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.
The National Symbols Officer of Australia recently wrote to Juice Media, producers of Rap News and Honest Government Adverts, suggesting that its “use” of Australia’s coat of arms violated various Australian laws. This threat came despite the fact that Juice Media’s videos are clearly satire and no reasonable viewer could mistake them for official publications.
The first season of FX’s drama Feud told the story of the rivalry between Bette Davis and Joan Crawford. Set in Hollywood during the early sixties, the drama portrays numerous real-life figures from the era. Catherine Zeta-Jones appeared as Olivia de Havilland. Unfortunately, de Havilland did not enjoy the show.
Almost all posts on social media include depictions of real people. And most social media websites include advertising. Does this combination mean that nearly everyone featured on social media can sue for infringement of their right of publicity? That would be disruptive. Fortunately, a new ruling [PDF] by the California Court of Appeal confirms that more is needed for a right of publicity claim.
This month’s stupid patent, like many stupid patents before it, simply claims the idea of using a computer for basic calculations. U.S. Patent No. 6,817,863 (the ’863 patent) is titled “Computer program, method, and system for monitoring nutrition content of consumables and for facilitating menu planning.” It claims the process of using a computer to track nutrition information like calorie or vitamin intake. It is difficult to think of a more basic and trivial use for a computer.
"But even when the U.S.P.T.O. granted patents to Raniere for his inventions (which they did for over 20), it shouldn’t necessarily be considered proof of brilliance, according to Daniel Nazer, attorney and Mark Cuban Chair to Eliminate Stupid Patents at the Electronic Frontier Foundation. Nazer said, “If your whole shtick is going around and convincing people that you’re this genius, then the patent system is a way to buttress that.
"Another law professor, Annemarie Bridy of the University of Idaho, lamented gCaptain's situation.
"It's a shame, really, to see people with meritorious defenses give up solely because they can't afford their day in court," she emailed Ars. "But that's how trademark bullying and IP trolling work. Right holders know that it's much cheaper and less stressful for an accused infringer to capitulate or settle than it is to try to win a case in federal court."
"Daniel Nazer, senior staff attorney at the Electronic Frontier Foundation, wrote on Twitter that Securus only "puts up a pretense of being a technology company.""
""You'll notice the complaint is very vague when it comes to what works actually infringe—there's just a lot of hand-waving about global similarities between the two projects," says Daniel Nazer, a staff attorney on the Electronic Frontier Foundation's intellectual property team. "But you'd need to show that a particular work (either a song or video) infringed another specific work. The complaint just doesn't do that.""
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.