Infringed Ink and Printing Copies of Cases: How Lexmark Collected Intellectual Property Lawsuits like Joker in Persona 5.

It’s fitting that printer ink turned out to be the subject for the series of lawsuits that took on all three of the major areas of intellectual property. Printers are the bridge between the physical and digital worlds, in a way. They are the symbol, and the means, of the transition between digital and paper documents.

Lexmark’s intellectual property litigation legacy is about the different ways that a variety of laws have different connections and offer different perspectives.  Persona 5 is about seeing the world through a variety of perspectives, and understanding different connections and perspectives that people have. Persona 5 is about complex stories that interconnect and overlap, with multiple layers and facets. That complexity and inter-connection has a similar feel to the complex and layered Lexmark litigation saga.

I. The Many Masks of Intellectual Property

In Persona 5, different “personas” (represented by masks) allow characters to perform different types of attacks. Different attack types will be particularly strong or weak against different enemies. This means that a big part of the game’s tactics is about determining which persona to use in different situations.

Copyright

Probably the one most people mean when they think of intellectual property, especially related to art or entertainment. Traditionally, this area of IP law was focused on books, music, film, and other art. However, due to the Digital Millennium Copyright Act (DMCA), the law also touches slightly on questions of tampering with proprietary devices to modify them (or to modify their functionality).

Trademark

I see this used interchangeably with “copyright” a lot, but think of it like this: Copyright protects the painting, trademark is the law about the artist’s signature in the corner of the painting. It’s the law that comes most into play when people are talking about counterfeit goods or brand recognition.

Patent

This is what most people mean when they think of intellectual property in most business and financial dealings, and especially in the context of science or engineering. Patents are about owning the right to make and sell a certain kind of thing, from cell phones to medicine.

Trade Secret

Like the healing abilities in Persona 5, trade secrets aren’t used often or even mentioned often, but they can fit some situations just perfectly. The other three kinds of IP law require you to make something public- filing a patent with the Patent Office, or registering a copyright (though you actually only need create a work to have a copyright in it, as of the 1976 re-write of the law), or using a trademark in commerce.  Trade secrets go the opposite way: if you take certain steps to NOT let the public know about something that makes your business work, you can claim a right to protect it.

II. Lexmark Litigation (Backstory)

Lexmark makes printers, but has a lucrative racket with recycling their ink cartridges. Well, had, maybe. Because Americans don’t like feeling taken advantage of, and because American Millennials don’t like a lack of choices, other companies sought to offer competing solutions to Lexmark’s ink cartridge restrictions.

In Persona 5, players collect new personas as they progress through the game. Lexmark litigation managed to collect different areas of intellectual property law as they fought over the issue of other companies coming up with ways to interfere with their ink cartridge schemes. What I find really amazing about this 13 year sprawl of litigation is that none of the involvement of IP law is predicable or very expected. Each application of law is noticeably distant from the original ideas and central, foundational, purposes of these laws.

How did Copyright law get involved?

Mostly through the parts of the DMCA that restrict tampering with controls placed on a device to inhibit 3rd party interactions (e.g., Section 1201). But in 2004, the Sixth Circuit (that most difficult of all circuits to pronounce) issued a ruling that called into question whether “lock-out codes” were actually subject to copyright protection, as they are not a form of creative expression. We might have gotten a more authoritative ruling on this topic, but Lexmark missed the deadline to request an en banc hearing at the Circuit level.

How did Trademark law get involved?

Through an argument about whether someone could sue Lexmark under the Lanham Act (the actual federal statute that contains most of trademark law). To actually take someone to court, you have to meet a few basic standards: you have to have an actual claim recognized by a law, for example. One standard for having a trial is that the person suing has to have “standing”: they have to have the legal right to bring a claim. Many laws will include a more specific definition of what “standing” will mean for that law.

In 2012, Static Control Inc. tried to sue Lexmark under some federal business-type laws (the Sherman Act and the Clayton Act), but those laws didn’t actually grant standing to Static Control, which meant they weren’t allowed to actually bring Lexmark to court. Then they tried to sue under the Lanham Act, because the rules for standing are different under that law. The Sixth Circuit granted Static Controls the right to a trial under the Lanham Act. Lexmark took the issue to the Supreme Court, who agreed with the Sixth Circuit’s choice to have a trial.

How did Patent law get involved?

The obvious way for patent law to be in a case brought by a printer company is for the case to be about two printer manufacturers arguing over whether one copied the others’ technology. That is not at all how patent law got used by Lexmark. Instead, the patent law question was about patent exhaustion.

This tiny area of patent law is like the “first sale” doctrine in copyrights. The idea for both is the same: once the end-customer buys the product, the manufacturer’s patent is “exhausted.” Under this law, a customer can do whatever they want with the thing they bought (except make new ones and sell those- that part of the patent still applies). This year, Lexmark brought a case to the Supreme Court on this point of law, hoping to stop a different company that was interfering with the ink cartridges. The third time was not the proverbial charm for Lexmark; the Supreme Court held that consumers do have some rights with regard to the re-use of their own purchased property.

III. Conclusion

My favourite thing about the Lexmark litigation is that it isn’t just about the substance of intellectual property law; it’s about how intellectual property law is administered. The trademark issue wasn’t really a trademark issue– it was an issue about who can sue under trademark law. The copyright issue wasn’t really about the copyrights of art or books or movies — it was about whether someone can unlock your digital locks. The patent issue was barely about patents– it was really about whether a patent still applies after a customer buys the product.

I’m excited by this because it’s a sign that intellectual property law is becoming more and more relevant to American life. More details of the administration and applicability and extent of laws have to be established as laws are interacted with more often. Decades ago, intellectual property was a small area of law that only affected a few sectors of a few industries in any meaningful way. Now it affects how we use our cell phones, ingest our entertainment, and even harvest our crops. As this area of law grows in response to innovation and technology, it has the potential to encourage further innovation and advancements, as well as to steer the growth of those new ideas. We are living at a time where we are moving toward either technological salvation or technological armageddon.

 

 

 

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C.P. Snow and the Digital Divide.

C.P. Snow lamented a gulf between science and literary intellectuals. That gulf still exists (perhaps it is a little different now than in the mid-20th century), and the explosion of technological development highlights it. Video games (and other entertainment media) offer a chance to bring together the left and right sides of society’s brain.

It may be that the law feels the distance between art and science that Snow considered in the context of academia. Patents may be associated with the protection of the scientific world (though they protect technology, not science) while copyright protects artistic expression. Does a distance between science and art keep a distance between two halves of IP (Trade secrets and Patents vs. Copyrights and Trademarks)? I think it does, but I’m not convinced this is altogether terrible: there are good arguments for treating patents and copyrights differently.

Law is sometimes seen as being an institution of order, measurement, and judgment. However, law is also the tool by which we gauge and weigh other institutions in society— and it is not reasonable that the instrument of measurement can measure itself. Law is often an effort to balance art and science, logic and experience, is and ought, the many and the individual—yet, if it is fair, it cannot wholly be any of these things. Perhaps an effort to bridge Snow’s Gulf could benefit law as it could bring a more holistic context to choices about either art or science. Understanding the technology and science underpinning patents as well as understanding the cultural implications of artistic expressions help each respective discipline grow. More importantly, this cross-information becomes essential as these disciplines overlap. Legal practitioners are better able to make proper legal decisions if they understand both what YouTube is (how the technology works) and what the economic and cultural implications of posting videos with copyrighted materials on YouTube are.

Introduction to the Limits of Soft IP.

Torchlight 2 looks and feels a lot like Diablo 3. League of Legends is a modification of DOTA, and League of Legends has been ripped off for mobile platforms. The beat of Katy Perry’s “California Girl’s” matches alarming well with the beat from Kesha’s “Tik Tok.”  Despite the kinds of similarities that might make a teacher suspect plagiarism, these kinds of things (ideas, beats, the “feel” of a game) cannot be trademarked or copyrighted.

One might ask: If these can’t be owned as property, what purpose do Intellectual Property laws have? The goal of IP is to balance the interests of the producer/creator/artist with the interests of the consumer and other artists. It is partly about notions of a fair market, partly about notions of art and freedom to create and express. (These notions are not always at odds with one another.) Therefore (I argue), understanding IP requires both economics and aesthetics. Some lawyers have a background in economics, but few have a background in art.

Patent examiners and prosecutors (though not patent litigators) are required to be scientifically competent (usually by having a bachelor’s degree in a hard science or engineering) before they can even take the Patent Bar Exam. Copyright and trademark lawyers are not required to have any similar background or training. Perhaps this is because the nature of copyright does not require me to have a thorough understanding of English Literature or even proper rules of grammar before helping someone register or defend a copyright for a book.

Maybe it’s because copyrights last 70 years after the death of the author while patents typically last 20 years (14 in some cases), but US law does not allow the copyrighting of ideas, only the tangible expressions of ideas. I sometimes wonder how much more diverse the arts might be if we allowed copyrights of plots, character archetypes, narrative devices, musical rhythms and beats, cinematographic techniques, directorial visions, and so on. Some might fear that an approach to copyright modeled after the philosophy underpinning patents would dry up the artistic wellspring. On the other hand, maybe Hollywood would produce something DIFFERENT every summer…