Senators Ask USPTO and U.S. Copyright Office to Conduct NFT Study, Looking at IP Issues | Proskauer – Blockchain and the law

[author: Caroline Rimmer]

With a market forecast of more than $ 35 billion for 2022, there is no question that non-fungible signals (NFT) will be very popular. However, it is inconsistent, confusing, and in many cases against applicable law. These problems were highlighted in the opinion of Senators Thom Tillis of North Carolina and Senator Patrick Leahy of Vermont, respectively, in a letter dated June 9, 2022 (as well as their responsibilities as senior members and head of the Judiciary Subcommittee on Intellectual Property), the USPTO and the Copyright Office have asked to conduct a joint research to address some IP legal issues related to NFTs. Expressing those responsibilities and their commitment to “continuity and the use of new technologies,” the senators asked the study to answer a list of unrelated questions:

  • What are the current applications of NFTs and their IP and IP connection problems?
  • What future applications of NFTs do you see and what are their specific IP problems?
  • For current and future applications of NFT:
    • How do ownership transfers apply? What is the effect of an NFT transferring IP rights to the affiliate property?
    • How do licensing rights apply? How can and how can IP rights be licensed to property in an NFT format?
    • In what way does sin come? What is the error check if the NFT is associated with a property covered by a third -party IP? Or where is the basic value about an NFT whose owner created the NFT and who owns it?
    • What protection of intellectual property can be provided? What IP protection can be provided to the NFT operator? What if the NFT maker is a different person from the person who created the related property?
    • How does 17 USC § 106 apply?
  • What are the current and future uses, both inside and outside of your offices, for using NFTs to capture and manage IP addresses?
  • How do current legal protections for copying, such as the DMCA, apply to NFT stores and are those protections sufficient to address current criminal concerns?

We have considered how many of these problems are for our client. We have also presented some solid examples of these problems related to intellectual property in this blog. For example, our post is about StockX The lawsuit sought how and if the recommendations of first purchase and nominative fair use apply to NFTs representing physical assets protected by the signals. In that same column, we described the unanswered IP related questions in the middle of that case explaining the reason for the questions intended for learning, such as the level of availability of the NFT has the benefits or costs more than the risks involved. with the right of the body?

In a recent post discussing the impact of the DMCA on the NFT market, we learned that the Copyright Office released a report in 2020 that called the advertising system and the removal of the DMCA “unfair. “and consider ways in which Congress can change the current government. . Our post discussed extensively the nuances of a DMCA takedown of an NFT hosted on a server -generated server while maintaining it using a different address than the traditional address (i.e., the link) called “content addressing.” One recent post on this blog raised a number of issues related to NFTs and the DMCA, among others, how much can an NFT minter who owns the copyright to the relevant information? to NFT to issue a valid DMCA refund to an NFT market vendor. requesting that the NFT be revoked, if the NFT is distributed without the issuance of a specific license to the recipient. With the Copyright Office’s research highlighting the need for the DMCA takedown regime to control the availability of infringing content in NFT markets, it can address these issues.

The Senators asked the USPTO and the U.S. Copyright Office to respond to this request on July 9, 2022. If the agencies choose to conduct the study, the Senators requested that it be abolished by July 2023. crypto space, and with the current result of intense litigations regarding IP and NFT issues, there are probably answers that led the market to many of these questions, even before the publication of the research. And, of course, while technology, thinking and business models continue to move at a rapid pace, there may be new challenges to consider.

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