Court Says Copying Journal Articles To Show Prior Art In Patent Proceedings Is Fair Use
from the copyrights-and-patents-oh-my dept
Here's one that touches on both patents and copyrights. Last year, we wrote about how some academic journals were ridiculously claiming that law firms, who made copies of journal articles to submit to the US Patent and Trademark Office to show examples of prior art, were infringing on their copyrights. Yes, they were arguing that you couldn't use their journals as examples of prior art without paying them for the privilege. Thankfully, the USPTO stepped up and issued a memo explaining why they believed such usage was clearly protected as fair use. Still, the American Institute of Physics and Blackwell Publishing decided to sue a law firm, Winstead PC, and patent filers over the matter. The USPTO then stepped in as an "intervening defendant." Over the course of the case, the publishers finally admitted that articles submitted with patent filings themselves probably weren't infringing and dropped that claim. However, they still argued that other copies made "during the process of evaluating and selecting" material to be submitted to the USPTO were infringing (in other words, the clients and the lawyers sharing copies of the articles back and forth -- and later copies of the articles associated with patent files).The USPTO stepped in and argued that this was obviously fair use, noting the benefits to the public, the fact that none of the copying was done for "commercially exploiting" the work, that the copies are a part of a much larger process and, of course, that it doesn't compete with the primary market for the works. Oh yeah, also: "courts routinely hold that copies made in connection with government proceedings is fair use."
The district court in the northern district of Texas ruled last week that the defendants are entitled to the fair use defense in a ruling from the bench. A full ruling explaining the reasoning will come out sometime soon, highlighting which of the USPTO's arguments were particularly convincing -- but, in the meantime, this is clearly good news for fair use, though it seems likely that the ruling will be appealed.
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How is status quo "clearly good news for fair use"?
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Re: How is status quo "clearly good news for fair use"?
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Re: How is status quo "clearly good news for fair use"?
The part I find interesting is that it's a case of using a complete work, not just an excerpt or two. It's usually pretty difficult to get a determination of fair use when more than a portion of a work is at issue. In this case, the portion didn't matter, due to the copies being made (a) without intent to compete (b) for their factual rather than expressive content.
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there are worse things than having to pay royalties
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Why don't you tell that to Otis Wright if you're so confident, self-assured and moral?
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As for the article, a good ruling here, looks like it was another attempt at 'the only fair use is paid use', glad to see the attempt got shot down as it should be.
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These articles are written for free based on research that is often publicly funded (NIH, NSF, state universities).
The actual writers don't receive any monetary benefit from publishing these articles, but the benefit of contributing to human knowledge and enhancing their reputation. The articles are peer-reviewed and edited by volunteer scientists. None of the creators in this case are being paid.
Then the scientific publishers - like Blackwell - copyright these articles and put them behind paywalls.
Copyright in this case is not an incentive to create. Rather, creating scientific journal articles has its own inherent incentives. These incentives (reputation, knowledge) are enhanced by MORE people reading for free, not fewer reading for pay. Scientists would behave very similarly if there was no copyright on these articles (assuming attribution).
If copyright is not necessary for the writers themselves to create, perhaps publishers require the assurance of copyright to receive a return on their large expenditures on a low-margin product. Although the articles submitted for free (or the AUTHOR pays a fee) and are not a cost. And the editing is done by volunteers and is not a cost. And the printed paper and internet bandwidth is paid for by the paid subscriptions of the scientists who wrote or wish to read the articles.
The publishers contributions are considerable, too. Infrastructure? Management? Executives? The brand name of the journal title must be worth something too.
You can see now how it is unreasonable for a law firm or inventor to use these publicly-funded, freely-written, hopefully-widely-disseminating articles to benefit the public. They should have to pay because...of the artists? Without pay (per article) scientists wouldn't write? The scientists are being harmed by more people reading their work?
While entertainment copyright might not always benefit the creator/artist as much as the label/studio/multinational-conglomerate, I understand how it could encourage the creation and support of art because of the money involved. Money is not an incentive in scientific publishing, so copyright in the academic sector not only does nothing to encourage the creation and practice of science, it harms the furthering of science by making information more difficult and expensive to access.
If I was a scientist paying dues to the American Institute of Physics, I would be upset at the use of my fees to make science harder and more expensive.
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personally
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And... (5) If another academic journal tries the same thing, sue them for infringing the business method patent...
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