not photographic reproductions of the actual Times Square. Then they changed the advertising appearing on the billboards there. The owners of the real life buildings sued Sony for trade-mark and trade dress infringement and in trespass.

The district court dismissed all claims. Summarising that decision, Martin Schwimmer of The Trademark Blog wrote,

The district court dismissed the trademark claim on the ground that no purchaisng decision was affected by the change; the trade dress claim was dismissed because the advertisements were changed so often that there could be no protectable trade dress; and the trespass claim was dismissed because taking the digital photograph of the buildings was not deemed to be the sort of actionable contact with physical property recognized as trespass.

The Second Circuit Court of Appeal affirmed the dismissal.

While the digital renderings in the Spiderman movie were based on digital photographs of the real life buildings used to create digital models of the buildings, which is similar to what Google does with Street View, there is at least one important difference between the Sherwood v. Sony case and any potential litigation if Google were to replace advertising in Street View images.

In the movie, while the scene was a recreation of a particular real place, it was just a fixed (albeit moving) image that was not presented as being tied to that location. Yes, it represented Times Square, but it was itself not presented as Times Square, in the sense that the audience was not in any sense at Times Square in that scene of the movie.

Geolocating the images, tying them to a map, and giving people the ability to move through the images as though they were moving through Times Square itself gives the whole problem a very different feeling. When you navigate to a particular place in Street View and move around in the images, you are, in a sense — a virtual sense — in that place. Which is why I thought of it as potentially a Real Property Law issue rather than an Intellectual Property Law issue.

And anyhow, if Google starts selling the rights to advertise on billboards in Street View, replacing existing advertising in those images, they must think they have the rights to do that, in which case they would theoretically have the rights to replace the Yahoo! sign in Times Square with the Google logo. Is it conceivable that that would not be some kind of problem?!

Note that I am not saying that I think there would be a good claim to be made in such a case, not least because of the enforcement and scope problem. It would be tantamount to claiming the right to control the content in all gelocated images of property, which would be impossible in practice. I just think the issue is going to get very real if Google starts doing this.

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Issue of virtual property rights is getting real

All those outdated billboards in Google Street View aren’t just an eyesore; they’re a waste of money-making opportunity for the big G, apparently. But not for long.

Google’s filed a patent entitled “Claiming Real Estate in Panoramic or 3D Mapping Environments for Advertising,” and it should allow them to automagically cut out billboards shown in Street View and replace them with their own current ads.

In theory, this would be done in concert with whoever owns the space, so a theater owner could keep the posters out front up to date at all times. This seems to be the only way for Google to get away with doing this, as if they suddenly started sticking ads on other people’s property without their permission, things could get ugly fast. [Telegraph]

I knew the early interest in legal issues in Second Life would amount to something eventually!

Does the owner of title in real property have a right to control geolocated images of that property? If so, is it a property right? If they do not control it, and somebody else puts their own images in their place, is that adverse possession? (and would adverse possession still be possible since there is no land titles for images?)

Or is it an intellectual property right, since these are intangible assets?

Or perhaps something different — some sort of a contract interest, rather than a property interest at all, or a sui generis property right?

All of which would seem very esoteric were it not for the large amount of advertising money on the table.

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No love for Amazon’s One Click patent in Canada

Michael Geist reports on an important recent decision of the Canadian Patent Appeal Board (CPAB) regarding business method patents. These are patents that companies started collecting in the United States in the 1990s but which have not been embraced as enthusiastically in Canada. The most notorious business method is probably Amazon.com’s patent on the method of processing a customer’s online order in one click.

At first blush, the CPAB could have relied on the Manual of Patent Office Practice to support Amazon.com’s claim for a business method patent.  The 2005 Manual provides that “[business] methods are not automatically excluded from patentability, since there is no authority in the Patent Act or Rules or in the jurisprudence to sanction or preclude patentability.”

Yet the panel delivered very strong language rejecting the mere possibility of business method patents under Canadian law.  The panel noted that “since patenting business methods would involve a radical departure from the traditional patent regime, and since the patentability of such methods is a highly contentious matter, clear and unequivocal legislation is required for business methods to be patentable.”

In applying that analysis to the Amazon.com one-click patent, the panel concluded that “concepts or rules for the more efficient conduct of online ordering, are methods of doing business. Even if these concepts or rules are novel, ingenious and useful, they are still unpatentable because they are business methods.”


Read the whole post here.

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CRTC extends exemption for new media and calls for a national digital strategy

The Canadian Radio-television and Telecommunications Commission (the CRTC) today released a very important decision reviewing their original New Media decision of 1999. In the 2009 review of that decision, the CRTC has essentially extended their policy of not regulating new media.

OTTAWA-GATINEAU —The Canadian Radio-television and Telecommunications Commission (CRTC) today announced that, after a careful examination and a full process, it will maintain its approach for broadcasting content distributed over the Internet and through mobile devices. The Commission will continue to exempt new media broadcasting services from its regulation and monitor trends as they evolve.

“While broadcasting in new media is growing in importance, we do not believe that regulatory intervention is necessary at this time,” said Konrad von Finckenstein, Q.C., Chairman of the CRTC. “We found that the Internet and mobile services are acting in a complementary fashion to the traditional broadcasting system. Any intervention on our part would only get in the way of innovation.”


Read the full release and decision for details. Basically, the Commission was not convinced in the hearing process that regulation was needed in this sector. But there will be some changes. For one, it will be five years, not another 10, before they review this again. And they are asking the Federal Court of Appeal to clarify whether internet service providers are subject to the Broadcasting Act if they provide access to traditional broadcasting content.

But most intriguing is the CRTC’s endorsement of the National Film Board’s call for a national digital strategy, as some countries already have in place. New media itself has evolved tremendously since the CRTC first considered it 10 years ago, and is likely to change even more dramatically before they reconsider this decision in 2014. Let’s make sure there is a national policy in place before then to ensure a safe market for innovative media developers.

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One lawyer’s thoughts about switching open licences

This story was posted on one of the Creative Commons discussionlists, and it addresses a problem that at one time or another willface any organization using Creative Commons licences or any othercopyleft, open or free content licence: Can we switch our works to adifferent licence?

[There is] a collaborative community that hasbeen around for several years.
They had a couple of separate collections, and one was under the FAL(Free
Art License). They wanted to make everything compatible under CC-BY-SA3.0,
but the FAL is technically *not* compatible.

Then the question was raised with a US-based attorney. His response wasnot
to worry so much – they’re the same in all key ways, and his opinion was
that the intention of the contributors was not concerned with the minor
differences between open, copyleft licenses.

from thispost.

It may be counterintuitive (or, come to think of it, maybe thischaracterizes how people think of lawyers!), but lawyers tend to seeissues like this not in terms of whether you can do something,but in terms of the risk involved in doing it. You want to getout of your lease right away without giving the required 2 monthsnotice? You want to fire an employee even though you may not have justcause to do so? Perhaps you’d like to use a popular song as backgroundmusic on a YouTube video? You might ask a lawyer whether youcan do that, or how you can do it, but the lawyer is probablythinking, What is the risk in doing it? What is the likelyconsequence, and how likely is it?

Knowing this about a lawyer’s thought process helps explain theanecdotal lawyer’s response when asked whether theorganization can switch from the FAL to the CC-BY-SA licence.Technically, no, they’re not allowed to make that switch. But thelawyer is also thinking, how likely is it that one of the authorsinvolved will treat this as a copyright infringement? And what will theconsequences be if they do?

Of course every situation has unique considerations, and you shouldn’ttake this as legal advice for your own similar situation. For what it’sworth, in cases like this, I tend to agree with the lawyer in thestory, and for this reason: The major aspects of the licences, theissues the authors would have had in mind when they agreed to use thelicence, are the same, and are specifically about openlicensing.

That’s what makes cases dealing with open licences different fromalmost any other legal field in questions like this. These licences arespecifically geared toward a new way of dealing with copyright. Yes,there are differences among the licences, and some of those differencesare fundamental differences that would make them very risky toswitch (like switching an NC licence for a non-NC licence, or viceversa? Just don’t do it!). But if there are only minor differencesamong the licences, then, as the operator of the community in thestory, you would need to consider the risk that the sort of person whowould license a work under one open licence would bring acopyright claim against you for switching to a different openlicence that is the same in all but technical aspects.

So we have an author who uses open licences to distribute their workand understands the balance in copyright and the value of other peoplehaving access to that work. I suspect that such an author would be muchless likely to be upset about a switch to a fundamentally identicallicence than, say, a traditional commercial licensor would be if theircopyright licence were switched for a different one.

Every decision like this is a risk. Just how big a risk it is dependson your particular circumstances. You might need a lawyer’s helpsorting that out, and you might not. What you should learn from thisstory isn’t the general rule that licences can necessarily beswitched for similar licences. Rather, it is that in some cases, withsome communities of authors and users, and with sufficiently similarlicences, there may be a simple solution that has a low enough risk foryou.

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uOttawa wins awards at Harold Fox IP Moot


I had the honour ofcoaching the team that the University of Ottawa sent to the Harold G. Fox Intellectual Property Moot.Today, they come home with both the Gordon F.Henderson Award for the best factum writers and the Donald F. SimAward for the best oral advocate.

Four University of Ottawa students participated: Adrian Howard andSherif Foda argued for the appellant, and Matthew Paik and TavengwaRunyowa argued for the respondent. After two preliminary rounds, Adrianand Sherif advanced to the semi-finals along with only 3 other pairsout of the 16 pairs participating. They argued their case valiantlybefore Justices Sharlow (FCA), Sharpe (Ont CA) and Blair (Ont CA) andreceived excellent feedback on their mastery of the material and theirpresentation.

For their efforts, Tavengwa and Matt won the Gordon F. Henderson Awardfor the best factum writers, and Adrian won the Donald F. Sim Award forthe best oral advocate. Adrian acknowledged the efforts andaccomplishments of the rest of team, noting in his acceptance speech,”This is an individual award for a group effort”. The final round wasMcGill (Pierre-EmmanuelMoyse coaching) and Western (MargaretAnn Wilkinson coaching), and Western’s team won the cup.

 The University of Ottawa team did very well with a complex problem(PDF) on copyright and trade-marks. As their coach, I am very proudof the team. I am extremely impressed with their research and writingskills and their ability to internalize the case law in order toconstruct new arguments in each round of the moot as they encounterednew teams with novel approaches to the problem.

 Adrian Howard is the VP of the Law &Technology Student Society, a third year law student, and a futurearticling student at Gowlingsin Ottawa. Sherif Foda is a second year droit civil student.Tavengwa Runyowa is a second year common law student who istaking online WIPO IP coursesin his spare time. Matthew Paik is a third year droit civil student inthe LL.L/DVM(international development and globalization) program. Congratulationsto each and all!

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