Carmen Haithcock – Intersections

The Territory that GIS Librarians Cover

Some may not realize that maps fall under the same copyright protection as other fixed works, such as books and films. While the factual information provided in a map is available for everyone to use, the exact expression in which it is represented cannot be. An original and fixed expression of factual information is fully protected under copyright law. The names of countries and cities, their shape and coordinates are all facts that can be used by whomever, however, the colors used, the font, the way the map has been artistically represented and expressed receives copyright protection. Therefore in order to make an exact reproduction a map, the copyright owner must be contacted and permission must be granted.

A more in-depth type of mapping that is becoming more important in University, library, and other settings is Geospatial Information System mapping. GIS involves storing and visualizing geospatial data, and GIS librarians help with the software that stores and manages this data and assist with other related research and technology in this area.

UNC has two GIS librarians on campus that help provide expertise on these GIS services to students and faculty needing to learn more. They are available in the Davis Library Research Hub on the second floor and offer both walk-in and scheduled appointments. Some specific areas they offer assistance in include mapping (of course), using Liquid Galaxy and statistical software, data management and visualization, and digital exhibits and humanities.

Some people may not realize that they have actually already used GIS mapping many times in their daily life, through Google Maps. Copyright protection for Google’s maps and geospatial data applies equally here, but Google typically relies on the contractual agreement laid out in their website use policy in order to safe-guard against infringement and restrict the boundaries of use. Additional guidelines allow for the use of Google Maps and imagery so long as their Terms of Service are being followed, proper attribution is given, and they are being used for a non-commercial purpose. However, if you’d like to use Google Maps, Google Earth or Street View for a commercial purpose you can contact the Google Maps for Work sales team.

All’s “Fair” in Love and YouTube

Google recently announced that they will offer legal support to protect certain parties who are clearly following fair use rules when uploading content to YouTube. They specifically stated, “[t]hrough this initiative, YouTube indemnifies creators whose fair use videos have been subject to takedown notices for up to $1 million of legal costs in the event the takedown results in a lawsuit for copyright infringement.”

YouTube’s website lays out the four factors of fair use which must always be taken into consideration when uploading a video which contains any kind of material copyrighted by someone else. The website also has a policy in place for video uploaders who use copyrighted content, but do not meet the standards of fair use. If the copyright owner discovers that their protected content is being used in a video not authorized by them, the uploader of that video receives something called a Content ID. After this, the copyright owner gets to decide the next step. They can exchange use of the copyrighted content for displaying ads during the video, or they could completely block the video from being seen, mute the copyrighted material, or restrict the video to certain platforms. If a video is removed due to the rights holder sending a complete legal request to do so, then the uploader of that video receives a copyright strike on their account. Three of these strikes and you’re out, your account will be terminated.

The new fair use defense policy would not apply in situations such as this, because Content IDs and copyright strikes on YouTube accounts only occur when the use of the work is not determined to be fair. The policy will offer “legal support to a handful of videos that [YouTube] believe[s] represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.”

Lawsuits can become exorbitantly expensive, especially when up against a large company or corporation with deep pockets that owns a lot of intellectual property and aggressively protects it. So this new policy should be a great incentive for video uploaders to be more careful when selecting what content to use and how to fairly use it.

The Washington “Gringos”

Everyone has heard about the trademark dispute concerning “the Washington football team.” Under 15 U.S.C. §1052 of the Lanham Act, which is the statute for trademarks in the U.S., there are certain bars to being able to register a trademark on the federal register. By receiving a federal registration, the trademark owner gets exclusive use of that mark and can therefore control their brand and the source of their product.

The exact bar that removed the “Redskins” mark from the register, §1052(a), states that “[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it—

(a)Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute….”

When the U.S. Patent and Trademark Office determines “whether a proposed or existing mark violates § 1052(a)’s disparagement clause, [it] applies a two-part test:

(1) What is the likely meaning of the matter in question, taking into account not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods or services, and the manner in which the mark is used in the marketplace in connection with the goods or services; and

(2) If that meaning is found to refer to identifiable persons, institutions, beliefs or national symbols, whether that meaning may be disparaging to a substantial composite of the referenced group.”

The “Redskins” mark failed this test due to its disparaging reference toward Native Americans. Therefore Washington retroactively lost its trademark registration, but that does not mean they can’t continue to use the mark in commerce. It means they no longer have exclusive rights to it and anyone and everyone who wants to can also use it.

Washington has continued to file appeals to this decision, including a brief by attorney Lisa Blatt which has garnered a lot of attention due to the defense strategy she decided to take. Blatt claimed that registered trademarks are not government speech and that many other vulgar, immoral, scandalous, and disparaging marks are currently on the federal register.

However, a recent unexpected twist has been introduced into this discussion. The U.S. Court of Appeals for the Federal Circuit decided the case In re Tam in December and held that this bar against disparaging marks infringes upon free speech and is therefore unconstitutional. Which means barring the “Redskins” mark and other marks previously determined to be disparaging from the trademark register is not allowed under the constitution. This appeals court’s decision is not binding on the Fourth Circuit, which is where the “Redskins” case is currently being considered. However, since this decision has struck down part of a federal statute, it creates a likely opportunity for the U.S. Supreme Court to step in and make a final ruling on whether the bars should be struck down permanently or not.

New TPP Provisions Rubbing IP the Wrong Way

There has been a lot of discussion about the Trans Pacific Partnership, previously due to its content being privately written and decided on. (See previous blog written about those issues.) However, now that the content of this agreement has been made available to the public there are now more specific arguments and discussions being held on its chapters and the legal areas it covers.

Chapter 18 is the section that pertains to Intellectual Property. The chapter summary at the beginning of this section states that this part of the agreement was intended to “help Americans take full advantage of our country’s innovative strengths and help to promote trade and innovation, as well as to advance scientific, technological and creative exchange throughout the region.” However, the actual provisions focus more on protecting the IP rights holders and preventing infringement at all costs, rather than focusing on promoting innovation and exchanging ideas.

Intellectual property laws are intended to balance the incentive for authors and inventors to create new and original works with the ability for others to access these works and comment, critique and build off of them. With stricter punishments and different procedures than normal U.S. intellectual property laws, especially for copyrighted works and patented inventions, this would suggest that innovation would be stifled. If creators are confused about the new regulations under this document they may be more hesitant to invent and create works in order to avoid accidentally violating the new regulations.

However, these regulations could have been worse. Originally the U.S. pushed for some very severe punishments for infringement. Even though most of those have been excluded, the current provisions are still not perfect. Many are concerned that conforming U.S. intellectual property laws to this agreement’s standards will restrict its ability to adapt to future needs and bind Congress’ hands in making IP legislation, especially in the midst of a booming and rapidly changing technology era. If the IP needs of the U.S. end up requiring a deviation from the protocols and regulations laid out in the TPP, it will be interesting to see if the agreement is upheld at the expense of the sustaining these needs or if the provisions will need to be revisited or even abandoned.

Trans Pacific Partnership Could put U.S. Intellectual Property Law in a Bind

Talk of the Trans Pacific Partnership has been in the news a lot recently; however, certain specifics about the deal itself have been more difficult to come by. The agreement is between Australia, Brunei, Canada, Chile, Japan, Korea, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam and it “eliminates tariffs on goods and services, tears down non-tariff barriers, and harmonizes regulations.” The agreement is made up of many different chapters that cover a broad number of topics and “sets down 150 negotiating objectives, such as tough new rules on intellectual property protection, lowering of barriers to agricultural exports, labor and environmental standards, rule of law and human rights….Congress would demand a loosening of restrictions on across border data flow, an end to currency manipulation, and rules for competition from state-owned enterprises.” With such an expansive list of goals and the level of significance this treaty would have, it’s no surprise that the amount of secrecy surrounding the terms and negotiations has people worried. The deal is under strict confidentiality until a final draft is produced, so the information made available thus far has either been chosen for release or leaked to the public.

One of those leaked sections was the chapter on Intellectual Property, which has raised many concerns. The chapter covers patent, trademark and copyright law and all countries involved in the agreement must follow the laid out requirements. In many ways the requirements are similar to current United States law, which is different, and in some areas, stricter than international policies. By forcing other countries to follow the United States’ strict laws, this will inhibit them from developing their own IP legislation, and it may force them into policies that have more benefits for large copyright owners and less room for innovation.

There is also an additional issue that arises from the agreement when it comes to arbitration. As of right now, certain breaches of the pact will be resolved by three arbitrators that are picked by the involved parties to oversee the process. However, since these arbitrators are not elected judges and will be determining “whether governmental actions, which are designed to protect our health, safety and environment and economic well-being, are consistent with the TPP[,]” there is a question of whether this decision making is constitutional.

However, for copyright law specifically, the TPP could mean big changes. For example, safe harbor provisions under the DMCA may no longer apply to some large intermediary websites such as YouTube and Google, and the duration of copyright ownership may be extended by decades, which could lead to significant problems for some newer public domain works in countries with shorter copyright terms.

The TPP seems to have a long road ahead before it is fully accepted and signed into effect, so in the meantime we’re left to wonder about the fate of these terms. If the TPP were to pass as is, copyright law could be changed without formal legislation and after being drafted mostly in secret, so many in the IP field are concerned about the extensive effects the deal will have. Many questions are left open about what will be retained from U.S. copyright law, what will be applied from it to other countries, what will change altogether, and with such a lack in transparency, these questions may unfortunately remain open for a while.

To Copyright or Not to Copyright?: How Oracle v. Google May Cause Issues for Future Software Development

When it comes to copyright law, software and how it should be copyrighted can be a complicated issue to tackle. The recent Oracle Am., Inc. v. Google, Inc. case is a prime example of this.

The company Oracle owns software which is a modified version of Javascript that allows for different kinds of programs to communicate and be compatible with each other. This type of software is called Application Programming Interfaces, or APIs. In this case, Google used Oracle’s APIs without permission in order to create Android and its mobile operating system, which prompted Oracle to sue Google and claim that this constituted copyright infringement. Once the case was brought to court, the U.S. District Court for the Northern District of California sided with Google, stating that these APIs were “methods of operation” which cannot be copyrighted under 17 U.S.C. § 102(b). However, on appeal in the Federal Circuit court, the decision was reversed and that court sided with Oracle stating that the APIs were in fact copyrightable material. The Supreme Court has denied to grant certiorari and hear the case, leaving many people disappointed, so now the case will be heard once more in district court where Google will try to show that its use of the APIs was fair use.

With the Supreme Court not making a decision on whether or not APIs can be copyrighted, this makes this case simply another fair use case. If the court sides with Google once more and determines its use was indeed fair, then this case can be used as precedent for other coders and software developers who get sued for using APIs later on down the road. However, each fair use decision relies on the specific details of that case, and the outcome is ultimately left to whatever court making that decision. Without a Supreme Court ruling that states whether APIs are copyrightable or not, there is no solid precedent for software developers to rely on, and using APIs without permission will still be risky.

APIs are crucial to interoperability between programs, and are a vital factor when it comes to being able to code and create new products. So deciding whether or not these interfaces can be copyrighted by a single company is concerning to many people in the software development field. If certain coders are familiar with a particular form of APIs, but they don’t have permission to use them and are afraid of being sued for copyright infringement like Google has been, new developments could be delayed. This potential lag could last for the amount of time it takes for the coders to learn how to use a new API, or get permission from the owner, or it could mean a complete halt altogether if the risk of a pricey lawsuit doesn’t seem worth it.

Other companies’ practice with regard to the use of APIs and similar programs without permission may depend on Google’s success with its fair use argument. Even if Google prevails, companies may decide that the chance of a lawsuit does not make it worth the risk at all.

Criminal Minds Think Alike: The Problem Social Media Presents in Elonis v. US

It’s not news that social media has become a large part of everyday life for many people. Facebook. Instagram. Snapchat. All are platforms that have increasingly replaced face to face interactions and communications. They allow people to stay in touch, share pictures of their pets, or sometimes reveal their most disturbing thoughts during a dark time.

This is what happened with Anthony Elonis in the recently talked about Elonis v. United States case. Elonis was going through a divorce when he began posting controversial “lyrics” to his Facebook page under the pseudonym “Tone Dougie.” He made unusual and violent comments about his ex-wife, police officers, patrons of the park where he worked, and even a kindergarten class. His remarks resulted in him losing his job, and his ex-wife obtaining a three-year-protection-from-abuse order in court against him. On top of that, Elonis was brought in for criminal charges under 18 U.S.C. § 875(c) for “transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another….” Elonis claimed that his First Amendment right to free speech allowed him to make these comments online because they were not a “true threat.”

While important issues regarding the First Amendment and free speech may seem prevalent in a case such as this, the Supreme Court didn’t discuss them. Chief Justice Roberts wrote the majority opinion that stated the true issue here was that the jury that convicted Elonis of communicating interstate threats was instructed to use the wrong standard when determining if he met the elements of the crime. The district court instructed the jurors by saying that “[a] statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” The court of appeals reviewed and agreed with these instructions, so the Supreme Court granted certiorari to review the case and define the correct standard that should be used.

The criminal statute 18 U.S.C. § 875 does not contain an explicit mentality requirement for communicating threats, and when a federal statute is silent on this issue, the Court reads into that statute a mental standard “which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” Which means the defendant “generally must ‘know the facts that make his conduct fit the definition of the offense even if he doesn’t know that those facts give rise to a crime.’” The defendant must be the one aware of his wrongdoing, so Elonis’ mental state is important for determining if he can actually be convicted.

The Government’s argument against Elonis is that since he knew the “contents and context” of his post, and a reasonable person would recognize that the posts would be read as threats, then a conviction can be upheld. However, this reasonable person standard is a negligence standard typically used for tort and civil cases and the Court “has been reluctant to infer that [it] was intended in criminal statutes.” Chief Justice Roberts stated in the Court’s opinion that this reasonable person standard is not enough to convict someone of communicating threats under 18 U.S.C. § 875, and therefore the conviction was reversed and the case was remanded back down to the lower court so that the jury instruction could be modified. The Court did not determine the exact standard for mental state that should be applied for this crime, but only determined that the one used was incorrect.

Determining the correct standard to use in this case could end up being complicated and tedious because of the new territory it’s covering. Technology is continuing to change legal landscapes, and deciding how to interpret threats made online is another example of that. Social media adds an extra level of obscurity to its users and their actions, which not only makes it harder for a court to decide which standard of criminal mentality applies, but also harder for a jury to decide if that standard is met in order to make a conviction. Online posts can be vague, not directed towards anyone specific, and they can make it easier for the defendant to claim he had no intent of wrongdoing while making them. These added complications make presenting evidence and proving the elements of certain crimes difficult. So even though the conviction was thrown out, the Elonis case should still be watched. Whatever standard the lower court uses on remand may end up setting the precedent for similar social media based cases in the future.