Presidential Elections: Campaign IP Enforcement

By Dennis Crouch

As we move into 2015, the presidential campaign season will begin again in earnest. As part of that process, it is always interesting (for IP attorneys) to see candidate views on intellectual property law. The standard approach is for candidates to say something akin to: IP rights are a fundamental aspect of our innovation economy but, patent trolls are bad and we should be careful to avoid an overzealous system that would allow IP rights to hinder the market or further innovations.

Potential candidate Hillary Clinton has made the first move showing her cards – sending a cease and desist letter to the “libertymaniacs” for violation of the campaign’s IP rights. The offending copy is shown below as is its clearly copied-from source. At this point, it is unclear whether Clinton is claiming copyright infringement, trademark infringement, or some other IP rights violation.

In general, this action falls within the category of using intellectual property rights to chill speech. It is fairly rarely for patent rights to be asserted in this category, although the ACLU argued in Myriad (at the district court) that speech rights included the right to conduct a scientific inquiry and that any patent rights impinging upon that right should be seen as invalid. The STEM-related speech concern is more relevant when focused on trade secrets and confidentiality requirements. The more applicable “fundamental rights” concern associated with patents is likely to be tied up with basic freedoms that could loosely be termed ‘privacy rights’ that should allow individuals to tinker and study without creating the potential for liability.

20 thoughts on “Presidential Elections: Campaign IP Enforcement

  1. “In general, this action falls within the category of using intellectual property rights to chill speech. ”

    Not sure what precisely is meant by this or how actual speech could be chilled by exercise of IP rights here. Let’s say for the sake of argument there’s at least one flavor of protected IP in the Hillary flyer (whether copyright in the artistic work, claim of trade dress etc.).

    Fine. Remove the look-alike aspect of the format in which the speech is presented, and focus whether the Liberty Maniacs could have printed the exact same words that they did:

    – “I’m Ready For Oligarchy”

    without the possibility of the Hillary pre-campaign having any colorable argument of IP infringement.

    In any event, I don’t see how the exercise of whatever IP rights may cover the Hillary flyer can be said to be an attempt to chill the speech.

    Just the format in which it is presented.

    Now, to the extent the use by the LibertyManiacs is for purposes of actual parody (of her as a political figure and/or of her campaign – the article above doesn’t mention what their use is), then we have mechanisms to permit both the speech itself (if it were actual copying) and the actual copying of the artwork. But this is a defense, and they’ll have to prove their point.

    1. This is pretty obviously political speech that is protected by the first amendment and she is going to loose this case. It is also pretty obviously parody so much so that bringing the case really is frivolous to the point of being sanctionable. I don’t see how she wins this.

  2. This looks like a copyright issue, and the alleged infringer will likely use parody as its main defense. Also considering its political (speech) advertising, the Clinton’s will have a tougher time stopping the mocking…Could be trademark issue as well, confusingly similar for sure, but what is being sold here? I don’t see any commercial goods/services (unless we consider politics a sale-able commodity now…) Maybe they have a case! Looks alot like that Obama poster issue in the last election (forgot the case).

  3. Give Hilarity a break – she probably just wants to make sure everyone gets “gold-plated” copyrights that cover copyrights, trademarks, and patents (as if the almost two-lifetimes of copyright protection aren’t gold plated enough . . .)

    1. Remember – free speech is great when you’re a D as long it’s the masses speaking FOR you . . .

    1. Calling it “privacy tights” serves no fathomable purpose.

      Agreed, anon. I couldn’t have said it better myself.

      1. lol – the humor in your post is appreciated, even as it is focusing on a typo.

        Shall I re-present what Prof. Crouch has to say about typo’s?

        1. Shall I re-present what Prof. Crouch has to say about typo’s?

          No need. I just thought it was amusing – especially since it resulted in such a profoundly correct statement.

          1. lol – the irony is that you are somehow surprised at the result of a profoundly correct statement – as our run-ins under any of your pseudonyms result in my statements being profoundly correct (and yours, well, profoundly incorrect).

  4. CTS CORP. v. WALDBURGER
    link to supremecourt.gov

    In today’s case, the Supreme Court makes a distinction between statutes of limitation and statutes of repose. The former generally provide a time period an injured person must bring a action to recover from an injury. Most states provide that the cause of action accrues with knowledge of the injury or enough facts to place on the duty of inquiry. Statute off limitations may be tolled because the defendant may not be available or because the right holder may be incapacitated.

    A statute of repose, however, protects potential defendant and cannot be tolled. A statute of repose declares than no action may be brought against a defendant for recovery after a particular length of time dating from the date of commission of the act of injury.

    I tend to think the patent statute is a statute of limitations. But is this right? Has the issue ever been litigated?

    1. Sometimes you tend to think in odd ways.

      How does the notion of strict liability fit into your musings?

  5. Has the Federal Circuit ever held as an infringement the construction of a patented product or apparatus to determine its effectiveness before one takes out a license?

  6. Is this for copyright infringement or trademark infringement? Even the letter from Public Citizen isn’t clear on that, because the original C&D letter wasn’t apparently passed along by Zazzle or CafePress.

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