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.
Earlier this week, Zillow sent an aggressive cease and desist letter [PDF] to Kate Wagner, the creator of the McMansion Hell website. Zillow demanded that Wagner remove any image originally sourced from Zillow’s site. Today EFF sent a response to Zillow on Wagner’s behalf. Our letter [PDF] explains why none of Zillow’s contentions have any merit.
Today the Supreme Court issued a decision that will have a massive impact on patent troll litigation. In TC Heartland v. Kraft Foods, the court ruled that patent owners can sue corporate defendants only in districts where the defendant is incorporated or has committed acts of infringement and has a regular and established place of business.
In a ruling this week that will cheer up patent trolls, the Supreme Court said patent owners can lie in wait for years before suing. This will allow trolls to sit around while others independently develop and build technology. The troll can then jump out from under the bridge and demand payment for work it had nothing to do with.
Plenty of businesses rely on third-party payers: parents often pay for college; insurance companies pay most health care bills. Reaching out to potential third-party payers is hardly a new or revolutionary business practice. But someone should tell the Patent Office. Earlier this year, it issued US Patent No. 9,026,468 to Securus Technologies, a company that provides telephone services to prisoners.
"Most such litigation settles fairly quickly due to cost pressures, rather than the merit of the allegations, said Daniel Nazer, senior staff attorney with the Electronic Frontier Foundation, a nonprofit that defends “civil liberties in the digital world.”
Even the simplest patent lawsuit is rarely litigated through trial for less than $1 million, while bigger cases commonly cost more than $10 million, Nazer said.
"Meanwhile, Daniel Nazer, an attorney with the Electronic Frontier Foundation, also applauded the occasion.
"It's a classic example of how an overbroad patent can frustrate innovation," he emailed Ars. "To the extent the industry faces other challenges because of a stigma against sex tech or adult products, those will remain. But at least startups in the space won't immediately get sued.""
"EFF senior staff attorney Daniel Nazer tells me in an email that “it’s a good thing this patent is expiring” and noted that the owner of the patent had filed a lawsuit against several small companies, “so it’s reasonable to conclude that it was actively deterring innovation in this space.”"
"A nonprofit advocacy organization, EFF often files amicus briefs in cases involving tech companies. The Federal Circuit discourages amicus briefs that duplicate arguments made by the main parties, but the court’s policy of withholding access to briefs made it hard to read other case filings before the deadline to submit amicus briefs, said Daniel Nazer, the EFF attorney who asked the court to amend its policy.
"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.
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.