Performance Artist FORCE Launches Spoof with Long Legs

FORCE's Pink Loves Consent

A group of performance artists from Baltimore known as “FORCE: Upsetting Rape Culture” took advantage of a much anticipated media event to bring attention to the importance of consensual sex. The VS All Access Victoria’s Secret fashion show is an such an event, gluing billions of eyeballs to its prime time telecast.

For FORCE, the VS All Access television event was the perfect opportunity to launch its own fashion campaign, Pink Loves Consent, by spoofing Victoria’s Secret’s PINK brand. (more…)

Mexico becomes third Latin American country to join the Madrid trademark filing system


In June I posted about Columbia’s accession to the Madrid Protocol and noted that Mexico was taking steps to follow suit. Late last month Mexico’s Secretary of Economy deposited documents completing the country’s accession to the Madrid Protocol for the International Registration of Marks with the World Intellectual Property Organization, bringing to 89 the total number of members of the international trademark filing system. The treaty will enter into force in Mexico on February 19, 2013. As regular blog readers know, the Madrid System for the International Registration of Marks offers trademark owners a cost effective, user friendly and streamlined means of protecting and managing their trademark portfolio internationally. Spanish was introduced as a working language of the Madrid system in 2004 and Mexico becomes the fourth Spanish speaking country in the Madrid system. Among the other Spanish speaking nations is Cuba which was the first country in the Latin American region to accede to the system, a step it took in 1995.

New Zealand became the 88th nation to accede to the system in October of this year (effective starting on December 10, 2012) with the curious exclusion that trademark registrants that designate New Zealand via the Madrid Protocol will not have the protection of their marks extended to the tiny island territory of Tokelau (population about 1400) although a domestic New Zealand trademark application does extend to the island. The Philippines joined the system in April bringing to 4 the total number of additions this year to 4.

Facebook gets a new groove: proposed updates to privacy and use policies

I guess we of Facebook Nation no longer “think” as one.  Last week Facebook announced proposed changes to its Data Use Policy (explains collection and use of data) and Statement of Rights and Responsibilities (terms of use).

As of November 28, Facebook will be able to change its policies with seven days notice to users. No more voting. In the past, voting on changes allowed some users to flood the system and obscure other user’s input. Will the proposed changes offer more transparency or enhance user’s experience?

The Data Use Policy is slowly becoming less opaque but still obscures some collection methods. For example, the Data Use policy does not explain how the Facebook “Like” button on third party sites may collect about our activities on each website we visit after “liking” a site and then share data with affiliates who serve targeted ads elsewhere.

Will the proposed changes affect businesses and marketeers using Facebook for corporate events, product launches and brand communications?  While the proposed changes do not seem to affect developer and marketing activity, empowering consumers with privacy settings could curb the digital love.

Everything needed to “understand” Facebook’s new moves is here.

Is Software Patentable?

We may soon have an answer to that question. By “soon” I mean probably sometime in the next two years. By “answer” I mean we will have the en banc opinion of the Federal Circuit in the case of CLS Bank v. Alice Corp.  Yesterday, the Federal Circuit granted CLS Bank’s petition for rehearing and vacated the panel decision issued by the court in July.  Briefing by the parties and likely by a host of interested third parties will begin immediately but oral arguments will not be scheduled until 2013. Perhaps anticipating the private sector’s broad interest in the issues to be considered, the court waived the usual requirement for third parties to obtain leave of the court before filing an amicus brief and specifically invited the United States Patent and Trademark Office to state its views. In addition to the issues considered by the panel, the full court determined to consider:

a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea? and

b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

At the district court level, Alice Corp. asserted four patents that cover a computerized trading platform for exchanging obligations in which a trusted third party settles obligations between a first and second party so as to eliminate “settlement risk.” The district court granted summary judgment of invalidity based on a finding that the patents claimed ineligible subject matter and Alice appealed.

Reversing the lower court, the Federal Circuit panel majority held that a claim must not be deemed to be directed to patent ineligible subject matter under § 101 if, in view of all of the claim recitations, it is not manifestly evident that the claim is directed to an abstract idea. Alternately stated, Judge Linn wrote that “unless the single most reasonable understanding of the claim is that it is directed to nothing more than a fundamental truth or disembodied concept with no limitations in the claim attaching that idea to a specific application,it is inappropriate to hold that the claim is directed to a patent ineligible “abstract idea” under 35 U.S.C. § 101.”

The majority then applied what was quickly dubbed the “nothing-more-than” standard and, after criticizing the district court for looking “past the details of the claims” to characterize them fundamental concept that are patent ineligible, looked closely at the claims themselves. In doing so, the majority concluded that Alice’s patent claims “appear to cover the practical application of a business concept in a specific way” which requires computer implemented steps that “play a significant part in the performance of the invention.” This, in the eyes of the majority, is enough to clear the apparently low bar set by § 101.  Judge Prost wrote a strong dissent arguing that the majority had improperly ignored Supreme Court precedent providing that limiting the use of a claimed formula to a particular technological environment or adding purely conventional or obvious pre-solution activity was insufficient to render an abstract idea patentable. We will have to wait and see if the full Federal Circuit gives Supreme Court precedent more weight.

Collecting children’s data without their parents’ permission earns the FTC a cool $1M fine from Bieber Fansite

Websites should consider treating children as an attractive nuisance. Even consider putting up fences to keep them out. 

The FTC is monitoring many websites that attract children (even unintentionally) for COPPA violations. The Children’s Online Privacy Protection Act, COPPA, requires websites to  obtain verifiable parental consent before collecting personal information from kids under age 13.  Sites that are “directed” to such children must also disclose to parents what it collects about their children, how it uses the information and what it discloses to third parties. If the websites do not comply with COPPA the Federal Trade Commission may investigate, and impose fines and consent orders to curb websites’ tracking of children under 13.

Many website policies include a disclaimer that the website is “NOT directed” to children under age 13 and prohibit or limit access by children under 13 only with direct parental supervision.  Unfortunately, these policies will not limit the liability of a website operator if it knows kids under 13 are providing personal information to its website.  Then, the website is likely to be considered to be directed to such children.  If a website operator knows that kids are attracted to its website, then the website must comply with COPPA as if it the website is intentionally directed to children under 13.

Artist Arena manages fan sites for Justin Bieber, Rhiannon and Selena Gomez (among others)  together collected personal information from more than 25,000 children under the age of 13 without seeking verifiable parental consent.  Artist Arena’s fansites were intentionally directed to ‘tweens as the target audience of the celebrities featured on its fan sites and had COPPA policies, but failed to actually notify the parents and obtain their permission before collecting info from their children.  Artist Arena settled with the FTC, agreeing to pay a cool million dollars, enter into a consent decree against future  COPPA violations, and destroy all data it unlawfully collected from children.

The take-away?

Kids are adept at learning new technology and have unfettered access to smartphones, tablets and desktop computers.  So, it goes without saying that many registration schemes aimed at preventing kids from accessing an attractive website are quickly overcome.  A policy prohibiting use by children is definitely not sufficient. Operators of interactive websites (sites with blogs, forums, comment and sharing features) can’t ignore kids under 13 who are using the site .  Their data stream will likely “rat them (and the operator) out.”  With notice of kids, the operator must either block access or adopt a COPPA policy and enforce it. Get the COPPA FAQ’s  here.

As for Users who admit to being age 13 or younger are persistently blocked from registering:

We are sorry, but you can not register at this time.

Hat/Tip to Sharon Snyder for sending me this Washington Post article about Artist Arena’s woes.