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Category: Intellectual Property

Google LLC v. Oracle America, Inc.: The Dissent That Matters (Part 2)

Posted on May 4, 2021August 11, 2022 by Tech Law Forum NALSAR

[This post has ben authored by Ajeeth Srinivas, a 4th year student at School of Law, Christ University, Bangalore.]

The first Part of this Article analysed the judgement in the case of Google v Oracle, in suppoet of the minority opinion. The first part analysed the implications of the judgement on the idea-expression dichotomy and Google’s contentions regarding the merger doctrine, by understanding the structure of Oracle’s JAVA software, and noting the relationship between the declaring code and the implementing codes. This part analyses the second aspect of the majority judgement, and supports the views of the dissenting judges on the issue of Fair Use. 

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Google LLC v. Oracle America, Inc.: The Dissent That Matters (Part 1)

Posted on May 4, 2021May 3, 2021 by Tech Law Forum NALSAR

[This post has been authored by Ajeeth Srinivas, a 4th year student at School of Law, Christ University, Bangalore.]

“If the majority is going to speculate about what Oracle might do, it should at least consider what Google has done.”

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Data Rights in Sports: The case of Event Data

Posted on December 5, 2020December 7, 2020 by Tech Law Forum NALSAR

[Ed Note: The following post is part of the TLF Editorial Board Test 2020-21. It has been authored by Dhananjay Dhonchak, a second year student of NALSAR University of Law.]

The commercialisation of sport coupled with advancements in technology have made it possible to collect and analyse vast reams of data generated in sporting activities. The information generated can take various forms such as physiological data of athletes, event and even fan-data. This article specifically focuses on event data and the legal concerns relating to its ownership and control.

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Blockchain: Catalyzing Revolution in the Copyright Law

Posted on August 12, 2020November 1, 2020 by Tech Law Forum @ NALSAR

[This post has been authored by Ujjawal Bhargava, a fourth-year student at the Institute of Law, Nirma University, Ahmedabad.]

Copyright is a right provided to the creators of literary, artistic, dramatic and musical works as well as to the producers of sound recordings and cinematographic films. The rights of the creators include inter alia, right of reproduction, adaptation, and translation of work and communication to the public. However, despite the bundle of rights to provided to the authors, they are infrequently utilized even their copyright is infringed. The reasons for the this include lack of transparency about the legal status of copyrighted work, lack of knowledge about the right owner and piracy, etc. The status quo can be appropriately described “like having the keys and title to your car, but not knowing where it’s parked: in theory you own it, however in practice you cannot use it in the intended way.”

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Protection of Graphical User Interfaces in India: Copyright or Design?

Posted on May 27, 2020November 1, 2020 by Tech Law Forum @ NALSAR

[This post has been authored by Adhyasha Samal of the Hidayatullah National Law University, Raipur.]

Graphical User Interfaces (“GUIs”) refer to the visual elements of a user interface that facilitate interaction between the user and the system. GUIs are rapidly evolving and are applied in personal computers as well as phones, tablets, e-watches and other smart devices. Preceded by command-line interfaces which required users to enter a command in the text box to complete a function, GUIs came into existence when Xerox Corporation created the first personal computer, Alto, containing the first GUIin 1970. It was soon followed by Apple’s Macintosh and Microsoft’s MS Windows.

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Artificial Intelligence as an Inventor: Introducing a New Patent Paradigm in India

Posted on May 9, 2020July 6, 2022 by Tech Law Forum @ NALSAR

[This post has been authored by Lavanya Jha (West Bengal University of Juridical Sciences, Kolkata) & Shreya Jha (Amity Law School, Delhi).]

The term Artificial Intelligence (AI) was coined by American computer scientist John McCarthy during the Dartmouth Conference on Artificial Intelligence in 1956. It was understood as a system of solving complex problems through reasoning, knowledge representation, planning, navigation, natural language processing, and perception. The shared conception regarding AI has been that it is a method of data processing, wherein the lack of involvement of a processor allows it to have an independent “mind”. Therefore, a processing device like a digital computer through which AI related tasks are accomplished can be viewed as a fundamentally detached, objective observer whereas intelligent behavior can be viewed as a determinate set of independent elements. AI’s primary features can be characterized as unpredictability, rationality, independence, efficiency and accuracy, thereby allowing it to create “patentable” inventions.

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Blockchain in the paradigm of GDPR (Part II)

Posted on April 9, 2020April 29, 2020 by Tech Law Forum @ NALSAR

[This is the second part of a two-part article by Muskan Agarwal (National Law Institute University, Bhopal) and Arpita Pandey (National Law Institute University, Bhopal). Part 1 can be found here.]

Previously, the authors looked at the contradictions between blockchain and GDPR with regard to the principal obligations enlisted in GDPR. In this post, the authors will carry out a feasibility assessment of the solutions proposed.

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Blockchain in the Paradigm of GDPR (Part I)

Posted on April 9, 2020April 29, 2020 by Tech Law Forum @ NALSAR

[This is the second part of a two-part article by Muskan Agarwal (National Law Institute University, Bhopal) and Arpita Pandey (National Law Institute University, Bhopal).]

This is the first part of a two-part post that undertakes an analysis of the points of friction present between the fundamentals of blockchain technology and GDPR and of the various solutions that have been proposed to address the inconsistencies.

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Protection for non-expressive use in India

Posted on January 13, 2020January 13, 2020 by Tech Law Forum @ NALSAR

This post has been authored by Unmekh Padmabhushan, a final year student of National Law University, Jodhpur.

Machine learning is the process by which a piece of software is able to expand upon its capabilities and knowledge in a self-driven manner without any significant human input. This technology has been used, for example, in disaster warning systems and in driverless cars. Another scholarly use of such technology allows robots to derive patterns and significant correlations from enormous databases of texts in a manner impossible for human beings. This has led to led to an explosion in the ability of those working in the field of the humanities to analyse data like their natural sciences counterparts have done for years. [1]

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Is Embedding a YouTube Video Legal?

Posted on August 17, 2019August 15, 2019 by Tech Law Forum @ NALSAR

This piece has been authored by Jubin Jay, a final year student at National Law University, Odisha (NLUO). 

A lot of people use YouTube videos to enhance their online articles or webpages. Some provide a regular link to the YouTube video while some provide with an embedded link of the same.  While embedding, the video itself appears on the webpage and the user is not redirected to YouTube, in contrast to the previous case, where it only appeared as a link. Now, this is problematic because someone else’s video appears on one’s own webpage. A lot of people argue that this is similar to using someone else’s work for your gain without their permission, amounting to a copyright violation. However, there is ambiguity and a lot of questions are yet to be answered in such cases to prove an infringement. So, the broader question remains, is embedding a YouTube video legal?

Section 6 (c) of YouTube’s official terms of service reads:

“by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the content in connection with the service and YouTube’s (and it’s successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the service and under these Terms of Service.”

The most significant part in the aforementioned terms is that the owner of the video grants every YouTube user a license to access his content, and to use, reproduce, distribute, display, and perform such content as permitted through the functionality of YouTube and its terms of service. In other words, when any owner uploads his video, he has an option to either enable or disable embedding, and since by choosing to leave it enabled, he grants the user a limited license to embed the video.

Based on the Terms of Service as discussed above, one can ideally conclude that if there is an option in the video to embed, then there is nothing illegal in embedding such a video. However, the phenomena of embedding too comes with some conditions and restrictions attached to it. Section 4 (f) of the Terms of Service states, “If you use the Embeddable Player on your website, you may not modify, build upon, or block any portion or functionality of the Embeddable Player, including but not limited to links back to the YouTube website.”

Put simply, an embeddable player is made available on one’s webpage by inserting a code to a website, linking to a video that’s hosted at another location, and surfacing a video player without using any resources from the website itself. However, post this if there is any modification made to the embeddable player as had been generated, Section 4 (f) of the Terms of Service will be attracted. Such conditions and restrictions attached to embedding, can be better understood in light of the observations made by the courts of U.S. and EU in the cases discussed below.

In Flava Works, Inc. v. Gunter the Seventh Circuit Appellate District faced a situation where members of an adult site were listing videos from the paid area of the site on a separate social media bookmarking site. The bookmarking site would then create a video preview with the embedded code. The Court however found that no copy was being made by the social media bookmarking site, thereby resulting in the termination of the infringement claim. Put more succinctly; merely embedding the video on your site does not give rise to liability.

Further, in Perfect 10 v. Amazon the Ninth Circuit made it clear that in situations where just in-line links are concerned, there is absolutely no direct copyright infringement liability.

The ECJ however brought a new dimension to the question of infringement. In BestWater International GmbH v Michael Mebes it was held that that as long as the embedding doesn’t make the video available to new audiences, there is no infringement. In this case, the water filter ad in question had already been available to the entire internet on YouTube, so the court observed that merely embedding it didn’t make it available to any new audiences that previously didn’t have access to it. In conclusion, it does not constitute a public communication within the meaning of Article 3 (1) of the Information Society Directive as it does not appeal to a new public.

However, all of the above cases fail to address a situation when there is embedding of a video which is already infringing. Could this amount to contributory infringement by aiding and abetting?

Judge Posner in the Flava Works Case observes, “myVidster (the defendant) is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work. There is no evidence that myVidster is encouraging them, which would make it a contributory infringer. If myVidster encouraged or induced that party to upload the infringing video, it would be a contributory infringer to that infringement. But users of myVidster who thereafter merely stream that infringing video are not infringers of the reproduction or distribution rights since they have made no copies.”

The observation made above does seem satisfactory to an extent, however, is very situational in nature as there was no evidence that someone actually made a copy using the link provided. Had users copied the infringing video using the link, the observation made by Judge Posner could have been different. To conclude, proving infringement in cases where a YouTube video has been embedded will depend, for the most part, on the factual situation concerned and will vary from case to case. As technology keeps evolving with time, there can never be a strait jacket formula for proving infringement. In any event, with regard to the question we have raised presently, yes, embedding a YouTube video is legal, as long as the video being embedded is not an infringing video in itself.

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