Author Archive | Robert Brauneis

Bilski, Business Method Patents, and the Problem of the Second Step:

Last week the en banc Federal Circuit heard argument in Ex Parte Bilski, an important case on the patentability of so-called “business method” patents. You can read the many briefs in the case here, and find links to the oral argument here.

  Back before I started teaching, I was very interested in patent law and wrote a short essay on the topic of business method patents. In light of Bilski, I decided to post it on SSRN: Computers and the Patent System: The Problem of the Second Step, 28 Rutgers Computer & Tech. L.J. 47 (2002). From the introduction:

Why have computers created such a headache for the patent system? My argument is that the invention of the general purpose computer has baffled the patent system by breaking down the traditional one-step analytical framework of new inventions into two analytical steps. Unlike traditional machines and processes, general purpose computers divide the brains of the operation (the algorithm) from the brawn (the hardware). Patent law is ill-equipped to respond to this bifurcation. Instead, patent law’s one-step conceptual framework forces us to confront an all-or-nothing choice between two unsatisfying alternatives: either we can grant computerized algorithms too much protection, or too little. Either every algorithm is patentable subject matter, or none are.

  I haven’t dabbled in patent law since writing that essay, but I figured it might be of possible interest to those following the Bilski case. […]

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More on Obama’s View of the Constitution:

Via Bench Memos, I recently came across what appears to be a transcript of Senator Obama’s address to the Planned Parenthood Action Fund on July 17, 2007, in which he spoke about the law and the Constitution. An excerpt:

I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there’s another vision of the court [sic] that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process.

That’s one of the reasons I opposed Alito, you know, as well as Justice Roberts. When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. [Laughter] You know, he’s good to his dog. [laughter] He’s so well qualified.” I said, well look, that’s absolutely true and in most Supreme Court decis–, in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsburg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is — what is in the justice’s heart.

Sounds like a case for Kirby Kyle. […]

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Barack Obama on the Courts as a “Refuge for Justice”:

In an interview yesterday with CNN’s Wolf Blitzer, Barack Obama spoke again on what kind of judge he would want appointed to the federal courts (he discusses the topic starting around the 9 minute mark). An excerpt:

What you’re looking for is somebody who is going to apply the law where it’s clear. Now there’s gonna be those five percent of cases or one percent of cases where the law isn’t clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings — and, in those circumstances, what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power and as a consequence can’t protect themselves from being being dealt with sometimes unfairly. The courts become a refuge for justice. That’s been its historic role. That was its role in Brown v. Board of Education.

  Unfortunately, Blitzer did not ask Obama an open-ended question of which Justices past or present he most admires, to get a better idea of what Obama has in mind. Instead, Blitzer asked Obama which Justices Obama likes among the Justices on the bench “right now.” Obama responds that he thinks Justices Breyer and Ginsburg are “very sensible,” and that even Justice Souter – who Obama notes is a Republican-nominated Justice –is “a sensible judge.”

  UPDATE: In the comment thread, “Terrivus” offers an interesting perspective that (as far as I know) I haven’t seen expressed elsewhere. I’m not sure if I agree with it, and parts of it seem clearly overstated. But it seems interesting enough to bring to the main text for discussion:

What’s interesting is that Obama’s very campaign is upending traditional


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Supreme Court Trivia:

Which Supreme Court Justice wrote the following in a solo dissent: “A mosque in Fez, Morocco, that I have visited, is, by custom, a sanctuary where any refugee may hide, safe from police intrusion.”

(a) Justice Alito
(b) Justice Holmes
(c) Justice Douglas
(d) Justice Breyer
(e) Justice Thomas

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Happy Birthday III – Why hasn’t anyone challenged the copyright?

In yesterday’s post, I argued that to get a court to uphold the 1935-2030 copyright in “Happy Birthday to You,” Warner Music Group would likely have to convince the court of three things. It turns out that WMG would face difficulties with all three. The details are in my article (, but here’s a summary:

  1. There’s little or no evidence that Patty or Mildred Hill wrote the “Happy Birthday” lyrics. Indeed, Patty Hill testified in 1937 that she had written the original “Good Morning to All” lyrics, and that she had used the “Happy Birthday” lyrics, but she stopped conspicuously short of testifying that she had written the “Happy Birthday” lyrics. Over a hundred years after those words were first used with the Hill sisters’ melody, no one is alive who could testify about their origin, and I have found no relevant documentary evidence — no drafts, no letters, nothing.

  2. The 1935 publications of “Happy Birthday to You” bore the copyright notice “Copyright 1935 by Clayton F. Summy Co.” It is very likely that the Summy Company did not own copyright in the song at the time (it probably had an implied license for the song, and owned only the musical arrangments that its employees had made). Under then-prevailing precedent, and for several decades thereafter, if you published a work with copyright notice naming someone other than the work’s owner, you forfeited copyright. However, here WMG might be able to take advantage of later changes in judicial attitude.

  3. The renewal registrations filed in 1962 — necessary to maintain copyright beyond 1963 — are only for the arrangements, and do not claim to renew the song itself. This is probably the point of greatest weakness in the copyright, and this issue could also likely be decided early in litigation,

  4. […]

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Happy Birthday II: 115 Years of Copyright, and 22 More to Come?

Yesterday, my post to this fine forum argued that there were good policy reasons for granting Patty and Mildred Hill copyright protection for the melody of “Happy Birthday to You.” Don’t worry, they got it. Their book “Song Stories for the Kindergarten,” which contained the “Happy Birthday” melody with different words under the name “Good Morning to All,” was duly registered with the Copyright Office before publication in 1893. At that time, the Hill sisters would have been looking forward to a total of 42 years of copyright protection. The Copyright Act of 1909, however, gave them (and every other copyright holder) an additional 14 years of copyright — by modern standards, a modest windfall. That brings us to 1949, when “Song Stories for the Kindergarten” took in its last royalty payment and expired, that is, entered the public domain.

Fast forward to 2008. Warner Music Group is pulling in about $2 million a year from “Happy Birthday to You.” It’s counting on that stream of income to keep flowing until 2030. What happened?!?

The very short answer is that WMG is not claiming copyright in the melody, but only in the combination of the melody and the words, which it claims was first copyrighted in 1935. These days, a properly renewed 1935 copyright is good for 95 years; 1935 plus 95 equals 2030.

Granting a new copyright for combining an old melody with new words, or even an old melody with old words, is not necessarily a bad thing. For example, a hymn called “Materna” and a poem called “America” both remained relatively obscure until the day that someone thought to combine them, and then voila!, “America the Beautiful” appeared. The right combinations can be of enormous cultural value, and to my mind there’s nothing wrong with offering the […]

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“Happy Birthday” I: The Half-Full Cup of Copyright.

My thanks to Eugene for the opportunity to address the Volokh Conspiracy audience and get some feedback on my article “Copyright and the World’s Most Popular Song.”

Supporters of copyright will no doubt like some of the things I have to say in the piece; questioners will like others. I’m going to start off with an aspect of the piece that’s relatively pro-copyright.

The melody of “Happy Birthday to You” is quite simple and folksy. No one would confuse it with a song by Schubert or Cole Porter. Thus, one might think that it was probably created by the accretion of incremental contributions so small that none of them would qualify for copyright protection. One might also think that copyright protection wasn’t needed to motivate its composition or dissemination, and that, in any event, it is not the kind of sophisticated music that copyright is really meant to promote.

What I have learned about the history of “Happy Birthday to You” has led me to question all of those thoughts. The melody of that song — originally published with different words as “Good Morning to All” — was the product of an intensely focused and extended creative process. Patty Smith Hill and Mildred Jane Hill, the two sisters who composed it, started with a specific goal in mind. They wanted a melody that could be easily sung and remembered by kindergarten students, yet would also have an emotional punch.

Because Patty was the principal of a kindergarten, the Hill sisters had a laboratory in which they could test melodies. And that’s what they did. They would compose a song; bring it into the kindergarten; see how easily and enthusiastically the children would learn and sing it; and then go home in the evening, make changes, and bring the next draft […]

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