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.
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.
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.
"“Boing Boing’s reporting and commenting on the Playboy photos is protected by copyright’s fair use doctrine,” EFF Senior Staff Attorney Daniel Nazer says, commenting on the case."
""After the SOPA fight, Hollywood likely knows that the public would fight back," wrote Daniel Nazer, an attorney at the Electronic Frontier Foundation, in an email to Ars. "I suspect that Big Content knows it would lose the battle and is smart enough not to fight.""
"Nazer believes none of these patents should have been granted in the first place, having failed to overcome the basic legal requirements of being both original and non-obvious. A big part of the problem, he says, has to do with how the patent office works. “Patent examiners spend an average of only 18 hours reviewing each application,” he told me, “which is grossly inadequate.”"
"Supporters of the reviews, meanwhile, say they are a much-needed corrective for a system that has issued far too many low-quality patents. Patent office examiners spend an average of 18 hours reviewing each application, too little time to research all the evidence that might invalidate a claim, says Daniel Nazer at the Electronic Frontier Foundation."
"Just as the US Patent Office problematically gave out patents in the past for computers doing simple things like counting votes or counting calories, the office seems prepared to give out patents on "using machine learning in obvious and expected ways." Companies like Google and Microsoft are seeking to acquire, and in some cases have acquired, patents on "fundamental machine-learning techniques," Nazer writes."
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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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.