Brookings: Experts - John Villasenor

Eyes in the Sky: The Domestic Use of Unmanned Aerial Systems

John Villasenor — Fri, 17 May 2013 09:56:00 -0400

Editor's Note: On May 17, John Villasenor testified before the House Judiciary Committee on the important topic of privacy and unmanned aircraft systems, often referred to as drones.

Good morning Chairman Sensenbrenner, Ranking Member Scott, and Members of the Subcommittee. Thank you very much for the opportunity to testify today on the important topic of privacy and unmanned aircraft systems (UAS).^{^[1]}

I am a nonresident senior fellow in Governance Studies and the Center for Technology Innovation at the Brookings Institution. I am also a professor at UCLA, where I hold appointments in the Electrical Engineering Department and the Department of Public Policy. The views I am expressing here are my own, and do not necessarily represent those of the Brookings Institution or the University of California. Portions of my testimony today are adapted from a law review article I recently published in the Harvard Journal of Law and Public Policy.^{^[2]}

UAS, often referred to as “drones,” can be employed in an endless variety of civilian applications, the overwhelming majority of them beneficial. However, like any technology, UAS can also be misused. The most common concern regarding domestic UAS relates to their potential impact on privacy. This is a legitimate concern. Existing laws and jurisprudence provide an important foundation, but they also leave many questions unanswered.

For non-government operators, determining when UAS use violates privacy involves the tension between First Amendment freedoms and common law and statutory privacy protections. With respect to government-operated UAS, the Fourth Amendment is of course central to the privacy question. While the Supreme Court has never explicitly considered warrantless observations using UAS, a careful examination of Supreme Court privacy jurisprudence suggests that the Constitution will provide a much stronger measure of protection against government UAS privacy abuses than is widely appreciated. The Fourth Amendment has served us well since its ratification in 1791, and there is no reason to suspect it will be unable to do so in a world where unmanned aircraft are widely used.

This does not mean that there is no need for additional statutory UAS privacy protections. However, when drafting new laws it is critical to adopt a balanced approach that recognizes the inherent difficulty of predicting the future of any rapidly changing technology. Although unmanned aircraft pose real and increasingly well-recognized privacy concerns, they also offer real and much less widely understood benefits. A dialog conducted with full awareness of this balance will be much more likely to lead to positive policy outcomes.

[1] The acronym “UAS” is also sometimes expanded to “unmanned aerial systems.”

[2] John Villasenor, Observations From Above: Unmanned Aircraft Systems and Privacy, 36 Harv. J.L. & Pub. Pol'y 457 (2013).

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John Villasenor

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The 'First Sale Doctrine' and Its Impact on the Music Business

John Villasenor — Fri, 03 May 2013 11:16:00 -0400

On March 19, the Supreme Court issued its decision in Kirtsaeng v. John Wiley & Sons, a landmark copyright case examining the reach of the “first sale” doctrine. Under that doctrine, the owner of a copy of a work that was “lawfully made” in accordance with U.S. copyright law “is entitled, without the authority of the copyright owner, to sell or otherwise dispose” of it. For instance, if you purchase a lawfully produced music CD or movie DVD in the United States, you are free to later sell it at a garage sale, donate it to a library or loan it to a friend.

But what about goods made and sold overseas and then imported for resale? After all, there is another provision of copyright law that prohibits the importation into the United States, without the authority of the copyright owner, of copies of a work “acquired outside the United States.”

These two potentially contradictory features of copyright law were tested by Supap Kirtsaeng, who built a business around importing textbooks that had been lawfully made and sold overseas and then reselling them at a profit in the United States. After publisher John Wiley & Sons filed suit against Kirtsaeng in 2008, a federal district court found that his actions infringed Wiley’s copyrights, and the Second Circuit affirmed. However, the Supreme Court reversed these decisions on March 19, holding that the first sale doctrine “applies to copies of a copyrighted work lawfully made abroad.” The ruling will make it very difficult for sellers of physical goods like music CDs to price the same products differently in different markets.

So what will this mean for music sales? In an amicus brief filed in the case, the RIAA and Motion Picture Assn. of America warned against exactly the decision the Supreme Court has now made, stating it “would undermine the copyright protection on which artistic fields like the motion picture and music industries depend for their economic viability” and “have deleterious consequences for the U.S. economy as a whole.”

The Supreme Court’s Kirtsaeng decision undeniably weakens the power of copyright holders. But it’s a bit of a stretch to suggest that the entire U.S. economy might suffer significant harm as a result. In fact, the negative impact on music copyright holders will likely be far more modest than some people expect. Why? Because the first sale doctrine applies to sales. By contrast, music download and cloud-based access services can be delivered using licenses that allow copyright holders to retain a much higher level of control over use of the work.

Not all licenses, however, are equivalent. For example, ReDigi has built an online digital music marketplace based in part on its belief that the iTunes terms of sale, in contrast with the terms of use for Amazon’s online music store, provide for a transfer of title that allows iTunes customers to resell their songs. Whether that interpretation carries the day will depend on the outcome of an ongoing lawsuit filed against ReDigi by Capitol Records in a New York federal district court.

More generally, it is certainly possible -- and very common -- to design licenses in which customers do not become owners of a copy of a song. Under such licenses, music copyright holders can and routinely do impose restrictions on resale and geographic portability. Whether these sorts of restrictions are well matched to the ways in which people and information move in today’s world is a debate for another day. But as profoundly important as Kirtsaeng is for copyright in the broader sense, it may have little impact on a music ecosystem increasingly built around licensing-based approaches for distributing “purchased” content.

Authors

John Villasenor

Publication: Billboard

Image Source: © Siphiwe Sibeko / Reuters

No-Fly Zone: How “Drone” Safety Rules can also Help Protect Privacy

John Villasenor — Thu, 02 May 2013 15:54:00 -0400

Editor’s Note: This article on how drone safety rules can also help protect privacy arises from Future Tense, a partnership of Slate, the New America Foundation, and Arizona State University.

For most of the 20^th century, obtaining overhead images was difficult and expensive. Now, thanks to advances in unmanned aircraft systems—people in the aviation field tend to dislike the word drone—it has become easy and inexpensive, raising new and important privacy issues [PDF]. These issues need to be addressed primarily through legal frameworks: The Constitution, existing and new federal and state laws, and legal precedents regarding invasion of privacy will all play key roles in determining the bounds of acceptable information-gathering from UAS. But safety regulations will have an important and less widely appreciated secondary privacy role.

Why? Because safety regulations, which aim to ensure that aircraft do not pose a danger in the airspace or to people and property on the ground, obviously place restrictions on where and in what manner aircraft can be operated. Those same restrictions can also affect privacy from overhead observations from both government and nongovernment UAS. FAA regulations make it unlawful, for example, to operate any aircraft (whether manned or unmanned) “in a careless or reckless manner so as to endanger the life or property of another.” Aircraft must also be operated at a sufficiently high altitude to allow “an emergency landing without undue hazard to persons or property on the surface” in the event of an engine failure. Flying a UAS around someone else’s backyard can be a bad idea for lots of reasons, including the possibility of violating these rules.

UAS safety (and other) regulations are in the midst of an overhaul. Last year, President Obama signed an FAA reauthorization bill that provides for the integration of UAS into the national airspace by late 2015. Under this new law [PDF; see Sections 331–336], since May 2012 law enforcement agencies have been able to apply for expedited authorizations to use certain types of small UAS, which must be operated during daylight, less than 400 feet above the ground, and within “line of sight” of the operator. This means that the operator can see a UAS with his or her own eyes as it is being flown. (The phrase “visual line of sight” is sometimes distinguished from “line of sight,” which can refer to operation in which a radio signal can be transmitted directly from an operator to a UAS that may be beyond visual line of sight. However, in the 2012 FAA reauthorization bill, “line of sight” is almost certainly intended to mean “visual line of sight.”)

Visual line of sight operation is also required under a definition [PDF; see Section 336] provided for “model aircraft” in the 2012 law. However, that definition is specific to that section of the law and may not apply to all hobbyist unmanned aircraft. The FAA’s Advisory Circular [PDF] on “model aircraft operating standards” does not mention line of sight, though model aircraft operation beyond the line of sight would risk being viewed by the FAA as careless or reckless. The FAA is also very likely to require visual line of sight operation in new rules for most (but not all [PDF]) commercial, research, and other uses of UAS.

From the FAA’s standpoint, line-of-sight rules are aimed solely at ensuring safety, since an operator who can’t see the aircraft he or she is flying can find it harder to “see and avoid” other aircraft in the vicinity. But line-of-sight operation also provides some measure of privacy protection by excluding some of the most egregious potential abuses. It is very hard for an operator in front of a house to maintain visual line of sight while lowering an unmanned aircraft into the fenced‐in backyard to obtain eye‐level images through the back windows of the house.

While there is nothing physically preventing an unmanned aircraft from being flown in violation of these and other FAA rules, the potential consequences of doing so can provide a strong set of disincentives. An individual, company, or other organization that runs afoul of FAA rules could face fines or other legal consequences and find its authorization to operate unmanned aircraft suspended or revoked. That may not stop the most determined paparazzi from snapping overhead pictures of sunbathing movie stars, but it should help dissuade many would-be UAS voyeurs.

And what would happen if a law enforcement agency violated FAA rules while using a UAS to get images of a suspect’s backyard? Would acquiring those images be a Fourth Amendment “search,” and therefore be unconstitutional without a warrant?

While the Supreme Court has never specifically ruled on UAS privacy, it considered warrantless observations from manned government aircraft on three occasions in the 1980s. In the 1986 California v. Ciraolo decision, for instance, the court ruled that police observations from an airplane flying at 1,000 feet of marijuana growing in a backyard were constitutional. Noting that the “observations … took place within public navigable airspace … in a physically nonintrusive manner,” the court held that the “Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.” In two other decisions involving observations of private property from aircraft—Dow Chemical Co. v. United States in 1986 and Florida v. Riley in 1989—the justices also viewed the fact that the aircraft were lawfully operated as a factor, although far from the only one, in finding no Fourth Amendment violation. In light of these precedents, a court might well find gathering images from government aircraft operated in violation of FAA regulations to be unconstitutional.

It’s still far too early to know exactly how FAA rules designed to provide safety and efficiency will affect unmanned aircraft privacy. Commercial UAS operation in the United States is not yet permitted, and the number of law enforcement organizations that have received FAA authorizations for operational (as opposed to training) UAS use is still very limited. And while there is a large and growing community of “drone” hobbyists, the overwhelming majority of them fly safely and in a manner respecting privacy.

However, as unmanned aircraft use increases there will inevitably be instances in which UAS are operated by private individuals, paparazzi, companies, and law enforcement agencies in ways that raise privacy concerns. Determining whether those uses violate reasonable expectations of privacy will sometimes start—though certainly not end—with an inquiry into whether the UAS was operated in compliance with FAA regulations.

Authors

John Villasenor

Publication: Slate

Image Source: © Jean-Paul Pelissier / Reuters

Six "Megatrends" That Will Shape the Future of Digital Media

John Villasenor — Wed, 01 May 2013 16:47:00 -0400

Editor’s Note: John Villasenor’s piece on the six "megatrends" that will shape the future of digital media was first published in Forbes. Villasenor is a nonresident senior fellow in Governance Studies’ Center for Technology Innovation at Brookings and is a member of the World Economic Forum’s global agenda council on the intellectual property system.

The World Economic Forum is perhaps best known for its annual meeting in Davos, Switzerland, which brings together heads of state, CEOs of some of the world’s largest companies, and assorted other movers and shakers for a week of speeches, panels, and workshops in the Swiss Alps each January. But the Forum also works year-round through its network of over eighty global agenda councils, which address a diverse range of topics including biotechnology, climate change, energy security, and youth unemployment.

Since last year, I’ve been a member of the Forum’s global agenda council on the intellectual property system. We’ve taken a careful look at the forces shaping how people are creating and sharing digital media today, and perhaps even more importantly, what the world of digital media will look like in the coming years. We’ve distilled these down to a set of six digital content “megatrends” that, translated from policy-wonk language into English, are as follows (the unsimplified version is here [PDF]):

Content distribution models are shifting towards instantaneous, ubiquitous access, often using social networks
New technologies, big data, and the growth of virtual content are reshaping the creative economy landscape
The traditional lines between content creators and content consumers are blurring, with consumers playing an increasingly important role in collaborative content creation
Business models for digital content distribution are changing, with licensing and service-based delivery models replacing traditional sales-based distribution
Commerce in creative works is increasingly global – but national and regional intellectual property frameworks have yet not caught up with the full range of cross-border content movement enabled by today’s technologies
Technology is making it easier to modify and redistribute content. The resulting complex chains of “derivative works” provide increased opportunities to capture creativity, but also create challenges to managing copyright.

Many aspects of these trends are obvious. It’s not news to anyone that technology has altered how we create and distribute content, that business models for media distribution have evolved dramatically over the last decade, or that intellectual property laws need to be updated. But articulating the key trends impacting digital media can provide a useful framework for rethinking intellectual property, both at the level of individual companies as well on a national and global scale.

For example, if your business uses crowdsourcing to capture the collective creative input of a large customer base (or for content distributors, a large audience), there are important questions that can arise regarding ownership of the associated intellectual property – questions that don’t always end with the terms of use that your customers accept as a condition of joining your ecosystem. If your company is contemplating a business model that includes cross-border distribution of certain types of digital media, you will likely encounter a complex licensing landscape that can make it difficult to maximize your market reach.

Addressing the many challenges of doing business in a global digital media environment requires not only working effectively within existing intellectual property frameworks, but also helping policymakers identify ways in which those frameworks can be suitably updated. The trends listed above can provide context for conversations serving both of those ends. The result can be a set of intellectual property solutions allowing content creators to reach larger and more engaged audiences, consumers to benefit from increased choice, and the businesses that connect them to broaden the scope of their products and services.

Authors

John Villasenor

Publication: Forbes

Google Glass, Resale Restrictions, and the Demise of Ownership

John Villasenor — Fri, 26 Apr 2013 12:02:00 -0400

Editor’s Note: In this article, first published by Slate, John Villasenor writes about Google Glass and how restrictions on its resale affect consumers and the privileges of ownership. It arises from Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture.

Late last month, Google selected 8,000 people to be given the privilege of forking over $1,500 to purchase a pair of Glass, the Internet-connected glasses that promise to bring wearable computing to a whole new level.

But ownership isn’t what it used to be. According to the Google Glass terms of sale,

[W]hen you purchase Glass devices or accessories from Google … [y]ou may not commercially resell any Device, but you may give the Device as a gift, unless otherwise set forth in the Device Specific Addendum. Recipients of gifts may need to open and maintain a Google Wallet account in order to receive support from Google. These Terms will also apply to any gift recipient.

Welcome to the shrinking privileges of ownership in an always-connected world. Are these terms beneficial for consumers? Clearly not. Are they even enforceable? To at least some extent, they probably are.

Prohibiting resales, loans, and other transfers after an initial sale has long been understood to be bad for both markets and consumers. Back in the 1600s, English jurist Lord Coke recognized [PDF, see section 360] the harms to “trade and traffique, and bargaining and contracting” that could result from transfer restrictions placed on owners. In its March 2013 ruling in Kirstaeng v. John Wiley & Sons Inc., the Supreme Court cited Lord Coke and wrote that “American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer.”

In copyright law (which protects original works of authorship), an owner’s freedom to resell, donate, or otherwise dispose of lawfully made printed books, music CDs, movie DVDs, and other physical (but not electronic!) copies of works is known as the “first-sale doctrine.” For patented inventions, the analogous concept is called patent exhaustion. As the Supreme Court explained in a 2008 decision in Quanta Computer Inc. v. LG Electronics Inc., the “longstanding doctrine of patent exhaustion provides that the initial authorized sale of a patented item terminates all patent rights to that item.” If you own a lawfully made music CD or a legitimately purchased automobile (which contains many patented components), you are free to resell either one without first seeking the consent of the associated copyright and patent holders.

But that doesn’t mean you are free to resell Google Glass. Why not? Because the first-sale doctrine and patent exhaustion, which reflect federal law limitations on the rights of intellectual property holders, are not the only considerations. Contractual obligations are also important. A purchaser who enters into and then violates an agreement prohibiting resales could be exposed to a breach-of-contract claim. If your purchase of Glass from Google was accompanied by a promise not to commercially resell it, turning around and offering your Glass to the highest bidder on eBay could land you in hot water.

Another complication is that Google Glass, like many recent- and emerging-generation consumer electronics products, is made useful largely through its ability to connect to license-based service offerings. When you use a service such as Google Maps, you do so under a license to access the associated content—you’re a licensee, not an owner of that content.

The model of requiring purchasers of consumer electronics devices to first enter into restrictive contracts as a condition of sale and then to agree to restrictive licenses when using those devices raises multiple concerns. Most fundamentally, it does an end run around legal frameworks that evolved specifically to prohibit anti-competitive and consumer-unfriendly downstream control over transfers of ownership. And it’s confusing for consumers.

t’s tempting to think of the Glass resale restriction as simply another unwelcome consequence of the many legalese-laden agreements that we all encounter when using almost any online service. But most of those agreements involve restrictions on data, not the devices on which they reside. You can’t resell files containing songs downloaded from Amazon, map data from Google, or restaurant recommendations from Zagat. Our purchased devices, by contrast, have generally been ours to keep, sell, loan, or donate as we see fit. That flexibility is lost when a purchase comes with restrictions like those in the Glass terms of sale.

So, what’s the solution? Ideally, device sales shouldn’t come with downstream resale restrictions. People who buy consumer electronics devices ought to be free to enjoy all the traditional privileges of ownership—including the ability to dispose of them on terms of their own choosing. Companies unwilling to provide that flexibility should at least ensure that their customers are clearly informed of the strings attached to “ownership.” In this respect, Google could do better. The Google Glass terms of sale, for example, purport to “apply to any gift recipient” to whom you might give Google Glass. What does that really mean? If you give someone Google Glass, is it your responsibility to ensure that the recipient is duly informed of and agrees to the resale prohibition? If you don’t even raise the issue—or if you do but the would-be-recipient doesn’t agree—can you still give the gift? And if that person sells your gift on eBay, was there a breach of contract, and if so, of what contract?

Consumers, too, can push back against what may be a growing trend to encumber purchases of advanced consumer electronic devices. If consumers display a reluctance to accept overly restrictive device sale terms, market pressure should force companies to adopt terms ensuring that we really own the things we buy.

But if the heated competition for the right to buy Google Glass is any indication, we won’t see that market pressure brought to bear any time soon. That’s unfortunate, because there’s a risk of creating a new normal that leaves consumers with a substantially diminished set of rights regarding their devices. In the mean time, if anyone offers to give you a pair of Glass as a gift, you may want to read the fine print.

Authors

John Villasenor

Publication: Slate

Image Source: © Stephen Lam / Reuters

Is It Illegal to Resell “Used” Digital Music?

John Villasenor — Tue, 23 Apr 2013 15:37:00 -0400

Editor’s Note: This article was first published by Slate. It arises from Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture.

When you purchase a lawfully produced music CD, you are entitled under U.S. copyright law “to sell or otherwise dispose” of it without seeking permission from the copyright holders. Without the protection of this “first-sale” doctrine, simple acts such as donating a used book to a library or selling old music CDs on eBay would constitute copyright infringement. But what happens if you purchase a song through an online store such as iTunes? Does the first sale doctrine protect the right to resell digitally purchased works as well?

According to a March 30 ruling [PDF] from a federal judge in New York, the answer is no. Back in October 2011, a startup company called ReDigi launched an online digital marketplace enabling users to “sell their legally acquired digital music files, and buy used digital music from others at a fraction of the price currently available on iTunes.” ReDigi created a website to facilitate resales, plus a downloadable “Media Manager” designed to ensure that users would not retain copies of songs they had sold.

In January 2012, Capitol Records filed a complaint [PDF] in a New York federal court alleging that “ReDigi is actually a clearinghouse for copyright infringement and a business model built on widespread unauthorized sound recordings owned by” Capitol and others. In this week’s ruling, Judge Richard J. Sullivan agreed. ReDigi’s service, he wrote, “infringes Capitol’s exclusive right of reproduction” as well as its “exclusive right of distribution.” And Judge Sullivan went further, concluding that “the Court cannot of its own accord condone the wholesale application of the first sale defense to the digital sphere, particularly when Congress itself has declined to take that step.”

The ruling doesn’t address a key question implicated in digital resales: When are people who “purchase” a song for download from a retailer owners of a copy of the song, and when are they simply licensees? After all, the first-sale doctrine applies to sales. For music provided using license-based delivery models in which buyers don’t own the downloaded content, there’s a reasonable argument that the first-sale doctrine doesn’t apply.

ReDigi was well aware of this potential hurdle and argued to the court in a brief [PDF] filed last year that the iTunes terms of sale, in contrast with the terms of use for Amazon’s online music store, provide for a transfer of title that allows iTunes customers to subsequently resell their songs. But the court’s March 30 ruling doesn’t address the license/sale distinction. Rather, it focuses on the undisputable technical fact that when a digital song is sold on the secondary market, a copy is created on the purchaser’s computer (or cloud-based locker). That copy, ruled the judge, is an unauthorized reproduction.

The decision quotes from—and is clearly influenced by—a 2001 U.S. Copyright Office report to Congress [PDF] that argued strongly against allowing consumers the right to resell digital works:

“Physical copies of works degrade with time and use, making used copies less desirable than new ones. Digital information does not degrade, and can be reproduced perfectly on a recipient’s computer. The ‘used’ copy is just as desirable as (in fact, is indistinguishable from) a new copy of the same work. Time, space, effort and cost no longer act as barriers to the movement of copies, since digital copies can be transmitted nearly instantaneously anywhere in the world with minimal effort and negligible cost. The need to transport physical copies of works, which acts as a natural brake on the effect of resales on the copyright owner’s market, no longer exists in the realm of digital transmissions.”

All of these statements are true. But isn’t the ability to create copies of works that don’t degrade over time, on balance, a positive development as opposed to something to be feared? Don’t the upsides of technologies that can allow information to be moved instantaneously and at negligible cost outweigh the downsides?

The Copyright Office’s 2001 opposition to a digital first-sale doctrine was grounded in part on the legitimate concern that people might resell copies of digital works while also retaining them. The technology to ensure that the seller’s copy was deleted was deemed “not viable at this time.” However, that is no longer true. As indicated by ReDigi’s service—and by a digital resale patent from Amazon and a patent application from Apple—there are solutions that can help ensure that a single digital sale by a retailer doesn’t turn into multiple digital copies in the secondary market. Are these solutions perfect? Of course not. But do they represent good-faith efforts to harness technology in a way that respects the rights of owners of legitimately purchased content as well as those of copyright holders? Yes, they do.

Copyright holders have every right to expect legal protection from piracy and other improper uses of their intellectual property. But people who make legitimate purchases of digital content have rights as well—rights that are not fully respected under current copyright frameworks.

Of course, if copyright holders provide consent, then digital resales can be legally conducted even without a change in copyright law. In this respect, Apple’s recently published patent application is intriguing, because it describes mechanisms for content creators, publishers, and retailers to share in the proceeds from digital resales. While this raises concerns from a policy standpoint (because it allows double- and triple-dipping on revenues from downstream sales of the same piece of content), it’s a solution that can enable a lawful secondary market in digital works without waiting for Congress to act. We shouldn’t be surprised if Apple is busy negotiating deals with copyright holders that will allow it to introduce a digital resale service in the iTunes store.

If that happens, the “most offered for resale” list could provide an interesting new source of data on artist and song popularity.

Authors

John Villasenor

Publication: Slate

Image Source: © Regis Duvignau / Reuters

Supreme Court Finds the Use of a Drug-Sniffing Dog to Investigate a Home Unconstitutional

John Villasenor — Wed, 27 Mar 2013 15:27:00 -0400

On March 26, the Supreme Court issued its decision [PDF] in Florida v. Jardines, a case involving police use of a drug-sniffing dog on the front porch of a home to detect marijuana growing inside. In a 5-4 opinion delivered by Justice Scalia, the Court held that “the government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”

In 2006, following a tip regarding marijuana being grown in a house, Miami police brought a drug-sniffing dog to the front porch. After the dog indicated the presence of drugs, police obtained a warrant, found marijuana in the house, and arrested Joelis Jardines. At trial, Jardines claimed that the use of the drug-sniffing dog was a Fourth Amendment violation. After a trial court and then the Florida Supreme Court agreed, Florida petitioned and was then granted a Supreme Court review, and oral arguments were heard in October 2012.

The Court’s opinion in Jardines is narrowly crafted, focusing on the government’s physical intrusion into the constitutionally protected area immediately surrounding the home (called the “curtilage”) for the purposes of gathering evidence. The Court acknowledged the existence of an implicit license permitting visitors to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” “Complying with the terms of that traditional invitation,” explained the Court, “does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” However, there is no implicit license to introduce “a trained police dog to explore the area around the home in hopes of discovering incriminating evidence.” Since the officers were able to learn that marijuana was being grown in the home only by “physically intruding on Jardines’ property to gather evidence,” the search was unconstitutional in the absence of a warrant.

The majority opinion explicitly declined to consider whether the officers’ search of Jardines’ home violated his reasonable expectation of privacy; it was sufficient to find a constitutional violation based on what the Court characterized as “the traditional property-based understanding of the Fourth Amendment.” A concurring opinion from Justice Kagan and joined by Justices Ginsburg and Sotomayor went further. “Yes,” Justice Kagan wrote, the officers’ actions constituted a trespass. “Was it also an invasion of privacy? Yes, that as well.”

In some respects, the Jardines decision echoes the Court’s January 2012 decision in United States v. Jones [PDF], the GPS-tracking case in which Justice Scalia’s majority opinion also found a Fourth Amendment violation in the act of trespassing—in that case with respect to the physical intrusion involved in placing a GPS receiver on a car without a valid warrant. In Jones there was also a concurrence (two, in fact) suggesting that the information gathered by the government violated a reasonable expectation of privacy.

As technology continues to advance, it will become harder to rely on a property-focused view of the Fourth Amendment when assessing what constitutes a “search.” In fact it is actually the 2001 Kyllo v. United States case, and not this week’s ruling in Jardines or last year’s decision in Jones, that is in some ways more indicative of the types of complex questions the Court will grapple with in future privacy cases. In Kyllo, the Court considered the government’s use of a thermal imager in a car on a public street to detect the interior temperature of a home. There was no trespass in Kyllo, leaving the Court no choice but to evaluate the constitutionality of the government’s actions on the basis of what the technology itself could reveal. When the government “uses a device that is not in general public use,” the Court held in Kyllo, “to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Suppose that the police in Jardines had used the drug-sniffing dog—or, for that matter, an inanimate sensor—from the vantage point of a public sidewalk in front of the house? The majority opinion in Jardines doesn’t address this scenario. Justice Kagan and the two justices who joined her concurrence considered a trained drug-detection dog to be a device not in general public use, and on those grounds would have found its use unconstitutional in light of Kyllo. By contrast, Justice Alito and the three other dissenting justices disagreed that Kyllo was applicable in Jardines, noting that a dog is neither a new form of technology nor a device.

Technology is making it increasingly easy to access information that most of us would consider private without physically trespassing on private property. Mobile devices and apps, smart meters, and Internet histories can convey enormous amounts of information about activities both within and outside a home, all of which can potentially be accessed by third parties who never set foot in a home or its surroundings. Some of the most pressing privacy questions that will land at the Supreme Court’s feet in future years will involve exactly this sort of data, collected using technologies that are in general public use—and therefore outside the scope of the holding in Kyllo. When that happens, the Court will face the unenviable task of determining what, in today’s day and age, constitutes a reasonable expectation of privacy in light of technologies that are both highly sophisticated and widely used.

Authors

John Villasenor

Publication: Forbes

The United States Transitions to a 'First-Inventor-To-File' Patent System

John Villasenor — Mon, 11 Mar 2013 00:00:00 -0400

The United States has long had a “first-to-invent” patent system in which the date of invention could trump the date of filing a patent application in determining patent rights. However, that is set to change due to the America Invents Act (AIA), a sweeping patent reform bill signed into law by President Obama in September 2011.

For patent applications with an effective filing date of March 16, 2013 or later, the United States shifts to what is often – and only partially accurately – called a “first-inventor-to-file” or “first-to-file” system. The reality is more complex than those designations imply, as patent rights in the United States under the first-to-file system will depend on the interplay between the dates of filing and of any pre-filing disclosures of the invention.

As I explained in an article in Fast Company last year:

Consider, for example, the case of an employee at Company A, who conceives an invention in May, works diligently to reduce it to practice, and files the corresponding patent application in August. Suppose, further, that an employee at Company B independently conceives the same invention in June and files for a patent in July.

Who gets the patent? Under the pre-AIA first-to-invent rules, Company A can get the patent because its employee invented first. However, under the new first-to-file system, things will be more complicated.

If Company A does not make any public disclosures regarding the invention before the August filing, Company B can get the patent by virtue of its earlier filing date. This is exactly what would be expected given the term "first-to-file."

On the other hand, suppose that Company A describes the invention in detail (or in more formal terms, provides a disclosure) at a trade show, before a disclosure or a filing by the second company. In this case, Company A can get the patent even though it filed after Company B.

Pre-filing disclosures, however, have a very important downside that wasn’t changed by the AIA: They can eliminate the ability to obtain rights in the many international jurisdictions that do not recognize a “grace period” for disclosures made in advance of filing a patent application. What has changed is that under first-to-file silence can be more costly than before with respect to U.S. patent rights.

Under first-to-file, an inventor who does not take prompt action to protect his or her invention faces a higher risk that a later inventor will end up holding the associated U.S. patent rights. In part for this reason, the U.S. Patent and Trademark Office is likely to see increased numbers of provisional applications, which if done properly can be a cost-effective way to obtain an early priority date for a patent application.

Much ink has been spilled debating the merits of the move to a first-to-file system. It is often suggested, for example, that it will favor larger companies with more financial resources. However, as I explained in this Forbes article, that isn’t necessarily true. Larger companies may have more money, but they also have more people creating inventions. Smaller companies can be more agile in identifying which innovations are worth patenting, and then acting quickly to take steps to protect them.

While first-to-file has gotten significant attention, the AIA contains many other provisions [PDF] as well, most of which have already taken effect. Companies, universities, individual inventors, and other patent-seeking entities should update their procedures and training accordingly. A good patent attorney or patent agent can play a vital role in helping inventors navigate first-to-file and the other changes provided under the AIA.

Authors

John Villasenor

Publication: Forbes

Image Source: © Pichi Chuang / Reuters

Eye-Tracking Smartphones Have Arrived. What About the Privacy Implications?

John Villasenor — Tue, 05 Mar 2013 00:00:00 -0500

Last March, I wrote in Slate about eye-tracking, which could allow computers and smartphones of the future to collect information not only about what we read, but how we read it.

It appears that the future has arrived. The Samsung Galaxy S IV, which is slated for introduction next week, will reportedly include an eye-tracking feature to make it easier to scroll pages without physically touching the screen. Some people will view this as an added convenience, and for people with certain types of disabilities, navigating by eye-movement can be a vitally important way to interact with objects on a screen.

But there's also something a bit chilling about the prospect that our mobile devices might be watching us while we’re watching them. After all, there is information in what our eyes do when they scan a page. Where do they linger? What do they skip?

In a world where there is potential marketing and advertising value in every scrap of data about how we interact with our devices, it is hard to imagine that this rich new source of information will go untapped. It probably won't be long before terms of service for some mobile apps get revised to allow collection and resale of eye-tracking data. Clicking "accept" when downloading a new app may mean agreeing to have your eye movements sent to the cloud, analyzed, aggregated with other data collected from your device, and then resold into the mobile marketing ecosystem.

For the traditionalists among us who—how quaint!—prefer to keep our eye movements to ourselves when reading, there will presumably be an option to turn the tracking function off. But will turning it off mean that the smartphone stops tracking our eye movements altogether? Or that it still tracks them, but just doesn’t use the resulting information to alter the display on the screen? And, if history is any guide, there will be some third-party apps that "accidentally" collect eye movement information anyway, even when users explicitly request otherwise.

As I wrote last March, in a world without eye-tracking, our thoughts when we read something are largely our own, and we should enjoy it while it lasts. It looks like the curtain on one more form of privacy may be coming down a lot sooner than most of us expected.

This piece originally appeared at Slate.com.

Authors

John Villasenor

Publication: Slate.com

Image Source: © Stoyan Nenov / Reuters

The Satellite Question: Why SiriusXM Should Pay Higher Performance Royalties to Artists

John Villasenor — Fri, 22 Feb 2013 00:00:00 -0500

On Feb. 14, the Copyright Royalty Board issued a “final determination” setting SiriusXM’s statutory sound recording performance royalty rate for 2013 at 9% of “gross revenue.” This rate is too low by several percentage points, depriving artists and labels of tens of millions of dollars of royalty payments that will instead flow into SiriusXM’s coffers.

SiriusXM’s satellite radio service is subject to a standard called 801(b), which requires the CRB to balance the interests of copyright holders and the public when setting statutory royalty rates. In addition, 801(b) mandates calculating rates that “minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices.” During the CRB proceeding for the previous licensing period, which covered 2007-12, the CRB judges concluded that 13% of gross revenue was the “upper boundary for a zone of reasonableness.” But, in the interest of avoiding disruption to the satellite radio industry, artists were forced to accept much lower rates, ranging from 6% to 8%.

How has this artist-subsidized growth of satellite radio worked out? Pretty well. In recent years, SiriusXM has thrived, with revenue increasing from less than $2.5 billion in 2009 to more than $3.4 billion in 2012. Adjusted earnings before interest, taxes, depreciation and amortization grew from about $463 million in 2009 to more than $920 million in 2012. Speaking to a Forbes interviewer in early 2012, former SiriusXM CEO Mel Karmazin called the satellite broadcaster “a very profitable, successful company.”

“If we want a performer,” he added, “we can afford to pay more than anybody else can because we’re making more.”

Against this backdrop, it’s hard to argue that SiriusXM still needs a government-sanctioned discount from rates that the CRB deems appropriate. But that’s in essence the argument the company made in the CRB proceeding to set rates for 2013-17. In written testimony, Karmazin warned against an increase that could “take improper advantage of the company’s only recently improved economic circumstances” and “jeopardize the company’s ability to earn a fair return on long-term investments to which investors in our company are entitled.”

In a decision signed by two of the three judges, the CRB appears to have at least partially heeded that warning. While concluding that “the most appropriate rate” for satellite radio for 2013-17 is 11% of gross revenue, to “minimize any potential disruptive impact of the rate increase” the judges elected to “phase it in over the license period.” Thus, SiriusXM will pay a rate that starts at 9% in 2013 and rises in annual increments to 11% in 2017. “Gross revenue” has a complex definition, and can be significantly less than the total revenue reported in SiriusXM’s financial statements.

If 11% is indeed the appropriate rate, it’s hard to see why requiring a thriving company like SiriusXM to pay that amount for the entire 2013-17 period would have been particularly burdensome. In fact, under the 9% rate that will apply for 2013, there’s a good argument that artists will suffer more disruption from their unfairly low income than SiriusXM will avoid thanks to its discounted payment obligations.

There are also consequences for the broader music delivery ecosystem, since SiriusXM can use the money saved by paying artificially low satellite radio royalties to subsidize its expansion into market segments with higher royalty costs. And if the launch of its new MySXM Internet radio service thins the number of companies providing digital music services in the coming years, then everyone, not just artists, will pay the price for SiriusXM’s low royalty rates.

This item was originally published in Billboard.

Authors

John Villasenor

Publication: Billboard

Image Source: © Larry Downing / Reuters

Seven Copyright Principles for the Digital Era

John Villasenor — Tue, 05 Feb 2013 14:30:00 -0500

Since last year, I’ve had the privilege of serving as one of 18 members of the World Economic Forum’s Global Agenda Council on the Intellectual Property System. Recently, we’ve developed and published a set of digital copyright principles that we hope will provide a framework for addressing copyright in light of the many new technologies for creating, disseminating, and consuming content.

The original document as published through the World Economic Forum can be found here [PDF]; the principles it identifies are as follows:

1. Creators and producers of creative works should receive meaningful protection, recognition and compensation for their contributions to economic and cultural development.

2. Copyright law should reflect an appropriate balance between the rights of creators and copyright owners and the interests of consumers and other users of works.

3. Copyright law should be regularly reviewed and updated as appropriate to respond to new technologies and uses.

4. Copyright systems should enable rights to be meaningfully, practically, cost-effectively, and proportionally enforced.

5. A wide range of means should be available for creative works to reach the public, as enabled by Internet and other technologies—maximizing choice for both rights holders and users. It is desirable to have as much quality content as possible available in as many formats as possible.

6. Licensing should be streamlined in a content-appropriate manner and simplified to be as easy and efficient as possible, including for different types of content and across national boundaries.

7. The public should be educated about the purpose, scope and nature of copyright protections, including exceptions, and the reasons for proposed changes or government action.

Formulating specific copyright policy approaches can be complex, messy work. But the principles above can help guide that process, and can serve as a reminder that all of us share an interest in copyright systems that both incentivize creativity and provide balanced frameworks for accessing the resulting works.

Authors

John Villasenor

Image Source: © Jason Reed / Reuters

Will It Be Legal to Download 'Pirated' Music and Movies From Servers in Antigua?

John Villasenor — Mon, 04 Feb 2013 00:00:00 -0500

As a consequence of a long-running dispute over online gaming services, the Caribbean nation of Antigua and Barbuda (commonly known as Antigua) may soon begin providing online access to U.S.-copyrighted movies and music without compensating the owners of those copyrights.

Will it be lawful for consumers in the United States and elsewhere to avail themselves of this content? Not in most places. But, before getting to why, it’s helpful to provide some context.

Back in the 1990s, online sports books and casinos proliferated in Antigua thanks to the growing reach of the Internet and a favorable corporate tax environment. In response, American authorities began invoking statutes such as the Wire Act to prevent offshore gambling providers from accessing the American market. Antigua considered those actions to be in violation of U.S. obligations under the World Trade Organization’s GATS (General Agreement on Trade in Services) treaty, and initiated a WTO dispute settlement proceeding in 2003.

In a series of reports in 2004 and 2005, the WTO generally found in favor of Antigua, and in 2007, a WTO arbitrator pegged the resulting “impairment of benefits” to Antigua at $21 million annually. In principle, this could be remedied by allowing Antigua to suspend its own equivalently valued GATS obligations towards the United States. However, since this was not feasible given the enormous trade asymmetry between the two countries, the WTO allowed Antigua to request authorization to suspend its intellectual property obligations to the United States under a completely different WTO treaty (called TRIPS), up to an annual level of $21 million. Last week, the WTO formally granted Antigua an “authorization to retaliate.”

The island nation is apparently planning to waste no time in doing just that. Harold Lovell, Antigua’s minister of finance, the economy and public administration, wrote in USA Today on February 1 that his country has “reluctantly decided to suspend intellectual property rights protections for American firms and products.” And, in the international trade equivalent of “nice car; sure would be a shame if anything bad happened to it,” Mr. Lovell asked “why should, for example, the U.S. motion picture industry suffer just so the federal government can continue to protect the monopolies of the big American gambling interests?”

Exactly how Antigua plans to tighten the screws on the movie industry and other holders of U.S. copyrights remains to be seen, and it’s still possible that settlement talks will resolve the dispute before Antigua opens the downloading floodgates. But, suppose Antigua does in fact proceed to make U.S.-copyrighted movies and music available at nominal or even no cost to anyone in the world with an Internet connection. Will it be legal to download that content?

Almost certainly not, according to Ariel Lavinbuk, an attorney with the Washington, D.C. law firm of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP. Mr. Lavinbuk explains that a person in the U.S. who downloads a song or movie from a server in Antigua without authorization from the copyright holder is reproducing that work in violation of U.S. copyright law. “When you download a song, a new, distinct copy is created,” Mr. Lavinbuk says. “And the creation of that copy on a computer in the U.S. without copyright-holder authorization is unlawful in this country, regardless of whether the website providing the content is now considered lawful in Antigua.”

And what about copies downloaded from Antigua to computers in non-U.S. countries? With the exception of Antigua itself, the TRIPS treaty’s intellectual-property obligations of WTO member countries are still in full force. And almost all countries have laws prohibiting unauthorized reproduction of copyrighted content. Thus, just as in the U.S., downloading a song from Antigua without the copyright holder’s consent would generally violate copyright rights.

None of this is likely to give much comfort to the big movie studios and record labels, which have usually (though certainly not always) aimed their enforcement efforts at those who facilitate distribution of pirated content as opposed to those who download it. And, there’s no small irony in seeing these companies scramble to play defense against the same sort of heavy-handed techniques they have been so willing to dole out when it served their interests.

But it’s also important to remember that the copyright system is intended, first and foremost, to protect and incentivize songwriters, recording artists, writers, sculptors, photographers, choreographers, artists, architects, playwrights, and others who create copyrightable works. Whatever one thinks of the biggest corporate copyright owners, it is hard to think of much reason to celebrate when any country, even one with fewer than 100,000 people, declares with WTO backing that it is suspending intellectual property rights protections within its borders for the creative output of millions of Americans.

Authors

John Villasenor

Publication: Forbes

Image Source: © Mike Segar / Reuters

The Two Classes of Cyber Threats

John Villasenor — Tue, 29 Jan 2013 00:00:00 -0500

There is one number that matters most in cybersecurity. No, it’s not the amount of money you’ve spent beefing up your information technology systems. And no, it’s not the number of PowerPoint slides needed to describe the sophisticated security measures protecting those systems, or the length of the encryption keys used to encode the data they hold. It’s really much simpler than that. The most important number in cybersecurity is how many people are mad at you.

Let’s say, for example, that your organization has done something that has angered a few hundred million people around the world. Suppose that 1 percent of them are computer whizzes, and 1 percent of that group has the time and inclination to devote themselves to waging war on your information technology infrastructure. That means you’re up against tens of thousands of people committed to bringing your systems down. Some of them are going to succeed.

Case in point: On Friday, Anonymous took over the U.S. Sentencing Commission’s website in response to the recent suicide of Aaron Swartz, who had been facing the prospect of more than 30 years in prison for downloading academic articles without authorization. In an action the group calls “Operation Last Resort,” Anonymous announced on the Sentencing Commission’s website that it has compromised and extracted secret files from multiple U.S. government systems. It threatened to release excerpts from those files in the coming weeks to various media outlets. After being intermittently restored to service, the Sentencing Commission’s website was hacked again on Sunday, this time turning into a playable game of Asteroids.

The image of Anonymous running roughshod over a Department of Justice website doesn’t inspire confidence in the level of U.S. government cybersecurity. In the DOJ’s defense, it could be pointed out that the Sentencing Commission site is merely an outward facing portal, and that most of the government’s systems and networks are buried behind many more layers of protection. But in today’s world, all electronic systems are connected. Even those that are separated from the rest of the Internet by an “air gap”—so that they don’t talk directly to the outside world—can be compromised via software delivered (and later extracted) by a USB stick or CD drive by a malicious or unwitting insider.

Anonymous, of course, is not the only group that might have an interest in compromising American computer systems. State actors have long been suspected of conducting industrial espionage on American companies, and unlike hacktivists, they aren’t likely to announce their successes. But it doesn’t take a genius to look at what Anonymous can do and conclude that true cybersecurity is an illusion, and that anyone who claims otherwise is lying, delusional, incompetent, or some combination thereof.

There are degrees of protection, and it is certainly possible and prudent to eliminate known vulnerabilities. But given the literally incomprehensible complexity of today’s systems, there is a never-ending stream of previously unknown vulnerabilities that cyberattackers are just as well-qualified—and in some instances better qualified than cyberdefenders—to find. Cybersecurity is a game of whack-a-mole on a large and rapidly expanding playing field, and when the number of moles is orders of magnitude higher than the number of people holding mallets, the moles will often have the upper hand.

Against this backdrop, it is interesting to consider a recent report that the government plans to add 4,000 people to the Department of Defense’s Cyber Command, which currently comprises only 900 personnel. In the current era of tightening federal spending, any staffing growth is unusual; an increase of this magnitude may be unmatched in any other sector of government. It telegraphs that the Department of Defense recognizes the increasingly critical role that cybersecurity plays in U.S. national security. And, to the extent that Cyber Command can help make critical infrastructure such as the power grid and financial system less vulnerable to a massive attack that could endanger the lives and livelihoods of tens of millions of people, its efforts will be an important and much-needed contribution.

If Cyber Command succeeds in safeguarding these systems, it will be in part thanks to the high skills and dedication of the people they will hire. But in large measure it will also be because there are few would-be hacktivists who would take any pleasure in an attack that could leave large swaths of America shivering in the dark on a cold winter night, or unable to purchase food because the country’s payment systems have stopped working.

Thus, what the government calls “critical infrastructure” really describes two different classes of systems that call for very different cybersecurity strategies: Some, like the power grid, are viewed by everyone as critical, and the number of people who might credibly target them is correspondingly smaller. Others, like the internal networks in the Pentagon, are viewed as a target by a much larger number of people. Providing a high level of protection to those systems is extremely challenging but feasible. Securing them completely is not. That’s a realization that, despite all evidence to the contrary, one suspects hasn’t fully sunk in inside the Beltway.

Authors

John Villasenor

Publication: Slate

Image Source: © Samantha Sais / Reuters

In Defense of Equal Tuition for All Majors

John Villasenor — Mon, 07 Jan 2013 00:00:00 -0500

Should English and history majors be forced to pay higher tuition than engineering students do? Yes, according to a recently released draft report from a Florida task force on higher education. The report recommends a tuition structure that would favor students majoring in "strategic" areas, including security and emergency services, globalization, and science, technology, engineering, and math (the so-called STEM fields). It is a well-meaning proposal intended to meet genuine needs, but it's likely to create more problems than it solves.

Offering tuition breaks for strategic majors is meant to entice undergraduates who otherwise might have pursued their passion for, say, literature, to instead choose to spend their college years learning skills like Java programming. But will it work? Almost certainly not. If the substantial financial advantages of graduating with a degree in a strategic discipline aren't already attracting sufficient numbers of students, throwing an annual tuition discount at them won't have much effect.

According to data released in September by the National Association of Colleges and Employers, bachelor's-degree recipients in the Class of 2012 who majored in engineering and computer science received average starting salaries of over $60,000, while degree recipients in the humanities and social sciences had average starting salaries of less than $37,000. That is an enormous difference. Students who select a major on the basis of degree marketability alone shouldn't be second-guessed by the rest of us.

But neither should students whose interests happen to lie elsewhere. Undergraduates who elect a course of study that might mean forgoing tens of thousands of dollars in annual income upon graduation are unlikely to change their majors to obtain a tuition discount measuring only a small fraction of that amount. For them, Florida's not-so-gentle attempt to influence their choices would more likely be viewed as an insult than an enticement.

There are other negative consequences as well. For example, what of the students who enter college thinking they want to study a STEM discipline, but then discover after a year or two that they simply don't enjoy it? Does Florida really want to add to their already substantial stress by imposing a financial penalty on them—and, in many cases, on their tuition-paying parents—for switching majors?

Do Florida's public universities really want to formalize the second-class treatment of liberal-arts majors in that way? The resulting negative feedback would drive them to other universities, leaving those who remain to bear an even higher burden of what is in effect a tuition subsidy paid to support students studying in the favored disciplines. Recruitment and retention of top liberal-arts faculty, too, would suffer.

But those people who fault the task force's differentiated-tuition recommendation simply because it reflects what they view as an overly business-oriented approach to higher education don't have it quite right, either. In many respects, colleges are businesses, or at least businesslike, in their activities. They exist in large measure to deliver what can be described as a product (education) to their customers (students). They bring in money through tuition, donations, government and industry grants, and—in the case of public universities—the support of state taxpayers. They spend money on faculty and administrative salaries, student aid, and infrastructure. When the inflow and outflow don't balance, a college's health and eventually its very survival are threatened.

An argument that colleges should never vary tuition levels across fields in accordance with what some might call business considerations is undermined by the general lack of policy-based objections to the dozens of colleges that do exactly that. For example, at the University of California at Los Angeles, where I teach, in-state graduate students in most liberal-arts disciplines pay annual tuition of just over $11,000. A California resident who is a student at UCLA's law school, however, also pays an additional "professional-degree supplemental tuition" of nearly $32,000 per year. First-year M.B.A. students at Stanford currently pay more than $57,000 in annual tuition, while tuition for graduate students in liberal-arts fields there is about $41,000. Thus, at the graduate level, the existence of widely varying tuition levels across fields is routine and not considered particularly objectionable.

So what is it about the Florida proposal that has struck a nerve with so many people? For starters, in contrast with what occurs in many other countries, in the United States we regard the undergraduate years as a time when many students are still in the process of deciding on a career. Erecting tuition-based barriers would undermine some of the breadth and flexibility that has traditionally defined the American undergraduate experience, and which arguably helps develop the agility of thought that is such a vital ingredient of American innovation.

More fundamentally, if we want to bring more college students into STEM fields and other "strategic" disciplines, we shouldn't have to purchase their interest through tuition discounts. Rather, we need to do a better job of conveying to young people why careers in STEM and related fields can be rewarding in ways that go well beyond first-year salary numbers. That is a process that should occur largely at the elementary- and secondary-school levels, and one at which America could do far better.

As the Florida task force recognized, Florida's—and, more generally, America's—economic prosperity will depend in large part on a strong public higher-education system that can supply college graduates trained in high-growth, high-demand fields. It is eminently reasonable to consider ways in which public funds can be more effectively allocated to help achieve that goal. But turning liberal-arts undergraduates into second-class citizens isn't one of them.

Authors

John Villasenor

Publication: The Chronicle of Higher Education

Online Games And Crowdsourced Creativity: The Next Frontier In Intellectual Property

John Villasenor — Mon, 31 Dec 2012 00:00:00 -0500

If you ask a non-“gamer” to name a few places where some of the world’s most compelling contemporary architecture can be found, you’re likely to get answers like Beijing, Dubai, Shanghai, and Tokyo. But ask a gamer, and the answer may well be the name of a server that hosts his or her favorite massively multiplayer online game (MMOG).

There is a veritable architectural boom occurring in the online gaming world, with millions of people engaged, both individually and collectively, in creating an endless variety of virtual buildings. And architectural designs represent only one of the many forms of user-contributed intellectual property (IP) that are redefining how people interact in online games.

Who owns all of this IP? And how can those ownership rights be protected? Such questions are not merely academic. According to online games research firm SuperData, the global virtual goods market approached $15 billion in 2012 and is expected to exceed $20 billion in 2014. The virtual economy is thriving, and as in any thriving economy there are opportunities for enterprising people to identify new goods and services that have value to the community.

Intellectual property, which consists of copyright, patents, trademarks, and trade secrets, has always been an important aspect of games. Traditionally, however, it was the companies making the games that generally held the associated IP. Consider the classic 1970s-era table tennis video game “Pong”. The job of a Pong player was to adjust the vertical position an electronic paddle on one side of a television screen so that it would intercept a “ball” and send it back to a player the other side of the screen. There was skill involved when ball speeds got high, but the act of playing Pong did not produce any IP.

Modern descendents of Pong – including many of the offline games played on console platforms like the Sony PlayStation 3 and the Nintendo 3DS – are leaps and bounds more sophisticated. But much of the IP for these games still resides with the game manufacturers as opposed to the players.

By contrast, in multiplayer online gaming environments that allow players to create complex virtual worlds, opportunities for both game designers and players to generate IP abound. In fact, in many of these games the lines between designers and players are blurred. Consider Minecraft, which was developed by Stockholm-based Mojang. Millions of copies of Minecraft have been sold, including over 450,000 on Christmas Day, 2012 alone. Minecraft supports a multiplayer mode allowing players to set up and manage a server that can host dozens or even hundreds of simultaneous players in a single, persistent virtual world (for an example of a popular Minecraft server, see Meepcraft). A server owner can customize a virtual world with specific rules and economic models for player-to-player interaction. Players who spend time on the server, in turn, can design and construct their own buildings, and in many cases, use them in various types of commercial transactions.

Thus, in multiplayer Minecraft there are multiple levels at which intellectual property is being created and used: Mojang, the company that sells Minecraft, provides IP in the form of the underlying game itself. A Minecraft server owner adds IP by designing a specific type of virtual world, and the players within that virtual world then create their own IP as they develop its infrastructure and economy through their own in-game interactions. And in yet another layer of IP complexity, server owners often incorporate software provided by third-party developers, and in some cases also hire people to write code to add customized features to the server.

As Minecraft illustrates, in sophisticated multiplayer virtual environments there can be user-contributed IP pretty much everywhere you look. Copyright, for example, arises through the player-supplied software, architectural designs, and graphics that are employed to help run and populate the virtual world. Trademarks arise through the names and symbols used to identify a seller’s unique virtual goods. Trade secrets can be found in player-developed (non open source) add-on software and in economically valuable, non-publicly-observable methods used by players to enhance their gameplay.

Player innovations providing specific types of gaming experiences may also be patentable. An interesting precedent will be provided by the outcome of a pending Nintendo patent application regarding methods for MMOG players to collectively alter a virtual environment without directly interacting with each other. (In filings with the U.S. Patent and Trademark Office during 2012, Nintendo has substantially narrowed the claims with respect to those in the original 2010 application.) Nintendo, of course, is a game company, not an individual player. But that is not relevant from a patentability standpoint. If Nintendo can patent new methods relating to providing certain types of MMOG gameplay, then players should be able to do so as well.

In the coming years, many of the most interesting online games will be produced not by large teams of developers at big-name corporations, but instead by smaller, independent groups of developers who allow their customers to be partners in creating the IP that comes to define the in-game experience. And when, as will inevitably occur, player-generated IP acquires substantial real world monetary value, players should be able to access that value. This will require that game sellers adopt terms of use allowing players to retain an appropriate, commercially meaningful ownership interest in the IP they create. It will also raise complicated jurisdictional challenges due to the global nature of gaming. Where, for example, should a copyright or trademark claim involving in-game content created on a server in the U.S. by a player in Japan using software provided by a server owner in France be enforced? And, it will require sorting out copyright rights for intricate chains of derivative works.

And for those people who aren’t gamers, and who might wonder what all this has do to with the non-gaming world, there is this: Some of today’s massively multiplayer online games are at the very forefront of crowdsourcing creativity on a global scale. The lessons learned could help spur innovation in domains that go far beyond gaming.

Authors

John Villasenor

Publication: Forbes

How Entrepreneurs Can Thrive Under the "First-Inventor-to-File" Patent System

John Villasenor — Tue, 11 Dec 2012 11:08:00 -0500

In September 2011, President Obama signed the America Invents Act (AIA) into law. Under one of the most important provisions of the AIA, the longstanding first-to-invent patent system will be replaced with what is often called a first-inventor-to-file system for patent applications with an effective filing date of March 16, 2013 or later. In the run-up to next March, there is likely to be significant attention in the press – and plenty of misinformation – regarding how first-inventor-to-file works and how it will impact entrepreneurs.

Here are six things that entrepreneurs can do to not only survive but thrive as they navigate this important transition in the American patent system.

Understand how first-inventor-to-file works: Contrary to what is implied in many articles about the AIA in the popular press, first-inventor-to-file doesn’t mean that the winner of a race to the patent office will be guaranteed to get the patent. Under the first-inventor-to-file system, rights to a U.S. patent will involve the interplay between the dates of filings with the U.S. Patent and Trademark Office (PTO) and the dates of any pre-filing public disclosures regarding the invention. In fact, a company that files a patent application after a competitor will sometimes be able to prevail in obtaining the corresponding U.S. patent if it publicly disclosed the invention before a disclosure or filing by the competitor (and if the company’s application is filed within one year of the disclosure.)

However, while pre-filing public disclosures can play an important role in impeding the ability of competitors to later patent the invention, those same disclosures can also foreclose the company’s own ability to obtain a patent in jurisdictions outside the United States. Entrepreneurs should educate themselves and their employees regarding these tradeoffs. This can ensure that patent filings, product releases, discussions with potential partners and customers, and presentations at trade shows are all conducted with a full awareness of their intellectual property implications.

Proactively formulate and then execute a patent strategy: Critics of first-inventor-to-file often argue that it will favor larger companies over entrepreneurs who may be unfamiliar with the patent system. But this logic confuses two issues that don’t need to be correlated: company size, and the ability to engage with the patent process.

Entrepreneurs owe it to themselves – and to the investors supporting them – to proactively formulate a strategy for protecting their company’s intellectual property. This will typically include putting in place mechanisms to identify and document inventions, and engaging the services of a good patent attorney or patent agent to help navigate the patent application process.

Understand when first-inventor-to-file applies, and prepare accordingly: The first-inventor-to-file rules will be used for applications with an effective filing date of March 16, 2013 or later. The key word here is “effective.” Under certain conditions, patent applications filed well after March 2013 will nonetheless be subject the first-to-invent rules. This creates some interesting strategic opportunities for businesses of all sizes. But startup companies are particularly well positioned to capture these opportunities by filing patent applications between now and next March that could confer significant strategic value in an acquisition.

Be agile: Large companies have more money, but they also have more people creating inventions, and often have complex organizational structures that can impede internal information flow. This can make it more challenging to execute a cohesive, cost-efficient patent strategy.

By contrast, in a small company the information flows among employees can be much more efficient, and an entrepreneur can get both the 30,000-foot view as well as the detailed view. He or she can quickly spot patentable innovations and then act to make sure they are protected. In some respects, the first-inventor-to-file system will favor companies that are more agile and better able to allocate resources to their most promising inventions – thus providing an important potential advantage to entrepreneurs.

Consider the use of provisional applications: Provisional applications, which were originally introduced in 1995 and left in place by the AIA, can be a cost-effective way of obtaining a priority date without incurring the full expenses of preparing and filing a non-provisional application. Provisionals can sometimes be submitted relatively quickly, and unlike public disclosures of an invention that hasn’t been the subject of a previous patent application, can leave options for future foreign filings open.

However, provisionals involve their own obligations and risks. Once a provisional application is filed, the corresponding non-provisional application needs to be filed within one year. If that doesn’t occur, the opportunity to patent the invention with the benefit of the provisional filing date is lost. And, a provisional that fails to include a sufficiently detailed written description and drawings will not be accorded the early filing date that was a key goal of the making the filing in the first place. In sum, provisionals can be valuable options for entrepreneurs in a first-inventor-to-file system, but must be used properly.

Don’t be penny wise, pound foolish: In a startup company where every dollar counts, the costs associated with executing a comprehensive patent strategy might seem like a deterrent. But there’s some good news in the AIA for entrepreneurs on that front: The AIA introduced a new micro-entity status that will give qualifying companies a 75% discount on most patent fees. Of course, companies will still need to pay a patent attorney or agent to prepare applications, but even those costs are often very modest when compared to the value of the resulting patents. The fee discount for micro-entities will be available when the PTO completes rulemaking to adjust its fees as provided by the AIA.

Authors

John Villasenor

Publication: Forbes

Image Source: Haag + Kropp GbR

Why We Need to Address Unmanned Aircraft Privacy Now

John Villasenor — Wed, 05 Dec 2012 00:00:00 -0500

Editor's Note: Remarks delivered on December 5, 2012 at the UAS TAAC Conference, at the Hyatt Regency Tamaya Resort in Santa Ana Pueblo, New Mexico.

Unmanned aircraft systems (UAS) will only reach their full potential in this country if there is a robust civilian UAS industry. And, today, due to privacy concerns, there is the very real possibility that this potential will not be realized.

To help explain how it can be realized, I’d like to make three overall points in this talk.

First, UAS privacy is a genuine concern, but one that needs to be considered with a proper sense of perspective and balance. It’s important to restore that balance to the broader dialog.

Second, the Constitution will offer significantly more UAS privacy protection than is generally recognized. As we consider UAS privacy legislation at the federal, state, and local levels, it is critical not to forget the relevance and protective power of the Constitution.

In closing, as a third point I’ll offer a thought experiment on one reason why it’s so important to address and resolve privacy concerns sooner rather than later.

First, the importance of balance. It is certainly true that UAS raise privacy concerns.

But that is also true of the Internet, e-mail, mobile phones, GPS-equipped mobile devices, license plate cameras, and many other technologies.

In fact, if a pressing enough need were to arise, the activities of most people in this room on any given day in the past several years could be reconstructed in nearly complete detail – without the use of any data from UAS.

That doesn’t mean that we should deny that UAS could be misused in ways that violate privacy. Of course they can. And sometimes, they will. But that could also be said about the other technologies I mentioned, many of which pose a far greater threat to privacy than UAS. That perspective is too often missing from discussions of UAS privacy.

Next, let’s turn to the Constitution.

The Founders of this country didn’t have unmanned aircraft. But they understood privacy. That is in part why we have the Fourth Amendment, which has been a cornerstone of privacy from government intrusion since 1791. We also have the First Amendment, which has been interpreted as giving nongovernment entities, including but not limited to the press, the freedom to gather and publish information. However, that freedom has limits, and can end when the gathering of information crosses into a common law invasion of privacy. Those two amendments – the Fourth with respect to government-operated UAS, and the First with respect to non-government UAS – are too often left out of the UAS privacy discussion.

As someone who has spent a very significant amount of time studying the case law most relevant to UAS privacy, I believe that the constitutional framework for protection from UAS observations is significantly stronger than is widely recognized. That needs to be telegraphed to the wider community.

For example, in 1986 and again in 1989, the Supreme Court considered naked-eye observations of marijuana growing operations in back of a private residence from manned law enforcement aircraft. In both cases, the Court found no Fourth Amendment violation. But those rulings are narrow in scope, involving naked eye observations and “public navigable airspace.” They do not mean that all government UAS observations, no matter how invasive, will be constitutional.

In 2001, the Supreme Court issued its decision in a case called Kyllo. The case involved using a thermal imaging device – in a police car, not an aircraft – to measure the temperature of the outside walls of a house where marijuana was being grown inside There, the Court did find a Fourth Amendment violation. In doing so, the Court articulated a sort of rule that has sometimes been interpreted as problematic with respect to UAS privacy:

“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

This language has often been interpreted to suggest that use of a widely available technology to observe details of a home will of necessity be constitutional. According to this logic, once UAS are in “general public use”, there will be no constitutional limits placed on their use for surveillance operations by law enforcement agencies. But the Kyllo Court did not go that far. Rather, the Court stopped short of endorsing the constitutionality of observations of a home using widely available technology.

And what about non-government UAS and the First Amendment?

A 1998 California Supreme Court ruling is instructive in this respect. That case involved victims of a car accident who were subjected to video and audio recording (not from a UAS or even an aircraft), without their consent for a television program.

The California Supreme Court found that the television program producers’ activities were not protected under the First Amendment. The court held that a woman injured in the accident was “entitled to a degree of privacy in her conversations” with the medical personnel at the accident scene. The victim, in other words, had a reasonable expectation of privacy that trumped the First Amendment news gathering right of the program’s producers.

The Constitution has served us well across more than two centuries of technology advances. There is no reason to expect it to suddenly lose its protective power when domestic use of unmanned aircraft becomes common.

Finally, I’d like to offer a thought experiment on one reason why we need to avoid putting an entire civilian industry sector on hold by becoming mired in endless policy discussions about domestic UAS.

Imagine an alternate history that starts in 1930, less than three decades after the first successful sustained flights of heavier-than-air manned aircraft. Concerned about the possible negative privacy implications of manned flight, Congress enacts laws that severely restrict domestic aircraft flight operations. This leads to lower demand for aviation services and fewer sales of new aircraft. With no civilian market for their products, many American manufacturers are unable to generate sufficient revenue from their U.S. military sales, and end up closing their doors. Would-be entrants to the market are scared off by the lack of a market. Innovation on aircraft design continues elsewhere in the world, but largely grinds to a halt in the United States.

Now imagine that it is December 14, 1941. One week ago, the Japanese launched a surprise air attack on Pearl Harbor, killing thousands of Americans. Nazi Germany, having signed an armistice with France and obtained surrenders from Denmark, Norway, the Netherlands, and Belgium the year before, has marched east through the Soviet Union and is now battling at the doorstep of Moscow. Over the past few days the Nazis and their allies have declared war on the United States.

And as a consequence of the restrictive aviation laws passed in our hypothetical 1930, the United States in our hypothetical 1941 has become a world laggard, not a world leader, in aviation technology.

Reasonable people can disagree on how World War II would have looked without strong American aviation. But under almost any plausible scenario far more American lives would have been lost.

It would be very naive to assume that the United States will never again be forced into a large-scale military conflict against an adversary with highly advanced aviation capabilities. In fact, it is nearly certain to happen during this century, if not during our lifetimes, then likely during the lifetimes of our children.

If we want to lose that conflict, we should continue to delay the regulatory support needed to spur the growth of unmanned aviation in the United States. If we want to lose that conflict, we should continue to have a public policy dialog that focuses only on the negative uses of domestic unmanned aircraft, instead of also recognizing their positive applications. And if we want to lose that conflict, we should continue to send the rest of the world the loud and clear message that, whatever our technology advantage may be today in unmanned aviation, we may be on the road to abdicating it.

On the other hand, if we want to prevail in that conflict, we will need a healthy domestic civilian UAS industry that can help generate innovations in airframe design, automated flight control, information processing, and sense and avoid methods that will benefit both civilian and military applications. We will need the positive feedback cycle through which a healthy civilian UAS industry leads to more jobs and more people trained in this field, more entrepreneurial opportunities, and thus to more growth and innovation.

The good news is that we do not need to give up our leadership in aviation technology, which in the 21st century will often mean unmanned aviation technology. Maintaining that leadership will require a strong domestic market for UAS. And it will require that we address and resolve the privacy issue sooner rather than later.

Now, there may indeed be a role for new statutory restrictions involving data from UAS. As long as those restrictions don’t impede reasonable, non-privacy-violating use, they are worth serious consideration.

The UAS community can play a critical role in educating the broader public about the nature of UAS. That includes engaging in a respectful discussion with those who might today see only the negative aspects of this technology.

I believe that there is a win-win solution – one that fosters a thriving American UAS industry while also ensuring privacy is protected. In my view, a key component of that solution is already in place. It’s called the Constitution.

Thank you.

Authors

John Villasenor

Publication: UAS TAAC Conference

Intellectual Property Awareness at Universities: Why Ignorance is not Bliss

John Villasenor — Tue, 27 Nov 2012 00:00:00 -0500

Recently, I conducted an informal survey of graduate engineering students at UCLA, where I teach, to assess intellectual property (IP) awareness. The results highlight the challenges of promoting and protecting IP in American universities and technology companies, and illustrate why universities need to increase their efforts to educate students on what IP is and why it matters.

First, the numbers: Of the approximately 60 graduate engineering students who completed the survey, 68% stated that they did not know enough to answer the question “what is a trade secret?” 21% stated that they did not know enough to answer the question “what is a patent?” The percentages of students unable to provide an answer to “what is copyright?” and “what is a trademark?” were 32% and 51% respectively.

It would be unfair to blame the students themselves for these statistics. After all, they follow programs of study designed largely by university faculty members. If we require these students to spend hundreds of hours learning the finer points of one particular discipline of engineering, yet decline to ask them to spend even one single hour learning the basics of IP, we shouldn’t be surprised when many of them can’t explain what a trade secret is.

This problem is even more pressing now that many cash-strapped universities are making IP a key focus of efforts to more effectively leverage their research output. By obtaining a greater number of patents and then licensing them to industry, universities hope to both boost revenues and speed the introduction of the results of their research into the market. In theory, this will benefit universities, companies, and the broader public. But the success of this endeavor relies on the ability of university researchers – who are very often graduate students – to recognize potentially patentable inventions and take the steps necessary to protect them by initiating and participating in the patent prosecution process. The survey results suggest that a key link in this chain may be broken.

At all of the University of California campuses (not just at UCLA), graduate students hired to perform research are required to sign a document [PDF] acknowledging their “obligation to promptly report and fully disclose the conception and/or reduction to practice of potentially patentable inventions to the University authorized licensing office.” Student researchers at many other universities sign similar forms. Having these signed patent forms on file keeps university attorneys happy. But if tens of thousands of students engaged in research projects in American universities lack even the most basic knowledge about IP, how reliably can they expected to “promptly report and fully disclose” their patentable inventions? And how carefully can they be expected to handle unpublished data, computer code, and research paper drafts that might represent the results of many years and many millions of dollars of effort by a large research team?

The problems caused by lack of IP awareness also reach well beyond universities, sometimes to devastating financial effect. Take trade secrets, which are a form of IP critical to almost all technology companies. An engineer who doesn’t understand trade secrets and the obligations that accompany them is far more likely to walk out the door with proprietary computer code on a USB stick when he or she moves to a new job. Ignorance, of course, is not an excuse for trade secret theft. However, it contributes to a theft rate that is drastically underreported and almost certainly at epidemic levels. When trade secrets walk out the door, everyone loses – the company that invested in their development, the engineer who took them and who stands exposed to substantial civil and/or criminal liability, and third party recipients who could become embroiled in misappropriation allegations.

Universities need to do a better job at preparing their graduates to be productive citizens of the innovation economy, and that includes giving more attention to IP education. In particular, graduate students in science, technology, engineering, and math (STEM) disciplines should receive instruction on the nature, purpose, and protection of IP. This doesn’t mean turning them into patent, copyright, trademark, and trade secret specialists. But it does mean ensuring that each of them receives at least a modest amount of training regarding their IP rights and obligations. One good way to start: All universities should require their STEM graduate students to participate in a short, interactive, web-based training session on “IP Basics” at the beginning of their first year of study. In addition, STEM faculty members should more proactively incorporate IP concepts in their mentoring of graduate student researchers.

Opponents of integrating formalized IP training into graduate STEM programs will likely argue that we can’t afford to introduce further complexity into curricula that are already packed with requirements. But, can we really afford not to increase IP awareness? Each year, American universities are sending thousands of newly minted M.S. and Ph.D. scientists and engineers into the workforce, many of whom have received little or no instruction regarding the nature of the IP system and their role in it. Given the importance of intellectual property in the national and global economy, there’s no excuse for not giving it more emphasis in our university graduate programs.

Authors

John Villasenor

Publication: Forbes