America-Israel Patent Law

A Copyright CrISIS?

(March 19: see update here.)

Israel has national elections next month, in which, yet again, Israelis will get to go to the polls to vote for a party that won’t represent them.  I suppose that’s better than not getting to go to polls to achieve the same result, which is what transpires in the PA.  Unfortunately, based on what gets reported in the mainstream media, we have no idea as to the views of the leading candidates on the issues of the day, because for the most part we’ve been reading and hearing about media-manufactured crises crudely designed to embarrass the current prime minister, and lots of mud-slinging between the heads of the different parties.  Including the most succinct expression of what’s on the mind of the present opposition heads, the bumper sticker reading “Anyone but Bibi”. 

Over the weekend, the PM’s Likud party came out with a new anti-left campaign video, which shows some ISIS a-holes in a pickup truck listening to an Arabic hip-hop song.  They stop, ask someone for directions to Jerusalem, and are told to turn left (which they do, at which point we can see said bumper sticker - in Hebrew - on the back of the truck.  Cute.)  This is followed by a The-left-will-give-into-terror-only-the-Likud-will-keep-you-safe message.  After the ad’s release, the usual suspects on the political left trotted out their usual responses – “incitement” (whatever the heck that’s supposed to mean), beneath contempt, beyond the pale, there should be a criminal investigation, etcetera.  Ho-hum.

More interesting to this IP practitioner was this report of the reaction of the band that wrote and performed the rap song used in the video, a couple of Jordanian guys who call themselves “Palestinians”: they say that the Likud didn’t obtain their permission to use the video, and that by associating them with ISIS (which – surprise! – is not particularly popular in parts of Jordan right now after immolating a Jordanian pilot), the Likud has placed their lives in danger.  They’re threatening legal action.

Of course, this claim got me to thinking, what legal action could they take, and where could they take it?  I would think their main goal would be to get the video taken down, and perhaps to receive some sort of compensation for its unauthorized use.  Inasmuch as the Likud used a significant portion of the song, and it plays through nearly the whole video, I don’t think “fair use” would be much of a defense.  So an injunction is in principle a possibility, as is financial remuneration.

But where to seek such redress?  I suppose they could approach a Jordanian court. I don’t know anything about Jordanian copyright law, but even if they were able to get an injunction and/or a monetary judgment there, good luck enforcing it here in Israel in a timely fashion, if at all.

More promising would be enforcement in Israel. Maybe. Jordan is member of the Bern Convention, so from the Israeli perspective, if under Jordanian law copyright inhered in their song as soon as it was fixed in a tangible medium, then per section 9 of the Israel copyright statute the song also became copyrighted in Israel at the same time.  Moreover, Israeli courts grant injunctions for IP infringement, and there is statutory compensation for copyright infringement even in the absence of proof of damage. 

There is, of course, the technical matter of finding a lawyer who would represent them: since 2000, the Jordanian Bar Association has forbidden its members from having any contact with Israelis, let alone representing them.  So in this case the band members would need to retain an Israeli lawyer directly, one who isn’t bothered by the asymmetry in representing someone from a country where that lawyer himself couldn’t obtain representation.  However, I have no doubt that such creatures exist, including some who would take a perverse pleasure in representing the band in this case. It wouldn’t be the first time Israel’s openness and tolerance proved to be its undoing.

After retaining an Israeli lawyer, the band members would need to get a judge’s attention soon; obtaining an injunction after the elections would by a Pyrrhic victory.  While there are procedures for obtaining emergency injunctions, I’m not going to speculate on whether or not an Israeli judge would grant such a motion in this case, and if he doesn’t, the case might not be heard for years. And here’s a bit of (not so) heretical speculation: the alacrity with which the case is handled might depend on the judge’s political views.

In addition to the straightforward assertion of infringement for use of the song without permission, the band members would also, apparently, have a claim for infringement of their “moral rights” per sections 45 and 46 of the statute to have their names associated with their work, and possibly for a derogatory association between them and the song by virtue of its being used in a Likud advertisement.

If infringement is found, the authors could receive up to 100,000 NIS (about $25K) without proof of injury.  But since the big political parties routinely go into debt to finance their campaigns, and then make the public pay for the shortfall, I wouldn’t count on monetary compensation if I were a member of the band.

Of course, the more obvious, faster and surer way to get the clip taken down is to file a copyright complaint with Youtube, where the clip is hosted.  Or maybe it’s not so obvious: as of this writing, the clip is still up.

It’s a safe bet that even if the clip comes down on Youtube, it will be reposted on Youtube and other clip-sharing services. 

The New-Look USPTO Site: "New" Isn't Necessarily "Improved"

This morning the USPTO launched a revamped version of its website, www.uspto.gov.  They'd had a beta version up for a month or so, but when I took a look at it I found that fewer than 60 people had actually commented on the new-look site, and the site as launched doesn't appear to have taken into account the comments left on the beta site.  

I haven't done a full exploration of the new site yet, but from the home page it looks like some things will be easier to find.  For example, there's a drop-down "quick links" menu right near the top of the home page that includes links to PAIR, EFS and EPAS and the MPEP, as well as the forms page and the patent/patent application databases.  These are frequently used pages, and it used to take some clicking (or some bookmarking) to get to EPAS, for example, so this new feature is pretty convenient.  The PTO tweaked the PAIR interface a few weeks ago - not to the better, to my taste - but it looks pretty much the same as it always did.  The patent search page is now slightly different, landing you on what used to be the "quick search" page, but you still have the choice of searching by patent number or using the "advanced search" option.  

Most of the older pages I've looked at still have the same look as the old version.  And that's a good thing, because the single most noticeable change for me was the poor - REALLY POOR - choice of colors on the home page, which is now also present on the patent forms page, the how to contact OED page (but not the OED page itself, which curiously links to a different, old-looking how to contact OED page), and many other pages.  They went with a gray/light blue/white color scheme, but light blue or gray letters on white are difficult to see (even if one enlarges the letters):

 

What gets me is that they received negative feedback about the font colors and sizes at least 12 days ago and did nothing about it.

The other thing I've noticed thus far is that the search engine is poor. Really poor. Inexcusably poor, as in "Throw-it-from-the-one-instead-of-handing-it-to-Marshawn-Lynch-what-were-they-thinking?" poor. For example, one of the comments complained about the apparent disappearance of the attorney and agent roster.  So I typed in "attorney roster" in the search box and got back the following:

Huh? I get the same thing when I type in "agent roster". If I type in "Office of Enrollment and Discipline" (which I only type in knowing from the past that the list of practitioners is found there, I'd have been clueless if this was my first time on the site), the OED's page is...the sixth result listed:  

What on earth is the matter with the search engine? Perhaps the fact that it's still a beta site - see the upper right corner of the screen shot above - has something to do with it. But it's still inexcusable. Perhaps some day we'll learn why the USPTO didn't just cut a deal with Google to power its search engine; it shouldn't be hard to do with an ex-Googler (some would say a still-Googler) at the helm.

Subscribers to Carl Oppedahl's usenet lists mentioned a number of other desirable changes to the USPTO's web site, which we may blog about on a different occasion.  In the meantime, this roll-out of the new site, while offering a few nice features, on the whole seems to have hit the ground with a thud.