Daniel is a Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents at the Electronic Frontier Foundation. He is part of EFF's intellectual property team and focuses on patent reform. Before joining EFF, Daniel was a Residential Fellow at Stanford Law School's Center for Internet & Society where he represented writers, painters, filmmakers, and others who rely on fair use to create their art and scholarship.
Daniel previously practiced at Keker & Van Nest, LLP, where he represented technology clients in patent and antitrust litigation. He served as a law clerk to Justice Susan Kenny of the Federal Court of Australia and to Judge William K. Sessions, III of the District of Vermont. Daniel has a B.A. in Philosophy from the University of Western Australia, an M.A. in philosophy from Rutgers, and a J.D. from Yale Law School.
On August 30, 2016, the Patent Office issued U.S. Patent No. 9,430,468, titled; “Online peer review and method.” The owner of this patent is none other than Elsevier, the giant academic publisher. When it first applied for the patent, Elsevier sought very broad claims that could have covered a wide range of online peer review. Fortunately, by the time the patent actually issued, its claims had been narrowed significantly. So, as a practical matter, the patent will be difficult to enforce.
Patent trolls — companies that assert patents as a business model instead of creating products — have been in the news lately. This is hardly surprising, given that troll lawsuits now make up the majority of new patent cases. And the litigation is only the tip of the iceberg: patent trolls send out hundreds of demand letters for each suit filed in court. At the Electronic Frontier Foundation, we have been following this issue closely and are working hard to bring reform to fix the patent mess.
Last week's decision in Authors Guild v. HathiTrust -- upholding the Mass Digitization Project (MPD) -- was a big victory for fair use. The MDP is a project where university libraries and Google have together digitized over 10 million books to allow for full-text searches, preservation, and access for people with print disabilities. When the Authors Guild sued for copyright infringement, HathiTrust defended the suit by arguing that the MDP is fair use.
Judge Baer upheld the MDP. His decision recognizes that the project is a massive public good: it is a tool for scholarship, prevents the loss of our cultural heritage, and provides unparalleled access for the visually impaired. Significantly, he found that these educational purposes are "transformational" in a way that supports fair use.
The Australian government has proposed sweeping changes to its surveillance and national security laws. The government’s wish list includes mandatory data retention, surveillance of social networks, criminalization of encryption, and lower thresholds for warrants. As it seeks to expand its surveillance powers, the government also wants to dilute oversight by jettisoning record-keeping requirements. This week I submitted detailed comments opposing the changes to the Joint Parliamentary Committee on Intelligence and Security.
We filed an amicus brief in the Second Circuit on behalf of The Andy Warhol Foundation for the Visual Arts urging the appeals court to reverse a district court decision that ignored established fair use principles that many artists rely upon in creating their work.
The FUP filed this suit on behalf of a University of Denver conductor and others, challenging Congress’s restoration of copyright to works that had entered the public domain.
A New Hampshire state court has dismissed a defamation suit filed by a patent owner unhappy that it had been called a “patent troll.” The court ruled [PDF] that the phrase “patent troll” and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim.
The general rule in patent law is that each country has its own patent system. If you want damages for sales in the United States, you need a U.S. patent. If you want damages for sales in New Zealand, you need to get a New Zealand patent, and so on. A case currently before the U.S. Supreme Court threatens to disrupt this system by allowing worldwide damages for infringement of U.S. patents.
In a big win for free speech, the California Court of Appeal has rejected Olivia de Havilland’s right of publicity and false light claims against FX. The court’s ruling [PDF] explains that the First Amendment protects creative works about celebrities whether the work in question is fact, fiction, or a combination of both. While Hollywood will breathe a sigh of relief, the ruling should also protect other speech by ensuring that right of publicity claims are subject to meaningful First Amendment limits.
When someone wants to remove speech from the Internet, the Digital Millennium Copyright Act’s (DMCA) notice and takedown process can provide the quickest path. This has made copyright law a tempting tool for unscrupulous censors. As content companies push for even more control over what gets posted online, it’s important to remember that any tool used to police copyright will quickly be abused, then adapted, to censor speech more widely.
If trolls don’t face consequences for asserting invalid software patents, then they will continue to shake down productive companies. That is why EFF has filed an amicus brief [PDF] urging the court to uphold fee awards against patent trolls (and their lawyers) when they assert software patents that are clearly invalid under the Supreme Court’s decision in Alice v.
"So does the Spark Networks matchmaking patent hold up in a post-Alice world? It depends on how you look at it. From a theoretical legal perspective, “This is not a close case. It’s clearly invalid under the Alice standard,” Mr. Nazer said. “It’s disappointing that an attorney would file this case.” "
"Nazer is hoping the case can make big companies at least consider fair use before they send out automated, or near-automated, letters demanding that websites fold up shop.
"We think cases like this push back against trademark owner narratives that any 'use' of a [trademark] needs permission," he said. "We also want to push them to at least consider fair use before sending cease and desist letters.""
"Google's program "has some terms that are favorable to Google, such as requiring an exclusive offer and agreeing that the offer won't serve as notice for willfulness purposes, but no one is being forced to offer their patents as part of this program," said Daniel Nazer, staff attorney at the Electronic Frontier Foundation.
The response likely "will be modest," he told the E-Commerce Times."
""In practice it doesn't seem to have been a revolutionary decision," said EFF staff attorney Daniel Nazer, who penned the organization's Supreme Court brief in Nautilus. While the Supreme Court clamped down on the "extravagance" of the insolubly ambiguous standard, "judges are still interpreting the 'reasonable certainty' test in a patentee-friendly way."
""This is a patent on updating a Web page, when you really look at it, it's a patent on updating a table of contents where some of the links could go to media files," Nazer said. "This is not the kind of thing that should have been patentable and it certainly wasn't new, even in 1996."
Personal Audio could appeal the U.S. Patent Office decision by taking the case to federal court, Nazer said."
Staff Attorney, Electronic Frontier Foundation
Right of publicity law is a mess. Courts apply a variety of tests and apply these tests inconsistently to different forms of media. At the same time, the right of publicity impacts a wide range of speech--from movies, to computer games, to baseball cards. Uncertainty about the relevant standards makes it difficult to advise clients about the scope of the right.
Daniel Nazer Staff Attorney, Electronic Frontier Foundation
Jonathan Blavin Partner at Munger, Tolles & Olson
• First Amendment and public figures in sports games
• Cheating and hacking in online game play
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Read or listen to the full interview at NPR.
NPR's Audie Cornish talks to Daniel Nazer of the Electronic Frontier Foundation about the impact of this ruling. An appeals court ruled the music used in the video was an instance of fair use.
AUDIE CORNISH, HOST:
When Stephanie Lenz saw her toddler jamming out in the kitchen to the Prince song "Let's Go Crazy," naturally she took a video and posted it to YouTube.