Any Patent Lawyers out there? New idea for personal agency!!
Posted June 13th, 2008 by rustle
output
The other night after doing some reading regarding private organizations (ie. Choicepoint) collecting personal information and selling it to third parties including governments. I'm sure we are all up to speed on these issues however, seemingly no solution has percolated to the top as of yet.
But the other night I had this idea...
is it possible to own, copyright and patent you personal information such as you retina, fingerprint, face, name, address (current and former), phone numbers... and so on - similar to how a company is able to patent a logo, color or slogan?
If it were possible to patent this information, wouldn't it become illegal for a company such as Choicepoint to profit from your personal info???
EDIT--
I'm sorry, I should have been more clear
These companies trade digital versions of this information which is clearly authored in some form or another. It is the image and publication of these items specifically.
ie. if I take a picture of my retina can I copyright it to my own organization based upon myself - Russell inc.
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Rustle, have I been helpful?
Have the questions I raised to you help you shape your concern and idea?
If not, maybe this analogy would work.
To say you can't sell my retina and fingerprints simply because they are trademarked, would be equivalent to saying you can't sell a piece of paper with my name "Russell Genius" or "Josh Theyidiot" simply because they are copyrighted.
There's a difference between selling products that claim to be made by Russell Genius Enterprises, and selling information that contains RGE as part of data.
I sound like I am repeating myself. But I can't see how better I can say it if you're not responding to whether I am either wrong, misunderstanding or misleading.
Nobody can Xerox a newspaper and sell the paper as their work since it's copyrighted. But anybody can make copies, or take photographs and sell it to an interested party for data used either to identify or incriminate somebody. So as long as I take my own photo of your retina and sell it as a service rather than a trademark, you can't sue me for infringement.
NO LAWS (copyright, patent, privacy or otherwise) protects info from being handed over, or sold. please challenge this one if you can.
It would seem that this idea is a go in Canada
I just finished reading Canadian Trademarking laws and the idea would appear to be viable up here.
http://laws.justice.gc.ca...
Of course much more research is required
Also I have spoken to a Canadian IP lawyer who seems to believe that trademarking personal info is viable.
I would love to hear back from justjenmi on their conversations at their IP firm
PS
I want to just refocuses the debate to trademarking only.
hole in the rules
this does not make it illegal for people to save your info for personal use, companies to use it for identification/recognition or government to collect info for evidence of prosecution.
by this logic, people would've already claimed their fingerprints are either personal property or intellectual property. Niether are immune from used as incrimination.
My concern is specifically
Third party organizations being able to profit your personal information, including sale to governments. Not the criminal court system.
again
that makes it about as logical as saying people can't sell photos of your car to other people. ridiculous.
the government doesn't need to pay for what they want to get from you. all they have to do is ban you from driving if you don't do this and that and not offer you a driver's license.
exactly right josh,
Trademarked images can belong to an organization, and replication or reproduction usually requires written permission.
wouldn't it be nice if Choicepoint came knocking on your door to ask permission to use your protected info
you could negotiate the terms and finish with a resounding NO
No, it doesn't
Republication of own images only require permission if it's used for purposes that INFRINGE UPON the rights of the organization.
You can say it infringes on your privacy, but your definition of privacy may differ from the legal sense.
You can't say it infringes upon your trade or profit. Because that's not what they sell it to the government for (they can simply argue it's for personal, research, non-profit use).
Interesting Point Josh
"they can simply argue it's for personal, research, non-profit use"
but if revenue is generated?
revenue can easily be argued
the same way income can be argued in taxation.
A more important concern is, would they find out your retina is trademarked? Or will you know if your retina is infringed upon before its too late?
I would hope
That enterprising lawyers would find the means
PS you make a good devils advocate,
do you work in the IP industry?
Thanks
I do like to play devil's advocate.
I don't work in any industry, I just like to challenge people's arguments.
I work at an IP law firm
I work at an IP law firm (where I'm reading DP on my lunch break right now!) and I will inquire with some of the attorneys here. I'll let you know!
Off the top of my head, I doubt you would be able to patent the things you desribe. Items have to meet certain criteria in order to be "patentable":
Be of patentable subject matter, i.e. a kind of subject-matter that is eligible for patent protection,
be novel (i.e. at least some aspect of it must be new),
be non-obvious (in United States patent law);
be useful (in U.S. patent law).
Thank You Kindly
Please see the edit that I put on my post above which hopes to clarify what I am thinking about
ie. your retina as your logo to your own personal organization - Russell inc.
Logos are
still quite legal to copy and sell as a means of ID or incrimination.
In fact, if anything, making your logo will expose you more, not protect your privacy.
You need to understand that logos and trademarks were created to be identified and to gather attention. The only way trademarking your fingerprint or retina would be somebody stupid enough to want to use your "logo" to catch somebody's attention or ruin your reputation.
Retinas and fingerprints are very unique, but at the same time overall very cliche, thus nobody is stupid enough to want to infringe on your trademark or copyright. If they wanted your trademark used for legal purposes, they can and will.
I have never known this to be the case
"Logos are still quite legal to copy and sell"
can you please direct me to info on this
I cannot, but
This is not a law that I'm referring to.
It is the concept of fair use, and public domain.
It is true I can't sell the Nike logo for somebody to "own" and "use" it. But I can take a photo of the Nike logo and sell it somebody for my labor of collecting the information.
Again, you are mixing physical objects with images. And images can always be images of images. Therefore, unless (never) you can copyright the object being shot, images can always be taken (over and over).
Let me give you the benefit of doubt. IF what you say is true, YOU effectively make photography of objects illegal, you make photography illegal, you can even make identification of a person by memory illegal, thus far enough down this slope, you make seeing a person or remember what something looks like illegal.
keep in mind Nobody is interested in profiting off of you, the government is only interested in IDing and incriminating you, which there is no way around it.
Imagine next time a person shows up in court and say "that's not me", the photo and evidence you have against me were taken without my permission, my fingerprints and my face are my property and nothing you have is allowed in the court.
Sound familiar?
Rustle, Thanks, I see your
Rustle,
Thanks, I see your edit now :) That would probably be more likely. Trademarks are also MUCH cheaper to obtain than patents, typically ... lol. Designs can definitely be protected by trademark. If things slow down this afternoon I'll try to pull my boss away to ask!
Not under existing law
Copyright covers works of authorship. Your "retina, fingerprint, face, name, address (current and former), phone numbers" are not works of authorship. You did not create them.
Patents cover useful, non-obvious, novel devices, processes, circuits, compounds, etc. There are also patents for certain aesthetic designs. Your "retina, fingerprint, face, name, address (current and former), phone numbers" do not qualify.
You "might" be able to protect them as trademarks, but trademark protection would probably not limit use in databases. It might limit publication or sale of the database.
Your best bet is probably trying to get some new protection through legislation or by judicial expansion of existing invasion of privacy common law.
Yea we ourselves didn't
create ourselves, but our parents did. Retina fingerprints,face etc.
Excellent Point !!!
If Monsanto is able to copyright biological material, then why can't we
We are original works of art, right?
Just some are more pleasing to the eyes than others. haha!!!
Hey start a little website or blog and a chip in. Hell I'll send you a couple bucks to try it. Never hurts to try right. If one of us can do it, then all of us can.
yeah sure
you might as well say you are a peice of art and nobody can see you for free.
What are you? A prostitute?
Remind yourself that those who objectify and corporatize themselves are subject to MORE not LESS laws. Naively many people still think corporations are "not people" therefore should not be treated with human rights, this works oppositely to their favor in the light of law.
Interesting Point Josh
"yeah sure you might as well say you are a peice of art and nobody can see you for free."
The adverse argument to this is to let anybody benefit from your body or personal info.
at least a prostitute gets money for their exploitation
Yes, everybody benefits means nobody benefits.
The case in point for celebrity gossip. Unless you are somebody special, why would anybody benefit from YOUR info when they can do it to anybody (including themselves). This is the same as asking who'd be benefitting from shooting pictures of red cars when it'll never stop and anybody can do it? Who sells hair for profit when everybody has it?
If you want privacy, stay home and never come out.
You can't have that the moment you step out the door. If you could ban people from photography in public, you essentially make photography illegal.
Does this argument make sense?
Not entirely
I am not able to take a photograph of say, the Microsoft logo and turn around and sell it, but I can use it for my own personal use. ie my own art.
As soon as I generate revenue from protected info I have crossed the line
but your concern
of 3rd parties selling your info doesn't apply this way either.
They are not selling the info as if it is their own. They are selling their service of collecting the info.
Imagine this story.
I see a Pepsi worker, in public, wearing a Coca-Cola t-shirt and drinking a Coca-Cola bottle. I can take a photo and sell it to an interested party. This violates nothing, not a person's privacy, not a Coca-Cola's trademark. I wasn't selling their trademark and putting a trademark on something does not make the whole object immune from being shot. I was selling the fact I caught the evidence, this is far from anything a trademarked Coca-Cola logo can protect.
I will give you a real example
2 years ago during the World Cup (soccer)
A restaurant that I was working for had begun to use the term "World Cup Headquarters". We were immediately hit with a cease and desist letter and subsequent legal maneuvering from FIFA as we we were using the term "World Cup" without their permission
and we weren't even using their logo
Good case
you were not using their name in any fair way.
You used their name because it was a good one, you used it for profit to yourself. You did something that can be argued that it infringed upon their right to exclusively profit.
You make an analogy of your retina.
For anybody to send a C&D letter, one would have to actually take your retina or name and put it on their restaurant, that's a violation of a person's privacy or reputation already.
But to sell your retina info to the government would be equivalent to selling a photo or note telling them "the world games of soccer is called WORLD CUP". which is not infringing on their copyright.
You seem to be more worried somebody will profit rather than somebody will buy it. If that's your concern, your solution is to make yourself more available, so your info is worthless.
This still, does not stop the Supreme Court from ruling whether your retina and your face are your private property.
oops
double post please ignore
I'm sorry, I should have been more clear
These companies trade digital versions of this information which is clearly authored in some form or another. It is the image and publication of these items specifically.
ie. if I take a picture of my retina can I copyright it to my own organization based upon myself - Russell inc.
Not really
If I take a photo of a tree, my photo of the tree can be copyrighted, BUT I cannot copyright the tree. Nor can I copyright someone else's photo of the tree.
To the extent a company has digitzed a bunch of addresses, for example, you are correct that the compilation can be copyrighted. But the copyright is owned by the company that did the compiling. And even then the information that has been compiled is not protected. Anyone else can make their own compilation of the same information so long as they don't copy the other person's compilation.
Let me give you an example - road maps. You can create a road map and copyright it. But anyone else can still make a roadmap of their own so long as they don't copy yours. (Map companies actually include phony streets in their maps as a way of detecting people who try to sell copies and claim they made it themselves).
You can't copyright information. You can only copyright particular
compilations or displays of information.
Monsanto can patent a particular genetic code because they created it in the lab. But you can go take a picture of a monsanto soybean plant in a field and they have no control over your photo.
You could argue that your parents created your genetic code. It would be a tough argument, but it isn't totally stupid. But even if your parents authored your genetic code, it would not qualify for a patent because it is not novel. Look around - there are MANY people not markedly different from you. Now if your parents created you to be photosynthetic, the process and your DNA might be patentable - but only if they could describe how it was done with sufficient detail to allow someone "skilled in the art" to duplicate the effort.
But even if you could patent your DNA, that would only give you control over who could use your DNA. It would not give you control over what information people could collect about you. If Honda patents a new hub cap, I can still take a picture of it and use it for my own purposes.
Now if you could convince a court to recognize copyright in your appearance (fingerprints, retina scans), you might be able to control reproduction of your appearance in the same way that you can control photographic reproduction of a painting.
Interesting idea. I would forget patent entirely. Maybe you can make a copyright argument, but it would be tough. You are best off with an invasion of privacy argument or new legislation.
Excellent Response
I take it that you work in the IP Industry.
I guess the core concept of this idea is what is important.
Is there a way to protect personal information similar to how an organization is able to protect their info, ie confidential documents, logos slogans...
Patent lawyer
I'm admitted to practice before the Patent and Trademark Office, but I rarely have. I ended up practicing in a different field.
Confidential documents are kept secret by, well, keeping them secret! Hahahaha! You lock them up and only let certain people see them. So I guess you can wear gloves and sunglasses all the time to protect your fingerprints and retina, but that information is not going to be extracted from you surreptitiously.
Trademark law protects logos and slogans. You "might" be able to register you face and body parts as trademarks (I would have to research that one), but trademark only protects against using the mark to advertise a business or in someway that impacts YOUR use of the mark in trade. For example, it would probably be legal for me to compile a book of business trademarks and then sell it because it would not be actually using the trademarks in a way to create confusion for consumers. Not much protection against data miners there.
It think the practical problem you are going to run into here is that you are going to be put in the position of having to surrender the information and waive the rights in order to use some service that you want. In a truly free market, alternatives will probably arise, but in today's world, good luck!
You said it right again
I'm not sure how many times you need to explain it to this guy for him to understand.
But you are most right.
Trademark and copyright only work to protect the profiting power of the owning party. Given that nobody is interested in profiting off the alleged info, this argument breaks right apart.
When people sell this info, fingerprints and retina, they are not selling the info as their own nor do they regulate the use of it. They are selling the service to deliver the info, which nobody would pay for if they didn't have to.
Let's give this guy the benefit of doubt again Ok, let's say you patented or copyrighted your fingerprint, I can still take a photo of it and hand it over to an interested party FOR FREE. What's in it for me? Nothing other than the fact I hurt your privacy or damaged your reputation. You need to understand is that people did not do this for profit, or your argument would hold some ground. People collect and use the info because it is necessary for their purposes. If your argument is all about profit, you have no claim that anybody did anything profitable, thus nobody violated any trademark or patent law.
Piracy and copyright infringement, counterfeit and patent are really hard to enforce in today's age. And people have realized its no more than protection of profit, thus the only way to effectively protect profit in the long run is to COMPETE. You can't prevent people from profiting off your info other than making it free and worthless.
I could not have said it any better
That's exactly the point.
People can't take the photo YOU TOOK (if that), but they can certainly take a photo THEMSELVES of you or a tree.
You probably will have better luck wrapping yourself up like an Arab woman and saying that your face, eyes and skin are private parts.
Bad news ...
Just recently pertaining to baseball and fantasy leagues, the Supreme Court ruled that personal statistics as far as they are already in the public domain is not protectable property from profit.
Interesting
what about your retina, fingerprint, face...
These are unique elements to each human and are clearly not statistics
Now that
is a hell of an idea. We need to do some research on this. I'm in.
Thank You Kindly
However, my experience has taught me that an idea that is not in an implementable forum is nothing more than a fart in the wind.
Lets get this idea out there for the people
I'd love to know this, as
I'd love to know this, as well. Very interesting thought. I would have never thought about doing that.
Interesting...
observation...hope you get that answer...and let us know, too...
Will do
I am an ex-pat up in Canada so I will have to research in both countries regarding local patent law.
Shameless self bump
Looking for advice or info
Please Comment
Rustle, check this out
What you claim to imagine here is very similar to what we call "frivolous" arguments.
They're almost purely based on semantics rather than practicality. They focus on theory interpreted in a way neither lawyers nor courts, nor any common person with any common sense would find reasonable.
Compare what you claim to a man who claims he owns the moon. Or people who claim they have stars named after them, or people who are ministers by virtue of the ULC.
http://ivorypower.com/blo...
Josh
I don't see the problem with looking into protecting one's personal agency.
In fact you might try to be helpful rather than negative
If protecting one's information is achievable through semantic debate, then why not look into it?
In fact the IP specialists I spoke to seemed to think further research was required
You have made clear opinions, some which I believe you need to research further, ie you can take a photograph of someone's trademark and use it for commercial use, because when I pressed your source on this you had none.
In my years of graphic design I have never known your assertion to be true,
I am not selling the moon , rather trying to help folks on Earth.
Oh yeah in regards to your "frivolous" argument, you might want to look at the original sale of the Panama Canal to the United States. Sometimes a simple piece of paper can be the difference between owning property and not, whether lawyers, courts, nor any common person with any common sense would find reasonable.
Let me correct myself
I never said "you can take a photograph of someone's trademark and use it for commercial use". But you can take a photograph of anything and sell it to anybody stupid enough to buy it. People who sell your info based on your fingerprints or data never regard whether your info is protected in any shape or form (nor can your arguments protect it).
You are not selling the moon, but you are certainly making claims not understood or interpreted by people who it may apply to.
United States is a powerful government that can and will use force to enforce what's on paper (or what is not). Unless you can do that, that's the real difference.
Did you think about the examples I gave you?
Can you say that evidence against you is not allowed in court simply due to the fact your image is your property? (and it is!)
Or how's this Today, can you claim a patent and trademark to your tree, and make it illegal to sell photos of your tree? If so, how can you legally take a photo of your tree stolen to somebody else's property if you can't take a photo of your tree (and the same claim is made by the theif who claims he now "owns" it).
Better yet Would this mean people not fast enough to patent their own retina will be raced by interested parties, and in turn profiteers will own trademark rights to an ignorant person's retina? (in other words, the only difference between a good party and a bad party is who charges the fair amount).
Please help me with this, are you more concerned about protecting your info from being used at all? Or just people profiting off of it? These are two very different ideas that have many different ways to deal with it.