The End of the Battle – Apple v. FBI?

The legal battle between Apple and the Government may finally be over (or not quite). Last evening, the Department of Justice filed for a Motion to Vacate the Order compelling Apple’s assistance in unlocking San Bernardino’s shooter’s iPhone before the United States District Court for the Central District of California.The Government was able to hack into the iPhone and and hence no longer required Apple’s assistance. (See here and here for more on this case).

For Apple Case
Image Courtesy : Mashable

 

The Government’s decision to withdraw the case seems somewhat unprecedented to me raising some pertinent questions –

(i) How did the Government manage to break into the iPhone? (There have been some theories to this end propounded by the forensic expert Jonathan Zdziarski.)

(ii) Will the method be divulged to Apple or to the public for that matter? (Communication of the method atleast to Apple would seem plausible.)

(iii) Why were alternative technologies not explored before filing for the Motion to Compel Apple’s assistance? ( Perhaps the existence of these methods were already known to the FBI. However, the Government wanted this to be a test- case for intruding into user’s privacy.)

(iv) Did the Government succumb to mounting anti – public opinion?  ( I would say so since Apple had the backing of the largest Silicon Valley tech giants and the civil society groups. Further, even the public at large disfavored the Government’s demand of asking Apple to create a backdoor to an iPhone’s security features.)

In light of the recent terrorist attacks in Brussels, the conundrum of striking the right balance between compelling national security needs and user’s privacy has only widened. The closure of the Apple v. FBI battle is the starting point of a larger debate – to what extent can corporations keep their user’s expectations of privacy at bay with a view to aid law enforcement agencies in the event of a national security threat?

( Just the ripe time to read Professor Daniel J. Solove’s book, ” Nothing to Hide : The False Tradeoff Between Privacy and Security“.)

Apple v. FBI : Follow – Up

In my previous post, I had briefly covered the on – going dispute between Apple and FBI on the latter’s ability to  compel Apple to unlock an iPhone. Just today, I reviewed all the Motions filed before the Court till date.

For Apple v. FBI
Image Courtesy : www.techcrunch.com

I’ve summarized the time line of the case along with the pertinent arguments raised by both the parties. I’ve focused particularly on the First Amendment aspect of the case, with a view to determine it’s relevance to broadcasters. ( Considering that my next professional role is at the Asia Pacific Broadcasting Union as it’s Legal Officer. Barring Kuala Lumpur’s muggy weather, given it’s strategic location, I’m looking forward to lead a truly Asian way of living!).

Also, it is rumoured that an Israeli based firm named Cellebrite was aiding the FBI to unlock the phone.

International IP Index 2016 : Some Thoughts and Transcript

To substantiate my rebuttals on how IP was not correlated to innovation, another great piece by an economist on how the patent system was holding back science (http://www.bloombergview.com/articles/2016-03-23/rigid-patent-laws-pose-risk-of-a-new-dark-ages). Hence, once again proving that heightened IP protection stifled innovation.

Striking though not surprising is the active role of the economists in the IP v. Innovation debate ( considering that significant scholarship on the relationship between the two has been produced by economists) and the passivity of IP lawyers. That’s also because we IP lawyers like to believe that IP protection( just like real property) is of utmost importance!

Seemantani Sharma

INTRODUCTION :

In my previous posts (see here and here), I’ve briefly covered India’s performance in the 4th Annual International IP Index (the Index) .  Just today, I watched the release of the Index and have started reading the unabridged version of the Report.

(The Index has three parts to it, the Executive summary – which summarizes the findings of the Report, the Unabridged Report – which is the primary Index document and the Statistical Annexure  – which is the research methodology and in – depth statistical analysis on the relationship between IP, innovation and economic development.)

Global IP Index Image Courtesy : Live Mint

In this post, I’ll give a brief account of the release of the Report.

The event commenced with David Hirschmann of the Global Intellectual Property Rights Center giving an introduction to the Index followed by Tom Donohue of the U.S. Chambers of Commerce making a…

View original post 1,052 more words

The War On Privacy : Apple v. FBI

It is being speculated that the “outside party” whose help the FBI is seeking is a forensic company on contract for the U.S. government.

Seemantani Sharma

Many of you may be wondering about my divergence from IP to privacy law. However, keeping upto the name of the blog, I could not have kept mum when one of the largest tech – giants has been embroiled in a major legal controversy touching upon user privacy.

The legal controversy in question is none other than the widely reported Apple v. FBI. This case arose in the aftermath of the San Bernardino’s terrorist attacks.  The issue revolved around whether the FBI could compel Apple Inc. to write a new software to unlock Syed Rizwan Farook’s (the shooter) iPhone. ( For more on the case, read here, here and here)

A hearing was scheduled for today before the United States District Court for the Central District of California. However, yesterday, the FBI filed for a  Motion to Vacate the Hearing. This was on the ground that through…

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Public Hearing (Update) : 2016 Special 301 Report

March is nearing an end and the transcript and the recording of the public hearing to the 2016 Special 301 has not yet been released by the USTR. Given the delay, I’m wondering if the USTR would be successful in tabeling the Report by April 30th. Irrespective of the time frame, I’m keenly awaiting for the transcript and the Report.

Seemantani Sharma

Many of you may be wondering about my deafening silence on the 2016 Special 301 Report, which I’ve otherwise been aggressively pursuing. (For more on the Special 301, see my posts here, here, here and here). Unfortunately, even after a fortnight,  the transcript and the video of the public hearing has not yet been released. This is somewhat strange considering that the video for  the 2015 Special 301’s public hearing was uploaded within 9 days of the hearing.  Hopefully, by this week, we should see it’s release.

Post hearing comments were submitted by the American University Washington College of Law , the Footwear Distributors and Retailers of America, the Trademark Working Group, the Computer and Communications Industry Association, the Union for Affordable Cancer Treatment, the Internet Association, the Global Intellectual Property Center. Organizations which submitted India related comments were – 

(I) The Trademark…

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The War On Privacy : Apple v. FBI

Many of you may be wondering about my divergence from IP to privacy law. However, keeping upto the name of the blog, I could not have kept mum when one of the largest tech – giants has been embroiled in a major legal controversy touching upon user privacy.

The legal controversy in question is none other than the widely reported Apple v. FBI. This case arose in the aftermath of the San Bernardino’s terrorist attacks.  The issue revolved around whether the FBI could compel Apple Inc. to write a new software to unlock Syed Rizwan Farook’s (the shooter) iPhone. ( For more on the case, read here, here and here)

A hearing was scheduled for today before the United States District Court for the Central District of California. However, yesterday, the FBI filed for a  Motion to Vacate the Hearing. This was on the ground that through an outside party, they had found a way to access Farook’s iPhone. The method if found successful would eliminate the need for Apple’s assistance. The FBI has proposed filing for a status report to the Court by April 5th, 2016.

I’ve been speculating about this, ” outside – party” and it’s legal mandate to propose an alternative method for unlocking the phone. Any useful insights will be much appreciated.

Traditional Knowledge Digital Library : The Tale of Inflated Claims?

Much has been written about the efficacy of the Traditional Knowledge Digital Library (TKDL) in protecting India’s TK against biopiracy. ( See here, here and here). Infact, my LL.M. research also focused on the broader issue of biopiracy.

Just when I was thinking of refining my paper (in order to get it published), I stumbled upon an article on WIPO’s website while researching on the current status of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). In the article, Dr. V.K. Gupta, the brain behind TKDL explains the role of the database in thwarting biopiracy attempts by MNCs. .

traditional knowledge
Image Courtesy : The Lifeintelect Blog

A cursory look at the document and I was appalled by it’s vagueness, blatant lies and hyperbole. In this post, I’ll highlight the relevant excerpts from the document which caught my attention –

The TKDL expert group estimated that, annually, some 2,000 patents relating to Indian medicinal systems were being erroneously granted by patent offices around the world.

I would expect a document submitted to the WIPO to be backed by references. Following questions come to my mind –

Q.  What is the constitution of this TKDL expert group?

Q. In which year was the study conducted?

Q. Is the Report in public domain? ( I could not find it)

Q. What is the ambit of the expression, ” patent offices around the world“?  Does it include only the major patent offices ( to which TKDL is available on a non – disclosure basis) or does it have a wider scope?

( As of date, TKDL is available to the USPTO, the EPO, the JPO, IP Australia, CIPO, the GPO, UKPTO and CGPDTM-India on a non-disclosure basis.)

In one case the applicant modified the claims submitted and, in 33 other cases, the applicants themselves withdrew their four to five-year-old applications upon presentation of TKDL evidence – a tacit admission of biopiracy by the applicants themselves.

How can withdrawal of a patent application be inferred as a tacit admission of biopiracy is beyond my comprehension? I’m not discounting that prior art as documented in TKDL may have put the applicants in a spot. However, labelling it as ” tacit admission of biopiracy” without divulging the details is exaggeration to say the least.

The best is yet to come,

India is the only country in the world to have set up an institutional mechanism – the TKDL – to protect its TK. The TKDL enables prompt and almost cost-free cancellation or withdrawal of patent applications relating to India’s TK.

Perhaps Dr. VK Gupta at the time of penning this down was ignorant about the existence of the China Traditional Chinese Medicine Patents Database which dates back to June 17, 2002.

I’ve written to Dr. Archana Sharma, Head of CSIR – TKDL Unit for a clarification on some of these points.  As soon as I hear from her (if at all! ), I’ll bring forth her response to the questions raised.

Public Hearing : 2016 Special 301 Report

KEI had submitted an expanded testimony about which I was enlightened yesterday through Jamie Love’s blog post.  All the relevant points have already been highlighted in my previous post.

Some startling revelations have been made by KEI in the expanded testimony ( startling for until yesterday I was ignorant of these statistics) –

We have reviewed the submissions of PhRMA, BIO, BSA, IIPA and the US Chamber of Commerce’s Global IP Center, among others. One thing that jumps out at you is that the primary predictor of whether or not a country is targeted by industry is the size of its economy. In Northern Africa, South America and Asia, being big means being a target. We are attaching an excel spreadsheet (assuming we can upload it) that lists data on population, income (measured by GNI) by region. ● In South America, the seven largest economies were targeted for various watch lists by the 5 industry trade groups. The smallest 5 economies, not once. ● In North Africa, the two largest economies were targeted. The three smaller economies were not. ● In sub­Saharan Africa, only Nigeria was targeted. Nigeria has the largest economy in Sub­Saharan Africa. ● In the Asia Pacific region, 7 of the 8 largest (Japan was the exception) and 11 of the 16 largest economies were targeted. No county with a 2013 GNI less than $162 billion was targeted. ● In Central America, the country with the highest per capita income was the only one targeted (Panama).

Most are aware that the Special 301 is not as much about IP,  as about politics and economics. With KEI tabling these statistics, it further reinforces the blatant partisan nature of the entire Special 301 process.

Source: Public Hearing : 2016 Special 301 Report

Public Hearing (Update) : 2016 Special 301 Report

Many of you may be wondering about my deafening silence on the 2016 Special 301 Report, which I’ve otherwise been aggressively pursuing. (For more on the Special 301, see my posts here, here, here and here). Unfortunately, even after a fortnight,  the transcript and the video of the public hearing has not yet been released. This is somewhat strange considering that the video for  the 2015 Special 301’s public hearing was uploaded within 9 days of the hearing.  Hopefully, by this week, we should see it’s release.

Post hearing comments were submitted by the American University Washington College of Law , the Footwear Distributors and Retailers of America, the Trademark Working Group, the Computer and Communications Industry Association, the Union for Affordable Cancer Treatment, the Internet Association, the Global Intellectual Property Center. Organizations which submitted India related comments were – 

(I) The Trademark Working Group : It brought to the Committee’s notice, the increased costs incurred by a U.S. company to the tune of $ 3,515 as Attorney’s Fees in India due to an absence of multi – Class applications for trademark registrations.

(II) The Union for Affordable Cancer Treatment (UACT) : It countered PhRMA’s demand of  India being placed on the Priority Watch List due to it’s unpredictability of issuing compulsory licenses on essential life­- saving cancer drugs.

(III) The Global Intellectual Property Center (GIPC) : It highlighted the issuance of final Guidelines for Examination of Computer Related Inventions ( “CRI”) by the Government of India. According to GIPC, this denial of patents to all computer related inventions was contrary to prevailing international norms.

Needless to say, I’ll bring forth my views on the public hearing after it’s release.

 

Plagiarism : The Quixotic Legal Crime

INTRODUCTION:

Some of you may be aware that one of my published note was mired in a controversy wherein I had suspected it to be plagiarised by a law firm. Though the matter has been resolved ( gladly the partner understood my concerns and pulled it down from their website), the reaction it garnered was somewhat surprising.

Apart from minor overlaps, copyright infringement and plagiarism are quite distinct. While it is normal for a layman to be unable to distinguish between the two, same is not expected from IP lawyers. Hence, I’ll take this opportunity to differentiate between these two, often interchangeably used terms.

Plagiarism_vs_Copyright_Infringement
Image Courtesy : Sheridan College

(I) The Legal v. Ethical Debate : Nature of the Two Wrongs

Plagiarism is usually an academic wrong and is not per se illegal (Hence, the paradoxical title of this post!) While, copyright infringement subsists even in non – academic settings and is illegal. It is a codified wrong under a country’s copyright law ( 17 U.S.C § 501 is the U.S. law on  copyright infringement while it’s Indian counterpart is Section 51 of the Indian Copyright Act, 1957)

Hence, it may be perfectly legal to plagiarize someone’s work, ethically it would be on shaky grounds. (especially if the plagiarist happens to an academic or a student writing a class paper)

(II) The Idea- Expression Dichotomy : Paramount Difference

The idea-expression dichotomy recognized by Article 9.2 of TRIPS is the paramount distinction between copyright infringement and plagiarism.

For a copyright infringement claim to be successful, it is imperative for the expression which embodies an idea to be copied. Whereas, plagiarism exists when ideas are stolen or passed off without due attribution even if there is no replication of the fixed expression.  (See here for Oxford’s definition of plagiarism)

Substantially paraphrasing an author’s sentence or quote is not copyright infringement but could be plagiarism if the main essence or idea behind the author’s work is lifted without due credit. Infact, there is an acute unawareness about paraphrasing being one of the types of plagiarism.

Oxford classifies paraphrasing as a type of plagiarism. It is defined as –

“Paraphrasing the work of others by altering a few words and changing their order, or by closely following the structure of their argument, is plagiarism if you do not give due acknowledgement to the author whose work you are using.”

Thus, two academic articles on the same topic may be strikingly different ( in terms of the expression conveying the idea) but may nevertheless be plagiarized if there is an intellectual hijack over an author’s research or the argument conveyed without due acknowledgement. Further

“A passing reference to the original author in your own text may not be enough; you must ensure that you do not create the misleading impression that the paraphrased wording or the sequence of ideas are entirely your own.”

Claiming proprietary ownership over an idea or the sequencing of ideas ( since the way an author chooses to structure his/her work is an idea in itself) without due attribution would be plagiarism.  Same holds true for a compilation of views and opinions of others, even if paraphrased  ( For more on academic plagiarism, read here)

(III) Remedies : When Suing is an Option?

Unfortunately, the girl’s name SUE is not a remedy for most types of plagiarism! Though it is a gross violation of academic integrity with potential serious consequences ranging from expulsion of students, to academics losing their jobs ( the ex- DU VC Dr. Dinesh Singh was charged with plagiarism by the Delhi University Teacher’s Association, though the charges were not proved) and an overall tarnishing of a scholar’s image.

Remedies for copyright infringement ( depending upon the jurisdiction) varies from civil, criminal to administrative. Hence, the advise of, ” Don’t wait and SUE” certainly holds weight for copyright infringement!

(See here for remedies under US Copyright law and here for remedies under Indian Copyright law)

CONCLUSION:

With recent advancement in technology, it is easy to spot copyright infringement. However, academic plagiarism (especially plagiarism by paraphrasing) due to it’s unpredictable nature is often difficult to spot and subsequently prove.

Given the degree of shrewdness required to camouflage an intentional academic plagiarism, I view the plagiarist as a  bigger pirate than the copyright infringer (not to say that copyright infringement is a lesser offence).