IP Notions

Shhh! This Blog is Pupating.

2010-04-09T11:49:00.003-05:00

(Photo credit: Lynda W1)

Actually, the term to pupate means forming the pupa, but "The Blog is Metamorphing" sounded weird, as did "Metamorphosing" or "Metamorphosizing." Plus, there was the added downside that it brought to mind images of the Blog waking up from uneasy dreams... well, you know the rest.

I suppose I could have used "Transmorgrifying," but even though the word is apparently more than 300 years old, all the really good links raised copyright issues.

In any event, a notice:

GON OUT
BACKSON

BISY
BACKSON

--Ben

1280 by 800

2010-01-04T12:34:00.003-05:00

I have been asked about my resolutions over the past few days.

My admittedly snarky answer is 1280 by 800 on my laptop, and by 1024 on my second screen. It's a very geeky joke, but I think it's funny, anyway.

Which is to say... this ain't that. I hope to continue to provide quality content here, and to build an excellent law practice, and to do all of those things in my personal life that need doing (and that I'm not going into here). But those resolutions have little to do with January 1; they are every day commitments, tying them to a "new year" isn't particularly meaningful or useful.

All of which is to say... watch this space. And thanks for reading.

--Ben

Ted Alvin Klaudt - Rapist and IP Moron (updated)

2009-12-16T13:55:00.003-05:00

Just a real quick one, because it's a busy day.

This is probably already out there, but I just got wind of this news tidbit, where convicted rapist former South Dakota Rep. Ted Alvin Klaudt (Rapist and IP Moron) has informed various new agencies that... and the only way to do this justice is to quote the article directly:

...Klaudt is reserving a common-law copyright of a trade name or trademark for his name. It said no one can use his name without his consent, and anyone who does would owe him $500,000.

Okay, so how many ways does this make my eyes bleed?

First of all - Yes, there's such a thing as common-law copyright (sort of). And there's even common-law trademark. But you don't copyright a trademark (*). You certainly don't reserve a copyright on a trademark. It just... it hurts my head to see this kind of usage.

Second, and more importantly - Um.... NO. That's really not how it works. Let's pretend for a minute that the name could even serve as a trademark. I mean, after all, names can be trademarks. You have to be the source of a good or service, though. And the only connection being made in my mind is that Ted Alvin Klaudt is a unique source identifier for the service of inappropriately touching little girls. Or at least that was the service. Now there's a new one: Moronic IP claims. It's sad that he's not a unique provider of that particular service, but as of today he's at the top of the list with a bullet.

Third (really 2a) - Using your name to reference you - even if your name is trademarked (**) for some good or service - is pretty much where the phrase "nominal use" came from. You know, use as a name. So... seriously. Shut up.

So, I'm feeling puckish, and here's my idea. This is the perfect opportunity for a Google Bomb, and an interestingly meta one at that.

Right now, if you do a Google search on the phrase "Rapist and IP Moron" there are zero results:

I'd like to propose a Google Bomb connecting Ted Alvin Klaudt with the phrase Rapist and IP Moron.

Now, normally a Google Bomb of this sort would point to the official homepage of the Bomb-ee or something like that. But Klaudt doesn't have one of those that I could find. So here's the cool, post-modern, self-referential bit. Point the bomb at Google itself. That is, point the bomb at the results page for a search on the phrase "Ted Alvin Klaudt."

If you'll note, I've done the link a few times in this post already. If you click Rapist and IP Moron, it takes you to the Google results page for a search on the phrase "Ted Alvin Klaudt."

[UPDATE - Duh. It's been pointed out to me that Google probably doesn't index its own search result pages. So this won't work as originally planned. I'll figure out a new target soon. I'm thinking something along the lines of this link.]

I don't have a lot of readers, and I don't have a lot of Twitter followers, and I know that probably the worst way to get something to go viral is to say, "hey, I hope this goes viral." I also realize that I'm getting pretty worked up over this and it might not really be worthy of all this agita. But this guy hurts my brain, and I wanna swat him like a bug. So please join in.

A few last points need to be made. The first should be obvious, but this is the internet and there are no guarantees. I am in no way setting up a moral equivalency between the two offenses. Rapist is a big bad; being an IP Moron is just annoying, and possibly works against your self-interest. I recognize the moral gulf between the two and condemn Klaudt for the rapist part much more strongly than the IP Moron part. But he's been a rapist for a long time; it's only today that he came to my attention as both a Rapist and IP Moron. (See how I worked that in there? Clever me.)

The second point is a direct message to Klaudt. If you think you can enforce your "reserv[ation of] a common-law copyright of a trade name," please feel free to sue me. Please note, however, that I have reserved a common-law copyright of a trade name or trademark in my own name, "Ben Manevitz" and any use of my name without my consent - including in court filings, press releases, or even letters telling me to cut it out - will carry with it a penalty of $750,000 per violation. (I figure since I'm not a rapist, my name is worth more than yours out of the box.) Good luck with that suit, Mr. Klaudt, and say hello to your prison husband for me.

--Ben

(*) To my graphic artist readers, I bid you peace. You can, of course, copyright the image or graphic design or whatever that becomes a trademark. And so, litereally and technically, it can be said that you are "copyrighting a trademark." Or more accurately, that a copyright exists in the trademark. (And exactly how that plays out is an interesting question for another day.) But copyright and trademark protect two completely different things, and you can't "reserve a copyright in a trademark" in the sense that this Rapist and IP Moron intends the phrase. ALSO, see (**) re my use of [copyright] as a verb.

(**) I intentionally misuse [trademark] as a verb here; it's a little shout-out to the great and mighty RC.

Interesting Take on Consumer Protection in Trademark

2009-12-13T21:20:00.002-05:00

In Sunday's New York Times - 2009 Year in Ideas, there was this interesting piece titled The Counterfeit Self. (The #name tag should work, but if not, it's the 4th item down.)

It is not a surprise that small dishonesties insinuate themselves into a person's character, paving the way for greater ones; It's essentially the obverse of the Ben Franklin Effect applied to oneself. But (as far as I know) it hadn't been examined closely in terms of the purchase and "use" of counterfeit merchandise.

There's a running debate about the exact purpose of Trademark protection; Does it protect the consumer in terms of search costs? In terms of some sort of incohate warranty function? Or is it a matter of the manufacturer's property and sweat equity? Or some combination thereof.

I tend to understand it as something that started out as a consumer-protection issue (focusing on search cost) and then got morphed into an issue of manufacturer's property simply because of the way the consumer protection was enforced and analyzed.

I haven't wrapped my brain around exactly how it's going to happen, but it will be interesting to see how the idea of the article gets folded into arguments about the rationales for trademark protection and the breadth and strength of the protection necessary to support those rationales...

"Incredibly Overbroad trademark enforcement protects consumers from themselves!" I just threw up a little in my mouth.

On the plus side, I think I actually blogged about this before LoC, Duets, or CounterfeitChic. So go me!

Fair Use of Videogame Screens

2009-12-01T11:49:00.008-05:00

I'm showing my geek roots, here, but it's not like I've been hiding that.

I came across this article which pointed me to three recent paintings by Brock Davis (a/k/a Laser Bread), all of which are the painter's takes on some classic videogames.

I'll put the game names at the bottom, because it should take about half a second for gamers of a certain age to recognize these.

And for those of you think of gaming systems [obSnydeQuipMaskingJealousy], that's Dig Dug, Donkey Kong, and Missile Command.

The geek in me abso-lurves these, for aesthetic and nostalgic value. The lawyer in me went directly to the fair use analysis.

There's no question that the iconic videogame screens that these paintings are based on are subject to copyright. Actually, there is some question, as it can be argued that the Missile Command and Dig Dug screens were jointly created by the end user, but that's a question for another post. Let's just take that point as read.

The fair use analysis is actually fairly straightforward. You've got a transformative use that will have no impact on the market for the games, or even (taking a more controversial reading of the fourth factor) the potential derivative market for the games. That's factors one and four in favor of fair use. Factor four used to be the "first among equals," more recently the question of "transformative use" is filling that role, but in this case both cut in favor of finding fair use.

Admittedly, the game screen is a creative work, which puts factor 2 in the not-fair-use column. and it could be argued that the amount taken is substantial - it would depend on the determination of what, exactly, constituted the work; is it the game overall or individual screens. But these are relatively weak and would bow in any event to the determination mandated by factors 1 and 4.

Another question would be the trademark implications. These images are, I would posit, fairly iconographic, and each of the screenshots then very likely identify a source (Namco, Nintendo, Atari respectively) The proof is in the pudding, in that (as noted) gamers of a certain age probably recognized the game identities from the paintings without any difficulty.

I don't have a link, but I recall seeing sites where you can submit a digital image and get a painting. Presumably to different levels of abstractness. In which case Atari might be able to argue that a consumer seeing the paintings might be confused as to the source or - in this case the stronger argument - sponsorship of the paintings.

Fair use analysis in trademarks tends to concentrate on the whole "nominative use" question, but that won't do any work for us here. Trademark fair use as a doctrine is mainly concerned with trademarks that are also words in the language and limitations on the extent to which trademark rights can curtail the use of language. Which, sadly, also doesn't do much work for us here.

So on a purely doctrinal level, it seems that the game makers could make at least an objectively reasonable (not Rule 11 sanctionable) trademark infringement case against the artist, claiming that consumers might mistakenly believe that the game maker had sponsored the painting. And his defense would have to be "no they won't," which is a poor defense in that it doesn't do any work pre-trial, or at least pre-survey -- which is to say pre-expensive.

The saving grace for Mr. Davis might be the practical factors militating against the manufacturer's bringing suit, to wit, the negative publicity, the paucity of available damages, the relative age (value) of the marks allegedly infringed, etc.

I think that's the right answer on the law, but it disappoints me on the facts. There should be space in the law for exactly this kind of expression. I touch on this briefly in my post about the Carol Burnett - Family Guy dustup here. And this is another example of where the conversation of our world is being impeded by the very laws that were intended to protect that conversation (albeit a different facet of that conversation.)

--B

Do you hear something? Is that my own horn? Why, yes it is. Toot!

2009-11-24T00:30:00.003-05:00

I became a lawyer for a lot of reasons, which is a good topic for another post on another day.

But one of those reasons -- and not a small one -- I really like to win. I know it won't happen every time. But when it does, it feels so nice.

(Remind me to tell you sometime about the on-campus interview when I was a 2L, and the callback interview I got for saying just this.)

So I've got this client -- LodgingKits.com -- in the business of selling, primarily, kits for use in the lodging industry at the website (three guesses) http://lodgingkits.com.

A while ago, they were named as Respondents in a UDRP brought by Lodging Kit Co., which operates http://lodgingkit.com. (No hyperlink - I know it's petty, but I'm a litigator by penchant and training, which means there's a level of emotional investment with my client, which means the bad guys get no link love from me.)

Now, during the pendency of the matter, I felt the best interests of my client were served by my silence. Now that it's pretty much over (barring some sort of trademark enforcement litigation on Complainant's part that would be ridiculously ill-advised ), I'm feeling a little more unrestrained.

I don't want to get all ad hominem on the Complainant's counsel, which will require a fair amount of restraint on my part. I will, however, say that the most distinct impression I got from the complaint was that it was done by someone who had no experience with UDRPs and/or who had no interest in winning the case.

That is to say, I don't have the time to do a redline right now, but the Complaint was a barely modified version of the sample complaint available from the Nat'l Arb Forum. I kept thinking of all those comedy movies where someone's administering an oath, and says, "Repeat after me: I, state your name," and the oath taker dutifully repeats, "I, state your name."

The only assertion of rights on which the Complaint was based was a registration of the mark on the Supplemental Register. Which alone wouldn't necessarily be fatal -- which is to say, I could imagine a fact pattern where it would not -- but is generally so, given what the Supplemental Register is all about.

Certainly on the facts of this case, the registration Complainant was relying on was less than useless to them. They had sought registration, been rejected for descriptiveness, and then amended to the Supplemental Register - essentially conceding a lack of secondary meaning.

I don't need to recap the argument too thoroughly; you can read it yourself in an elegantly structured and eloquently argued (if I do say so myself) Response (on JD Supra, here). I ring the no-secondary-meaning bell a bunch of times, in different contexts.

Complainant came back with something only a tiny bit less inane, including an affidavit (without exhibits) and bald assertions attempting to overcome the gross failures of the original Complaint. I had the job on a flat-fee basis, and could have adequately answered the Additional Submission with relative ease. But it was just so... crushable. It was fat, slow one over the plate, and I just had to spend the extra couple of hours knockin' it all the way out. Which is to say, I returned a(nother) elegant and eloquent Supplemental Response (on JD Supra, here).

In any event, the decision came down squarely for my client, agreeing with my primary contention that Complainant had not established rights in the mark in question. I would have liked it if the Panel had agreed with me in all my contentions, but - as is not atypical - once it determined that Complainant had failed to satisfy the first requirement of the Policy, the Panel didn't pass on the other prongs.

Even so, it's a definitive win for me and the client, and it served the client's interests in the obvious way as well as more subtle ways.

I'm happy, client's happy. All manner o' things are well.

Now that's a good day.

--B

Wide and Shallow: Fonts and Typography

2009-11-13T11:53:00.000-05:00

There are so many other blogs out there doing IP breaking news and current-events; I try to frame my posts here as more narrow but also perhaps deeper.

But it's my blog and I can do what I please (within legal limits and all that.) So, herewith a wider ranging and less deeply probing set of links and ideas.

Somehow or another I found my way to Twenty Tweetable Truths about Magazines, which was elegant and wonderful made me think about magazines and the fact that I still subscribe to one or two and that I use them differently from the way I use the internet and other media sources.

Because I found it (I remember now) through a design e-newsletter I receive, which pointed to the font used, it also made me think of the Pulp Fiction Kinetic Typology videos -- (the one linked is the one I like most, but there's lots out there.) (Be advised, of course, it's not exactly safe-for-work, language wise. Depends on where you work, I guess.)

That got me thinking about the copyright issues in those kinds of presentations. My instinct is that it's a fair use -- transformative use made of a published (but fictional) work, taking only a small-ish portion of only the audio track, with very low likelihood of market substitution. A different, slightly more subtle question might look at the trademark implications. I want this use to be acceptable under that rubric, because the results are so wonderful, but I'm going to have to think about it a bit before I commit (post) either way.

Of course, it never hurts to actually get permission - as is claimed by the makers of the best one I saw when surfing around yesterday - the Who's on First kinetic typography presentation.

One of my pet interests is the protectability of design elements - particularly fonts - which is, rightly, the subject of one of the "deeper" posts I claim above. But my explorations yesterday led me to a font called Liza Pro, which has (claims) over 4000 "contextual ligatures and alternates," and "advanced OpenType programming" (see the slideshow, which is so cool!) that made me think of fonts in a way that I hadn't before - as a computer program or even a straight-up "method" for contextually reimaging letters. So that'll have to go into the hopper when I think about IP protection of fonts.

(Also in that vein, when is a font not a font? When it's clearly just art: Steampunk, Erte. Although I'm vacillating on that point even as I type these words.)

--B

Art Galleries and Catalog Images

2009-11-06T01:30:00.001-05:00

If you've ever received an art gallery catalog, I'm sure the same question has occurred to you that occurs to me every time. To wit, "on what basis do these galleries and auction houses
publish on-line or electronic catalogs of this visual art without permission from the copyright holder? Or even the print catalogs, really?" (For an example, go to the Christie's site and find your way to a catalog; I don't want to permalink anything, because they change.)

What, that's never occurred to you? Honestly? Yeah, me neither. But it did come up on a mailing list in which I'm involved. For a group of lawyers with IP backgrounds, I'll be honest, I was a little disappointed by some of the analysis. (Except for mine, of course. My analysis was brilliant!)

The various ideas that were floated included fair use and "public display." Fair use is relatively well known, and comes up on the internet a lot. Public display is what you might think, though it comes at it backward. That is, there is a right [under Section 106(5)] ostensibly exclusive to the copyright holder to display a work publicly, where both display and publicly are terms of art, subsuming everything you might normally think falls into those definitions and then a little bit extra. However, that right is limited by Section 109(c), which allows the owner of a lawful copy of a given work to display that work publicly, "either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located."

In other words, that really funny New Yorker cartoon you have on your office door? Section 106(5) would prevent you from putting it up there, except that 109(c) comes to your rescue.

Public display gets a little trickier when it comes to certain works of visual art that require some element of reproduction in the display. The way it's taught is in terms of some of the more modern art pieces that involve a video display element or the like; in such a situation, the public display right entitles the owner of the work (not the copyright, mind you) to engage the video display element even though there might be some otherwise-verboten reproduction involved. Public display doesn't generally include the broadcast of audiovisual media.

A more salient (and possibly more controversial) application would be where a piece of art requires, for security or conservation purposes, that it be displayed (for instance) via audiovisual reproduction. So some artist makes a painting on... I dunno, dry ice. The only way to see (for more than however long it might take to otherwise sublimate) it is to put it in some special freezer and point a camera at it and look at on a monitor. It's fairly uncontroversial, though not entirely uncontested, to say that the display of the work on that monitor by the owner is allowed under Section 109(c), even though that might involve a sort of reproduction.

All of which is by way of a tangent, really, just to explain the possibility raised by some that the electronic and/or paper catalogs were permitted under 109(c).

Which proposition, I should say, I think is a bit daft. First off, 109(c) is explicit in its limitation to "no more than one image at a time, to viewers present at the place where the copy is located." Second, if you think about it, that would be an exception that swallows the rule. On that understanding, pretty much any time someone made copies of something that other people wanted to see and distributed same, online or in print, the claim would be that it was distribution of the originally purchased copy of the work. Which is sort of one of the paradigm cases of infringement, isn't it?

So it's not Public Display. Fair Use, then? Again, I don't think so. Running through the four-factor test shouldn't be too difficult.

We just need to more clearly define the possible infringement.

(1) It's not at all transformative. You might argue that the catalog information on the page adds some sort of value or information, but that's a bit specious. (2) Except in rare instances, we're probably talking about something "fictional," which is to say that art is more fanciful than the reporting of facts (even photography). (2a) There is the mitigating factor that it's 'published,' but I don't think that really does too much work here. (3) The taking is of the whole of the creative/infringed work, and certainly the "heart" of it - if the catalog photo wasn't sufficient to reproduce at least the core of the painting in question, it wouldn't be much good as a catalog photo.

The only thing working in favor of Fair Use would be (arguably) the fourth factor. It's the one time an alleged infringer could make that "I'm doing you a favor" argument with a straight face. The purpose of a catalog is, ostensibly, to *assist* the copyright owner in gaining income and to *support* (or create) the market for the copyrighted work.

But the fourth factor is no longer the first among equals that it used to be, and even if it were, I think the other three win.

So, if it's not Public Display and it's not Fair Use, why aren't artists suing the various galleries left and right for copyright infringement?

I think there are two factors in play, one practical and one legal. The practical concern is on the lines of biting the hand that feeds you. The artists with a claim have that claim because there's a gallery (or auction house) out there trying to sell their work; It would be ungrateful, and more importantly unwise for the artist to turn around and sue the gallery for the catalog that represents that effort.

The legal doctrine on which these galleries and auction houses rely, I think, must be implied license. That is, once the artist or copyright holder gives the piece over to the gallery or auction house, then there is implied in that act the copyright holder's license to the gallery or auction house to make what reproductions might be standard in the industry, including reproduction in catalogs, etc.

It becomes a little more complicated when we consider that very often it's not going to be the original artist who's commissioning the gallery or auction house to make the sale. I don't really have a convincing argument for why the erstwhile buyer (now reseller) can grant the kind of license we've been talking about. You could make an argument if pressed - it would be what we in the trade call "not sanctionable" - to the effect that the original copyright-holder's implied license extended to include those reproductions necessary for resale.

That last argument is the best I can come up with, weak though it is. Either way. I'm confident that what's at work is not the 109(c) public display and not fair use. The implied license works well when the grant is from the original copyright holder. And then that last... But there it is.

Have a good one.

--B

You Sure Got a Purty Website!

2009-10-13T15:19:00.003-05:00

I have had days where I'll hit the USPTO site as much as fifteen or twenty times. I use it for a host of reasons: I do the obvious applications and other filings; I research potential clients; I do very preliminary (quick-n-dirty) trademark clearances; I look up filings by opposing counsel to get a feel for them; all sorts of stuff.

The site's always been useful. But a little clunky-looking. Especially once you got to the inside pages. Nothing horrible, just clunky.

So it was a nice surprise to get to the page this morning after the long weekend and see that it had a new look and some attempts, at least, at improved functionality. (Launch announcement.)

On preliminary review, it seems a bit slicker, and the initial navigation is a little bit more accessible. It's a little disappointing to see that many of the inside pages that I looked at were essentially unchanged in style or substance, but there's only so much you can expect at one time, I guess.

But it's more a set of changes that will affect the first time visitor's experience, or the occasional user. For the hardcore types... even the stuff that was hard to find, we had already gone and found it and could always find our way back. For users like me, the changes just impose a brief learning curve for anything that's newly positioned.

But it is pretty. Prettier, anyway.

Now what would be really cool is if they brought back direct linking to TESS records.

--B
been overhauled

The Penumbra of Protection in Word and Design Marks

2009-09-21T14:53:00.006-05:00

The question sometimes comes up as to which is better to register - the word mark or the design/stylized mark. The advice I generally give is that registration of the word mark is usually the better way to go, but - and this is important - I take pains to explain the different effects the registrations might have.

I like to explain it in terms of a graph which is rightly the subject of another post. But if you think of an x-y plane with goods covered on one axis and the mark itself on the other, any particular trademark registration is a point on that graph, and the registration itself (with use, etc) grants protection in a penumbra of indeterminate size and shape around that point.

I like to use the Coca-Cola example, since it's so accessible to so many. You've got your COCA-COLA word mark (Reg. No. 0238145 Sep. 13, 1927) and the Stylized Coca-Cola Lettering mark (Reg. No. 0238146 Jan 31, 1928).

Now, the shape of protection of those two marks are pretty similar, but they're not entirely congruent. Posit a cola product called KOKA-KORA (which is actually the Russian COCA COLA brand, I think) and even in block letters, even in stylized letters completely unlike the stylized letters of the stylized mark, the "shadow" of the word mark would pretty clearly reach to include KOKA-KORA as an infringement.

On the other side, there's this font that can be found online called LOKI-COLA. (link, lin k, search) The intent of the font is clear, but that's not at issue. It's not untenable to argue that LOKI-COLA would not be an infringement on the word mark. (It's not a lock, but it's at least fairly arguable.)

But as against the stylized mark, on the other hand, LOKI-COLA on a soda product would pretty clearly lose.

That usually - but not always - serves to make the difference clear, and then it's up to the client to figure out where the business risks are coming from. And usually - but not always - the client would be better served by registering the word mark.

Which is all well and good (and clearly explained and insightful if I say so myself), but why am I bringing this up now?

Because I found this new example. It's a little NSFW, but I just think it's really funny. I have an odd sense of humor, true, but there it is.

Check it: TWITTER word mark (Reg. No. 3619911 May 12, 2009), TWITTER stylized (App. No. 77721751 Apr. 24, 2009).

(This is the application image.)

(This is as it's used on the homepage.)

Versus the unregistered CLITTER:

I blurred a word, but the idea is pretty clear. (I think there's a real research project in ways that the adult entertainment industry has served to advance both law and technology.)

In any event, it's a little salacious but I anticipate using the example to help explain this point in the future.

--B

I'm baaaa...ack!

2009-09-21T14:15:00.003-05:00

We'll see if it sticks, but here I am. Brand new year (Jewish, anyway). Brand new lawfirm. (don't bother clicking - the site's not up yet.) Brand new blog (sorta - not really. It's in the works, with the website).

But if I keep waiting for everything to be just right, I'll miss all sorts of cool bloggy opportunities.

Dear Mr. Reader,

Please excuse Buan from having been absent from his blog for so long. The heat has been off in his law firm and he had to keep his snake warm.

Signed, Epstein's Mom.

The Necessaries

2008-01-06T13:58:00.000-05:00

Tell you what. Imagine the most contrite and sincere apology for my long absence and failure to maintain the blog.

Read that in here.

--Ben D. Manevitz

Hmmm... Technical Difficulties

2007-06-08T17:28:00.001-05:00

For those wondering where all the new content is... so am I.

There are two posts that are supposed to be up here that for some reason... aren't. They looked like they were up to me, but there seems to be something a little goofy with the various permissions, etc. on my webspace - that is, I can see the posts, but no one else can.

A draft version of the second one was up for a little while, but I figured out how to take it down, and now I have to just figure out where the real posts went.

I'll play on Sunday. Things should be fixed then.

For those of you who did so, thanks for checking back, and your patience.

--Ben D. Manevitz

Yay! More Pr0n!

2007-05-16T12:31:00.000-05:00

First of all, for those of you who don't know, the misspelling above is intentional. I want this site to show up in a results list when the search is "brilliant IP insights" or the like; I'd prefer it lower down when the search is "Disney Pr0n" (Y'know, not misspelled.)

Anyway. The news...

Reuters reports that the Ninth Circuit today lifted the lower court's injunction in the Google v. Perfect-10 case.

Links and analysis (or more likely, links to analysis) to follow. But I wanted in on the news cycle.

--Ben D. Manevitz

The Fashion Cycle - on Speed.

2007-05-11T13:28:00.000-05:00

Diane von Furstenberg's suit against Forever 21 was covered in the press and on Counterfeit Chic back in March. There were a few interesting ~~admissions~~ statements in the article about Forever 21 in the NY Times today.

As a litigator, I'm going to give everyone involved in any litigation the secret! the best piece of advice ever! Ready? Here: Shut Up!

In this case, we've got a statement from the defendant('s representative) to the effect that there are no designers employed by Forever 21, “just very savvy designer merchants.” That's not a case-killer, but it's certainly the kind of statement that's going to help the plaintiffs.

Similarly, "Ms. Boisset of Forever 21 said that the company works with many suppliers and does not always know where their ideas originate." First of all, copyright infringement is a strict liability offense. Second, to the extent that a plaintiff will be able to show that in a particular instance Forever 21 was aware of/in contact with/in control of a particular supplier, protestations of ignorance will hurt in front of a jury. (Of course, the odds are that this case won't get to a jury, but still.)

I'm sure Ms. Boissett didn't mean anything bad. But in two quotes - and more than likely in other things she said that weren't reported but were likely recorded by the reporter - she did some damage to Forever 21's case.

--Ben D. Manevitz

PS: As an ancillary matter, I noted an odd shift in tone as the article progressed. The article starts out as almost a puff piece... Hey, look at this cool, generation-bridging, up-and-coming new store! Happy music; major chords; blue skies and puffy white clouds. La-la-la! But by the end of the article you've got gray skies, minor chords, and the looming lawsuit.

You CAN Copyright a Number. But Not As Such.

2007-05-01T21:55:00.000-05:00

Back in February, a hacker named Arnezami made public (on the Doom9 forums) the HD-DVD Processing Key. And the Industry-with-an-evil-capital-I is very upset over that.

Basically, the HD-DVD Processing Key is a special number, necessary (but not sufficient) for the decryption and watching of HD-DVD's on your home Linux box. Which seems fairly innocuous - after all, once I buy a disk, by rights I should be able to watch it on any screen in my house. I use the phrase "by rights" on purpose; the question is clearly covered by the first sale doctrine.

But note, however, that once it's been decrypted, it can not only be watched but pulled apart, copied, redistributed, uploaded, downloaded, sideloaded, whatever. So you can understand why the publication of the information might upset players in an industry with a business model built on, you know, not allowing that to happen so much. Even if the information in question is just a very big number.

Now, per Slashdot, which points to Rudd-O, which used to point to Strange Action at a Distance, but that blog's been squashed... the Evil Industry is attempting to stomp out the information. Apparently, (quoting Rudd-O) "the movie industry is threatening Spooky Action at a Distance for publishing that number, specifically with copyright infringement." According to the quote that Rudd-O pulled off of Spooky Action, the threats are premised on the DMCA.

Slashdot, Rudd-O, Spooky Action, and possibly others are all speaking in terms of the DMCA copyright provisions; There is already some hue and cry to the effect that you can't copyright a number! (Even a number with letters in it, as when converted to hex.)

Now, first and foremost, it's very likely that the threat was not based on the copyright provisions in the DMCA but rather on the anti-circumvention provisions. And that should be the end of this discussion.

But it's worth taking a step back for a minute, and addressing the question of copyrighting a number. Because you actually CAN copyright a number. Just not if you're trying to protect it qua number.

That is, if I figure out some awesome new method for figuring out the next huge Mersenne prime, and then write that up in an article, then under copyright law: I can NOT protect the method I describe; I can protect the article in its particular expression, unless the method is only describable in a limited number of ways, in which case I can't; and I can NOT protect the number itself. Anyone else can come along and point out that the Nth Mersenne prime is 12457...whatever, and I can't stop them. And if they want to represent that number in Hex, it becomes a string of numbers and letters, and I still can't stop them.

HOWEVER. I can protect a number when it's not a number. I remember years ago someone wrote a poem that was made up of fictional personalized license plates. Which would look just like a long hex number, except it's not a number qua number. Or the line from Shakespeare: "2B, R not 2B" On its own, probably too short for copyright protection, but not by dint of its being essentially a string of letters.

I would even claim that if someone wrote an abstract poem, consisting of nothing but a string of numbers and letters that would sound "right" when read aloud in sequence, that would be protected under copyright.

On a more technical level, every document saved on your computer is, in a very real sense, nothing more than a number. It's stored as a series of bits and bytes which the computer generally translates as words or images; but there's nothing that obligates computers to do so. Just for fun, take a small image (it has to be small so as not to overwhelm your computer) and open it in a text editor (Notepad or the not-Windows equivalent). It's a bunch of gobbledygook, but it's something.

(Just a brief nostalgia moment: I remember the heady days of Usenet, when big files were broken up and posted as long, apparently meaningless text files full of hex codes that you'd concatenate and then rename to have your image or music or document or whatever.)

The point is, you can protect a number, in some circumstances. In the instant case, the number is probably being used qua number - it's the answer to a math problem and so is probably not protected under copyright. But then, I reiterate, copyright probably isn't the issue here; the threats are probably being made under the DMCA anti-circumvention provisions.

As importantly, though, what you also can't do to a nubmer is to make it go away by wishing it so. Back in the Summer of 1995, when I worked for the EFF, I helped out (in a one-L summer intern kind of way) with the Bernstein crypto export case.

In that case, I recall, the algorithm in question could, with some rejiggering, be represented as a string of numbers a few lines long. A few times - most often in the spirit of sincere legal analysis and only sometimes in the spirit of stick-it-to-the-man humor - the question would come up as to what the law would (and should) be if, instead of seeking to "export" the source code and an academic paper about the algorithm in question someone had just put it on a t-shirt and flown out of the country wearing it.

Of course, those conversations took place back in the day when if you wanted something a little more professional than using a Sharpie on your Hanes, there were some fixed costs involved. Now we have cafepress. Plus ca change, plus c'est le meme chose. Some young clever has even registered the number as a domain name, and has a nascent blog there.

So, as a copyright question - not protected. And as a practical matter - not protectable any more. I didn't go into the trade secret question, but that's also not going to work to keep the number out of the public's grubby mitts.; Arnezami apparently figured out the code by looking at disks, not by gaining improper access to guarded information.

My first instinct under the anticircumvention provisions is that release and propagation of the number is problematic, but as I write these words, I'm less and less convinced. I'll have to think about it some more... maybe even post a follow-up. It'll come down to the question of whether or not the Processing Key is an "access control" as used by the statute.

And looking at the broader question of copyrighting numbers...

You can copyright a number. Just not this one.

--Ben D. Manevitz

Update: Lots of good coverage out there. Only one link to me, but them's the wages of sin. Or in this case the wages of toiling in obscurity. In any event, I found particularly heartening the coverage at EFF Deep Links, that makes clear that it is, in fact, an anti-circumvention claim, and not a copyright one.

Also - tagging is a very cool and excellent innovation in the blog world. For those of you who don't check the tags on posts you read, it might be worthwhile to check the tags on this one at least. I got it from Slashdot, and I'm guessing I'm not the only one.

Double-plus Un-infringe-ful

2007-04-20T16:27:00.000-05:00

In your intrepid adventurer's last missive, I made the overproud claim that Bill Patry, in looking at the small controversy about the Apple-1984-Obama-Clinton ad "just plain misses the point." On reread of Professor Patry's post, I want to back off of that claim for a bit - he mentions what I think is the critical issue, but doesn't give it much emphasis.

(Note, the YouTube link above points to a copy of the mash-up ad; I couldn't find the original, apparently posted by Phil de Vellis, a/k/a ParkRidge47. YouTube also has the original Apple superbowl ad.)

Briefly, the owner of the rights in George Orwell's 1984 (Rosenblum Productions, Inc.) is "monitoring closely" what it claims is the infringement of its copyright by the ad linked above. Analysis on the web - including the weight of Professor Patry's post - tends to look at fair use and political speech questions.

But what's being missed is the more important question: WHAT INFRINGEMENT? Or more to the point, where is the substantial similarity to protected elements of the IP in question?

I was in high school in 1984, so you can imagine that it was a big deal to read the book and write all sorts of insipid essays. But I hadn't read the book since then so I hit the local public library and took it out and read it. Okay, skimmed it. But still.

There's nothing in the ad - either ad - that copies protectible elements from the book. There's no scene of trudging, bemasked drones, no ubiquitous gasmasks, no tube-sidewalks (which actually remind me more of Paris' Charles de Gaulle airport than anything. The book has the ubiquitous screens that the commercial(s) ha(s/ve), and the talking head, and you could make an argument for the whole unitard thing... but not really.

Clearly, whoever owns the rights in the original ad would have some sort of claim against the mash-up. And you could do a fair use analysis in that context.

(Frustrating side-note: there's already the annoying buzz of "Parody!" defense. If this ever comes to a head, I'm publicly begging the lawyers for Mr de Vellis to eschew that claim. It's not a parody. Remember, parody is where an author thinks, "hey, wouldn't it be a funny commentary on Barney if the apparently friendly giant purple dinosaur was actually - or also - a minion of Hell." Satire is if that author thinks, "hey, wouldn't it be a funny commentary on the state of the world if the selfsame dinosaur was being consulted by George W. Bush.")

In all fairness, Rosenblum apparently has rights in a Richard Burton film (warning: obnoxious rollover ad), which I haven't seen. And an opera, and videos, etc. (Per the press release.) I haven't seen those either. But assuming those materials hew sufficiently close to the line set by the book, the copying - or rather the lack thereof - will be the same.

This, folks, is a very good example of the idea-expression dichotomy at work. Orwell's book is a dystopian vision of the near future including an oppressive government, invasive surveillance, and ubiquitous propaganda. That's the idea.

There are a lot of elements within the book that are protected by copyright. Winston Smith, the image of and slogans of Big Brother, that amazing bit after Winston and Julia have made love for the first time, where the thrush sings. That's the expression.

The expression is protected by copyright. The idea is not.

Even though the ad does, at the end, explicitly point to the book to describe the atmosphere it's trying to evoke... there's still nothing in the ad that copies protectable elements of the book.

Which, I guess, is why Rosenblum is only "monitoring closely" and not "filing an action." Because some lawyer, somewhere, has probably done the analysis for them. The analysis that goes, "Sorry, guys. You got a pizza with nothin."

--Ben D. Manevitz

PS: Back in 1984 Rosenblum sent a C&D letter to Apple about the ad and "The commercial never aired on television again." (Per the Rosenblum press release.) Assuming the commercial really was pulled from broadcast, I deeply and sincerely hope that the C&D was not considered in that decision. I'm a little worried, this time, that Rosenblum might simply go with a DMCA take-down notice, a la the NFL.

Long Hiatus. (m'I woN - wards)

2007-04-20T05:08:00.000-05:00

So the hiatus went a little long; I've got no real excuse, just that things got a little hectic.

There's some balance in the fact that these posts are relatively long; I'm not trying to for three or five posts a day, more like one or maybe two a week, hopefully with some insight.

So my overlong hiatus really only amounts to one (or maybe two) missed posts. Which, I know, is one or two too many, but still.

The bigger problem is that I end up with a backlog of things to write about, and I'm going to have to just skip some of them.

Also, I want to give a shout-out to Fran, who gave me a little poke in the bum on this.

--Ben

PS: "Now I'm" backwards, less 'wards' = "Now I'm back"

Pass/hiatus

2007-04-08T17:52:00.000-05:00

When I was in fifth grade, I was introduced to these clever puzzles - I don't know their name - where words and letters were manipulated to become common phrases.

So {theabirdhand} would be "a bird in the hand", and a box with the word BLACK on the outside of it... "blackout."

Which all goes to explaining the title of this post.

I have a few actual recurring visitors by this point. (Welcome, by the way. Except for the guy - I'm guessing it's a guy - who keeps finding me by way of the Google search for "disney porn." You, sir, can feel free to move right along. Nothing to see here. No, really. Nothing to see.)

Those visitors - even you, gentle reader - may be wondering where all the fresh content might be. And I would love to share some with you.

But, I'm on Passover hiatus. Better bloggers than I have managed to post with some frequency during the holiday, but I have not. And did not actually think I would.

BUT! Be here next week, when I do post. Words I would have not guessed I would ever type: I think Bill Patry just plain misses the point.

Now that's a teaser!

Have a good one.

--Ben D. Manevitz

My Very Clever April Fool's Post...

2007-04-01T20:33:00.000-05:00

...Will have to wait 'till next year. By which time it probably won't be so funny, depending as it did on the whole Viacom-Google issue.

Until then, though: [hearty chuckle].

The best bit for me? Dark Porcelain. For reasons having to do with some projects I worked on lo these many years ago, but the stories are too lengthy to go into right now.

--Ben D. Manevitz

Ad-Hoc Networks - Got Your Ears On, Good Buddy?

2007-03-29T23:39:00.000-05:00

When I was getting my J.D. (1994-1997), laptops in the classroom were not unheard of, but not by any means commonplace. By the time I went back for my LL.M. at Cardozo, laptops were pretty much de rigeur, and my initial insistence on taking notes by hand (I eventually gave in to the dark side, for various reasons) flagged me clearly as old-school, emphasis on "old."

That plethora of laptops exists outside of school, as well. I doubt I need to belabor the point to anyone reading this in a Starbucks, or most libraries, or any number of public spaces in your standard issue metropolitan area; just look around. And it goes pretty much without saying that the overwhelming majority of these laptops are equipped with WiFi connectivity.

Now, if you want to see the future of things, stop calling them laptops. Call them nodes.

There's lots of coolness tucked away in the internets, but at the core, one of the truly big ideas of the internet was the shift from a one-to-one model to the many-to-many model. This is true both on the technical, file transfer level - a single file going from point A to point Z will pass, in whole or in part, through many systems and connections besides the ones leading directly out of A or into Z - and on the level of content - in that theoretical Starbucks you're sitting in, you (and hopefully some others) are reading a blog, and the tattooed hipster sipping his latte next to you is writing a blog, and the barrista is wondering if her YouTube video's gotten any views, and that little girl who just came in with her father is planning her next MySpace post, etc.

In simple terms, any computer (technical level) or site (content) on the net is (or could be) having a lot of simultaneous conversations with a lot of other computers/users/sites/whatever.

That's all well and good. But the many-to-many model is only accurate a few steps away from the edge of that famous internet cloud we all know and love. (Much cooler image.) At the very edge, it's still a very limited conversation: your computer talks to your router, and your router talks to your ISP.

The idea of tweaking that model to fix (read: interconnect) the endpoints - mesh computing - isn't, strictly speaking, a new one. (In fact, one of the best features of the $100 Laptop is it's out-of-the-box mesh capability.) (click the little computers to prick up their ears, drag 'em to move them around.)

But I'm blogging it now because I just stumbled upon WiPeer. (There's a hat-tip that belongs here, but I don't remember who gets it.) I dropped it on my laptop, did a quick install, and within a few minutes I had my ears on. This was the first application that I've encountered that moves the mesh idea forward with such a low transaction cost on entry.

That is, I'm fairly tech-savvy, but even I'm a little chary of messing with my networking and wireless settings. Moreover, if I'm going to be a part of this experiment, I don't really want to sacrifice anything for it; I don't want it to interfere with my computing experience, my regular networking, etc. And I'm not installing anything with adware, spyware, annoying-ware, intrusive-ware, or really anything-ware. And I kind of don't want to think too hard about the installation process or settings, either.

WiPeer - with whom I am not affiliated in any way - seems to fit the bill. And while it's not open source, I can't imagine that the protocol is so abstruse as to prevent clever third parties from developing clever manipulations of the system. One of the first I can imagine is sharing an internet connection among meshed computers. (Go back and look at the one laptop per child demo, but keep the laptop on the far right (near the globe) "deaf" until the end)

But why am I noting this here? What's the IP import of the evolution of a true mesh?

Basically this is just a peek inside the can of worms. Think about how my laptop becoming a server changes the way the law looks at me. Am I an ISP? A (protected) internet router? an end-user? Do I deserve DMCA safe-harbor? If you're in that Starbucks right now, and paid the $10 for the day pass to use the T-Mobile wireless there, and then you mesh with a few other laptops there and they piggyback on your bandwidth... what if the aforementioned tattooed, latte-sipping, blogging hipster is (a) downloading music illegally, (b) uploading porn, (c) uploading kiddie-porn, (d) posting a crypto algorithm to an internationally available message board, (e) hacking into military systems?

What about file sharing within the local mesh? Take "Jack My IPod" to the next level. Or what about mesh-casting (I made that word up), where I can have music come through your computer instead of the radio on my shelf? What counts as "publishing" something now?

So that's the can of worms. And it's starting to open. It's going to be a mess, but it looks to be pretty cool, too.

--Ben D. Manevitz

[PostScript: It turns out that "meshcasting" isn't completely my neologism, but I don't think the results of the linked Google search (on 3/30/2007) demonstrates usage with the meaning I've given it.]

Pointing Out

2007-03-26T09:38:00.000-05:00

Just a little Monday morning pointing out.

I wanted to point to two items of note from Counterfeit Chic. It started out as one item, but then when I went to get the permalink I saw another one.

I'm finding the Coke Zero marketing campaign really funny. Maybe it's just me.

This blog entry about "real" dolls and girly experiences upset me a little qua IP lawyer and a lot qua father of a little girl.

--Ben D. Manevitz

Ear-Tugging Actually Means "Call The Lawyers."

2007-03-19T18:04:00.000-05:00

So it seems Carol Burnett is suing the necessary parties behind Family Guy because they appropriated her cartoon "charwoman" character and for disparaging her personally, etc. (Hat tip to Ron Coleman, here.)

It takes little imagination to anticipate that the studio will claim parody as a defense, at least in part. But it's clear that the studio still has its PR people doing the talking, instead of its lawyers, because the reported statement by the studio does a nice job of making the lawyers' jobs much harder: "'Family Guy,' like the 'Carol Burnett Show,' is famous for its pop culture parodies and satirical jabs at celebrities."

You can just hear the lawyers groaning. If it's a pop culture parody, then there's an arguable defense; if it's a satirical jab at a celebrity, then you've got a problem.

That distinction, made by courts and practitioners alike and premised on the Campbell v. Acuff-Rose decision, is actually a pretty fair one, to a point. The reasoning starts with the eminently reasonable assertion that if I'm going to make fun of (comment on, disparage, analyze, play on, whatever) Work X, I need to be able to "conjure up" Work X sufficiently. The point of a joke is that it builds on and then subverts expectations; in the case of parody the expectations in question is the original work.

Once I move away from commenting on the work itself, though, that rationale breaks down. If I want to make fun of {anything NOT Work X}, I should be able to do so without calling on someone else's copyright-protected work; I certainly can't say that I need Work X.

It's not uncommon (and there's an example of litotes right there) to see accused infringers raise the parody defense - more often than not inappropriately - and it drives me up the wall. Yiddish mit Dick and Jane and the JibJab video are two examples that spring to mind, but there are myriad others. (And quite honestly, I think the Supremes decision concerning Big Hairy Woman was a stretch, as well.)

The way to think of it is to ask if there's another work besides the allegedly infringED work that could serve the purposes of the allegedly infringING work just as well. So if I wanted to point out some inherent flaw or hypocrisy in the Dick and Jane books I would have to use the Dick and Jane characters, scenarios, cadence -- I would have to evoke Dick and Jane. But if I want to make a point about teaching Yiddish in little-kid-book terms, then my ends would be served as well by evoking Dick and Jane as by evoking Thomas the Tank Engine or Poky Little Puppy.

Similarly, This Land is Your Land speaks to a certain unity of Americans across social or cultural divides, and set the JibJab animation up nicely since it addressed a certain animosity and divisiveness across social/cultural divides, while at the same time making a more subtle point about citizens being united in their disdain for the politicians in question. The song was a great choice, but certainly not the only choice possible to serve that purpose.

So too, in the instant case. You have to ask, "what's the joke?" If the point is that Carol Burnett presents herself to the world as particularly moral or upright, and the gag is directed to undermining that, then you've got a parody. Family Guy couldn't make that point about Carol Burnett unless they evoked Carol Burnett. (A little back-story: according to The Smoking Gun the Family Guy had asked to use Carol Burnett's theme song in an episode, and she refused.)

On the other hand, if Family Guy was just making a point about... well, it's hard to think of it out of context. If Family Guy was making a point about how celebrities of the past had fallen, under this analysis then that's satire and that's not protected. Sort of.

"Sort of" because of footnote 14 in Campbell v. Acuff-Rose, which is so exquisite as to merit quotation in full:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

At one level, the footnote is nicely in line with the rest of the analysis and contemporary thinking on Fair Use, in which the fourth statutory factor is considered first among equals. The Court here saying, essentially, that where there's less market substitution the requirements are more relaxed, and when there's more risk of market substitution it is "more incumbent on one claiming fair use to establish . . . the parody's critical relationship to the original."

(Sidebar: Some argue that the Campbell decision steps back from seeing factor four as first-among-equals. I don't read the opinion -- especially footnote 14 -- that way, and in any case at least one Circuit has held that factor four is still primary, and that's the way Professor Hughes teaches it.)

Read closely, however, footnote 14 opens the door to satire being fair use. "[W]hen there is little or no risk of market substitution . . . looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required." (emphasis mine).

I call this exquisite because there's a huge problem with the parody/satire distinction and how parodic fair use doctrine has evolved. At first blush, the parody/satire distinction makes sense, and seems to leave plenty of room for the free speech that is the raison d'etre of Fair Use in the first place.

But on closer analysis it becomes clear that parody is far too narrow a defense. Looking at each case individually, the parody/satire distinction works. That is to say, the 'real' Dick and Jane people claim (rightly) that the Yiddish with Dick and Jane book isn't a parody of Dick and Jane, but a satire or social commentary (or just a joke or other expression) that leverages Dick and Jane to make a broader point, and they can point to Poky Little Puppy and Thomas the Tank Engine to make their case, claiming that those would serve just as well.

Similarly, the Guthrie estate could make the same claims about the JibJab video, pointing to some other song that approximates the underlying message of This Land is Your Land. And Carol Burnett could make the same argument, as well. If the message is that celebrities of the past have been brought low. . . I'm sure somewhere there's a relevant animation of Gallagher out there somewhere.

The problem arises when the situation is looked at globally. Because Dick and Jane points to Poky Little Puppy, but Poky Little Puppy is protected by copyright, too. And so is Thomas, and so are most songs that would serve instead of This Land, and so is that Gallagher animation, and so on.

We live in an incredibly referential world, where a huge chunk of our lexicon points to and leverages the expression of others, the vast majority of which is legally protected (by copyright and/or trademark). There's an ongoing conversation threading its way through our culture, and it's becoming more and more difficult to participate meaningfully in that conversation without stepping a little bit over the lines that have apparently been drawn.

How many times, for instance, have you heard or read a poem that takes a mostly octameter acatalectic trochaic poem -- which describes adequately for these purposes The Raven by Poe -- and applies it to some light subject such as cats or hardware malfunctions (or even a not-so-light subject like bombs in Italy)?

Now, okay. The Raven is in the public domain, but pretend for a minute that it was still protected. The linked poems could at least arguably infringe, or at least come close to infringing, and a more comprehensive search could probably turn up so-called parodies that hew more to the line set by The Raven than these do. As well, those poems are emphatically NOT parodies of Poe's poem. They say nothing about, and are not intended to say anything about Poe's poems or Poe himself.

What they do, though, is use the cultural currency that inheres in Poe's poem - the fact that it's so well known, the fact that it's so dark and so effective at communicating that darkness. The poems use that currency as a launching point for their own contributions to the hum of creativity, taking something light and treating it with too much seriousness, or (in the case of that last one) taking something serious and recasting it in terms more readily available to a reader.

It's those contributions that are being stifled under the current proprietarization (there's probably a better word for that) of culture and expression. When we think of the phrase "fair use" without out lawyers' hats on, we think that kind of use should be allowed, because it's fair. Fair to the creator, because it's only taking that which they already sent out into the world, and fair to the world because it allows us to have richer, more subtle, more complex interactions within it. When we put our lawyers' hats back on, though, that expression is disallowed.

Fair use is supposed to be the safety valve for exactly that sort of problem, but the way fair use has been limited -- particularly by the current understanding in practice of parody/satire -- is limiting the doctrine's ability to serve that purpose. Footnote 14 begins to address that issue, by opening the door for "satire," for which I want to read {NOT parody}, where the economic harm to the original creator is minimal.

I don't think the Caroll Burnett - Family Guy case will take us there, but you never know. In any event it will be interesting to see where and how the doctrine develops, and if Footnote 14 is ever given its due.

--Ben D. Manevitz

Viacom YouTube Brouhaha.

2007-03-15T13:46:00.000-05:00

Everyone else is talking about the whole Viacom-YouTube brouhaha, so I thought I'd pipe up as well. There's been a lot of good analysis done, pretty much, but I want to chime in with some small tweaks to the analysis that I think have been missed.

Also, any excuse to use the word brouhaha.

Note/HatTip: A very fine summary of the complaint is available from GoogleWatch.

I've heard and read people out there arguing about the question of YouTube as a service provider under the DMCA, but I don't think a lot of time should be spent on that question. Whatever you want to say about the mechanics of how it goes about its business, YouTube isn't any different from Compuserve or AOL or Joe ISP, and it's exactly the sort of actor that the DMCA was designed to protect. Viacom may try to make the argument, but it seems spurious.

And so, Tweak the first:

Let's assume away an argument that YouTube isn't a service provider as imagined by the DMCA. Instead, Viacom's going to have to try to get Google/YouTube out of the safe harbor by other means. Most likely under 512(c)(1)(B), under which Viacom's going to claim that Google makes money from the infringing material and has the ability to control the activity.

I don't know if Google's ever taken an official position here, but I've heard it argued that Google keeps ads off the pages where the videos are actually displayed specifically to try to stay on the right side of this clause. And in this, it seems it's Google's turn to be silly; It's hard to countenance an argument that Google's not making money from content on a certain page just because there aren't any ads on that specific page when there's clear monetization of the property as a whole. Google's business is ads and eyeballs, and the videos - infringing or not - drive the eyeballs.

Instead, the question is going to turn on Google's ability to control, which will probably devolve onto an analysis of the state of technology. If Google has that ability, which is to say, if it's technically feasible for Google to control the uploading of infringing works, then it's possible that the statute means that Google has to do so. The judicial interpretation of "ability" should certainly include a feasibility/practicality aspect, but who knows how that's going to go. Google has started using a filtering technology, but - presumably - Viacom's not happy with that.

It's possible that Viacom's also trying to work on 512(c)(1)(A)(ii), claiming that Google is "aware of facts or circumstances from which infringing activity is apparent," but I think that the analysis comes down to the same inquiry; Taking Viacom's allegations as true for a minute - Google is aware that there are a lot of infringing works on YouTube - but even so, identifying infringing clips among the bajillions of clips on YouTube is a technical question.

There's another argument of Viacom's that I haven't seen getting a lot of attention. It's a bit technical, but might turn out to be the stealth claim that landsharks Google. Since I haven't seen any analysis on the claim... Tweak the second:

As nicely summarized in the aforementioned GoogleWatch post, Viacom claims that "YouTube is also deliberately interfering with copyright owners' ability to find copyrighted works" by limiting search returns to 1,000 hits. 512(i)(1)(B) limits the safe harbor to service providers that "accommodate[] and do[] not interfere with standard technical measures." Said technical measures are defined in 512(i)(2). It's not untenable for Viacom to argue that by limiting search results in the manner claimed, Google is interfering with such technical measures.

Google would counterargue that the limitation is necessary to avoid the imposition of "substantial costs on [Google] or substantial burdens on their systems or networks," as allowed in 512(i)(2)(C), but I don't know... seems a bit tetchy to me.

Finally, I just want to poke at the DMCA for a minute. A lot of the people with whom I find myself sharing coffee don't like the DMCA. But I actually think that it's not so bad; particularly in that it has two qualities admirable in a statute: (1) it actually comes close to doing what it set out to do and (2) it's at least pointed in the right direction, which is to say that what it sets out to do is what I think should be done with regard to an otherwise thorny problem.

{Edit} In response to the comment below, I clarify that I'm addressing here very specifically the mechanism for dealing with online copyright infringement. Other aspects of the DMCA, including the anticircumvention provisions, are subject to a separate analysis. {/Edit}

That tepid defense of the statute aside, there are some important weaknesses in it, and I think the Viacom/YouTube situation makes some of those weaknesses clear. And so, Tweak the third, which is not so much a tweak as a whinge.

Without going into the whole story, I should disclose that I have taken advantage of the DMCA notice and takedown provisions, in order to successfully (and quickly) stop a splogger from using (whole cloth) a post from my other (pseudonymous) blog. So I have first-hand experience of the DMCA working the way it's supposed to work.

On the other hand, the first phase of the dust-up between Viacom and YouTube demonstrates what I think is a significant weakness in the scheme as it stands now. Of the 100,000 take-down notices lodged with Google by Viacom, many (if not most) were probably overbroad. Say it ain't so, Viacom, but it seems that that they just did keyword searches and sent the notices. (Note: the link points to Just an Online Minute; the third response down is ostensibly from a Viacom rep denying the claim.)

Under 512(c)(3)(A)(v), the notification of claimed infringement must include a "statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." Under 512(c)(3)(A)(vi), that statement is made under penalty of perjury.

But the "penalty of perjury" isn't really where the statute has any teeth. The real insurance against abuse (on this side of the equation) lives in 512(f)(1), which imposes liability for damages including attorney's fees on anyone who knowingly misrepresents that the material is infringing.

But those remedies don't extend to the knowing misrepresentation of other elements of the infringement notice - and I would argue that the remedies should so extend. Moreover, I think the DMCA should make clear that the "knowing" standard in question is an objective standard, which is to say that it includes "should-have-known."

It's a small change, but one that would, I think make the DMCA even better at getting to where it seems to be pointing.

--Ben D. Manevitz

Disney, Porn, and Annoying Things

2007-03-06T22:41:00.000-05:00

In reverse order:

Annoying thing:

I realize it's a thing that many people do. Even smart people. But it still bothers me no end when people conflate the terms "copyright" and "trademark," particularly when the offending party is someone who should know better. In the article I'm going to point to in a moment, it's even worse, because the author keeps switching back and forth.

Disney, and Porn:

A UK mobile phone porn producer has successfully pushed back at Disney. Turns out that the very-small-screen blue film producer ~~trademarked~~ registered the trademark A PLACE WHERE DREAMS COME TRUE. Disney uses the phrase in promoting its theme parks. According to the article, "Preparations for a court case had been made, but Disney lawyers have now backed down."

What that means exactly isn't clear, though it seems that backing down involves little more than not suing, and instead pretty much just infringing and waiting (daring) the little guy to sue. Disney is using THE PLACE WHERE DREAMS COME TRUE.

Yeah, you read that right. Disney has "backed down" by using the phrase exactly as used and registered by someone else but for changing the indefinite article to the definite article.

Okay, so you're not likely to think that the porn guy is behind the theme park. But if it was the other way around, you know that Disney would be All. Over. That.

Back to the Annoying Thing, for a minute:

Look at that article again... Is it a copyright dispute? A trademark dispute? Grrrr....

--Ben D. Manevitz