Transfer Pricing Associates

The Challenges of Attaining Social Networking Patents

post Thursday September 29, 2011

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Looking at the enormous success of social networking sites like Twitter and Facebook, it is no wonder that a new generation of intangibles and protections for those intangibles are also on the rise.  Innovations such as avatar-generating programs, methods for viewing multimedia content, and methods for web sharing are all constantly being invented or updated for use on social networking sites and as such, are seeking patents to avoid copycats.  However, filing patents for some of these new generation intangibles can be wrought with problems and challenges.


Typically, when patents for intangibles are filed, it is for the protection of methods of producing things or a specific technological process.  Patents for things such as avatars which are created using artificial intelligence prove a much greater challenge when trying to describe what you’re attempting to patent in a patent application.  For one thing, it is hard to depict a three dimensional web-based image as a simple drawing on a patent application when trying to describe it well enough that its design can be legally enforceable against potential copycats.  Even if the patent application does a good job at describing the uses, functions, and designs of such an item, patent law only allows for the patenting of machines used to create these types of objects (i.e. a computer) or the technological method used to create the item.  Unfortunately, only patenting a computer or technological method is not specific enough to actually legally protect an item such as an avatar, making the design and function of the avatar fairly susceptible to copycatting. 


Other social media sites that are concerned with intellectual property are sites such as Twitter where what someone posts could technically be considered intellectual property since as per the definition of IP, someone’s words or phrases can be considered a creative work.  One example is earlier this year when a premier league soccer player, Ryan Giggs, sued Twitter when rumors spread that the married Giggs was having an affair with another woman, and around 75,000 Twitter accounts had smudged his name.  When Giggs’ lawyers asked for the names on those accounts, Twitter declined to release the account names since, as Twitter saw it, that would be violating the intellectual property rights of its members. 


Facebook is another social media site that has had to deal with its fair share of intellectual property disputes.  A few years ago, it was found that job employers and court officials were able to access an applicant or defendant’s Facebook profile information and pictures without the person’s consent.  According to Facebook’s terms of use that each user must agree to in order to use the site, Facebook claims ownership over user-generated content in perpetuity, even after someone closes or cancels their account.  After courts got wind of this fact, they realized how much personal information goes into a Facebook profile and courts in several countries ruled that they viewed information obtained from Facebook as a reliable, secure and private medium for communication that could be upheld in the courtroom.  What this means for users , however, is that whenever a professional fact-gatherer, such as a lawyer, private investigator, or the like is amassing information that a user volunteers on the website, that information in turn can prove a smoking gun in a court case.  For example, in one court case a woman was suing a furniture company claiming that a defective resulted in "serious permanent personal injuries" and making her homebound.  Her claims were thrown out, however, after comments including smiley faces and photos taken on a Florida trip appeared to contradict her claims.  So, does the information and profiles created by Facebook users classify as a creative work that could be considered intellectual property?  Did Facebook breach intellectual property rights of users when this information was released to courts?  Issues and conflicts resulting from these very questions eventually led Facebook to slightly modify its ownership claims over a user’s personal information and led to a greater choice of privacy settings that a user can choose to employ to protect their information.


A better known example of a social media site’s issues with intellectual property infringement is Napster, a site that allowed users to upload and download music for free.  This court case was a clearer cut example of intellectual property violation, since the music produced by artists is clearly their intellectual property.   Ultimately, Napster was completely shut down when it was ruled that the music it was providing for free to users was not the property of Napster but the property of the artists and recording studios.  Napster, after its recent rebirth, now sells music and pays licensing fees for its products

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