The Rise and Fall of Flappy Bird: Flapping it’s Way into Copyright Infringement?

By: Tanjeev Thandi

Flappy Bird is no longer flapping its wings.  Invented by Dong Nquyen, a Vietnamese developer from DotGears, Flappy Bird rose to the top of charts and became the most downloaded app of the year…and then disappeared.

The actual concept behind Flappy Bird is quite simple.  Players control a tiny bird through a maze of metal pipes by tapping on the screen, and that is pretty much all there is to it. In fact, the game only took Nguyen three days to develop.[1]  With such a simple concept, it’s baffling that this app became such a success.  The game was downloaded more than 50 million times since it launched in May of 2013.[2]  Flappy Bird reportedly brought Nquyen around $50,000 a day in advertising revenues.[3]

Despite its success, Nquyen abruptly took this app down as it was appearing to be on the rise and attributed his reasoning to the game’s addictiveness.[4]  Nguyen took the game down as it was gaining attention and popularity, much to the nation’s surprise.[5]  It appears that the popularity of the game was the very reason that he even took the game down since it “ruins his simple life”.[6]  It had became “the world’s most popular free app, from both the Google Play store and Apple’s App store”.[7]

Nguyen claimed on Twitter that he did not take down the game because of legal reasons, however, one of the real questions is whether or not this game was taken down due to copyright issues.[8]  Two individuals close to Nquyen reported that Nguyen received a warning letter from Nintendo that the pipes and other art depicted were lifted from Nintendo’s Super Mario games without any modification.[9]  Nintendo recently denied allegations that they were pursuing legal action against the app.  Nintendo’s spokesman Yasuhiro Minagawa told the Wall Street Journal “While we usually do not comment on the rumors and speculations, we have already denied the speculation”.[10]

Although Nintendo claims to not be taking action, the resemblance between Flappy Bird and Nintendo’s Super Mario Bros. art is uncanny.  It is possible that taking down the game was strategic for Nguyen, because it was taken down before big companies had much incentive to come after him as they would if  “his profits become significant enough for big developers (like Nintendo) with big legal departments to be motivated to come looking for a cut”.[11]  There is also speculation that taking down the game so abruptly was a marketing ploy to foster significant attention, downloads and anticipation for a follow-up game.[12]  This possibility seems unlikely judging by Nquyen’s Twitter however, since he claimed that the game was “ruining his simple life”.[13]  Nguyen told Wall Street Journalists that he is waiting to regain normalcy in his life and even refused to be photographed for their article.[14]

Nguyen and subsequent app developers are not the only ones profiting from Flappy Bird’s success. The game has become such a craze that people are now selling their phones with this game downloaded on eBay for thousands of dollars.[15]  Flappy Bird has opened the door for the “small man” to create simple concept apps and have the success of famously branded game consoles by using little to no creativity.

The reality is that the game may be dead, but the idea is not.  What seemed to be a hybrid of famous app Angry Birds and Nintendo’s Super Mario Bros. is sure to spark up lots of imitations in the near future.[16]  The emergence of similar games is sure to continue this cycle of mobile cloning, but since the concepts are so simple, who is to say that a clone is a clone? This begs the question, when will all these creativity-lacking apps be replaced by truly original and creative games? As long as there are little to no repercussions and a lot to gain, the mobile scene appears to continue as a sea of simplistic games with little innovation.




[1] James Hookway, ‘Flappy Bird’ Creator Pulled Game Because It Was Too Addictive, The Wall Street Journal (Feb. 11, 2014, 12:22 p.m.),

[2] Jennifer Bootan, “Smartphones with ‘Flappy Bird’ Sell For Thousands on eBay, Fox Business (Feb. 13, 2014),

[3] Eric Mack, Flappy Bird Creator May Have Been Scared By Legal Threats After All, Forbes (Feb. 10, 2014, 11:08 a.m.),

[4] James Hookway, ‘Flappy Bird’ Creator Pulled Game Because It Was Too Addictive, The Wall Street Journal (Feb. 11, 2014, 12:22 p.m.),

[5] David Murphy, Flappy Bird-inspired ‘Flappy-Jam’ at 206 Free Games and Counting, PC Magazine (Feb. 15, 2014, 11:47 a.m.),,2817,2453486,00.asp.

[6] Gaetano Prestia, Flappy Bird Creator Says Popularity Ruined His ‘Simple Life’, Removes Game From Sale, MSN ( Oct. 2, 2014,).

[7] Doug Gross, Apple, Google Cracking Down on ‘Flappy Bird’ Clones, CNN (Feb. 17, 2014, 5:17 pm),

[8] Dong Nguyen, Twitter, (Feb. 8, 2014),

[9] Nguyen Phuong Linh, Flappy Bird Creator Says Popular Game Will Fly No More, Reuters (Feb. 9, 2014, 4:05 am),

[10] Newley Purnell, Nintendo: No Complaints About ‘Flappy Bird’, The Wall Street Journal (Feb. 10, 2014, 8:06 a.m.),

[11] Eric Mack, Flappy Bird Creator May Have Been Scared By Legal Threats After All, Forbes (Feb. 10, 2014, 11:08 a.m.),

[12] Eric Mack, R.I.P. Flappy Bird, Forbes (Feb. 9, 2014, 12:51),

[13] Dong Nguyen, Twitter, (Feb. 8, 2014),

[14] James Hookway, ‘Flappy Bird’ Creator Pulled Game Because It Was Too Addictive, The Wall Street Journal (Feb. 11, 2014, 12:22 p.m.),

[15] Jennifer Booton, Smartphones with ‘Flappy Bird’ Sell For Thousands On eBay, Fox Business (Feb. 13, 2014),

[16] David Murphy, Flappy Bird-inspired ‘Flappy-Jam’ at 206 Free Games and Counting, PC Magazine (Feb. 15, 2014, 11:47 a.m.),,2817,2453486,00.asp.

Is the Line Between “Blurred Lines” and “Got to Give It Up” Really That Blurry?

By Laura Fleming

Editor’s Note: This blog was written prior to the settlement of the case being addressed.

When Robin Thicke sang, “I hate these blurred lines” in his latest song, “Blurred Lines,” he probably wasn’t talking about the blurry line between his hit single and Marvin Gaye’s “Got to Give It Up.” Thicke released his song this past summer, while Gaye, now deceased, released his song in 1977.[1] Gaye’s heirs are currently accusing Thicke, along with “Blurred Lines” co-writers Pharrell Williams and “T.I.” Clifford Harris Jr., of copyright infringement in a California court.[2]

The heirs of Gaye included a report by a musicologist in the filing of their lawsuit.[3] The musicologist identified a “constellation of at least eight substantially similar compositional features between the two works.”[4] The report claimed substantial similarity between “[t]he signature phrase, vocal hook, backup vocal hook, their variations, and the keyboard and bass lines” and the songs “departures from convention such as the unusual cowbell instrumentation, omission of guitar and use of male falsetto.”[5]

Under the Federal Copyright Act, in order to establish a claim for copyright infringement, the plaintiff must show that “he or she owns the copyrighted creation, and that the defendant copied it.”[6] However, if the plaintiff does not have direct evidence of copying, the plaintiff may still prevail by showing that the defendant had access to the song and that the songs are “substantially similar.”[7] In order to prove “access,” the plaintiff must show that the defendant had an opportunity to listen to and copy the plaintiff’s song.[8] After that, “substantial similarity” exists where “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”[9]

However, if the plaintiff cannot prove “access,” illustrating that the two works are “strikingly similar” will result in victory.[10] Accordingly, “striking similarity” exists where “the proof of similarity in appearance is ‘so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded.’”[11] However, unless the plaintiff can prove actual copying, proof of “independent creation” wholly negates a claim of copyright infringement.[12]

Still, proving copyright infringement in the area of musical composition is very difficult, because “substantial similarity is often an extremely close question of fact.”[13] In a similar case of copyright infringement, the composer of “Come-Up” accused the composer of “Betcha” of copying a repeating 3–note motif, or ostinato, which served as the fundamental rhythmic track to his song.[14] An expert concluded “the pattern [of Betcha] is identical (100%) to that in ‘Come Up.’”[15] However, the court held that there were “significant dissimilarities” between “Come Up” and “Betcha,” and the ostinato only accounted for 33% of the song.[16] Thus, combined, these factors weighed heavily enough against the plaintiff for the court to grant the defendant’s motion for summary judgment.[17]

As for “Blurred Lines,” during an interview with a magazine, Thicke claimed that he told Pharrell that he “wanted to do something kinda like Marvin Gaye’s ‘Got To Give It Up.’”[18] While this statement is likely insufficient proof of direct copying, it may satisfy the first prong of the copyright test, requiring access to Gaye’s song. However, as the Watt case showed, “substantial similarity” is going to be the difficult for Gaye’s estate to prove. While many journalists wrote about the similarity between the songs after Thicke released “Blurred Lines,” if Thicke can prove “independent creation” he will not be liable for copyright infringement.[19] This is because, even if the musical arrangement accompanying the “hey, hey, hey” verse is exactly the same as Gaye’s, as in the Watt case, this verse only accounts for less than half of the song, which might be enough for the court to rule for Thicke. Also, like Watt, there is much dissimilarity between Gaye’s song and the remainder of “Blurred Lines,” which will greatly help Thicke’s claim of “independent creation.”

Therefore, as past practice indicates, it is unlikely that Gaye’s estate will succeed on its copyright infringement claim against Thicke.

[1] Marvin Gaye Heirs Sue ‘Blurred Lines’ Artists, Alan Duke, (last visited Jan. 13, 2014).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Jones v. Blige, 558 F.3d 485, 490 (6th Cir. 2009).

[7] Benson v. Coca–Cola Co., 795 F.2d 973, 974 (11th Cir.1986).

[8] Jones, 558 F.3d at 491.

[9] Watt v. Butler, 744 F. Supp. 2d 1315, 1322 (N.D. Ga. 2010).

[10]Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir.1999).

[11]Watt, 744 F. Supp. 2d at 1323.

[12] Id. at 1321.

[13] Jones, 558 F.3d at 490.

[14] Watt, 744 F. Supp. 2d at 1318.

[15] Id.

[16] Id. at 1324.

[17] Id. at 1325.

[18] Marvin Gaye, supra note 1.

[19] Id.

Large Databases of Customer Information are…a Target

By: Geoff Wills

On December 19, 2013, Target Corporation confirmed that it was aware of unauthorized access to payment card data impacting any Target customer that made credit or debit card purchases in its U.S. stores.[1]  The data breach occurred between November 27, 2013 and December 15, 2013.[2]  Target’s press released acknowledged that approximately 40 million credit and debit card accounts might have been impacted.[3]  As news broke and the issue was investigated, that number has now increased to 70 million customers, and includes online shoppers.[4]  The cyber attack on Target is the second-largest retail cyber attack in history, and has resulted in investigations by state prosecutors and Attorneys general.[5]  It has also resulted in numerous complaints filed across the country by individuals, all vying for the ever-elusive “class action” status.[6]

The hackers—who are still unknown and at large—stole personal information from a database comprised of names, addresses, telephone numbers, and email addresses.[7]  All of this information, which was obtained through the magnetic strip in debit and credit cards, could allow false magnetic strip credit cards to be made, creating the potential for 70 million new cases of identity theft.  This emerging crime is big business: it cost 13.3 billion dollars in 2010, and impacted seven percent of the nation.[8]  So what can be done, both legally and personally, to prevent or remedy this?

To prevent the likelihood of a data breach, one technology that could be used in the United States is the use of EMV chips in debit and credit cards.[9]  EMV, named after it’s founders—EuroPay International, Mastercard, and Visa has become the standard in the rest of the world.  EMV is a small computer chip embedded within a card, making for a more secure card.[10]  The biggest reason EMV technology has yet to be the standard in debit card and credit cards in the United States is cost.[11]  A card equipped with EMV costs roughly three times as much to make as a non-EMV equipped chip.[12]  This added cost would cost financial institutions more up front, but could go a long way in providing peace of mind and instilling confidence in their customers.

Unfortunately for the victims of this most recent breach, it is too late to prevent the identity theft.  Victims of this crime are now turning toward the legal system to remedy their harm.  Dozens of lawsuits seeking class-action status have already been filed, primarily alleging that Target was negligent in its handling of card data.[13]  While these cases are likely to put pressure on Target to settle out of court, courts have been reluctant in the past to find for plaintiff’s in similar cases due to the struggle to show privacy loss led to financial loss.[14]  Target is also being pro-active in the matter, providing credit monitoring to impacted customers, as well as public assurances that victims of this fraud will not be financially responsible.[15]  Target is likely to face state and federal investigations.  Multiple Attorneys general, including Rhode Island Attorney General Peter F. Kilmartin, have already sent letters to Target’s headquarters requesting information on the security breach.[16]

Looking in the past to similar cases shows how reluctant courts have been to hold retail stores liable for security breaches that have caused identity theft.  In Banknorth, N.A. v. BJ’s Wholesale Club, Inc., a federal court dismissed all claims against BJ’s.[17]  This case was not filed by impacted customers, but by an impacted financial institution.  In Banknorth, plaintiffs filed suit after third parties hacked into computer files maintained by BJ’s that resulted in confidential customer information being used for identity theft.[18]  Plaintiffs alleged three claims, including breach of contract, negligence, and equitable subrogation.[19]  Focusing on the negligence claim, Banknorth alleged that BJ’s breached their duty of care by retaining customer information and failing to protect it, and that such negligence caused unauthorized third parties to obtain customer information for fraudulent purposes.[20]  The court refused this negligence claim, citing the economic loss rule.[21]  Because the alleged negligence only resulted in economic loss and no physical harm, BJ’s had no liability.[22]  As in Banknorth, the economic loss rule could have large implications for deciding upcoming cases filed by victims of the Target data breach.

The consequences of this tremendous data breach are likely to be far-reaching, and could have significant implications in how customer information obtained by credit and debit cards is stored and used.  As society moves increasingly toward cashless transactions, keeping personal data secure and confidential will become even more important, and the battle will wage on between security and hackers.  Due to past decisions and the economic loss rule, it is likely that the best method to fix this large issue rests in the hand of congress and governmental regulation, and not in continuous, ongoing legislation.  This would also be a better mechanism for change as most claims involving multiple plaintiffs and large corporations are likely to never reach litigation, as many are settled out of court in an effort to maintain brand recognition.  Look for many more significant data breaches in the upcoming future, and don’t forget to always be on the lookout for identity theft.


[1] Press Release, Target Corp., Target Confirms Unauthorized Access to Payment Card Data in U.S. Stores (Dec. 19, 2013), (Last visited January 15, 2014).

[2] Id.

[3] Id.

[4] Paul Ziobro, Target Now Says 70 Million People Hit in Data Breach, Wall St. J. (Jan. 10, 2014, 8:36 PM),

[5] Target Data Breach Hits at Least 70 Million Customers, Chi. Trib. (Jan. 10, 2014, 7:27 PM),,0,621285.story. (Last visited January 15, 2014).

[6] Katie Mulvaney, Kilmartin Seeks More Information From Target Corp. on Massive Security Breach, Providence J. (Dec. 31, 2013, 10:12 PM), http://www.providence; Joel Rosenblatt, Target Sued by Shopper Over Data Security Breach Claims, Bloomberg L. (Dec. 20, 2013, 1:06 AM),

[7]  Paul Ziobro, supra note 4.

[8] Jeff Sovern, How Common is Identity Theft?, Consumer L. and Pol’y Blog, Nov. 16, 2012,

[9]  Elizabeth Dexheimer, Target Breach Spurs Push for Anti-Fraud Card Technology, Bloomberg News (Jan. 15, 2014, 12:00 AM),

[10] Id.

[11] Id.

[12] Id.

[13] Joel Rosenblatt, supra note 6.

[14] Jacob Gershman, Target’s Breach is Bigger Than Though, But Legal Exposure is Uncertain, Wall St. J. L. Blog (Jan. 10, 2014, 6:11 PM),

[15] Id.

[16] Katie Mulvaney, supra note 6.

[17] See Banknorth, N.A. v. BJ’s Wholesale Club, Inc., 442 F.Supp.2d 206 (M.D. Pa. 2006).

[18] See Id.

[19] Id. at 208.

[20] Banknorth, 442 F.Supp.2d at 208.

[21] Id.

[22] Id. at 211.

Destruction of Federal Circuit Claim Construction

By: Erin Phillips

On October 1, 2013 the Supreme Court granted certiorari in the patent case Highmark, Inc. v. Allcare Health Management Systems, Inc. to decide whether a district court’s exceptional-case finding to award attorney’s fees was entitled to deference by the Federal Circuit.[1]  Although on its face the implications of a judgment in favor of deference seem to reach only the most exceptional cases, the possible effects on patent claim construction are monumental.  A decision in favor of deference could spark a major reduction in power for the Federal Circuit.[2]

In its petition for certiorari Highmark stated,

This case is deeply important for another reason: It is part of a larger pattern of Federal Circuit decisions arrogating greater authority to the court of appeals and upsetting the traditional relationship between trial and appellate courts. The Federal Circuit now has asserted de novo review for claim construction… these determinations have substantial factual components.[3]

Claims are the most significant aspect of the patent document.[4]  The claims are the portion of the document that determines the boundaries of the patentee’s rights.[5]  In 1998, the Federal Circuit, en banc, ruled in Cybor Corp. v. FAS Techs, Inc. that claim construction is solely a question of law and is therefore subject to a de novo standard of review.[6]  In his dissenting opinion, Judge Rader stated that the “objective of claim interpretation is to discern the meaning of the claim terms to one of ordinary skill in the art at the time of invention” and de novo review would negate any expert testimony that furthers this objective.[7]

Additional arguments against a de novo standard of review for claim construction include: increased uncertainty in the outcome of litigation, increased number of appeals, and demoralization of trial judges.  Federal Circuit trends have shown that as many as 40% of claim construction cases are reversed.[8]  Critics of Cybor argue that trial judges are better equipped to make claim construction determinations and the most extreme argue that claim construction is inherently a factual determination.[9]

In September, the Federal Circuit, en banc, heard oral arguments in Lighting Ballast Control v. Philips.[10]  The court asked the parties to brief whether Cybor should be overruled, whether any deference should be given to district court claim construction and if so, which aspects should be afforded deference.[11]  Both parties agreed that the de novo standard is not appropriate, but differed as to the scope of the deference.[12]  The oral arguments of both parties touch on many of the arguments that the critics of Cybor have made.

During the Lighting Ballast oral arguments, the parties argued that claim construction contains both issues of fact and law.[13]  However, neither could fully articulate how issues of fact could be separated from issues of law at the district court level to make the deferential standard workable.[14]  The court was very troubled by this, which may be indicative of its future ruling.[15]

If the Federal Circuit agrees and tries to disentangle issues of fact and law in claim interpretation, it may invade the United State Supreme Court precedence of Markman v. Westview Instruments, Inc. that held that the “construction of a patent, including terms of art within its claim, is exclusively within the province of the court.”[16]  Because it is not likely that the Federal Circuit will try to separate issues of fact and law in claim construction in Lighting Ballast, the Supreme Court’s decision in Highmark has the potential to be the biggest impact on claim construction in the last decade.

[1] Highmark Inc. v. Allcare Management Systems, Inc., Supreme Court of the United State blog (last visited Nov. 14, 2013).

[2] Petition for a Write of Certiorari at 30, Highmark Inc. v. Allcare Health Management Systems, Inc., 687 F.3d 1300 (Fed. Cir. 2012) (No. 12-1163), 2013 WL 1209137, at *30.

[3] Id.

[4] Robert P. Merges, John F. Duffy, Patent Law and Policy: Cases and Materials 26 (6th ed. 2013).

[5] Id.

[6] Cybor Corp. v. FAS Techs., Inc. 138 F.3d 1448 (Fed. Cir. 1998).

[7] Cybor Corp., 138 F.3d at 1475.

[8] Id. at 1476.

[9] See Robert P. Merges, Peter S. Menell & Mark A. Lemley, Intellectual Property in The New Technological Age 295-98, 310-11 (6th ed. 2012).

[10] Jonas Anderson, Oral Argument Recap: Lighting Ballast Control v. Philips, PATENTLYO (Sept. 13, 2013, 3:51 PM),

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996).

Navigating the Bitcoin Minefield: Legal Considerations for Venture Capitalists

By:  Ashley Jacoby

This October a Norwegian man made international headlines after he reportedly opened his wallet and discovered an unexpected $850,000.[1]  Four years ago, Kristopher Koch decided to invest approximately $22 in the virtual currency Bitcoin while researching encryption online.[2]  In April 2013, extensive media coverage on this trending peer-to-peer digital currency reminded Koch of his otherwise forgettable investment.[3]  Although Koch struggled to remember the e-password for his encrypted Bitcoin wallet, his efforts paid off; his small investment in 5,000 coins in 2009 enabled Koch to buy an upscale apartment in Osolo with a fraction of his earnings.[4]

Bitcoin is an electronic form of currency designed to decrease transaction costs third party’s employ to offset processing and mediation expenses.[5]  Bitcoin is neither regulated by a centralized authority, nor backed by any real asset.[6]  Instead, an open source algorithm run over the Bitcoin network generates the system’s currency—the aptly named “Bitcoin”—in a process called “Bitcoin mining.”[7]  The process of mining requires many users to connect their computers to the network in order to solve complex cryptographic tasks and uncover buried coins.[8]  Bitcoins can thereafter be traded, bought, or sold to a third party in exchange for real money, or a user may directly transfer the coins online as payment for goods and services.[9]  Given the glamour and ease in which Koch obtained his fortune in Bitcoin, it is not surprising that venture capitalists have continued to invest.[10]  A recent decision in a federal case from Texas—holding bitcoin is in fact currency just like the US Dollar—has even helped Bitcoin branch out into the business world.[11]  However, before potential investors reach for their actual wallets, they may want to consider Bitcoin’s future legal status and its connection to illegal activities.

For instance, following a large-scale FBI bust this fall, authorities learned that the Silk Road—one of the most infamous online marketplaces for drugs and illegal merchandise—generated more than 9.5 million bitcoins, or approximately $1.2 billion, in sales.[12]  Silk Road drug traffickers accepted bitcoins in exchange for their illegal products online, and thereafter anonymously mailed the goods to customers.[13]

Furthermore, recent reports indicate the Bitcoin network is vulnerable to attack from cyber thieves.[14]  Hackers have installed “malicious software” on the network that seeks out and empties bitcoin owner’s virtual wallets.[15]  One phishing gang successfully robbed an owner of thirty-four coins in a malware attack.[16]  With shares at a high of $260, the owner’s loss was not unsubstantial.[17]  

Moreover, scientists at Cornell University have argued that Bitcoin’s susceptibility to a “selfish attack” indicates the system is broken.[18]  The system assumes members honestly report network activity; a mining group that fails to inform the community that it has solved a cryptographic puzzle could, in theory, take over Bitcoin by progressing to the next puzzle while the rest of the community searches through an empty mine.[19]

In addition to Bitcoin’s obvious association with illegal activity, doubts about the system’s legitimacy and its sustainability have created a volatile market. For instance, following the FBI shut down of the Silk Road, bitcoin shares dropped dozens of dollars in one day.[20]  On another occasion, the Bitcoin market saw fluctuation after the SEC charged a Texas man with raising 700,000 bitcoin, or $4.5 million, from investors in an online Ponzi scheme.[21]

Thus, as the Bitcoin system is currently ripe for criminal abuse, the status of the digital currency is unlikely to remain in a legal gray area for long. With legal scholars arguing both for and against the continued use of the Bitcoin system, and very little case law or statutory framework on-point, investors should be mindful to consider both the legal and financial implications of investing in Bitcoin so early in this legal minefield.


[1] $22 Bitcoin Investment Brings Norwegian Man Fortune, BBC, (last updated Oct. 29, 2013, 18:00 ET).

[2] Id.

[3] Man Buys $27 of Bitcoin, Forgets About Them, Finds They’re Now Worth $886k, theguardian (Oct. 29, 2013, 10:07 EDT),

[4] Id.

[5] Derek A. Dion, I’ll Gladly Trade You Two Bits on Tuesday for a Byte Today: Bitcoin, Regulating Fraud in the E-conomy of Hacker-Cash, 2013 U. Ill. J.L. Tech. & Pol’y 165, 167 (2013).

[6] Id.

[7] Andrew Byre & Will Hallatt, Bitcoin or Bitcon?, 18 No. 8. Cyberspace Law. 13 (2013).

[8] Bitcoin at Risk of Network Attack, Say Researchers, BBC, (last updated Nov. 5, 2013, 7:21 ET).

[9] Byre & Hallatt, supra note 7.

[10] See Wanfeng Zhou & Nick Olivari, Bitcoin Buzz Grows Among Venture Investors, Despite Risks, reuters (Oct. 1, 2013, 7:47 PM),

[11] Sec. & Exch. Comm’n v. Shavers, 4:13-CV-416, 2013 WL 4028182 (E.D. Tex. Aug. 6, 2013).

[12] Noel Randewich, Bitcoin Sinks in Value After FBI Busts Silk Road Drug Market, reuters (Oct. 2, 2013, 5:06 PM),

[13] Id.

[14] Cyber Thieves Target Bitcoin Owners, BBC, (last updated Apr. 12, 2013, 6:01 ET).

[15] Id.

[16] Id.

[17] Id.

[18] Bitcoin at Risk of Network Attack, Say Researchers, supra note 8.

[19] Id.

[20] Randewich, supra note 12.

[21] Sarah N. Lynch, SEC Says Texas Man Ran Bitcoin Ponzi Scheme, NBC NEWS (Jul. 23, 2013, 6:36 PM),

IBM Accuses Twitter of #PatentInfringement

By: Kelly McIntosh

In the days leading up Twitter’s initial public offering (IPO) , a lawsuit was bound to arise.[1] IPO’s are “the first sale of stock by a private company to the public.”[2] The theory is that a company being sued and approaching their IPO date, would want “minimize risks” and possibly settle, which is great news for a claimant since a profit is almost guaranteed. [3]

On November 7, 2013, Twitter released stock to the public at $26 per share.[4] Only days prior, International Business Machines Corporation (IBM) accused Twitter of three patent infringements.[5] The first is the “efficient retrieval of uniform resource locators” patent.[6] This is what allows URLs to be shortened.[7] Second is a patent for how Twitter helps users find people to follow by using the person’s email contacts.[8] This patent is called the “programmatic discovery of common contacts.”[9] Lastly, is the patent of a “method for presenting advertising in an interactive service.”[10]

Patent infringement occurs when “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent.”[11] Patent infringement does not need to be intentional.[12]

When deciding whether a patent has been infringed upon, a court will take a two-step analysis: “First, the claim must be properly construed to determine its scope and meaning.[13] Second, the claim as properly construed must be compared to the accused device.”[14] The entity claiming patent infringement must prove by a preponderance of evidence that “the asserted claim is found in the accused product,” or that there is a substantial equivalency.[15] Substantial equivalency is found if a product “performs substantially the same function in substantially the same way to achieve substantially the same result.”[16]

IBM may have the upper hand in this battle because it is a much larger tech company than Twitter and it makes over one billion dollars yearly in patent licensing.[17]  This infringement attack from a major company may be a first for Twitter.[18] Also, Twitter admitted that it is not an expert in dealing with patent lawsuits.[19] In an amendment to its latest filing with the Securities and Exchange Commission (SEC), Twitter believes it has “meritorious defenses” to the claims being made by IBM, but that there is no assurance to stock holders that it will be successful in defending these claims.[20] Two of the patent infringement claims made by IBM look broad and “general,” while the other looks like it could be used to sue any “ad network,” including “Google or Facebook.”[21] Although Twitter has not talked about making a settlement and IBM has yet to file a lawsuit, IBM hopes to work out a “business resolution,” through negotiations.[22]

IBM’s closing comments to Twitter about an out of courtroom meeting and negotiations, make it seem like IBM is employing a common strategy used to make a profit by allowing Twitter to feel at risk. Twitter could get lucky this time because it looks like IBM doesn’t intend to take this all the way into a courtroom. But Twitter will need to become familiar with patent lawsuits as it allegedly has new technology that it will be releasing in the near future.[23]


[1] Dan Levine, In Patent Showdown, IBM’s Arsenal dwarfs Twitter’s, Reuters (Nov. 4, 2013, 4:36 PM),

[2] Initial Public Offering Definition,, (last visited Nov. 15, 2013).

 [3] Levine, supra note 1.

 [4] Twitter, Twitter (Nov. 6, 22013, 5:48 PM),

 [5] Michael Passingham, Twitter Embroiled in IBM Patent Feud but Pre-IPO Share Price Rises, V3 (Nov. 4, 2013),

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] 35 U.S.C.A. §271(a) (2010).

[12] John F. Duffy and Robert P. Mergers, Patent Law and Policy: Cases and Materials 749 (6th ed. 2013).

[13] Wolverine World Wide, Inc. and Brooks Shoe, Inc. v. Nike, Inc., 38 F.3d 1194, 1196 (1994).

[14] Id.

[15] Id.

[16] Id.

[17] John Koetsier, IBM vs. Twitter: IBM says Twitter Infringes its Patents, Venture Beat (Nov. 4, 2013, 7:53 AM),

 [18] Mike Isaac, IBM Hits Twitter with Patent Infringement Claims Ahead of IPO, All Things D (Nov. 4, 2013, 6:34 AM),

[19] Aaron Elliot, IBM Says Twitter Infringes on 3 of Its U.S. Patents, Social Media Today (Nov. 11, 2013),

[20] Passingham, supra note 5.

[21] Koetsier, supra note 9.

[22] Twitter Faces Patent Infringement Lawsuit from IBM, Electronista (Nov. 4, 2013),

[23] Tim Parker, IBM Accuses Twitter of Patent Infringement (IBM, TWTR), Benzinga (Nov. 5, 2013, 7:44 AM),

New Zealand and the Changing Definition of an Invention

By Jared Pottruck

After nearly five years of debate, New Zealand’s legislature voted during the last week of August 2013 to adopt the Patents Bill, which will no longer permit the granting of patents for computer software.[1] While software that currently holds patent protection will be untouched by the new law, going forward, new computer software will not be able to receive patent protection from the New Zealand government.[2] However, new software will be able to receive patent protection if it is simply providing a means to “implement a patentable process” or is part of a piece of improved hardware and the software is the means to achieving that improvement.[3] The Patent Bill accomplishes this by stating that software is “not an invention” and therefore not patentable.[4] This redefinition of what constitutes an invention under New Zealand law, provides the nation with a way around the language of the Agreement on Trade Related Aspects of Intellectual Property Rights, a treaty which they are a party to and would require that they make patents “available for any inventions, whether products or processes, in all field of technology.”[5]

New Zealand officials have stated that they hope the Patent Bill will allow the nation’s technology industry to experience a boom by removing the burdens of costly litigation and licensing on companies.[6] Additionally, the nation sees patents as a means to stifle competition, and believes that moving them on software will make investment in high-tech industry more attractive.[7] In essence, some hope it will create a “safe haven from litigation” where technology companies can thrive.[8] And this goal may be realized sooner than later as New Zealand officials have claimed that some United States technology firms have inquired about moving to the island nation.[9]

However, there are some significant shortcomings to the Patents Bill.  First, there is nothing to stop multinational entities from patenting software in other countries, like the United States, and bringing suit against New Zealand companies abroad.[10]  New Zealand technology companies could be driven to severely limit their potential markets to prevent establishing personal jurisdiction in foreign nations.  This would undermine the bill’s goal of expanding New Zealand’s technology industry.  Secondly, with previously patented software retaining its protection, many basic computer applications are likely already protected.[11] This will likely make it easier for older, more established technology firms to stifle competition by enforcing these patents that relate to fundamental computer code.[12]

New Zealand is not the only nation addressing patents on software, as there has been a debate going on for ten years in the European Union as to whether software should be afforded protection.[13] The United States has also been trying to address this issue.  The Government Accountability Office recently completed a study on software patents and concluded that they are ineffective.[14] At least six bills have been introduced in Congress that would limit patent protection within the last year, all of which have failed to gain traction.[15] This is likely due to lobbying by large technology companies that benefit from large patent stockpiles, such as Samsung and Apple.[16]

Since it seems unlikely that software patents will be banned by statute, the courts will certainly be looked to as a mechanism for change.[17] Currently software meets the requirements for patentability based on the decision in the United States Court of Appeals for the Federal Circuit case of In re Alappat.[18] Therefore, a successful attack on that case in the Supreme Court would cause the more restrictive standard regarding the patentability of software from Parker v Flook to resurface.[19]

It is imperative that the situation in New Zealand be monitored.  Until the dust has settled and the repercussions of New Zealand’s decision are understood, it seems unlikely that any substantial change will come to the United States patent system, regardless of the method by which it is challenged.  This is simply due to a lack of solid information that a politician or court can hang its hat on, and be comfortable that they are making the correct choice.


[1] Pat Pilcher, New Software Patent Law Could Spark Tech Boom, New Zealand Herald, Sept. 2, 2013,

[2] Joe Mullin, In Historic Vote, New Zealand Bans Software Patents, Arstechnica (Aug. 28, 2013, 3:50 PM),

[3] Id.

[4] Id.

[5] Id.

[6] Pat Pilcher, Software Patent Stoush Could Have Huge Impact, New Zealand Herald, Feb. 5, 2013,

[7] Id.

[8] Pat Pilcher, New Software Patent Law Could Spark Tech Boom, New Zealand Herald, Sept. 2, 2013,

[9] Id.

[10] See Pat Pilcher, Software Patent Stoush Could Have Huge Impact, New Zealand Herald, Feb. 5, 2013,

[11] See Id.

[12] Id.

[13] Timothy B. Lee, New Zealand Just Abolished Software Patents. Here’s Why We Should, Too, Wash. Post., Aug. 29, 2013,

[14] Id.

[15] Joe Mullin, In Historic Vote, New Zealand Bans Software Patents, Arstechnica (Aug. 28, 2013, 3:50 PM),

[16] Id.

[17] Id.

[18]In re Alappat, 33 F.3d 1526, 1545 (Fed Cir 1994).

[19] Parker v. Flook, 437 U.S. 584 (1978); See also Timothy B. Lee, New Zealand Just Abolished Software Patents. Here’s Why We Should, Too, Wash. Post, Aug. 29, 2013,

Reblog My New Ink! A New Conduit for Tracking Infringers

By Megan Conravey

Tattoos have been a part of human culture for thousands of years.[1]  Throughout history and in different cultures, tattoos have had many meanings, conveying status, love, religion, ideas, and even punishments.[2]  In many Ancient societies, tattooing was common among all members of a culture.[3]  However, as tattooing evolved, a subculture emerged that left tattooing available to only a certain type of person.[4]  In this tattoo culture, tattoo artists prided themselves on the original artwork they produced.[5]

Today, tattooing has broken into mainstream culture.[6]  It can be very lucrative to the tattoo artist.[7]  However, most of today’s clientele want tattoos of images portraying their favorite things: the Yankees logo, a Kurt Vonnegut quote, their favorite Beatles album, etc.[8] Most of the “favorite things” asked for today are held in copyright by someone other than the tattoo artist; who is going to produce a copy onto his client’s body and thereafter gain monetarily from the copy.

Under the Copyright Act, copyright protection becomes effective when “original works of authorship [are] fixed in a tangible medium of expression” and lasts for the life of the author plus 70 years.[9]  Further, selling the “tangible medium” does not in itself transfer any of the copyright interests to the purchaser.[10]  This protection gives exclusive rights in copying and derivative works to the original copyright owner.[11]  These tattoos, as copies or derivative works of the original copyrighted work, are infringements under the Copyright Act of 1976.

When tattoo artists create a new tattoo on a client, whether an original piece or a copy from another artist’s work, the Copyright Act must be considered.  In an original piece, the tattoo artist is arguably creating his own copyrightable work, since skin is a tangible medium upon which the work is being fixed and the originality required is minimal.[12]

When reproducing another artist’s work on skin—creating those Donald Duck tattoos—the Copyright Act must be considered as to whether or not the artist will be infringing by creating this work.  This consideration is also relevant to whether the tattoo being created is a copy or derivative work of another tattoo artist’s original creation.  The problem only arises if and when the copyright owner decides to enforce the copyright against these artists.  They can never enforce the copyright if they do not know about the infringement.  So how will the copyright owner ever find out about a random tattoo on a random person in a random city?

Another trait very unique to the Millennial Generation is its obsession with social media. Billions of social media users constantly share every aspect of his or her life on the Internet.[13] The seemingly smallest information can instantly travel all around the world thanks to modern connectivity.  Together with social media sites such as Facebook, Tumblr, and Twitter, the news of an infringed copyright can reach the copyright owner much easier than it might have in the past.

In fact, there are whole webpages dedicated to posting tattooed works.[14]  The trend of tagging posts and “reblogging” them in some way also helps to spread the information.  It also makes it more likely that the original copyright owner will see the work and chose to bring suit against the tattoo artist for infringing the copyright.  It has become very popular to post a picture of a tattoo with a description like “Look at my Star Wars sleeve!” while giving credit to the tattoo artist in hopes of bringing in clientele, but this may actually open up the possibility for legal action against the artist.[15]

Social media is currently being used to find evidence in numerous fields of law: criminal, family, constitutional, and even copyright.[16]  While private messages are afforded certain discovery protections, lawyers increasingly use public online posts as evidence in civil and criminal litigation.[17]

Individual social network participants should remember that although the Internet presents a tempting veil of anonymity, the same copyright laws attach for anything posted into the public Internet forum.[18]  Therefore, an online picture of a tattoo portraying the reproduction of a copyrighted work may lead to an infringement suit by the original copyright owner.  As with any posing on a social media site, discretion should be exercised.  Before sharing that new tattoo boasting the “awesome job Johnny at Tattoo World did on my Hermione portrait,” consider the legal repercussions that may arise.

[1] Cate Linberry,, Tattoos: The Ancient and  Mysterious History, (last visited Oct. 15, 2013).

[2] Id.

[3] Id.

[4] Timothy C. Davis, Creative Loafing, The Rise of Body Art, (last visited Oct. 15, 2013).

[5] Id.

[6] See BBC News Magazine, Why Do People Go Back for More and More Tattoos?, (last visited Oct. 15, 2013).

[7] See, How a Tattoo is Priced, (last visited Oct. 15, 2013).

[8] See Tumblr, The Word Made Flesh, (last visited Oct. 15, 2013)

[9] 17 U.S.C. § 102(a).

[10] 17 U.S.C. § 202.

[11] 17 U.S.C. § 106

[12] Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 358-60 (1991).

[13] See, Social Media Stats and Trends in 2013, (last visited Oct. 15, 201).

[14] See Tumblr, The Word Made Flesh; Soup, Tattoos By Anyone, (last visited Oct. 15, 2013).

[15] See Tumblr, The Word Made Flesh; Tumblr, FYeahTattoos!, (last visited Oct. 15, 2013).

[16] Kendall Kelly Hayden, The Proof is in The Posting, 73 Tex. B.J. 188, 189 (2010).

[17] Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 981 (C.D. Cal. 2010).

[18] Sharon Nelson et al., The Legal Implications of Social Networking, 22 Regent U. L. Rev. 1, 29 (2010).

Facebook Cares About Your Privacy…But Not Really

By: Justin McHugh

Facebook has once again changed its privacy settings.  In the battle for privacy, Facebook users are slowly yet surely losing.  Facebook has recently announced that it will be removing a privacy feature that allowed users to limit who could search for them on the social network.[1]  Specifically, Facebook will be removing a privacy setting that limited whether users could be found when other people typed their names into Facebook’s search bar.[2]  In its defense, Facebook claims that only a very small percentage of users were using the limited search setting.[3]

Additionally, what many Facebook users fail to realize is that the option that lets users block who could search for them on the social network was removed for most of them back in December 2012.[4]  The privacy setting that allowed users to block “Who can look up your timeline by name” was only still in effect for the small percentage of users who actually used the setting.[5]  However, due to a 2011 privacy settlement, Facebook is required to obtain “affirmative express consent” before it can reveal a user’s private information.[6]  Thus, users who have been using the privacy setting to avoid their name from coming up in searches will have to confirm that they understand the change before it is removed from their privacy settings.[7]  Users who were hoping to block their names from being searched by potential employers or stalkers will now have to find another way to protect their privacy.

Facebook’s removal of the ability to block one’s name from showing up in the search bar is quite ill-timed considering that the social networking site has recently been under review for potentially violating a 2011 court order relating to privacy issues.[8]  The court order stated that Facebook must gain consent from users before changing their privacy settings.[9]  However, on August 29, 2013 Facebook “stripped language that explicitly allowed users to limit how their names and profile pictures could be used for marketing.”[10]  The new policy sparked outrage from Facebook users and privacy advocates who claimed that Facebook was violating the aforementioned court order requiring more transparency in Facebook’s privacy policies.[11]    Facebook countered by asserting that its new policy made clear that all users are required to grant Facebook “permission to use their personal information in advertising as a condition of using the service.”[12]

The outrage sparked by the new privacy policy change prompted the Federal Trade Commission to start an immediate inquiry into whether the 2011 court order had been violated.[13] The court order, which called for more transparency and protection, of privacy rights for Facebook users, stemmed from the fact that Facebook had been sharing users’ data with third party advertisers after they had explicitly promised not to.[14]  Facebook and privacy advocates alike argued that the language of Facebook’s new privacy policy gave the company unlimited access and permission to use Facebook users’ personal information in advertising.[15]

If privacy advocates’ assertions are proven correct, Facebook could potentially be put in violation of the 2011 court order.  As of the writing of this article, it remains to be seen if Facebook will be found to have violated the court order by the Federal Trade Commission.  However, the one thing that is certain is that Facebook is slowly encroaching on its users’ privacy rights and selling their personal information to third party advertisers.[16]  Furthermore, in its most recent encroachment of its users’ privacy rights, Facebook has removed the ability of users’ to block their names from being searched.[17]  This latest privacy right encroachment may seem minor, but in the grand scheme of Facebook’s business model to sell personal information, it is not.  It just goes to show that once you sign up for Facebook, they own your personal information and will sell it to the highest bidder without regard for your privacy preferences.

[1] Associated Press, Facebook axes privacy feature that let users hide profiles from search,  Macleans (Oct. 10, 2013),

[2] Id.

[3] Id.

[4] Facebook privacy: Users should check these settings as new changes roll out,, The Washington Post  (Oct. 11, 2013),

[5] Id.

[6] Steven Musil, Facebook’s proposed privacy policy changes face FTC review, Cnet (Sept. 11, 2013, 5:23 PM),

[7] Josh Constine, Facebook Removing Option To Be Unsearchable By Name, Highlighting Lack Of Universal Privacy Controls, TechCrunch (Oct. 10, 2013),

[8] Elizabeth Dwoskin, Facebook Probed on Privacy Issues, The Wall Street Journal (Sept. 12, 2013, 9:53 AM),

[9] Id.

[10] Id.

[11] Id.

[12] Vindu Goel & Edward Wyatt, Facebook Privacy Change Is Subject of F.T.C. Inquiry, The New York Times (Sept. 11, 2013),

[13] Id.

[14] Id.

[15] Vindu Goel & Edward Wyatt, Facebook Privacy Change Is Subject of F.T.C. Inquiry, The New York Times (Sept. 11, 2013),

[16] Elizabeth Dwoskin, Facebook Probed on Privacy Issues, The Wall Street Journal (Sept. 12, 2013, 9:53 AM),

[17] Associated Press, Facebook axes privacy feature that let users hide profiles from search,  Yahoo News Canada (Oct. 11, 2013),–finance.html.

From “Here Ye, Here Ye” to #guilty

By Jarrid E. Blades

Once upon a time, the outcome of court proceedings were reported by a person swinging open the doors of the courthouse and announcing to the townspeople the verdict.  We have come a long way from this form of communication.  As long as we are connected to wireless or cell service, we can receive up-to-the-second updates during court proceedings.

Actually, it’s not too uncommon for the social media sphere to give updates before any other group, including big media outlets such as CNN.  For example, Seal Team 6’s raid on Osama Bin Laden’s compound was tweeted about live by a local Pakistani man. “Sohaib Athar tweeted under the handle @ReallyVirtual: “Helicopter hovering above Abbottabad at 1AM (is a rare event),” and “Go away helicopter – before I take out my giant swatter.”[1]  Mr. Athar went on to say, “one of the now multiple helicopters ‘was not Pakistani.’” He was the first to report the Bin Laden raid, beating out CNN, Fox or any other media outlet.

I believe social media has taken its toll on the judicial system.  More and more criminal cases are becoming social media spectacles (Jerry Sandusky, Casey Anthony, George Zimmerman). It’s almost impossible to avoid Twitter, Facebook, and other media live stream updates because they are everywhere.  CNN places live tweets from individuals in a ticker along the bottom of the television screen and people can tweet from sporting events, Times Square, or even when traveling by land or air. Their tweets are then posted live on video boards, digital billboards, and terminal screens worldwide. The ability to avoid the spread of information is almost impossible.

The negative impact of social media may one day stem from the misinterpretation and misreporting of fact via social media in relation to high stakes issues. PEW online posted an article titled, “On Twitter: Anger greets the Zimmerman verdict.” The article discusses some of the statistical information related to tweets after the verdict was handed down.  “According to a new Pew Research Center analysis of nearly 5 million tweets about the case in the first 26 hours after the verdict, 39% of the statements on Twitter shared news without any opinion. That demonstrates the degree to which the social media platform functions as a vehicle for disseminating breaking news by both citizens and news organizations.”

Five million tweets in 26 hours forces one to ask the question: Is there a court of social media?  An HLN article titled, “The Zimmerman trial in the court of social media,” pointed out that during the Zimmerman trial, the defense team live tweeted information and updates on court proceedings.  Supporters of Trayvon Martin and the prosecution also took to Twitter to keep followers updated about witnesses and court reactions. The Seminole Circuit Court may have acquitted Zimmerman, but in the court of social media the result was less then clear.

Logically, at this point in time in the height of social media usage we need to ask: Do laws which are put into place to govern courtroom and media procedure leave a place for Twitter?  The answer is trending . . . #no.  A Fall 2011 article from the Valparaiso University Law Review titled: The Courts Are All A ‘Twitter’: The Implications Of Social Media Use In The Courts, 46 Val. U.L. Rev. 43, describes the many ways jury members, judges, and attorneys can engage in ethical violations via Twitter. The author also points out that the growing trend at the state level is to include stricter and clearer jury instructions against electronic communications including social media usage, especially in state criminal proceedings, where the issue of social media usage has mainly found its niche. These cases are usually high profile and surrounded with public emotion. At the federal level, the Digital Law Media Project points out, “Rules of civil or criminal procedure—such as Rule 53 of the Federal Rules of Criminal Procedure — have been interpreted as prohibiting or limiting live-blogging and tweeting from certain proceedings.  Ultimately, the application of many of these rules rests in the judge’s discretion, and they may not be applied evenly within a jurisdiction.”[2]


[1] Parmy Olson, Man Inadvertently Live Tweets Osama Bin Laden Raid, FORBES, (last updated May 2, 2011).

[2] Live-Blogging and Tweeting from Court, DIGITAL MEDIA LAW PROJECT, (last updated Feb. 8, 2010).