Broken Symmetry

Square Cofounder an Omitted Coinventor of Patent Apps Owned by Wash. U. Professor?

Techcrunch reports:

In or about February 2009, Mr. McKelvey contacted his friend of 20 years, Mr. Robert Morley, Jr., to help build a prototype magnetic card reader that could be plugged into a cell phone input jack. Mr. Morley, a professor at Washington University, had previous experience working with magnetic card readers.

Over a period of several days, working in Mr. McKelvey’s glass studio and Mr. Morley’s laboratory at Washington University, Mr. McKelvey and Mr. Morley exchanged ideas regarding the design of the prototype card reader.

Square is one of the hottest startups in Silicon Valley, backed by Khosla Ventures GP (and former Facebook and YouTube CFO) Gideon Yu, and cofounded by Twitter cofounder Jack Dorsey. A recent hire was Keith Rabois, an early PayPal exec who had a successful exit at Slide most recently. Keith was also an IP litigator back in the day.

Based only on the allegations in the complaint, it looks to me like Square has a potentially viable claim for co-inventorship and co-ownership here. I got curious to see just how deep the rabbit goes by looking up to see whether Morley had any federal funding for his research at Wash U. His CV doesn't show any recent federal funding, which is lucky for him, since whatever he might get from Square in resolving this dispute could escheat to Wash. U. depending on how Stanford v. Roche gets decided.

Twitter Updates

Have now been added to Broken Symmetry on the right. If you're already tweeting, be sure to follow me. I'm riemannzeta. If you tell me you read Broken Symmetry, I'll be more likely to reciprocate.

Are Tweets Copyrightable?

Mark Cuban asks with an evil grin:

Here is a question for all you legal scholars out there. Is a tweet copyrightable ? Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?

Under federal law, copyrights vest automatically in their author when a work is first fixed in tangible medium. There is some debate as to whether they may exist even earlier -- e.g., while the tweet is still in its author's head, or after it's been spoken but before it's been entered into text -- under state copyright laws. That debate hasn't been tested in court because it's hardly worth suing over. But it's not entirely clear that federal copyright law preempts state copyright law.

So if the subject matter of a tweet is eligible for copyright, then copyright vests upon tweeting. Is it eligible subject matter?

That depends. The Supreme Court dealt with the issue of eligible subject matter in Feist. The rule under Feist is that subject matter, to be eligible, must display a minimal amount of "originality." Originality here means that the author had to make some creative choice about how to select, arrange, or produce the subject matter. For example, the phone numbers in the white pages of a phone book are not copyrightable. But the yellow pages that provide a particular selection and arrangement of phone numbers are. This example is going out of date fast.

A better example might be of tweets during a basketball game. A tweet that reports only the score of the game would not be eligible subject matter under Feist. A tweet that reports the score and exclaims "Mavs Rule!" might be. In general, the more the tweet reflects a selection or arrangement of facts rather than a rote report, the more likely the subject matter is eligible.

Fair use and other defenses (such as scenes a faire) are still available, but irrelevant to the question of whether copyright may vest. Moreover, it would be hard to argue that any reproduction of an entire tweet was a fair use because any supposed fair use is measured against the size of the original. More than a few characters and you're already close to 140! Perhaps the argument would be that it's not individual tweets, but the entire stream that should be the basis for proportionality. That's interesting, but the case law on fair use of spoken word recordings might effectively defeat that argument. Scenes a faire is more promising as a defense to infringement of a copyright in "Mavs Rule!," for example. But only when the reproduction was made in a similar context, right?

I'm sympathetic to the people who complain about whether Mark is really serious about this question. As Robert Frost wrote, "Something there is that doesn't love a wall." But at least before DMCA and the Supreme Court's decision to ignore the plan meaning of the Constitution in Eldred, copyright law did a pretty good job making good neighbors out of authors and artists who are continually borrowing and rehashing each others' work.

Too bad Bill Patry's not still around to weigh in on this one.

Ask and Ye Shall Receive

In a post titled Revitalizing a Culture of Innovation in the United States, I suggested that improved access to the gatekeepers of decisions on technological development would be useful.

Here we have a good start:

ExecTweets, the latest third-party site to use Twitter’s immense about of data to attempt to turn it into something useful for a narrower audience. The audience in this case is business users, as ExecTweets is all about pulling in tweets from various industry’s top executives who use Twitter.

Periodicity in Demand

One of the lovely things about Twitter is how easy it is to use Twitter data. Long time readers will recall that periodicity in supply and demand have been a pet project for your author. Check out this incredible graph of the periodicity in tweets for "movies".

But part of what this shows is that most Twitter users are still syncrhonized on U.S. time. That's going to change. As people in other time zones start using twitter, the periodicity will be less pronounced -- but not because it's not still there. Rather, it will be hidden in comparable phase-shifted signals produced all over the world.

Here's another interesting search: are we in a depression or a recession?