Letter from AmeriKat: The patent "wrist" race begins, copyright bother for Bieber & 2016 election preview

The AmeriKat's Fitbit is great at monitoring activity,
as well as inactivity...

The pursuit of balance is a noble cause.  If obtained it can create happy, rested and centered family members, employees and friends.  Similarly, intellectual property lawyers are taught that balance is the goal of a properly functioning IP system.  In IP policy, we strive for the Goldilocks amount of incentivization, creation and protection.  But in the real world, competing interests stretch and distort the balance in our lives; we work too much, sleep too little.  In IP, we often find that we are protecting too much, but infringing too little.  How should we resolve the imbalance that we face in life or law in order to find the golden mean?  Well, if the stories from the AmeriKat are a guide, the answer seems to be "to litigate".

Silicon digital bracelets have now firmly replaced the leather and gold watches that used to adorn the wrists of lawyers and barristers monitoring their every step and heartbeat in the pursuit of health and balance.  It was therefore only a matter of time before the litigation arms (or wrist) race would commence.  On 10 June 2015,  Jawbone started patent litigation proceedings in court in the Northern District of California against Fitbit claiming that they are infringing three of their US patents relating to health and wellness management methods and systems for detecting, monitoring and reporting physiological conditions.  Fitbit's previous and current products are claimed to infringe these patents.  In its complaint Jawbone also stated their intention to request that the International Trade Commission (ITC) commence an investigation into Fitbit's alleged infringing activities (see footnote 1 of the complaint).  In a statement from Fitbit, the company declared that they were intending to "vigorously defend" the claims.  This was the second lawsuit filed by Jawbone against Fitbit.  The first lawsuit came at the end of May when  Jawbone filed a claim in San Francisco Superior Court alleging that Fitbit devised "a carefully orchestrated plan" to misuse its confidential information following a 5-team employee move from Jawbone.  In a statement Fitbit said that they were "unaware of any confidential or proprietary information of Jawbone in our possession and we intend to vigorously defend against these allegations."  The timing of these lawsuits is interesting; they came only a few weeks after Fitbit announced its intention to sell its shares on the New York Stock Exchange (see its S-1 form here).  However, if the litigation was hoped to make a dent, it hasn't yet.  Following Thursday's IPO, its shares are worth $32.50 - over 50% above its IPO price of $20.

Hip hop artist Devin "the Dude" Copeland saw his copyright claim against Usher and Justin Bieber resurrected last week as Circuit Judge Pamela Harris of the Court of Appeals for the Fourth Circuit vacated the district court's earlier ruling that "Somebody to Love" did not infringe Copeland's copyright in his own song of the same name.  In reaching its decision, the district court found that no reasonable jury could find that the songs were substantially similar under the intrinsic prong of the test (a subjective test).  They therefore did not consider whether they were extrinsically similar (an objective test looking at the parts of the work that are original and protected).  Admittedly not well-versed in Bieber's body of work, the AmeriKat spent an agonizing few minutes watching the video on YouTube (but she supposes that those who watched the video 305 million times cannot all be wrong).  The Appeals Court found that the chorus was similar and significant enough (in that they are "the heart of the compositions") for a reasonable jury to find that the songs were intrinsically similar.  Although the court recognized that the most obvious similarity of  the “I [] need somebody to love" chorus is common in music (see Jefferson Airplane and Queen), such an analysis would fall under the extrinsic assessment which looks at what portions of the work are protectable, not an intrinsic analysis where the the works in their entirety are examined.  The intrinsic analysis is what the ordinary listener would conduct.  The Appeals Court concluded that

"...when we listen to the choruses that way, and in the context of the entire songs, we hear the kind of meaningful overlap on which a reasonable jury could rest a finding of substantial similarity. It is not simply that both choruses contain the lyric “somebody to love”; it is that the lyric is delivered in what seems to be an almost identical rhythm and a strikingly similar melody. To us, it sounds as though there are a couple of points in the respective chorus melodies where the Bieber and Usher songs go up a note and the Copeland song goes down a note, or vice versa. In our view, however, a reasonable jury could find that these small variations would not prevent a member of the general public from hearing substantial similarity,"

The case has been remanded back to the district court.

Not one for the usual campaign
buttons, the AmeriKat has her whiskers
on this beauty from Democratic Stuff.

The AmeriKat is gearing up for the 2016 presidential elections.  Although her vote is a far way off from being cast, the AmeriKat has started to examine the intellectual property records of the candidates.  She is doing some more digging in time for the primaries, but in the meantime it may come as a surprise, especially to the younger Kat readers, that Hillary Clinton actually specialized in intellectual property law when at Rose Law Firm during the late 1970s in Arkansas.  Senator Bernie Sanders (I-Vt) and a contender for the presidential post proposed legislation a few years ago that followed the Joseph E Stiglitz "prizes not patents" school of thought by way of the The Medical Innovation Prize Fund Act.  That bill died in the last Congress (a summary of the legislation can be read here).  Meanwhile, Rand Paul has had an interesting approach to intellectual property (click link here).  Over the coming months, IP commentators and industries will undoubtedly be taking a deep dive into the IP credentials and positions of the candidates in order to predict how a Clinton or Bush or Cruz White House will impact IP law and policy.